Concerns Remain in Tercero Case

Bernardo Aban Tercero is a Nicaraguan national on death row in Texas whose case wound through state and federal courts for over a decade without competent legal representation. As the scheduled day of his execution neared, the Inter-American Commission on Human Rights (IACHR) raised due process concerns, and the Texas Court of Criminal Appeals granted Tercero a stay on August 25.

But that’s not the end of the story.

Many of the fundamental rights violations the IACHR identified in Tercero’s case remain unaddressed and uninvestigated. The IACHR’s report also identifies several troubling patterns of rights violations endemic in death penalty cases in the United States and Texas that require systemic reform.

Tercero was convicted for the 1997 murder of Robert Berger, a Texas schoolteacher, during a robbery gone wrong. Tercero was indicted with a co-defendant who was never found or tried. His state-appointed counsel repeatedly failed to investigate credible evidence that Tercero was intellectually disabled, suffered from serious psychiatric problems, and had early exposure to pesticides known to cause developmental delays.

Had any of this evidence been investigated and presented to the jury, it could have reduced Tercero’s moral culpability, making the jury less likely to issue a death sentence. Furthermore, these conditions may make him legally ineligible for the death penalty.

Despite raising these concerns with his trial, state, and federal habeas lawyers, and requesting the appointment of competent counsel from the court, Tercero never received a serious investigation into these issues. And despite his complaints about his counsel’s effectiveness, there was never any investigation into the quality of prior counsel, as required by state and federal bar guidelines. In fact, despite nearly a decade and a half in U.S. courts, the report Human Rights First submitted to the IACHR in July 2015 was the first filing to comprehensively document the repeated and compounded due process violations in Tercero’s case.

In its decision on the merits the IACHR concluded that by failing to remedy the systemic deficiencies in Tercero’s representation, the United States violated his rights to a fair trial and to due process of law as protected by Articles XVIII and XXVI of the American Declaration of the Rights and Duties of Man.

Although Texas granted a temporary stay to investigate troubling allegations of witness tampering by the prosecution—another issue that should have been investigated by prior counsel—the fundamental issues of inadequate counsel still have not been considered by any U.S. court.

As the IACHR report noted, many of the issues in Tercero’s case may never be addressed because of procedural bars on review of death penalty cases in the U.S. legal system. The report also described a pattern of repeated access to counsel violations in U.S. death penalty cases. In light of these ongoing problems, the IACHR calls for the United States to review its laws and procedures to ensure that they align with international standards on due process and representation in a capital case, along with a moratorium on executions.

Human Rights First urges the United States to heed the findings in the IACHR report and bring its practices in line with its international human rights obligations.

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Published on November 23, 2015

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