Lucio Facing Execution in Two Days, Given a New Lease on Life As Execution Stayed to Review Evidence of Innocence

Death row inmate Melissa Lucio appears in this image from the film “The State of Texas vs. Melissa.” (Courtesy: Sabrina Van Tassel)

By David M. Greenwald
Executive Editor

Texas, CA – On Monday, Melissa Lucio found out from Texas State Legislator, Jeff Leach, a Plano Republican, that she would not be executed this week.  The Texas Court of Criminal Appeals issued a Stay of Execution and ordered the District Court of Cameron County (Texas) to consider new evidence of her innocence.

Leach informed her via phone call of the news.  “The Court of Criminal Appeals issued a stay of your execution for Wednesday,” Leach said in a transcript published in the Texas Tribune.

She responded, “Are you serious!? Are you serious!? [Laughing and crying.] When did this happen?!”

“We just got word about 15 minutes ago,” Leach said.

She responded, “Oh my God. [Laughing and crying.] That is wonderful. Oh my God. What does that mean?”

Leach: “[Laughing.] Well, it means you’re going to wake up on Thursday morning.”

Lucio: “Oh my goodness! [Laughing and crying.] Oh thank you, God.”

On April 15, 2022, Melissa’s attorneys filed a 242-page application for a writ of habeas corpus asking the Texas Court of Criminal Appeals to stay her scheduled April 27, 2022 execution and vacate her conviction and death sentence.

The filing represents the first time any court will have the opportunity to consider the new scientific and expert evidence showing that Melissa’s conviction was based on an unreliable, coerced “confession” and unscientific false evidence that misled the jury.

The case has received national and international attention as more evidence has come forward and cast doubt about her guilt in the death of her two-year-old daughter—a crime that supporters believe did not happen.

Lucio issued a statement following her notification, “I thank God for my life. I have always trusted in Him. I am grateful the Court has given me the chance to live and prove my innocence. 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. I will use my time to help bring them to Christ. I am deeply grateful to everyone who prayed for me and spoke out on my behalf.”

“We believe the court honored Mariah’s memory because Melissa is innocent. Melissa is entitled to a new, fair trial. The people of Texas are entitled to a new, fair trial. Texans should be grateful and proud that the Court of Criminal Appeals has given Melissa’s legal team the opportunity to present the new evidence of Melissa’s innocence to the Cameron County district court,” said Tivon Schardl, one of Lucio’s attorneys who is Capital Habeas Unit Chief of the Federal Defender for the Western District of Texas.

“The Court of Criminal Appeals did the right thing by stopping Melissa’s execution. Medical evidence shows that Mariah’s death was consistent with an accident. But for the State’s use of false testimony, no juror would have voted to convict Melissa of capital murder because no murder occurred,” said Vanessa Potkin of the Innocence Project, also one of Lucio’s attorneys.

She added, “It would have shocked the public’s conscience for Melissa to be put to death based on false and incomplete medical evidence for a crime that never even happened. All of the new evidence of her innocence has never before been considered by any court. The Court’s stay allows us to continue fighting alongside Melissa to overturn her wrongful conviction.”

During a press conference Potkin noted that the court’s stay “sends Melissa’s case back to the trial court, so that four of her claims can be heard, her claim of innocence.”

“Her claim that the state used false evidence to obtain her conviction and her claim that the state hid from her defense attorney’s favorable evidence at her trial,” Potkin explained. “The state court allows us to continue fighting alongside Melissa to overturn her wrongful conviction.”

She said, “It would have shocked the public conscience for Melissa to be put to death based on false and incomplete medical evidence for a crime that never occurred. The medical evidence shows that Mariah’s death was consistent with an accident.”

This will be the first time that a court will have heard evidence of Lucio’s innocence.

Tivon Schardl noted that the case goes back to court in Brownsville, Texas.

“The first thing the court will have to do is decide whether the judge should be disqualified from the case,” he explained.

He said, “We hope that going forward, reason and science will carry the day and Lucio will get a recommendation from the trial court, joined by the state of Texas to get a new trial.”

Schardl explained that there nine claims in the petition, four of those claims were sent back to the trial court for consideration including the reliance on false testimony and suppression of evidence.

