Tomayo’s Case
On January 22, 2014, Edgar Tomayo was executed by lethal injection in the prison in Huntsville, Texas. Handcuffed and in the back of a patrol car after being arrested for auto theft, Tomayo produced a concealed hand gun and murdered the arresting police officer, 24 year-old Guy Gaddis. He shot the officer three times in the back of the head. Tomayo had a criminal history. His crime was one for which he should never have been considered for release from prison. But his execution had unintended consequences.
Executing Foreign Nationals
Other countries that do not have a death penalty do not like it when we execute their citizens. The United States currently has Mexican citizens on death row. Every time one of them is executed, it is a foreign relations disaster. In 2004, the International Court of Justice at The Hague found that the United States had violated Article 36 of the Vienna convention in 51 cases of Mexican citizens being given the death penalty, because it did not grant them the right to consular assistance.
After his arrest for murdering Officer Gaddis, Tomayo was not given timely access to the Mexican consul. It is very offensive to other countries that not only are we executing their citizens; we do so even when the rights of those citizens under international treaties have been violated. Tamayo’s lawyers argued the consulate access violation was more than a technicality, and that Mexican officials would have ensured he had the most competent trial defense possible, if they had been able to speak with him right after his felony arrest.
Vice President Joe Biden and Secretary of State John Kerry, and many high-level United States and Mexican officials, futilely asked Governor Perry to commute the sentence from death to life. John Kerry worried his execution “could impact the way American citizens are treated in other countries.” Many felt the execution of Mr. Tamayo violated the United States’ treaty commitments, threatened the nation’s foreign policy interests, and undermined the safety of all Americans abroad.
The execution was delayed as prison officials awaited word from the United States Supreme Court, but only temporarily. Despite the ruling from The Hague, the United States Supreme Court found Department of Justice exempt from the Vienna convention and denied a stay of execution. Tamayo was injected with pentobarbital at Huntsville prison. He was pronounced dead 17 minutes later.
Rejecting the plea for clemency made by the Mexican government was viewed by the government of Mexico (and the countries that are parties to the Hague convention), as another example of arrogance by an imperialistic power. In recent history, the United States unilaterally destroyed the government and institutions of Iraq, and has been spying on just about everyone in the world, friend or foe. When any of our 50 states executes a foreign national, other countries see it as an act of the United States government, rather than the act of an individual state. In this case, the execution was carried out by Texas. It is the most death-penalty-friendly member of the United States. (In the past five years, Texas has executed two other Mexicans convicted of murder who raised similar claims. The Supreme Court refused to delay either of those executions, which took place in 2008 and 2011..)
Creating an Undeserving Martyr
As bad as this loss of political capital is, there may have been a worse consequence at a grass roots level. As his execution date approached, Tomayo became a star, and the execution of this violent criminal made him a martyr. His case was covered intensively by all of the Mexican media, and the coverage was sympathetic to him. Two hours before his execution, he gave a live interview to a local station, which was replayed again and again in the mainstream media, including the shows of Joaquin Lopez Doriga and Jose Cardenas of Radio Formula – two well-regarded Mexican journalists. Tomayo requested several songs, including Amor Eterno for his mother, and Puño de Tierra for himself.
His remains were transported to his native state of Morelia. His family was not to blame for the crimes Tomayo committed, but his execution has caused them to receive the treatment usually reserved for a member of the armed services lost in battle, or, in a sad bit of irony, a police officer killed in the line of duty. Influential commentators in the Mexican media discussing Tomayo’s execution frequently lump his case in with incidents in which law enforcement mistreated Mexican citizens, such as shooting Mexican rock-throwers at the border, and beatings of undocumented Mexican immigrants.
There was no serious question after Tomayo’s trial and conviction and appeals – which took place over a period of 20 years – that he was guilty of a horrendous murder of an innocent victim. However, as his execution was nearing, he and some of his supporters started spinning that, and now there are many who have been left with the impression that he may have been innocent. When we execute the citizens of other nations, and do not afford them proper procedural safeguards, the world becomes cynical about the fundamentals of our justice system.
Justice Blackmun, less than two months before retiring from the Supreme Court, wrote in his dissent in Callins v. Collins:
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years, I have endeavored – indeed, I have struggled – along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question – does the system accurately and consistently determine which defendants “deserve” to die? – cannot be answered in the affirmative.
A number of the other members of the Supreme Court have expressed misgivings about the death penalty. However, Justice Neil Gorsuch, who replaced the late Justice Antonin Scalia on the Supreme Court, has appeared so far to be very conservative. It looks like the issue of capitol punishment will continue to be left primarily to state legislatures and voters and state supreme courts. Two recent developments on the state level have been alarming for death penalty opponents. In Nebraska, voters approved an initiative that reversed the decision of the legislature to repeal the death penalty. Even in liberal California, an initiative to repeal the death penalty failed, and an opposing initiative to speed up the process in death penalty cases failed.
Callins v. Collins (1994) 510 U.S. 1141.
Supporters of capital punishment should consider that it has far-reaching and often unintended consequences. One sad result of the imposition of the death penalty in this case, was that at the end of the day, the world mourned the death of a cop-killer more than that of the hero he murdered.
UPDATE JANUARY 2018- The present administration is not going to try to persuade death penalty states to commute death penalties of foreign citizens (or anybody else). Foreign citizens continue to be executed in the US, even in cases where their governments try to intercede on their behalf.
UPDATE MAY 2018- Since Edgar Tomayo, the courts have allowed executions to move forward in several previous Texas death row cases in which the Vienna Convention of Consular Relations was allegedly violated. One of these includes the execution of Rubén Cárdenas Ramírez, a Mexican citizen, in November 2017. Following Mr. Cardenas’ execution, Mexican President Enrique Nieto stated, “I express my firm condemnation of the execution of the Mexican Rubén Cárdenas Ramírez in Texas, which violates the decision of the International Court of Justice. My deepest condolences to the mourners.”