Aug. 6
TEXAS:
NICARAGUAN NATIONAL FACING EXECUTION IN TEXAS
Bernardo Aban Tercero, a Nicaraguan national, is scheduled to be executed in
Texas on 26 August for
a murder committed in 1997. The poor quality of the legal representation he
received at trial and
during state-level appeals is at the center of his clemency bid.
Click here to view the full Urgent Action in Word or PDF format, including case
information,
addresses and sample messages.
Robert Berger was shot dead on 31 March 1997 during a robbery of a dry cleaners
in which he was
waiting with his five-year-old daughter, in Houston, Texas. Bernardo Aban
Tercero was arrested in
1999 when re-entering the USA having returned to Nicaragua after the crime. In
2000, he was
convicted of capital murder. At the sentencing, the prosecution argued that
this crime and his
alleged involvement in crimes in Nicaragua after he left Texas showed that he
would be a future
danger – a prerequisite for a death sentence in Texas. Among other things, the
prosecutor described
the defendant as a “beast” and a “demon”. The defense lawyers did not object to
these inflammatory
comments meaning that this issue was forfeited on appeal. In a bare mitigation
case, the defense
presented members of the defendant’s family as character witnesses and to argue
that he was capable
of rehabilitation. A jail chaplain testified that he had shown remorse. The
jury voted for the death
penalty.
The defendant’s inexperienced lawyers had done little investigation into
possible mitigation and
presented no expert testimony to the jury – such as from a mental health expert
– or from anyone
else who could describe how the defendant’s childhood in Nicaragua – marked by
abject poverty, war
and exposure to toxic pesticides as a child laborer – might have impacted his
life and conduct.
Following the trial, the lawyer appointed for state habeas corpus appeals
failed to raise a single
claim outside of the trial record (the purpose of such appeals), and did not
conduct his own
investigation of the case or of the mitigation failure by the trial lawyers. In
2006 a leading Texas
newspaper published an investigation into the poor quality of capital defense
representation in the
state. The two lawyers appointed to represent Bernardo Aban Tercero for state
level appeals featured
prominently in this review.
Bernardo Aban Tercero grew up in extreme poverty in Nicaragua. He was raised by
his elderly
grandmother after he was abandoned by his mother as a baby and his father
refused to have anything
to do with him. The family had no electricity or running water, and no access
to health care. They
lived in an area greatly affected by the civil war in the 1970s and 80s.
Poverty meant that even the
children worked. According to his clemency petition, which provides the
executive authorities with
mitigating evidence not presented to the jury, Bernardo Aban Tercero worked in
the fields for years
from the age of 10. Planes would spray toxic pesticides every two days, with
the workers below not
provided protective gloves or masks. Bernardo Aban Tercero was among those who
became sick and
vomited after such sprayings, and suffered severe headaches. Relatives have
said that he was one of
the worst affected. A neuropsychological assessment is currently being produced
for the clemency
effort.
ADDITIONAL INFORMATION
An employee of the dry cleaning business where the murder occurred said that
she had helped to
orchestrate the robbery with Bernardo Aban Tercero, who lived with her sister
and needed money.
According to the record, there was a co-defendant who fled to Mexico and was
never tried. At his
trial in 2000, the defense argued that Bernardo Aban Tercero had lacked the
intent necessary for
capital murder. The only witness called by the defense, to counter the 17
witnesses presented by the
prosecution, was the defendant himself. He testified that the victim Robert
Berger had tried to grab
his gun and it had gone off during the ensuing struggle. He also alleged that
the employee had been
a willing participant in the plan. The prosecution maintained that specific
intent could be inferred
from evidence that he had used threats to coerce the employee into her
participation, that he had
taken a loaded gun with him into the dry cleaners, and that he had shot the
victim because he could
identify him. The jury convicted him ofor capital murder and, after voting yes
to the “future
dangerousness” question and finding no mitigation to warrant a life sentence,
sentenced him to
death.
