Inter-American Commission on Human Rights Confirms Serious Due Process Violations in Texas Death Penalty Case
New York City - Human Rights First today applauded the Inter-American Commission on Human Rights (IACHR) for rightly recognizing the serious due process violations in the case of Bernardo Aban Tercero, a Nicaraguan national scheduled to be executed by the state of Texas on August 26, 2015. In its preliminary report on the merits of the case released yesterday, the IACHR found that the United States violated Tercero’s rights to due process and a fair trial that are enshrined in Articles XVIII and XXVI of the American Declaration of the Rights and Duties of Man, a regional legal instrument to which the United States is a party.
“We welcome this opinion from the Inter-American Commission, which makes clear that the United States has failed to meet its obligations under the American Declaration to afford Mr. Tercero his due process rights,” said Human Rights First’s Melissa Hooper. “One week from today, Mr. Tercero is scheduled to be executed. We urge the Texas Court of Criminal Appeals to do the right thing by adhering to the Comission’s recommendation to stay the execution until a review of Mr. Tercero’s trial and sentence can take place."
The IACHR preliminary report recognized repeated failures on the part of Tercero’s court-appointed counsel at every stage of his proceedings, including pre-trial, trial, appeal, and post-conviction review. The IACHR also stated that Texas failed to ensure adequate representation, violationg Tercero's rights to due process and to a fair trial. The IACHR also noted that that the fundamental nature of that guarantee is reflected in American Bar Association practice guidelines for lawyers, standards Tercero’s lawyers repeatedly failed to meet. The IACHR found that the United States’ system of strict procedural bars on post-conviction review does not comply with Inter-American standards on the right to judicial review that are a fundamental part of due process protections.
In light of the numerous violations of the rights to due process and a fair trial in Tercero’s case, the IACHR recommended that the United States grant Tercero effective relief, including review of his trial and sentence, this time with adequate representation. The IACHR also urged the United States to review its laws, procedures, and practices to ensure that persons charged with capital crimes are afforded due process, and to issue a moratorium on the execution of all persons sentenced to execution until such a review is performed. Finally, the IACHR warned that, if Tercero’s execution proceeds without full review of his claims, that would constitute a grave violation of the right to life, which is protected under Article I of the American Declaration.
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. As a result of the failures of his inadequate representation, 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. 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.
Last week, the State Department issued a response to the petition filed in this case. The State Department response failed to adequately address legitimate claims that Tercero received ineffective assistance of counsel and was not afforded due process in this death penalty case. The State Department also 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 United States has committed to follow the international norms outlined in that document and applicable throughout the Americas. 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.
Human Rights First continues to call on the Texas courts, where motions in Tercero’s case are currently pending, to allow for a full review of his case and stay his execution until such review is completed.