As Johnny Galvan flipped through YouTube videos on his flat-screen TV, Melissa Lucio’s face smiled back at him. She did not look like the woman he’d helped send to death row almost 15 years earlier. Here was a young Lucio posing in a feathered ’80s haircut, a hint of teal eyeshadow matching her outfit. There was an older Lucio laughing, her infant son John sitting in her lap. But then there was a more familiar image, the one repeatedly printed in the newspaper: Lucio’s mugshot; her eyes seemingly vacant, her mouth turned downward.
“Melissa Lucio is set to be executed on April 27,” a reporter said in a news segment from the previous week. “People that support her, though, say she was wrongly convicted and that her daughter’s death was an accident — and that that so-called confession was coerced.” The report cut to a clip of state lawmakers calling for clemency, led by a representative from North Texas. “As a conservative Republican who has long been a supporter of the death penalty in the most heinous cases,” he said, “I have never seen — have never seen — a more troubling case than the case of Melissa Lucio.”
“Wow,” Galvan said softly. For a moment it looked like he might cry. Galvan was one of the jurors who convicted Lucio in 2008 for killing her 2-year-old daughter, Mariah Alvarez. The little girl’s lifeless body had arrived at the hospital in Harlingen, Texas, covered in bruises; at trial, medical witnesses described it as the worst case of child abuse they had ever seen. Despite his horror, Galvan had been reluctant to impose a death sentence on Lucio. For a time, he was the lone holdout, but he’d ultimately voted for death. Now he feared that he’d made a grave mistake. “If I would have had the knowledge that I have now, Melissa would be free,” he said.
It was a Tuesday in late March, and Galvan had been discussing the case for almost two hours. His uneaten lunch sat on the coffee table in his apartment in Brownsville, Texas. A large U.S flag hung above a large air rifle; on the opposite wall was a painting he’d gotten at Goodwill of an Indigenous woman next to a basket of jalapeño peppers. Galvan once worked as an art teacher in public schools. But at the time of Lucio’s trial, he’d been unemployed. “I told whoever was selecting the jury … ‘Look sir, I can’t be here, I have to be out there looking for a job. I’m responsible for my kids,’” he recalled. “And he said, ‘This is a job!’”
If Galvan had not been so stressed about finding work, perhaps he would have held out longer against the death penalty. But he felt pressured by his fellow jurors, who were also anxious to go home. One of them pointed to the Gospel of Matthew, which suggested that people who hurt small children should be thrown into the sea with a millstone around their necks. For Galvan, a devout Christian, the Bible passage was enough to persuade him.
Galvan thought about the case only occasionally in the years following Lucio’s trial. He never seriously considered that she would be put to death until he saw a news story in the Brownsville Herald in early March, which said she had been given an execution date. The next day, a lawyer and two law students showed up at his apartment. They asked him questions about what he remembered and shared information he’d been unaware of at trial. In a subsequent declaration, Galvan admitted that no evidence stood out to him that proved Lucio had murdered her daughter. “The fact that you can’t pinpoint what actually caused Mariah’s death means that she shouldn’t be executed,” he said.
In fact, there were a lot of things that bothered him about the case in hindsight. Lucio’s defense attorney went to work for the district attorney’s office shortly after the trial. The DA himself later went to federal prison on corruption charges. Then there was Lucio’s supposed confession on the night her daughter died. Jurors were shown footage of the more than five-hour interrogation. To Galvan, Lucio seemed less like a woman admitting to murder than a mother blaming herself for her daughter’s death. He remembered a Texas Ranger pushing Lucio to hit a doll like she had beaten Mariah — then demanding that she show him how she’d also bitten her daughter. At trial, “they showed us something that looked like a bite mark, but we couldn’t tell,” Galvan said. “I think she was just giving into the interrogation.”
