SUB-HEADING: The appeals court has ordered a trial court to review new evidence in Lucio’s case. Her attorneys say her 2007 confession to abusing her 2-year-old daughter, which led to a murder conviction, was coerced. ---------------------------------------------- GIST: The Texas Court of Criminal Appeals has issued a stay of execution for Melissa Lucio, whose conviction in her 2-year-old daughter’s death more than 15 years ago has drawn renewed scrutiny because of new evidence and testimony in her case.
The court intervened two days before Lucio’s execution date and has ordered a trial court to review new evidence in the case. The Monday decision preempted an expected vote by the Texas Pardons and Paroles Board, which said it would not make a clemency recommendation in light of the appellate court’s ruling.
Such decisions by an upper court are rare at this late stage in an applicant’s appeals process, said Sandra Babcock, one of Lucio’s attorneys, who also directs the Cornell Center on the Death Penalty Worldwide.
“It’s a pathbreaking decision,” Babcock told The Washington Post. “It’s not merely a temporary stay of execution, it’s a potential opening to liberty.”
The appellate court has ordered a trial court to evaluate four specific claims as it determines whether to grant Lucio a new trial: that she would not have been convicted but for the state’s use of false testimony, that new scientific evidence undermines her conviction, that the state committed a “Brady violation” by suppressing information favorable to Lucio and that she is actually innocent.
Lucio’s attorneys are seeking an independent prosecutor to handle her evidentiary hearing, arguing that it would be a conflict of interest for Cameron County District Attorney Luis V. Saenz to take part in the hearing because, they say, two of the claims the appellate court has ordered a trial court to evaluate include false testimony from the state and suppression of evidence by prosecutors
In a statement, Lucio credited her faith and thanked supporters for standing by her.
“I am grateful the Court has given me the chance to live and prove my innocence,” she said. “Mariah is in my heart today and always. I am grateful to have more days to be a mother to my children and a grandmother to my grandchildren.”
The court’s decision follows campaigning from celebrities such as Kim Kardashian and John Oliver, most of Lucio’s children, religious leaders and a bipartisan group of more than 100 members of the Texas legislature urging the state to scrap the death sentence stemming from her 2008 capital murder conviction.
Five of the jurors who sentenced Lucio to death have called for clemency, saying information that has emerged since the trial suggests that her life should be spared. Lucio’s attorneys argue that police failed to conduct a thorough investigation into Mariah’s death.
“I have been doing this work for 30 years in Texas; I have never seen a case that has garnered so much support from people of every political persuasion and consensus around the injustice in this case,” Babcock said. She noted that Texas Republicans, including state lawmaker Jeff Leach, were among those championing Lucio’s case; it was Leach, Babcock said, who broke the news to Lucio of the court ruling on Monday.
If her execution were to proceed, it would be the first execution of a Latina in the United States since the death penalty was reinstated in the 1970s. Lucio is the only Latina to have been sentenced to death in Texas.
“Because there was a rush to judgment, because they presumed Melissa Lucio guilty, every piece of evidence they viewed through the lens of her guilt and failed to consider other causes of the evidence,” said Vanessa Potkin, one of Lucio’s attorneys and a lawyer with the Innocence Project, which seeks to exonerate the wrongfully convicted.
Prosecutors in Cameron County, Tex., alleged at trial that Lucio caused Mariah’s head and internal injuries by physically abusing her. Lucio, however, said her child’s injuries were caused by an accidental fall down a 14-step staircase. The girl initially showed no signs of being seriously hurt but stopped breathing two days later, on Feb. 17, 2007, Lucio’s clemency application says.
Attorneys for Lucio contend she was sentenced to die because she did not fit the stereotype of a grieving mother — appearing detached and unemotional. Potkin described that as an exterior Lucio developed to survive violence throughout her life.
Lucio’s attorneys also point to red flags in a late-night interrogation that led to what they argue is a false confession given under pressure. During five hours of questioning on the day Mariah died, the attorneys say, five police officers berated Lucio. They showed her photos of her dead daughter and implied that if she had not killed Mariah, one of her other children must have done it. Lucio denied harming her daughter, saying so more than 100 times, her attorneys say. Eventually, a worn-down Lucio confessed, her attorneys say.
“What am I going to say? I — I’m responsible for it,” she told the officers, according to her clemency petition.
Lucio was particularly susceptible to intense questioning because she had a history of being physically, sexually and emotionally abused, her attorneys say — something they argue jurors should have been told about.