Click here to view the full Urgent Action in Word or PDF format.
Name: Bernardo Aban Tercero (m)
Issues: Death penalty, Unfair trial, Legal concern
UA: 176/15
Issue Date: 6 August 2015
Country: USA
Please let us know if you took action so that we can track our impact!
EITHER send a short email to u...@aiusa.org with “UA 176/15” in the subject
line, and include in the
body of the email the number of letters and/or emails you sent,
OR fill out this short online form to let us know how you took action.
Thank you for taking action! Please check with the AIUSA Urgent Action Office
if taking action after
the appeals date. If you receive a response from a government official, please
forward it to us at
u...@aiusa.org or to the Urgent Action Office address below.
HOW YOU CAN HELP
Please write immediately in English or your own language:
* Call for this execution to be stopped and for Bernardo Aban Tercero’s death
sentence to be
commuted;
* Express concern at the inadequacy of his appointed counsel’s representation
at trial and on
appeal, and calling on the clemency authorities to seriously consider the
mitigating evidence
which the jury did not hear;
* Explain that you are not seeking to excuse the crime or minimize its very
serious consequences.
PLEASE SEND APPEALS BEFORE 26 AUGUST 2015 TO:
Clemency Section, Board of Pardons and Paroles
8610 Shoal Creek Blvd.,
Austin, Texas
78757-6814, USA
Fax: 011 1 512 467 0945
Email: bpp-...@tdcj.state.tx.us
Salutation: Dear Board members
Governor Greg Abbott
Office of the Governor,
P.O. Box 12428
Austin, Texas 78711-2428, USA
Fax: 011 1 512 463 1849
Salutation: Dear Governor
Please share widely with your networks: http://bit.ly/1IZISUv
We encourage you to share Urgent Actions with your friends and colleagues! When
you share with your
networks, instead of forwarding the original email, please use the "Forward
this email to a friend"
link found at the very bottom of this email. Thank you for your activism!
UA Network Office AIUSA │600 Pennsylvania Ave SE, Washington DC 20003
T. 202.509.8193 │ F. 202.509.8193 │E. u...@aiusa.org │amnestyusa.org/urgent
********************
impending execution:
see----http://www.amnestyusa.org/get-involved/take-action-now/usa-stop-the-execution-of-bernardo-aban-tercero-ua-17615
(source: Amnesty International)
****************
Executions under Greg Abbott, Jan. 21, 2015-present----9
Executions in Texas: Dec. 7, 1982----present-----527
Abbott#--------scheduled execution date-----name------------Tx. #
10---------August 12----------------Daniel Lopez----------528
11---------August 13----------------Tracy Beatty----------529
12---------August 26----------------Bernardo Tercero------530
13---------September 29-------------Perry Williams--------531
14---------October 6----------------Juan Garcia-----------532
15---------October 14---------------Licho Escamilla-------533
16---------October 28---------------Christopher Wilkins---534
17---------November 3---------------Julius Murphy---------535
18---------January 20 (2016)-----Richard Masterson--------536
(sources: TDCJ & Rick Halperin)
NEW YORK:
Aug. 6, 1890: Buffalo man is 1st to be executed by electric chair
On this date in 1890, a Buffalo man had the dubious honor of being the 1st man
to meet his death on the electric chair. And that isn't Buffalo's only tie to
the chair.
The electric chair was the brainchild of Buffalo dentist Alfred P. Southwick.
The last execution to take place in New York was that of Eddie Mays in 1963;
Mays died by the electric chair. The death penalty was illegal for years after
that. More recently, then-Gov. George Pataki made it legal again in 1995, but
in 2004, the New York Court of Appeals ruled it unconstitutional. New York, in
total, has executed 1,130 people, according to DeathPenaltyInfo.org.
In this story published Aug. 5, 1979, The News relived the scene of William
Kemmler's death and took a look back at the history of the death penalty.