“I used to live in the poorer sections of Brownsville,” Galvan said. There were a lot of struggling families living in rundown apartments like Lucio’s. She tried to tell authorities that Mariah had fallen down some stairs, but no one believed her. In retrospect, the account rang true. “It could have been any of us,” Galvan said. Now, as he searched for the latest videos about the case, Galvan’s voice was heavy with remorse. “We were overtaken by the tragedy that happened,” he said. “We probably wanted to blame someone. But we went the wrong way.”
Failure at Every Turn
Galvan is one of four jurors who now say they wished they’d been given more information before voting to sentence Lucio to death in 2008. A fifth, who served as an alternate, said that she believed Lucio should get a new trial “with the benefit of an actual defense.” Their affidavits are among hundreds of pages of exhibits included in a request for clemency that Lucio’s attorneys filed on March 22 with the Texas Board of Pardons and Paroles.
Lucio’s clemency petition makes a convincing case that her life should be spared, arguing that faulty forensics could see her sent to the execution chamber for a crime that never happened. A host of experts have raised serious questions about the evidence used to convict her, including an interrogation built on coercion and a superficial medical inquiry that amplified a spurious and prejudicial claim that Lucio had bitten her daughter.
Lucio “ended up on death row through a horrific combination of investigative missteps and a prosecution unhinged from the truth,” the petition reads.
But realistically, clemency in Texas is a long shot. The board is made up of individuals appointed by Gov. Greg Abbott, and they generally do the governor’s bidding. Since Abbott assumed office in 2015, the board has recommended clemency in just two capital cases. Abbott accepted the board’s recommendation in one of those cases — an intervention that came less than an hour before the scheduled execution. Under Texas law, Abbott’s power is limited to granting a one-time, 30-day stay of execution. Any additional relief requires a recommendation from the board.
“To say I’m wrestling with the very existence of the death penalty in Texas would be a dramatic understatement.”
With the likelihood of clemency so grim, the push to save Lucio has been increasingly driven by an unlikely source: the Texas House of Representatives. An unprecedented bipartisan group of representatives — more than half the members of the Texas House — wrote a letter imploring the board and Abbott to stop Lucio’s execution. Their efforts have been led by Republican Rep. Jeff Leach and Democratic Rep. Joe Moody, who also co-chair the chamber’s Criminal Justice Reform Caucus.
The facts surrounding Mariah’s death are “still in grave dispute,” Leach said at a press conference shortly after Lucio’s clemency packet was filed. “The system literally failed Lucio at every single turn. And I am going to do everything that I possibly can in the coming days, in every way possible, legal, constitutional — and maybe in some ways we haven’t thought of yet — to delay and to prevent Ms. Lucio’s execution.”
Leach and Moody also traveled with several of their colleagues to the prison where female death row prisoners are held for a meeting with Lucio that included a prayer session in one of the prison’s stark white rooms. Two weeks later, they convened a meeting of the House’s interim Criminal Justice Reform Committee to question Cameron County District Attorney Luis Saenz, who had requested Lucio’s execution date. The whole situation was clearly troubling to Leach.
“To say I’m wrestling with the very existence of the death penalty in Texas would be a dramatic understatement,” he said.
A Rush to Judgment
At the heart of Lucio’s case is the question of whether her daughter’s death resulted from repeated physical abuse, as the state contends, or a tragic accident. Lucio has maintained since the beginning that Mariah fell down a hazardous staircase in the days preceding her death, and experts who have since reviewed the case at the behest of Lucio’s lawyers say the toddler’s injuries were consistent with such a fall.
But no one ever investigated the possibility that Mariah’s untimely death was the result of an accident. Instead, from the beginning, the authorities seized upon child abuse as the only explanation. According to the clemency petition, the cops and the doctors who testified against Lucio based their determinations on faulty assumptions and flawed science.
No one seemed more certain of Lucio’s guilt than the cops who arrived at the ER and took her to the station for questioning. As The Intercept previously reported, Lucio’s interrogators — an assembly line of cops that included Texas Ranger Victor Escalon — deployed a mix of guilt-presumptive and coercive techniques known to produce false confessions, particularly from vulnerable individuals like Lucio, whose life had been defined by abuse and trauma. The cops repeatedly showed Lucio graphic photos of her dead daughter and then fed her suggestions about what might have caused the injuries, suggestions that Lucio then parroted back to them.
