The Vanguard Staff
BROWNSVILLE, TX – A motion to withdraw or modify the April 27, 2022 execution date for Melissa Lucio was filed today here in 138th Judicial District Court of Cameron County, claiming Lucio was wrongfully convicted and sentenced to die for the accidental death of her two-year-old daughter, Mariah.
A Mexican-American from the Rio Grande Valley, Lucio is on death row despite “forensic and eyewitness evidence that her daughter died from a head injury she suffered in a fall. Mariah’s death was a tragic accident, not a murder,” claim Lucio’s lawyers.
“A meaningful review of Lucio’s innocence case is needed before an irreversible injustice occurs,” said the defense team.
The team said a “broad, diverse, and growing coalition, including the Innocence Network, Cornell Law School Center on the Death Penalty Worldwide, domestic violence and battered women’s organizations, former prosecutors, experts in gender-based violence, and law professors have expressed support for Lucio.”
Lucio’s supporters have stated that, “as a survivor of sexual abuse and domestic violence, she was especially susceptible to making a false confession or incriminating remarks during a coercive 
interrogation.”
They cite statistics from the Death Penalty Information Center showing, since 1973, 186 people have been exonerated from death row, including 16 in Texas, and the number of people whose lives were taken before they were able to prove their innocence is unknown.
“Police immediately jumped to the conclusion that Mariah had been murdered and never considered medical and scientific evidence that could have established Mariah died after an accidental fall,” said Vanessa Potkin, Director of Special Litigation at the Innocence Project, and one of Lucio’s attorneys.
Potkin added, “Withdrawing the execution date so that the District Attorney, the courts, the Texas Board of Pardons and Paroles, and the Governor can undertake a meaningful review of Lucio’s innocence case, the coercive tactics used in her interrogation, and her lifetime of sexual abuse and domestic violence is the common-sense position and imperative as a matter of basic fairness.”
Lucio Lucio’s Motion to Reconsider State’s Motion to Set Execution Date and to Withdraw or Modify the Execution Date can be viewed here: https://tinyurl.com/4tnjw7nk and Exhibits can be viewed here: https://tinyurl.com/3ebzpss2
“There is too much doubt to execute Lucio Lucio. Too many questions remain about the results of the autopsy, the conduct of interrogators, prosecutors, and courts, and Lucio’s mental impairments,” said Potkin.
“While pregnant with twins, Lucio was subjected to a five-hour, late-night and aggressive interrogation until, physically and emotionally exhausted, she agreed to say, ‘I guess I did it.’ Lucio suffered a lifetime of sexual abuse — starting when she was only six years old — and domestic violence, which made her especially vulnerable to the police’s coercive interrogation tactics,” explained Potkin.
“Texas tore this family apart through the cruelty and injustice of Lucio’s wrongful conviction. Her children, mother, and siblings have been traumatized by Lucio’s arrest, prosecution, and death sentence. The State’s rush to set an execution date where there exists a strong innocence claim is alarming,” said Tivon Schardl, another Lucio attorney.
Schardl, Chief of the Capital Habeas Unit of the Federal Defender for the Western District of Texas, added, “The State is also ignoring Lucio’s right to exercise her Roman Catholic faith and pending litigation in the United States Supreme Court that directly implicates this right.”
Lawyers claim Lucio’s lifetime of abuse made her especially vulnerable to coercive interrogation tactics that resulted in a false “confession.”
The defense team’s arguments explained the order of events like this.
“On Feb. 15, 2007, as Lucio was moving her family to a new apartment, her two-year-old daughter Mariah fell down a steep flight of outdoor stairs which led to their apartment. Mariah had a mild physical disability that made her unstable when walking. She had fallen before. Mariah appeared uninjured after the fall, but two days later, she went down for a nap and did not wake up.
“Within hours of losing her daughter, grieving, numb with shock, and pregnant with twins, Lucio was hauled into an interrogation room where armed, male police officers stood over her, yelled and berated her, and accused her of causing her daughter’s death,” the motion notes.
“Lucio repeatedly told the police that she did not kill her daughter. But the officers continued to threaten her and used coercive interrogation techniques that are notorious for their tendency to produce false confessions, particularly when applied to vulnerable people like Lucio who suffer from trauma,” according to the pleadings.
Attorneys then write, “After over five hours of interrogation, Lucio was emotionally and physically exhausted. In response to a Texas Ranger’s repeated demands, Lucio finally acquiesced and said, “I guess I did it.”
The lawyers maintain that at the time of her arrest, Lucio had no record of violence, noting, “Thousands of pages of protective service records and recorded interviews with her children—including visits with the children shortly before and immediately after Mariah’s death—show that Lucio was not abusive.”
The conviction of Lucio isn’t unusual in that it mirrors two of the leading causes of wrongful convictions of women, said lawyers: false admissions made during police interrogation and faulty forensic evidence.
Approximately “40 percent of exonerated women were wrongly convicted of harming children or other loved ones in their care and nearly 70 percent were wrongfully convicted of crimes that never took place at all — events that were accidents, deaths by suicide, and fabricated,” the defense team claims, citing data from the National Registry of Exonerations.