***
The heavy oak chair cast a gruesome shadow across the stark room at Auburn
State Prison on that late summer morning of Aug. 6, 1890. The prisoner was led
in quietly before an anxious gallery of 21 witnesses.
"Don't let them experiment on me more than they ought to," pleaded William
Kemmler. He was a murderer, convicted of the hatchet slaying of another man's
wife.
Kemmler sat down in the square-framed wooden chair with a high, slightly
sloping back and broad arms. Electrodes were attached to his head and 1 leg.
Erie County Sheriff's Deputy Joseph Veiling checked the straps holding the
prisoner in place.
"Goodbye Willie," Deputy Veiling cried as he rapped twice on a door to signal
the man at the switch in the next room. A whistling sound was heard and some of
the witnesses averted their eyes from the man strapped in the chair.
Kemmler's body stiffened, his skin appeared to turn pale and then dark red. The
fingers of his left hand appeared to grasp the chair arm.
After 17 seconds, the high-voltage electric current was turned off and a prison
doctor intoned, "I declare this man dead."
The next instant a deep groan was heard from Kemmler, and some of the witnesses
began to scream, "Turn on the current!" A second flash of electricity was sent
through the electrodes. After 2 minutes the executive chamber filled with the
smell of burning flesh.
2 of the witnesses fainted. Several others were overcome with severe attacks of
nausea. As they filed out, Sheriff Oliver A. Jenkins was heard to say, "I never
want to see another sign such as that."
Among those involved in this 1st execution by electricity was Dr. Alfred P.
Southwick, a prominent Buffalo dentist who is credited with inventing the
electric chair.
Dr. Southwick and another Buffalo physician, Dr. George E. Fell, had been
experimenting with electrocution as a more humanitarian way of executing
convicted capital criminals.
The 1st high-voltage execution was not well received. William Kemmler was an
illiterate vegetable peddler, a mentally retarded resident of a Buffalo shanty.
He was convicted on May 19, 1889, of the sordid hatchet murder of Mrs. Tillie
Ziegler, who was described as "a woman of easy virtue."
The day after the execution, in front-page stories, Buffalo newspapers called
the event a "historic bungle." Other criticisms labeled it as "disgusting,
sickening and inhuman."
(source: Buffalo News)
GEORGIA----female to face death penalty
Death penalty sought for Forsyth mother who killed child
Prosecutors are seeking the death penalty against the mother of a 5 year-old
girl who was killed in May 2014.
Amanda Hendrickson was charged in her daughter Heaven Woods' death last June.
Authorities say the child died after months of abuse and blunt force trauma to
the abdomen in May of 2014.
District Attorney Richard Milam says Hendrickson is eligible for the death
penalty for 2 reasons: because the death was caused by aggravated battery and
is "wantonly vile, horrible and inhuman" - the definition used in the state
statue.
Hendrickson and her boyfriend Rodney Bucker were arrested and charged with
murder. Bucker got a life sentence in June after he plead guilty to Woods'
death.
****************
Bright reflects on his time as District Attorney
After 34 years, the Ocmulgee Circuit District Attorney says he'll retire at the
end of the month for health reasons.
Fred Bright joined the district attorney's office right out of college in 1981
as an assistant D.A. He reflected on his time in office on Wednesday, which
included 13 death penalty trials and 8 defendants on death row.
He's prosecuted more than 100 murder cases, tried 13 death penalty cases and
sent 8 to death row. One man, Brandon Rhode, was executed in 2010 after he and
Daniel Lucas killed 3 members of the Steven Moss family in the late 90's.
Ocmulgee Circuit District Attorney Fred Bright says he remembers it all too
well.
"Slaughtered in the sanctity of their own home," he said. "I still remember
that. Thirteen shots were fired and all 13 hit flesh, hit 1 of the victims."
In December of 1995, Bright was woken up at 4 in the morning to a phone call
from Howard Sills, who was the Chief Baldwin County Deputy at the time. Bright
says he'll never forget it.