Back in March, Potkin explained that Lucio’s wrongful conviction was a rush to judgment on February 15, 2007, when Lucio along with Mariah’s father were moving their family into a new place to live.

Mariah had fallen down about 14 stairs.

“It didn’t appear that Mariah was seriously injured—at the time she was bleeding from where her bottom tooth cut into her lip, but there were no other outward injuries,” Potkin explained.  “Tragically, Mariah deteriorated over the next couple days, leading to her death by February 17.”

She described the girl as “congested,” “sleeping excessively” and not wanting to eat.

“When the family went to check on her during a nap, she was no longer breathing. They frantically called 9 1 1. Melissa told emergency responders who got to the house that Mariah had fallen down the stairs days before; the paramedic was immediately suspicious because the residence that he arrived at was just a single story,” she continued.

The residence only had three steps in front and the paramedic thought it was odd and suspicious.

But, explained Potkin, “He had made a mistake.  Mariah had fallen down the stairs at the apartment that they were moving out of.”

Critically though, the police presumed her guilty, and in shock and grief, the mother was hauled into an interrogation room where she was interrogated for over five hours as “officers threatened her and berated her parenting.  Yelling at her, showing her pictures of her child who was deceased, and told her that she had to have caused her death.”

She explained that seven experts, “including nationally recognized medical and forensic scientists, have now reviewed the evidence in Melissa’s case.”

Their report, she said, “supports that Melissa was wrongfully convicted based on false testimony for the accidental death of her daughter.”

Potkin explained, “Melissa was relentlessly pressured and extensively manipulated throughout the many hours of interrogation. And she was especially vulnerable to the coercive interrogation tactics due to her history of abuse and trauma. Abnormally high levels of suggestibility and compliance, which has been demonstrated through recent testing and the childhood sexual abuse and domestic violence that Melissa endured left her vulnerable.

“Presumptive police interrogations are a primary cause of wrongful convictions in the United States. Of the 67 women listed on the national registry of exonerations who were exonerated after a murder conviction, one quarter, one in four falsely confessed,” Potkin said.

Mariah’s death was thus declared a murder before the autopsy even began.  She noted the report of a pediatric pathologist “commented that the investigation of Mariah’s death was sign prejudiced, not evidence-based and Dr. Farley failed to consider any cause of her death other than abuse.”

She said, “This is particularly problematic because child abuse is a diagnosis of exclusion.  You have to consider what else could have caused the injury.  But Dr. Farley failed to consider Mariah’s prior medical, which included trouble walking and documented falls, a prior traumatic brain injury.

“The jury was told by the state’s experts that there was profound bruising on Mariah’s body that could have only come from an intentional beating and that Mariah’s injuries had to have happened shortly before her death,” she said. “That testimony was false.”

David Thompson is a forensic interviewer.  He noted that “outdated interrogation tactics have been known to increase the risk of false confessions.”

He said that he reviewed the five hours of interrogation and found three critical errors that occurred in the interrogation of Lucio that resulted “in a coerced compliant confession.”

Thompson noted, “Repetitive threats combined with promises or suggestions of leniency are known to incentivize innocent subjects to confess. These tactics, alongside Ms. Lucio’s susceptibility and her state of mind in a lengthy interrogation shortly after her daughter’s death, are known to have a substantial psychological impact on a subject’s decision-making” and found her statements are a result of fact-feeding or other tactics used by investigators.

He concluded, “Lucio complies with the investigators and produces an unreliable and coerced compliant confession.”

Prof. Sandra Babcock, Director of the Cornell Center on the Death Penalty Worldwide also one of Lucio’s attorneys added, “Melissa’s life matters. The Court’s decision paves the way for Melissa to present evidence of her innocence that should have been heard by the jury that condemned her to death fourteen years ago. As a survivor of childhood sexual abuse and intimate partner violence, and now locked away for these past 15 years, Melissa’s voice and experiences have never been valued.

“The Court’s decision signals its willingness to finally hear Melissa’s side of the story. If the district court hears all the evidence of Melissa’s innocence, and the gender bias that infected the police investigation and prosecution, we are confident she will return home to her family.”

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