By Samuel Miller
Impunity Watch Reporter, North America and Oceania
AUSTIN, Texas, United States — The Texas Court of Criminal Appeals halted the execution of a Nicaraguan national who argued that his lawyers had not done enough to present evidence to the court of his diminished mental capacity. Additionally, last week the Inter-American Commission on Human Rights issued a preliminary report finding that the United States violated Tercero’s right to a fair trial.
The Court of Criminal Appeals ordered Tuesday that Tercero’s case return to the trial court in Harris County for review.
Tercero’s current lawyers contend that he suffers from anxiety, post-traumatic stress and depression, and that he has shown signs of psychosis along with limited brain function. Tercero and his current lawyers contend had that evidence been presented by his trial lawyers, the jury might not have sentenced Tercero to death.
According to Tercero’s lawyers, the witness has signed a sworn statement saying that part of her evidence was false. Tercero’s lawyers also say that Mr. Tercero was denied his right to speak to the Nicaraguan consulate after his arrest.
On Oct. 20, 2000, Bernardo Aban Tercero was convicted of capital murder and sentenced to die for the 1997 fatal shooting of Robert Berger, a customer at a Harris County, Texas dry-cleaning shop.
Tercero said that the gun had gone off accidentally as he struggled with Mr. Berger, who tried to thwart the robbery. However, an acquaintance of Tercero’s told the court that he had given her various reasons for killing Mr. Berger, including that he had seen his face and would be able to identify him. Mr. Tercero denied these conversations taking place.
In response to Tercero’s claims, prosecutors in Harris County, Texas argue that the inmate presented his allegations of false testimony too late in the process. State lawyers said that Tercero’s lawyers knew about the alleged false testimony for about 15 years and could have presented the claims “earlier than two days before” the scheduled execution.
The planned execution of Tercero had drawn condemnation from outside the United States. Denis Moncada, Nicaragua’s ambassador to the Organization of American States, told Agence France-Presse that since his country has no death penalty, “it seems pathetic to be on the verge of a Nicuaraguan citizen’s execution.”
Tercero had petitioned for relief multiple times in various courts, eventually asking the U.S. Supreme Court last year to review his case, according to the office of Ken Paxton, the Texas attorney general. The justices declined to review the case.
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