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August 04, 2015

Texas Set to Execute Nicaraguan Who Never Had Competent Legal Representation

By Katy Naples-Mitchell

Bernardo Aban Tercero, a Nicaraguan national, has been on death row in Texas since 2000, when he was convicted of intentional murder during an armed robbery. Texas scheduled his execution for August 26, 2015, despite the significant legal claims that have gone uninvestigated for the last 15 years.

Mr. Tercero was saddled with a constitutionally deficient trial lawyer who lacked capital experience. He was only appointed to represent Mr. Tercero because he spoke Spanish. Among the litany of errors the lawyer committed, most glaring was his failure to conduct any substantive investigation into Mr. Tercero’s background and social history—a requirement to meet minimum American Bar Association standards for representation in a capital case.

In over a decade of appeals and habeas petitions, Mr. Tercero never received competent representation. The state of Texas knew that the attorneys appointed in Mr. Tercero’s case were not up to par. A 2006 Austin American-Statesman article described how common it was for sloppy lawyers to bungle appeals for death row inmates, “submitting work that falls far below professional standards, frequently at taxpayer expense.” That investigation highlighted two of Mr. Tercero’s lawyers—Sid Crowley, his state appellate lawyer, and Dick Wheelan, his state habeas lawyer—as among the worst of the worst.

In 2007, the Texas State Bar also investigated habeas attorneys, finding “recurring problems” in death penalty representation “which undermine[d] the integrity of capital habeas practice in the Texas courts.” Mr. Tercero himself filed repeated petitions asking the courts to replace the attorneys who were failing him, but the courts repeatedly denied his requests.

Due to his grossly ineffective counsel, there was never a full investigation into many of Mr. Tercero’s legal claims, his background, or the adequacy of his trial representation. Consequently, courts have not considered several factors that would make him ineligible for the death penalty under U.S. law.

For example, in May 2015, an independent investigation uncovered new evidence of a family history of serious hereditary mental illness, calling into question Mr. Tercero’s own mental capacity. Unfortunately, due to draconian rules of procedure, since Mr. Tercero’s habeas attorneys failed to develop or present such claims, those claims are now permanently barred from being raised in federal court.

Members of the American Bar Association and Texas Defender Service approached Human Rights First in May of this year, concerned that Texas was moving forward with the execution despite the wealth of still-uninvestigated evidence in Mr. Tercero’s case. Human Rights First took an interest in the case because it represents a fundamental miscarriage of justice. Executing Mr. Tercero without adequate representation and investigation violates U.S. and international law on the rights to a fair trial and due process.

On July 10, 2015, Human Rights First filed observations on the merits in the Inter-American Commission on Human Rights (IACHR), thoroughly reviewing for the first time Mr. Tercero’s representation at every stage of his proceedings and detailing the repeated failures of due process in his case.

The IACHR will likely issue a decision on the merits within the next two weeks. We expect that decision to echo what is already known: the state of Texas must respect Mr. Tercero’s right to due process by providing him a forum in which to develop all of his unadjudicated claims, including those that may bar his execution, with the assistance of counsel who will adequately represent him. If Texas ignores the IACHR’s recommendations and denies Mr. Tercero that opportunity, it risks executing a man in violation of international law—and the U.S. Constitution.