"(He says) 'Fred I lost one tonight.' (I say) 'what are you talking about?," he
said. "'I lost a deputy.' 'What do you mean you lost a deputy?' He was shot and
killed in the line of duty. 'Really? Are you kidding me?' 'Fred, you've known
me a long time, would I kid you about that?' 'No, and I need you, wake up.'
Splashed water on my face, tell me what you got? And he ran it by me, and I
couldn't go back to sleep. The next day, I rode up to the scene. There were
still tons of law enforcement cars out there."
Bright says he's seen and heard many stories as district attorney, and he
talked about exactly what he'll miss.
"(It's) forced me to deal with people from different walks of life," he said.
"But I'll miss the people, the law enforcement community that I work with, my
sheriffs, my deputy sheriffs (and) my city policemen. We're like a big family.
They're great."
Bright says he's not looking forward to it, but he's retiring due to health
problems. He's been diagnosed with a slow-progressing form of non-Hodgkins
Lymphoma. For the next 6 to 8 months, he'll go through chemotherapy and undergo
a bone-marrow transplant.
"It won't be fun. I won't like it," he said. "It'll put me out of commission
for pretty much 6 to 8 months, but I'll do what I gotta do."
So what does the future hold for Bright?
"I do still have my law license, and I do plan on coming back in some
capacity," he said. "(As) what? I honestly don't know at this point."
Bright says his last day will be August 31.
Bright's first assistant, Stephen Bradley will become the interim District
Attorney until Governor Nathan Deal appoints someone to fill Bright's unexpired
term. That term ends December 31, 2016.
(source for both: WMAZ news)
FLORIDA:
Death penalty problems
Florida lawmakers have failed to fix our state's deeply flawed method of
sentencing people to death, so the U.S. Supreme Court might have to do it for
them. This fall, the court will hear arguments in a challenge to the way jurors
recommend death sentences in Florida. As the News Service of Florida recently
reported, the challenge is backed by the American Bar Association and 3 former
Florida Supreme Court justices.
The group, justices and others argue that the state's unique sentencing system
is unconstitutional. Florida juries only recommended death sentences, leaving
the ultimate decision to the judge, and can make those recommendations by a
simple majority vote.
Florida is 1 of just 3 states in which jury votes aren't required to be
unanimous for death sentences. Juries here are required to be unanimous in
convicting a defendant at trial, but the sentencing phase has different rules.
The system is a factor in the fact that Florida has had more death-row
exonerations - 25 - than any other state since 1973, according to the Death
Penalty Information Center.
Despite this troubling record, state lawmakers have failed to advance a bill
proposed in the last several sessions that would require unanimous verdicts for
death sentences. This spring???s regular session was the 1st time the bill even
received a vote, with state Sen. Rob Bradley, R-Fleming Island, being among the
5 Criminal Justice Committee members who unanimously supported it.
Improving the sentencing system would just be a start in addressing problems
with the death penalty in Florida.
The American Bar Association has found racial disparities in death sentences
here, low pay and qualifications of defense attorneys in capital cases and
other problems with the death penalty in Florida. The Florida Bar Board of
Governors has urged state officials to conduct a comprehensive review of the
state's entire death penalty process.
Instead of taking that advice, Florida has accelerated the pace of executions.
If the state goes forward with the planned execution of Jerry Correll, Gov.
Rick Scott will have executed the most inmates of any Florida governor since
the death penalty was re-instituted here in 1976.
Correll's execution has been stayed as the Florida Supreme Court considers the
legality of one of the lethal-injection drugs used in executions. The U.S.
Supreme Court upheld the drug's legality in June, but the state Supreme Court
decided against lifting the stay.
There is good reason for the state court's reluctance to resume executions
here. Florida botched the lethal-injection execution of Angel Diaz in 2006, and
before that had several botched executions involving the electric chair.
All these issues show Florida has more problems with the death penalty than not
requiring juries to be unanimous in recommending death. The U.S. Supreme Court
might do the Legislature's job in fixing sentencing problems, but lawmakers
still have a host of other issues that need to be addressed.
