Murderville, Texas just ended its nine-episode season, casting significant doubt on whether a man on death row for the 1992 murder of a Houston grandmother is actually guilty. This week on Intercepted: Intercept Senior Editor Andrea Jones speaks with Jordan Smith and Liliana Segura, the reporters behind the investigative podcast, about what happened after the murder of 72-year-old Edna Franklin.

Relying on a hunch from one of her grandsons, police had a suspect — and an arrest warrant — within 24 hours: a family friend named Charles Raby, 22, who had been released from prison two months earlier. Raby was prosecuted on the basis of a single powerful piece of evidence: a confession he gave to police four days after the murder. After a brief trial in which his attorneys called no witnesses, Raby was found guilty by a Harris County jury. He was sentenced to death. Today Raby maintains his innocence. Smith and Segura break down shoddy police work, questionable confessions, and whether the state went after the wrong man.

 

[Car turn signal noise.]

Liliana Segura: Oh my god, there it is. Holy shit. 

Jordan Smith: That’s it. 

LS: Oh my god. It’s just there. I don’t know what I was expecting. 

JS: There it is. 

LS: Oh my god. Ugh. [Sounds of a camera shutter flickering.]

JS: So, I think where we’ll be is down there. Oh, yeah, look, here’s a cordoned-off area. [Taps against the window.]

LS: Uh huh. [Turn signal flickers again.] And then — oh my god. I don’t know why it’s so startling to just come up on it this way. 

[Intercepted theme music.]

Jeremy Scahill: This is Intercepted.

Andrea Jones: I’m Andrea Jones, a senior editor at The Intercept.

Gloria Rubac [on megaphone]: All over Texas, people are watching what’s happening here in Huntsville, the killing capital of the country.

AJ: In the summer of 2019, protesters gathered outside the prison in Huntsville, Texas, known as “The Walls.” It’s home to the state’s execution chamber.

Protestor: But we can’t allow the state of Texas to kill anybody. They do not have the moral authority to kill a single person. But what they’re doing on this assembly line of death is nothing short of murder. Murder!

AJ: Intercept reporters Jordan Smith and Liliana Segura had traveled to Texas to begin reporting on an old death penalty case out of Houston, from an era in which Harris County was sending more people to death row than any jurisdiction in the nation.

Protestor: Holy Mary, Mother of God, pray for our sinners.

AJ: Back in 1992, an elderly woman named Edna Franklin was stabbed to death in her living room. It was a grisly crime scene. Here’s how one expert described it:

Lloyd White: This is a really vicious attack. I mean, it’s what we usually refer to as overkill. In other words, not somebody that just kills somebody, but they just really produce injuries upon injuries upon injuries, intentionally, with a lot of anger involved.

AJ: A young man named Charles Raby, who was friends with Franklin’s grandsons, was quickly arrested. And he confessed to the murder. That may sound open and shut, but it’s not. 

[Low, slow music.]

AJ: From a far-reaching crime lab scandal to evidence that was lost, misrepresented, or never tested, there’s a lot more to the story. And Raby now swears that he is innocent. 

Smith and Segura have reported on wrongful conviction cases for years. They took a deep-dive into Raby’s case for Murderville, Texas — a nine-episode podcast from The Intercept.

They examined the police work, the trial records, and the science behind Raby’s conviction. And they tracked down witnesses who were never interviewed by detectives.

I spoke with Smith and Segura about faulty forensics, the fallibility of memory, and what Raby’s case reveals about a legal system ill-equipped to acknowledge its mistakes. Smith began by telling me about what prompted the Murderville, Texas, investigation:

JS: I got an email from a woman who I guess was familiar with work that I’ve done on Texas cases, and said that there was this case about this guy named Charles Raby who — it really bothered her. And she just sort of asked if we might be able to look into it. 

And I kind of recognized his name — just after all these years, I tend to recognize a lot of names, especially with people who have been on the row a long time. And I realized pretty quickly that it was completely — well, there were a lot of red flags, right? 

First of all, this is a 1990s case from Harris County, which is Houston, which basically when it comes to the death penalty, Harris County is kind of the epicenter of the death penalty in America. And particularly in this time period, they were just sending so many people to death row. And for cases that today you would never get sent to the row for. 

There were also forensic issues and issues that we knew had to do with the Houston Police Crime Lab which, again, is sort of a notorious bad actor, particularly in this era. The crime lab had so many problems, and that ended up sort of blowing up into a national scandal.