Just after 3 a.m., as the marathon interrogation was coming to a close, Escalon pulled his chair close to Lucio, who looked dazed and weary, and showed her a series of photos of Mariah’s bruised body. He asked her to demonstrate on a plastic baby doll how she’d inflicted the various injuries. “Don’t hold back,” Escalon told her. “Do it and get it over with.” He said they would start with the “bite mark.” There were two on Mariah’s back, he said. “Just re-enact how you did it.”
“Do I have to?” Lucio asked. Yes, he replied. Lucio held the doll upright with its back to her face and told Escalon that she just put her mouth there and bit her. Escalon asked why she did it; Lucio said she didn’t know.
David Thompson, a certified forensic interviewer whose report is included in the clemency package, concluded that the outcome of the interrogation was wholly unreliable. Thompson is president of Wicklander-Zulawski & Associates, a law enforcement training organization that advocates for evidence-based interview approaches. “Lucio’s admissions occurred after multiple examples of fact-feeding, revealing of evidence, and modifications of her story,” he wrote. “This created a contaminated confession.”
“Lucio’s admissions occurred after multiple examples of fact-feeding, revealing of evidence, and modifications of her story. This created a contaminated confession.”
This guilt-presumptive approach spilled over into the medical investigation. Emergency room doctor Alfredo Vargas testified that Mariah’s injuries, including abrasions on her back that he labeled “bite marks,” showed that she had been horribly abused. Dr. Norma Jean Farley, the forensic pathologist who autopsied Mariah, also concluded that the child had been beaten to death. Trial records indicate that before Farley even cut into the body, she’d already made up her mind. “I mean, it would have been evident to a first-year nursing student,” she testified. The bite mark was “obvious,” Farley told the jury, because it was a “big bite!” She said it looked as though the person who bit Mariah had dragged their teeth across her back, creating a painful wound.
“There appears to be a bite with raking, where it just pulls the flesh off the back?” prosecutor Alfredo Padilla asked.
“Yes,” Farley replied.
To Dr. Adam Freeman, a forensic dentist, this testimony was nonsense. “It is so inflammatory to walk into a courtroom and say, ‘This is a big bite mark. It was made by an adult; the skin was raked and peeled back,’” Freeman said
The most basic problem with Farley’s assertion is that bite-mark evidence is neither valid nor reliable. To date, it has been implicated in at least 35 wrongful convictions and criminal indictments. Yet, for years, practitioners have claimed the ability not only to detect which injuries left on skin were made by teeth, but also the ability to match a given injury to the dentition of a particular person. In 2016, the Texas Forensic Science Commission recommended a moratorium on its use as evidence in criminal prosecutions.
But even if it were a valid practice, Freeman argues, Farley was not qualified to opine one way or another. She hadn’t been trained in the discipline and no forensic dentist ever provided a report or took the stand to back up Farley’s bald assertion. As such, her testimony that the mark on Mariah’s back was the result of an adult bite served no other purpose than to prejudice the jury. “If I were in a courtroom,” Freeman said, “and saw pictures of a dead baby and then heard that description, and I think you’d probably, too, you’d say, ‘Let’s hang the bastard,’ right?”
Dr. Thomas Young, a veteran forensic pathologist in Kansas City, Missouri, who first reviewed the case as part of Lucio’s state post-conviction appeal, opined in 2010 that the abrasion Farley, Vargas, and the cops decided was a bite mark was consistent with a scrape incurred from a fall down a flight of stairs.
Young concluded that Mariah had died from a blunt head injury, consistent with a fall, with “delayed effects”: brain swelling with repercussions that developed over several days, including a blood-clotting disorder that can cause extensive internal and external bruising.