“The jury did not hear that Melissa agreed with what the interrogators wanted to hear, because as a victim of child rape and domestic violence, she learned that surrender meant survival,” the lawyers wrote in the clemency petition.
Saenz, the district attorney, initially defended Lucio’s death sentence. In a statement in January, he said bruises on Mariah’s body suggested that she had been “severely beaten” before her death, according to the Brownsville Herald.
Mariah also had bite marks on her back, a broken arm, missing hair and internal bruising, Saenz said. An emergency room physician who treated Mariah stated that “this was the ‘absolute worst’ case of child abuse that he had seen in his 30 years of practice,” he said in the statement.
Under questioning from state lawmakers this month, Saenz said he disagreed with Lucio’s attorneys that new evidence would exonerate her, the Associated Press reported. Pressed by legislators, he eventually said he would seek to delay Lucio’s execution while her legal claims played out if a court did not stop it first.
Legal experts said Lucio’s confession and the use of unreliable and problematic bite-mark analysis raise questions.
Allison Redlich, a criminology professor at George Mason University, expressed concern at the length and timing of the interrogation, noting that the questioning began on the same day that Lucio learned her daughter had died and stretched into the early morning. Recordings show police used “pretty egregious” questioning techniques, Redlich said, including suggesting Mariah’s death must have been an accident and implying it would not be a big deal to confess to.
The number of times Lucio denied harming Mariah also indicates that her confession may have been false, Redlich said. Research shows that most valid confessions are given at the beginning of an interview, she added, while those giving a fake confession generally resist admitting wrongdoing much more than those who have committed a crime.
“The snippets that I’ve seen raises these red flags for me about tunnel vision — that clearly the police believe that the daughter was murdered,” said Redlich, who has expertise in wrongful convictions and is not involved in Lucio’s case. “They don’t seem to entertain any other options.”
False confessions are relatively common. More than a quarter of the 67 women listed on the National Registry of Exonerations and cleared of a murder conviction gave a confession that was later deemed false — and almost one-third involved a child victim, according to the Cornell Center on the Death Penalty Worldwide.
Physical evidence in the case is also in dispute. Prosecutors relied on bite-mark analysis and a state medical examiner’s testimony that didn’t consider other potential causes for Mariah’s injuries, such as a blood coagulation disorder that made her bruise extensively, Lucio’s defense contends.
Bite-mark analysis is now considered completely unreliable, said Adam Freeman, a former president of the American Board of Forensic Odontology. He said no studies suggest that dentists can reliably diagnose a bite mark or, if one exists, identify who caused it. There is likewise no way to tell whether a child or adult is responsible for a bite, he said.
That lack of data makes bite-mark analysis “junk science” that should not have been used to convict Lucio, said Freeman, who wrote a declaration in support of her clemency application.
“Even if it was a bite mark, it doesn’t mean that it was the mom, and it doesn’t mean that it was abuse,” he said. “There were other kids in the house, too. Kids bite.”
Several courts have upheld Lucio’s guilty verdict. Although the U.S. Court of Appeals for the 5th Circuit concluded that Lucio had been denied a proper defense, it later ruled that procedural rules meant it could not overturn her conviction.
The office of Gov. Greg Abbott (R) did not respond to a request for comment after the stay was announced.
Abbott is a staunch supporter of the death penalty and has overseen more than 50 executions since taking office in 2015. He has granted clemency only once, in the case of Thomas “Bart” Whitaker. Moved by Whitaker’s father’s pleas for mercy, Abbott commuted Whitaker’s sentence to life in prison minutes before he was set to be put to death in 2018.
In Lucio’s case, several jurors have said they now wish they had made a different decision about her sentence in light of evidence they did not hear.
“The fact that you can’t pinpoint what actually caused Mariah’s death means that [Lucio] shouldn’t be executed,” Johnny Galvan, one of the jurors who sentenced Lucio to death, wrote in her clemency application.
Another juror said he thought Lucio’s trial was “one-sided” against her.
“I think if I heard this evidence I may have decided differently,” Alejandro Saldivar wrote, referring to potential causes of Mariah’s injuries and how Lucio’s past may have affected her behavior during the interrogation.
While awaiting her execution, Lucio has been knitting blankets for prison guards and trying to learn to crochet, her clemency application says. She paints pictures to send to her grandchildren for their birthdays and meets with a spiritual adviser.
During the two hours each day when Lucio is allowed outside, the application says, she sits by a small garden in the prison, running her fingers through the dirt."
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0 ----------------------------------------------- PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog; | 
