© Richard Carson/ReutersProtestors urge Texan authorities not to execute Edgar Tamayo.
The execution of Edgar Arias Tamayo had been set for 6pm central time, but was delayed by more than three hours after a last-ditch appeal to the US supreme court by Tamayo's lawyers. After considering the appeal on Wednesday evening the court declined to issue a stay of execution, clearing the path for Texas officials to put Tamayo to death by lethal injection at the state penitentiary in Huntsville, near Houston.
Tamayo did not make a final statement in the death chamber, Associated Press reported. After being given a lethal dose of pentobarbital he took a few breaths, quietly snored once and then stopped moving. He was pronounced dead at 9.32pm central time, 17 minutes after the drug was administered.
Tamayo was arrested for the 1994 murder of Guy Gaddis, a Houston police officer, but not promptly advised of his right to consular help. That was a violation of the 1963 treaty known as the Vienna Convention on Consular Relations.
Tamayo's lawyers, Maurie Levin and Sandra Babcock, argued that he might have been given a lesser sentence had Mexican officials been able to assist him sooner. The attorneys claimed that Tamayo was mentally-ill and brain-damaged, with an IQ of 67, but that these discoveries were made too late to affect the trial.
They mounted several appeals and had hoped to persuade a federal court to delay the clemency process on the basis that it was unfair, but a judge ruled on Tuesday that the procedures of the Texas Board of Pardons and Paroles were adequate. After the supreme court's decision, Levin and Babcock released a statement condemning the execution as "shameful and tragic" and accusing Texas of showing "utter disregard for the rule of law and the United States' treaty commitments."
The treatment of Mexican prisoners on death row in the US has been a long-standing cause of complaint south of the border. Mexico's government issued a statement on Sunday expressing "strong opposition" to the execution and saying the foreign ministry had "made use of all available political, legal and administrative means" to prevent it. Several senior Mexican politicians had written to Texas officials, including governor Rick Perry and the Board of Pardons, to request a stay, as did numerous human rights groups and ambassadors of countries including the UK.
John Kerry, the US secretary of state, cautioned Perry and Texas attorney-general Greg Abbott last year that the US's failure to observe international law could lead to Americans abroad not receiving due process in similar situations.
"Mr Tamayo was convicted of killing a police officer. It's not that we don't take that seriously. It's that we take seriously our obligations to uphold consular access for folks incarcerated here because we go all over the world and ask other countries to do the same thing and apply those same obligations when our folks are incarcerated overseas," Marie Harf, a state department spokeswoman, told a media briefing on Wednesday, the Associated Press reported.
Death Penalty Information Center (DPIC) records suggest Tamayo is the 29th foreign national to be executed in the US since capital punishment was reinstated in 1976 and that only one was properly informed of his consular rights. As of 2 July last year there were 143 foreign nationals from 37 countries on death row in the US, according to the DPIC - 61 from Mexico. The next scheduled execution of a foreign national is also in Texas. Edgardo Cubas, a Honduran, is set to be put to death on 29 May.
As well as questioning the fairness of the Texas legal system, Tamayo's lawyers argued that the 46-year-old did not receive a specific review of his case as was mandated a decade ago by the United Nations' main judicial body.
The International Court of Justice ruled in 2004, in what is often called the Avena decision, that about 50 Mexicans on death row in the US, including Tamayo, had not been properly informed of their consular rights. The court ordered the US to conduct a review and reconsideration of each conviction and sentence in order to determine whether the outcomes had been unfairly prejudiced by the failure to adhere to the Vienna Convention.
Then-US president George W Bush told each state to comply with the international court, but Texas successfully argued before the US supreme court in 2008 that the presidential order was not binding given the absence of legislation from Congress.
Eduardo Medina Mora, the Mexican ambassador to the US, said in a letter to Kerry last September that the failure to provide Avena reviews "has become and could continue to be a significant irritant in the relations between our two countries". Capital punishment was officially outlawed in Mexico in 2005, though the country had not put anyone to death since 1961.
Lucy Nashed, a spokeswoman for Perry, said last week: "It doesn't matter where you're from - if you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty."
Tamayo is the third Mexican referenced in Avena to be executed by Texas, following Jose Ernesto Medellin in 2008 and Humberto Leal Garcia in 2011. He is the first not to have received any review of his claim to have been denied consular rights.
The statement from Babcock and Levin criticised both state and federal politicians.
"In their drive to execute Mr Tamayo, the governor and the attorney-general willfully ignored promises they made to our nation's leaders that they would ensure review of Mr Tamayo's consular rights violation. They also steamrolled over evidence that Mr Tamayo is a person with mental retardation whose execution will violate the United States constitution," it read.
"It is shameful and tragic that Mr Tamayo will pay the price for Congress' failure to enact legislation to implement the Avena judgment of the International Court of Justice. It is now imperative that Congress promptly act to ensure passage of legislation that will bring the US into compliance with its international legal commitments and provide judicial review to the Mexican nationals who remain on death row in violation of their consular rights.
Police records show that Gaddis arrested Tamayo for robbery and was taking him to jail when Tamayo pulled out a pistol that had gone unnoticed and shot the 24-year-old officer three times in the back of the head. Tamayo was quickly captured after trying to flee.
The controversial execution of Dennis McGuire using an experimental drug combination in Ohio last week has placed fresh scrutiny on the lethal injection process. Tamayo was the fourth man on Texas's death row to be injected with a single drug made by a compound pharmacy near Houston. The state began using compounded pentobarbital last year after its previous supply of the drug expired.
Texas used a three-drug cocktail until the summer of 2012, but, like other states, has been forced to change its protocols after pharmaceutical companies, most notably in Europe, stopped supplying drugs for use in executions.
Texas is the nation's most active death-penalty state, with 509 executions since 1976. It carried out 16 in 2013 out of a nationwide total of 39 and has another eight scheduled between now and the end of May.
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