Several doctors who reviewed the case and provided declarations for the clemency package agreed, including renowned pediatric forensic pathologist Dr. Janice Ophoven. Ophoven said that there was forensic evidence that Mariah was suffering from that coagulation disorder — known as disseminated intravascular coagulation, or DIC — which can result from trauma. Falls, she noted, “remain the No. 1 cause for traumatic brain injury in children of Mariah’s age,” and Mariah had a history of falls, including one at day care in 2006 after which she’d lost consciousness.
The medical evidence was “consistent with a cause of death related to a fall down the stairs two days before Mariah’s collapse,” Ophoven concluded. “There are several potential causes and contributions to Mariah’s injuries and death that have nothing to do with intentional force.”
The failure to consider Mariah’s history of falls or her family’s account of the days preceding her death is problematic, because child abuse is a diagnosis of exclusion. “Medical guidance, including from the American Academy of Pediatrics, is clear that before determining whether injuries were caused by child abuse, physicians must rule out coagulopathies, such as DIC,” Dr. Michael Laposata, chair of the Department of Pathology at the University of Texas Medical Branch, Galveston, wrote in a declaration.
“Dr. Farley’s inverted approach critically left key evidence uncollected and obscured the true story of Mariah’s death,” the clemency petition reads.
There is another key piece of evidence the doctors reviewing the case noted: In the hospital, well after Mariah had been found unresponsive and then declared dead, her body temperature was recorded at over 100 degrees, meaning that before death she’d been battling an infection. How that factored into Mariah’s demise went unexplored. Such an elevated temperature would be consistent in a child who has DIC. But it would be “highly unusual” in a child who died as a result of abuse, Dr. Harry Davis wrote in his declaration.
Davis’s declaration contains another troubling revelation: Although Vargas testified at Lucio’s trial that he was the emergency room doctor on duty the night Mariah died and had declared her death, Davis said that he was the attending physician — and thus the primary doctor responsible for directing her care. He recalled Mariah being brought into the hospital unresponsive; his efforts to revive her failed. He was the one — not Vargas, he said — who pronounced Mariah dead. Davis said that Vargas, who worked in a different division in the ER where less acute patients were treated, came to assist him later, after he’d already begun treating Mariah.
While Vargas, who died in 2015, readily endorsed the state’s child abuse narrative, Davis would not have been so quick to do so, he said. In large part that came down to Mariah’s elevated temperature. “I know State investigators prosecuted Mariah Alvarez’s death as abuse. I have had considerable doubt about this conclusion,” he wrote. “The presence of active infection at the time of … death suggests alternative medical explanations for the bruising and internal bleeding that should have been explored.”
Although Mariah’s medical records would have included Davis’s name and notations about her fever, he was never contacted by police, prosecutors, or the defense. Roughly eight months after Mariah’s death, Davis moved out of Texas. “I was never asked to testify,” he wrote. “In fact, I was not even aware there was a trial. I would have testified to what I’ve said here.”
Running Out of Time
The office of District Attorney Luis Saenz is on the fourth floor of the Cameron County court complex in Brownsville’s historic district. In late March, the reception area was decorated for Easter, with a large artificial tree and plush garden gnomes in bunny ears. The DA’s mission statement appeared in large block letters on the wall: “To protect the public by providing a safe community while safeguarding the rights of victims and above all to see that justice is done.”
After being elected in 2012 to replace disgraced District Attorney Armando Villalobos, Saenz launched a special unit to combat domestic violence, complete with a dedicated vehicle that sat in the courthouse parking lot. Dramatic window decals showed women’s faces partially covered with scrawled messages like “HELP” and “I thought he loved me.”
Yet Saenz has thus far been unmoved by those who explain how Lucio’s own history as a survivor of sexual abuse and domestic violence impacted her case. The clemency packet included a letter signed by dozens of Texas organizations and advocates combating domestic violence, who echoed what many experts have said about Lucio’s interrogation: “Contrary to what we know are the best practices for engaging with trauma survivors, the police who interrogated her employed coercive techniques designed to intimidate her and extract a confession.”
