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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