Lucio was especially vulnerable to the “aggressive, intimidating, and psychological interrogation tactics of the police and male authority figures,” according to the defense lawyers, noting two adult male relatives began “sexually abusing her, preying on her when her mother was not home…at age six…as a young teenager, she was raped again.”
Lucio got married as a child bride at 16 – illegal under Texas law except her mother gave consent. Her husband was a “violent alcoholic and drug dealer (and) abandoned Melissa after she gave birth to their five children,” noted the lawyers.
“Lucio’s next partner continued the cycle of violence and abuse,” said the lawyers. Lucio had seven children with him, even as he “beat Lucio, choked her, repeatedly raped her, and threatened to kill her. The family sunk deeper into poverty and was intermittently homeless. By the time Lucio was 35, she was struggling with physical abuse, PTSD, addiction, and poverty. She had given birth to 12 children and suffered multiple miscarriages,” explained the defense team.
The appeals pleading notes, “These experiences, and years of supervision by protective services—for her inability to provide for the children, never abuse—left Lucio weak and obliging in the face of authority figures and aggressive men. A Texas Ranger recklessly exploited Lucio’s vulnerabilities, first being soothing, then angry, taking down her hair, then pushing her to copy his demonstration of physical abuse.”
“The State presented no physical evidence or witness testimony establishing that [Lucio] abused Mariah or any of her children, let alone killed Mariah,” seven Fifth Circuit judges wrote, according to the appeal briefing.
The lawyers then accuse a “corrupt” former district attorney—now serving a 13-year federal prison term for bribery and extortion—of helping set up Lucio.
“(In 2008), Cameron County District Attorney Armando Villalobos was seeking reelection and decided to prosecute Lucio for capital murder. Lacking any physical evidence or eyewitness linking Lucio to Mariah’s death, DA Villalobos’ team characterized Lucio’s acquiescence during the coercive interrogation as a ‘confession.’ DA Villalobos was corrupt,” Lucio’s lawyers said.
“At Lucio’s capital trial, Lucio’s attorneys tried to present expert witnesses who could have explained that Lucio’s response…showed the results of her traumatic experiences, not guilt. The DA objected, and the trial court ruled that this evidence was ‘irrelevant.’ That ruling deprived Lucio of the only means she had of explaining why she took responsibility although Mariah’s death was an accident,” the defenders explained.
Apparently, while the trial court prohibited this testimony it “allowed the Texas Ranger who coerced Lucio’s incriminating statement to testify for the prosecution that Lucio’s slumped posture, passivity, and failure to make eye contact told him that she was guilty,” they continued.
The defense also asserts the original jury never heard Lucio’s defense or mitigating factors, charging her lawyers “were not prepared for the penalty phase of the trial. Lead counsel hamstrung his mitigation specialist and expert until weeks before the trial began. As a result, Lucio’s mitigation specialist never completed her investigation and the jury never learned about the extent of Lucio’s history of child sexual abuse and domestic violence.
“The jury never heard how Lucio’s history of trauma and abuse shaped her reactions immediately following her daughter’s death. Without that context, the jury convicted Lucio of capital murder. By contrast, Lucio’s partner, Mariah’s father, was sentenced to four years for endangering a child.
“The omission of this mitigating evidence was particularly damaging because the prosecution had a weak case for death. Lucio had no prior record of violence and the State’s sole evidence of future dangerousness was the death of Mariah and a prior conviction for driving under the influence,” Lucio’s lawyers maintain.
Although the record shows a majority of judges agree the exclusion of the psychologist’s expert testimony, which would have provided an explanation for Lucio’s acquiescence during the coercive interrogation, was wrong, current federal law limits the courts’ ability to intervene.
Lucio’s lawyers said a panel of federal judges on the Fifth Circuit Court of Appeals held that Lucio was denied her constitutional right to present a meaningful defense.
“In a unanimous three-judge opinion, the court ruled that providing an explanation for her incriminating statements during the interrogation, which she was not permitted to do, was the most significant evidence in the case since there was no physical evidence or witness testimony establishing that Lucio abused Mariah or any of her children, let alone killed Mariah,” they said.
But, procedurally, Texas appealed to the full 17-member Fifth Circuit where 10 of the 17 judges agreed the exclusion of the psychologist’s testimony skewed the evidence against Lucio.
However, as Lucio’s defense team points out, three of the 10 joined seven other judges in holding that the Anti-Terrorism and Effective Death Penalty Act (AEDPA)—a law that has been widely criticized for unfairly curtailing review, including of innocent people—barred relief for Lucio.
Seven other judges dissented from the opinion denying relief for Lucio with four writing separate dissenting opinions to “express their outrage,” the defense wrote.
In their appeals motion, defense lawyers argue, “The motion provides further grounds for withdrawing or modifying Lucio’s execution date, including the need for additional state court proceedings on her actual innocence, intellectual disability, newly-discovered false testimony, and testimony based on ‘junk science.'”
Continuing, “the COVID pandemic has created obstacles to preparing claims and present a threat to the health of people who may attend the execution; the execution date does not allow Lucio a fair opportunity to present her case for clemency; ongoing litigation before the Inter-American Commission on Human Rights; and ongoing litigation challenging Texas Department of Criminal Justice rules that do not allow a prisoner to have their spiritual advisor pray audibly or lay hands on them in the execution chamber, thus violating their religious liberty.”