Elsewhere in the parking lot was a pair of lawn signs that had been placed by Death Penalty Action. One read “WATCH THE FILM” in English and Spanish, a rallying cry referencing the documentary “The State v. Melissa.” For weeks, activists and family members had stood vigil outside the courthouse, pausing only after Lucio’s eldest son, John, successfully approached Saenz during his lunch hour. “I don’t want anybody to feel I’m out here trying to cause problems,” John politely told the DA, “but I know for a simple fact that my mother is an innocent woman.”
“I don’t want anybody to feel I’m out here trying to cause problems, but I know for a simple fact that my mother is an innocent woman.”
John urged Saenz to consider the materials in the clemency packet — particularly the statements from the jurors who said they had not been given all the facts at trial. Approached by The Intercept, Saenz refused to say whether he’d read the jurors’ declarations yet. “I’m not giving any interviews about the Melissa Lucio case,” he said. “I’ve got a lot of other work in addition to that.”
In late March, John and his wife, Michelle, pulled up at a cemetery just north of Harlingen. Mariah was buried in a small plot toward the back, where the land gave way to a tangle of mesquite and wildflowers. The grave was unmarked aside from an angel statuette left by a family friend years back; John was in the process of getting a headstone. One Easter they laid down a miniature fence and some colorful eggs. “It was very, very beautiful,” John said.
In his signature black “Free Melissa Lucio” T-shirt, John spoke quickly, almost frantically, about the campaign to save his mother’s life. Although he’d never planned to stand idly by as the state tried to kill his mother, he had no idea what to do after she got her execution date. “I was lost, I was confused,” he said. “What do I do next?” He was grateful to the activists who had attracted public support for Lucio on a level he’d never imagined. One lawmaker had even urged him not to make funeral plans.
Still, the high-profile organizing has taken a toll on the family. With Lucio’s story more prominent than ever, old traumas resurfaced, aggravating wounds that had never healed. The anguish and upheaval from Lucio’s death sentence was embedded in a letter from her children and declarations included in the clemency petition, which described her as a loving mother whose execution would devastate her family. “By killing her you will be killing me too,” her daughter Melissa wrote.
Over the phone, Johnny Galvan, the former juror, expressed dismay that Saenz had brushed off questions about Lucio’s case. Maybe he would call himself. “If he’s the only person that can do something from Brownsville, I should be in touch with him,” he said. “And I’m not just anybody. I’m one of the jurors.”
Galvan never reached the DA. But two weeks later, on April 12, he stood before members of the Criminal Justice Reform Committee at the Texas State Capitol in Austin. Galvan has poor eyesight, so his daughter Carmen read a statement to the lawmakers on her father’s behalf, which urged the governor to intervene. “The idea that my decision to take another person’s life was not based on complete and accurate information and a fair trial is horrifying. … If I could take back my vote I would,” she read. “I will be haunted by Ms. Lucio’s execution if it goes forward.”
Afterward, Saenz himself joined the meeting remotely. It was the first time he had publicly addressed Lucio’s case. For those who hoped Saenz might stop the execution, his exchange with the lawmakers was disappointing, even surreal. The DA seemed indifferent to the new issues raised in the case — and unaware of the basic facts, including when, exactly, Lucio was scheduled to die. He denied that he could simply withdraw Lucio’s death warrant, even though her execution date had been set at his request. Instead, he pointed to the courts, where there are several issues still pending. If the courts didn’t act before the execution, Saenz said he would step in — before immediately contradicting himself, saying he had no legal reason to intervene.
“My hope is that the right thing is done — by somebody,” Leach, the committee co-chair, said. But he told Saenz what the DA already knew: “You have the power right now, singlehandedly, tonight, to withdraw this request.” After all, there was no harm in delaying Lucio’s execution — certainly not compared to the harm of executing a potentially innocent woman.
Leach acknowledged John Lucio and his family, who were seated in the audience. “They are your constituents. And they are begging you to just press the pause button,” he said. “Has a single member of the victim’s family requested you or urged you to set this date for execution?” Saenz had no answer to that question.