"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Monday, August 24, 2015

After Little Help From Counsel, Inmate to Die

Bernardo Aban Tercero
Bernardo Aban Tercero
Tercero's execution would be 12th in Texas this year

On March 31, 1997, Robert Berger and his 3-year-old daughter walked into the Park Avenue Cleaners in Houston at the same exact time Bernardo Aban Tercero and an accomplice were trying to pull off a robbery. His interruption irked Tercero, and the 2 started scuffling. When Berger tried to separate himself, Tercero shot him in the head. Tercero returned to his native Nicaragua after the robbery, but on Nov. 20, 1997, he was indicted for capital murder. He was found thanks to the help of a female acquaintance in July 1999 in Mexico, attempting a return to the United States.

Tercero's attempts to take control of his own fate suffered mightily immediately thereafter. Apprehended, his requests to speak with the Nicaraguan Consulate-General (a right under the Vienna Convention on Consular Relations) was denied, and he was returned to Harris County, where a trial began in October of 2000. There, he received the counsel of 2 attorneys - Gilbert Villarreal and John Denninger - who did little to aid their client, filing no motions to request a mitigation investigator or any other experts that could conduct background investigations or prepare a social history. In fact, of the $21,670 trial counsel was provided by the court in order to perform due diligence in preparing a case to defend Tercero against capital murder, the 2 only used $13,200 - to travel to Nicaragua (2 weeks before the trial), and pay for travel and lodging for Tercero's family during the trial. There, they did an inept job of representing Tercero, calling one witness to the state's 17. That 1 witness was Tercero himself; he testified that the murder was unintentional. Nevertheless, a weeklong trial returned a guilty verdict. The state called 6 witnesses at punishment, most of whom were Nicaraguan and could testify to Tercero's history of robberies and kidnappings. He was sentenced to death on Oct. 20, 2000.

Attorneys Dick Wheelan and James Crowley, assigned at different times to aid Tercero's appeals process, did little to help his case, either. They glossed over interview opportunities with jurors, trial counsel, or any of the involved witnesses. Further, in Wheelan's case, he neglected to secure any type of background records, including birth records - an important item as Tercero maintained that his age - 17 - barred him from the death penalty under the Supreme Court's decision in Roper v. Simmons. No surprise, then, that his claims for relief weren't upheld in federal court, where a judge ruled that each was either exhausted and/or procedurally defaulted, or at the Court of Criminal Appeals or the state habeas court.

On Tuesday, Tercero's counsel filed a petition for a stay of execution based on their client's mental competency (a prison doctor has diagnosed Tercero with psychosis), as well as a motion to reconsider certain claims that had been barred. He's currently scheduled for execution at 6pm on Wednesday, Aug. 26. Should it happen, he'd be the 11th Texan executed this year, and 529th since the state's reinstatement of the death penalty in 1976.

Source: Austin Chronicle, August 20, 2015

IACHR Concludes that the United States Violated Bernardo Aban Tercero's Fundamental Rights and Requests that his Execution be Suspended 

The Inter-American Commission on Human Rights (IACHR) urges the United States of America to stay the execution of Bernardo Aban Tercero, a Nicaraguan citizen, which is scheduled to take place on August 26, 2015, in the state of Texas, and to grant him effective relief, including the review of his trial in accordance with the due process and fair trial guarantees set forth in the American Declaration. The United States is subject to the international obligations derived from the Charter of the Organization of American States and the American Declaration since it joined the OAS in 1951. Accordingly, the IACHR urges the United States, and in particular the state of Texas, to fully and properly respect its international human rights obligations.

The IACHR granted precautionary measures to protect the life and physical integrity of Bernardo Aban Tercero on April 4, 2013. The request for precautionary measures was filed in the context of a petition alleging the violation of rights recognized by the American Declaration. Through the precautionary measures, the Commission asked the United States to refrain from carrying out the death penalty until the IACHR had the opportunity to issue a decision on the petitioner's claims regarding the alleged violations of the American Declaration.

The IACHR decided the case was admissible on June 24, 2015. On August 18, 2015, the IACHR adopted Report No. 50/15 on the merits of the case and determined that the United States is responsible for the violation of the rights guaranteed in Articles XVIII and XXVI of the American Declaration, with respect to Bernardo Aban Tercero. The Inter-American Commission concluded, among other findings, that the State's failure to respect its obligation under Article 36.1 of the Vienna Convention on Consular Relations to inform Bernardo Aban Tercero of his right to consular notification and assistance deprived him of a criminal process that satisfied the minimum standards of due process and a fair trial required under the American Declaration. According to the Commission's jurisprudence, the rights to notification and to contact a consular official are part of the due process guarantees that apply in the prosecution of a foreign national. The IACHR also concluded that during the process against Bernardo Aban Tercero, his court-appointed counsel committed serious mistakes that affected his right to defense, especially taking into account the applicable standards in a case involving the death penalty. The Commission also concluded that he did not have a possibility to have his sentence effectively reviewed due to the limitations imposed by federal laws and the interpretation of the national courts.

Accordingly, the Commission recommended that the United States review of Bernardo Aban Tercero's trial and sentence in accordance with the guarantees recognized in the American Declaration. It also requested the State to ensure that every foreign national deprived of his or her liberty is informed, without delay and prior to a statement, of the right to consular assistance and to request that the diplomatic authorities be immediately notified of his or her arrest or detention. Also, taking into account the facts of this case, the IACHR recommended the United States to implement measures to ensure that the juridical assistance offered by the State in cases of death penalty be really effective and that the counsel is adequately trained to act with the required due diligence. The Commission further recommended, as has already done in other cases before, that the United States push for urgent passage of the bill for the "Consular Notification Compliance Act" ("CNCA"), which has been pending with the United States Congress since 2011.

The United States has 5 days to report on the measures adopted to comply with the recommendations made by the IACHR. The Inter-American Commission urges the State to ensure full compliance with all the recommendations and in this way to remedy the violation of Bernardo Aban Tercero's fundamental rights. Should the state of Texas carry out this execution, it would be committing a serious and irreparable violation of the basic right to life recognized in Article I of the American Declaration. The IACHR further reiterates that noncompliance with precautionary measures seriously contravenes the United States' international legal obligations and undermines the effectiveness of the Commission's procedures.

The Inter-American Commission has dealt with the death penalty as a crucial human rights challenge for decades. While a majority of the member States of the Organization of American States has abolished capital punishment, a substantial minority retains it. In this regard, the Commission notes that the United States is currently the only country in the Western hemisphere to carry out executions.

The Commission reiterates the recommendation made in this and other cases, as well as in its report "The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition", that States impose a moratorium on executions as a step toward the gradual disappearance of this penalty.

The IACHR is an autonomous organ of the OAS, and derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance of human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of 7 independent members who are elected by the General Assembly of the OAS in a personal capacity and do not represent their countries of origin or residence.

Source: oas.org, August 20, 2015

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