Given the unlikeliness of Florida ending the death penalty, state lawmakers
need to at least put the brakes on executions and make improvements. The state
must ensure the death penalty is fairly applied and executions aren't prone to
problems.
Most importantly, the state must show that enough safeguards are in place to
prevent wrongfully convicted people from being sentenced to death. Executing
innocent people is a mistake that can't be taken back.
(source: Editorial, The Gainesville Sun)
OHIO:
Death penalty indictment returned on Parsons Ave. double-fatal shooting suspect
A Grand Jury has returned a death penalty indictment against the man accused of
fatally shooting his estranged wife and her brother in April.
According to Franklin County Prosecutor Ron O'Brien, 25-year-old Roy Lee
Harvison was indicted for the April 1 shooting in the parking lot of the
corporate offices of Success Kidz located at 985 Parsons Avenue that left
29-year-old Jenae R. Harvison and her 23-year-old brother Donnel McDonald dead.
Court documents showed that Roy Harvison allegedly first shot McDonald, who was
sitting in a car, and then shot Jenae Harvison as she ran away from the car. It
is further alleged that Roy Harvison then walked over to his wife and fired
additional shots at her, and then he proceeded to walk back to the car and
fired more shots at her brother.
Roy Harvison is set to be arraigned Friday.
(source: WCMH news)
COLORADO:
Colorado theater shooting jurors get instructions on death penalty
deliberations
Jurors in Colorado theater shooting trial are close to beginning final
deliberations on a sentence for gunman James Holmes.
Judge Carlos A. Samour Jr. is reading instructions to the jury Thursday before
they consider whether Holmes should be sentenced to death or life in prison
without parole.
Prosecutors and defense attorneys will make their final arguments Thursday
afternoon before deliberations begin.
The same jurors rejected Holmes' insanity defense and convicted him of
murdering 12 people and trying to kill 70 others 3 years ago at a suburban
Denver movie theater.
(source: Associated Press)
USA:
Sjodin's killer raises question of juror misconduct in death penalty trial
A federal judge plans to hear arguments next month about claims of jury
misconduct in the trial for the man sentenced to death in the 2003 kidnapping
and murder of Dru Sjodin.
Attorneys for Alfonso Rodriguez Jr., who remains on federal death row, filed
paperwork in support of his claim.
However, documents detailing arguments, including prosecutors' response to
Rodriguez's claims, are sealed in advance of a Sept. 8 hearing before U.S.
District Judge Ralph Erickson in Fargo.
The case docket reveals few details, but Assistant U.S. Attorney Keith
Reisenauer filed a motion asking for "temporary and partial closure" of the
upcoming hearing.
Rodriguez, 62, remains on death row at a federal maximum security prison in
Terre Haute, Ind.
In 2003, Rodriguez stabbed and kidnapped Sjodin, a UND student, in a Grand
Forks mall parking lot while she talked on a cellphone with her boyfriend Nov.
22. An extensive search ensued, and 5 months later she was found in a rural
ravine near Crookston.
A jury of 7 women and 5 men from southeast North Dakota unanimously convicted
Rodriguez, a defendant with a 32-year history of attacking women, and
determined he should be put to death by lethal injection.
The trial marked the 1st-ever federal death penalty case in North Dakota, which
doesn't allow capital punishment under state law, and the first time since 1914
that any judge in the state ordered a defendant's death.
The trial featured 3 phases: guilt, eligibility for the death penalty and the
sentence.
In the final phase, it took 3 votes for jurors to reach a unanimous verdict and
hand down the death penalty.
Afterward, juror Arlys Carter said the first 2 votes came back 11-1 for death,
with 1 person being a "question mark." A 3rd vote brought the unanimous
decision.
"I think he changed his mind on his own," Carter said at the time. "He wouldn't
have gone along with the group."
(source: Grand Forks Herald)
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