In Tercero Case, U.S. Government Fails to Address Violations of Due Process

New York City – Human Rights First today said that the State Department’s response to a petition filed in the case of Bernardo Aban Tercero fails to adequately address legitimate claims that Tercero received ineffective assistance of counsel and, as a result, was not afforded due process in this death penalty case. In today’s response to a petition filed by Human Rights First in the Inter American Commission on Human Rights (IACHR) Michael Fitzpatrick, the State Department Interim Permanent Representative to the Organization of American States, argued that the case was inadmissible due to the petitioner’s failure to exhaust his claims in domestic courts and the petitioner’s failure to demonstrate a breach of U.S. responsibilities under the American Declaration on the Rights and Duties of Man (American Declaration).

“While the U.S. government claims its protections are among the strongest in the world, Mr. Tercero’s case clearly did not benefit from those protections and was not fairly heard,” said Human Rights First’s Melissa Hooper. “Mr. Tercero’s lawyers failed to do the minimum amount of work necessary to identify basic legal claims and facts that would have had a significant effect on the case. The U.S. government should not execute an individual without review of meritorious legal claims and facts.”

Bernardo Aban Tercero, a Nicaraguan national, has been on death row in Texas since 2000 when he was convicted for his role in a shooting during a robbery. The state of Texas recently declared that it will execute him on August 26, 2015, despite the fact that Tercero has had ineffective assistance of counsel at every stage of his proceedings. Several times during the 15 years his case has been pending, Tercero attempted to communicate to the court that his lawyers were not providing adequate representation. But the court took no action in response, at one point telling him that his complaints could only be raised through his ineffective lawyers. News articles have confirmed the claim that the attorneys representing Tercero regularly did work that did not meet minimum standards.

As a result of the failures of his repeatedly constitutionally deficient counsel, there was never a full investigation into his background or social history as is required to meet minimum American Bar Association standards for representation in a capital case. Additionally, despite significant evidence of risk factors, there is no evidence that Tercero himself was ever evaluated for mental illness or intellectual disability, which if diagnosed would make him ineligible for the death penalty under U.S. and international law.

Human Rights First notes that contrary to the State Department’s claims, Tercero did exhaust his domestic remedies, to the extent that he was able, given the procedural bars to review in the U.S. system. Tercero’s lawyers regularly abandoned or failed to develop his claims, barring him from obtaining competent review of many of those proceedings, including the facts that he was able to allege now only because an NGO and the IACHR funded the beginnings of an investigation into his case. Having done the best with the broken process provided, Tercero met all of the requirements for review. Furthermore, the organization points out that the IACHR has already ruled on the admissibility of the petition, and requested measures to prevent a significant human rights violation in its June 24, 2015 decision – now is not the time to rehear those decisions.

The State Department response argued that precautionary measures requested by the IACHR under the American Declaration are non-binding on the United States. Human Rights First notes that as a signatory to the American Declaration, the U.S. government should not argue that international norms applicable throughout the Americas do not apply on U.S. soil.

The Nicaraguan government has expressed interest in the case, submitting a letter to President Obama requesting that Tercero be pardoned. The letter has been forwarded to Texas Governor Greg Abbott for consideration.

“Executing Mr. Tercero without full due process not only goes against our nation’s values, but could put Americans arrested overseas at risk. We urge Governor Abbott to take the request for clemency seriously in this case, and urge the Texas Board of Pardons and Paroles to grant a stay of execution,” added Hooper.

For more information or to speak with Hooper, contact Mary Elizabeth Margolis at margolisme@humanrightsfirst.org or 212-845-5269.