And then there was sort of this third layer, which was that the courts had dismissed all these problems, which again, is pretty typical for Texas and the Texas Court of Criminal Appeals. 

And so basically it was sort of a trifecta of these things, which made me think: Huh, I’m pretty sure there’s something here. And so what was nice too, is that we kind of reached out and cold-called the lawyer, Sarah Frazier, who is still working on the case. And she said: Yeah! And overnighted us basically every court document there was, so we kind of hit the ground running. I mean, it just had all the hallmarks, red flags everywhere about the way that it was handled. And I think Liliana and I saw that pretty quickly that there was a lot there there.

I mean, which is also to say: I think for a lot of people looking at it, Charles might not be the most sympathetic defendant. But I think that’s really beside the point, right? Everybody has something in their past that makes them not a choirboy. And if your criteria for going to bat for somebody who was wrongly convicted and put on death row is that they are a choirboy, well, then there’s not going to be that many cases to look at. So I think there is also this really interesting challenge of trying to get people to understand what the problem is, regardless whether you like the person or not.

LS: Essentially, the year is 1992. Charles Raby, like Jordan said, was not a choirboy by any stretch he had been in and out of the system from the time he was little, dealt with a lot of abuse, neglect, the kinds of childhood background really that you see a lot among people who end up on death row. 

But Charles Raby had just gotten out of prison in 1992, when there was this really brutal stabbing murder of this elderly woman named Edna Franklin. Charles had been seen in the neighborhood, he really was only out of prison, what, a few months before? So he’s very quickly picked up for this murder, despite there being really no investigation that had taken place yet, but sort of on the word of a number of neighbors who, by the way, did not like Charles at all, he had a really bad reputation. He had been friendly with Edna Franklin’s grandsons who were living with her. But they sort of ran in the same circles and and Charles Raby ends up being very quickly the prime suspect in this incredibly brutal murder. 

And they pick him up, they take him in, and unfortunately, we don’t really know what happens next, except for this very superficial description in this police report. And the reason we don’t know what happened in that police station is that in 1992, in Houston, they didn’t record or really do anything to document interrogations like the one Charles Raby was subjected to. 

Weirdly, we discovered during our research that the Houston Police Department did have the equipment to record interrogations at this time. But they did not do this in homicide cases, which is really odd and seems to be sort of actually unusual for the time, even in 1992, as compared to other jurisdictions and police departments. 

But anyway, Charles Raby is taken in and interrogated by a police detective who was known to be an incredibly effective interrogator — someone who was able to get confessions out of people very effectively, had that reputation. And so Charles Raby ends up confessing to this incredibly brutal murder, which to many people, you know, as soon as that’s the case, the case is sort of open and shut, case closed, the guy confessed. 

But from the jump, there were problems with this confession, not the least of which was that what Charles said about what happened at Edna Franklin’s house didn’t actually match the physical evidence at the time or to date — and we can get into that more. 

So that’s really how this begins. I mean, Charles Raby gives a confession very quickly, and everything proceeds from there.

AJ: You got the transcript of his confession. How does the confession affect the rest of the police investigation?

JS: Oh my god! It affects everything! [Laughs.] Because the minute they get that confession, as weak as it is, they do nothing else — like literally do nothing else. They don’t follow up with witnesses or potential witnesses. They don’t look for other witnesses. And, importantly, they do not do anything to check out another potential suspect, whose name was given to the police as someone who could have done this. I mean, so the whole thing relies on this really weak confession that doesn’t match the evidence at the scene, doesn’t match the scenario that we know what happened to Mrs. Franklin. And so everything goes sideways.

LS: Yeah, and actually, and as we say in the podcast, you really don’t have to take that from us. One of the really helpful documents in this HPD report on this murder was the moment that the Houston police detectives who were investigating this murder had all this physical evidence, and they planned to do testing and to use that evidence to prove that it was Charles Raby who committed this murder. And they say, essentially, that if they can just get — in this one document that’s included in the report — they point out all of this evidence they’ve collected, essentially predicting that all of this is eventually going to be tested. And it’s going to be tested for DNA, even. And this is all going to point back to Charles Raby. 

But once they secured this confession, they sort of abandon that plan. And it’s all about the confession. So the confession is at the heart of this case from the jump but, again, doesn’t match the physical evidence that’s collected. So that’s very much what we tried to probe in the podcast throughout — how that happened. You know what they do or don’t do with that physical evidence? And it’s pretty disturbing to see what happened.

AJ: One element of confessions that you explore the podcast is false confessions. And this idea that someone might confess to a crime they didn’t commit, especially when the stakes are so high, is sort of hard to wrap your head around. What did you learn through your reporting about why something like that might happen?

JS: I want to say a couple of things about that. Number one is: Yeah, people do not think that they would ever say something against their own sort of interest, right? That they would never confess to this thing they didn’t do — no way! But it happens. Like, a lot. If you look at the known wrongful convictions, you see that a good number of them involve false confessions. And this includes people on death row.

And there are certain ways in which certain people are made more vulnerable. I mean, the number one thing is the police technique. It’s very guilt presumptive, comes in heavy oftentimes, assumes your guilt, and then tries to force you into a box to try to say that you’re not guilty, but all the pressures bearing on you are like: Well, we kind of know you’re guilty, and so try to get out of that one! And so that’s kind of a box that people get themselves into. 

There’s also problems with talking about juveniles or people who are victims of trauma and abuse are also more susceptive to providing false confessions. And a lot of times people will give a false confession knowing that it’s false, because they’re like: I just want to get the hell out of here and certainly, when the cops look into this, they’ll realize that none of what I’ve told them is true! 

I mean, I’ve seen that a lot. It just doesn’t work that way, because confessions are considered by many to be gold standard evidence, precisely because of this idea that you would never say anything that you didn’t do, which just, as you said, not true. 

And without giving too much away, there are other factors that can come to bear, outside factors that may motivate somebody to say something against their own interests. And I think that’s part of what’s going on here is that Charles had some forces from the outside that were kind of on him that may explain in part why he said what he said to the cops.

LS: The other thing that’s kind of tricky about this case, but not completely unheard of, but still sort of unusual and difficult to explain to people is that not only is it possible and not entirely uncommon for people like Charles to give confessions to something they didn’t do, in a sort of subset of cases that are hard to wrap your head around. There are many examples of people who have not only confessed to something they didn’t do, but actually who come to believe that they committed this crime. They actually become sort of convinced of their own guilt. And these are sort of unusual cases, but again, not unheard of. There are many, many examples, actually, of cases where this sort of thing happened. And that’s rooted in all kinds of sort of fascinating and very troubling aspects to the way memory works.

Jordan and I spent a lot of time discussing memories, how fallible they are, how both of us at various points in life have realized that we’ve had sort of false memories or false recollections of all kinds of things. And they tend to be relatively minor. But it’s entirely possible and documented that people develop false memories and that plays into false confessions in cases like Charles’s — so one thing about his case that’s tricky is that he knew from the beginning that he was capable of a certain level of violence, like we said. 

Charles had a pretty tough background and had definitely been violent in his youth towards people and towards people he loved. And so exploiting that vulnerability, that knowledge about himself, was clearly also at play here. And that sort of plays out in some really tricky ways in his case, and it makes it even harder to explain to people that this is actually a phenomenon that is real, and that has to be taken seriously when you’re looking at cases like this.

AJ: That reputation for violence is obviously one of the reasons that so many people quickly became convinced of his guilt. And one of those people is a character that I think really sets this story apart from many of the other death penalty cases or possible wrongful convictions you’ve investigated in the past. And that’s a woman named Linda McClain. 

So I’m wondering if you could tell us who Linda is and how she factors into this story?

LS: So Linda McClain is the daughter of Edna Franklin, and she comes to be a really important, sort of central voice in this podcast and somebody without whom we couldn’t have told this story. 

Linda lived through the trauma of her mom’s brutal murder. She’s someone who had a life that was filled with all kinds of adventure and misadventure. [Laughs.] She’s done a lot of living. And her mom’s murder was one of really a number of traumatic losses she she dealt with in her adult life. 

As with any story that we would tell like this, whether in writing or as a podcast, reaching out to the victim’s families is always really important. It’s one of the things that you have to do in order to represent the case and the people who are impacted by this kind of crime. And so we always planned to get in touch with Linda as part of our reporting. But she actually sort of popped up in a way that we did not expect, relatively early on. 

Jordan and I had only really started our reporting. We were starting to get to know the case, we were starting to get to know Charles — and, in fact, had just gone to see Charles on death row. I was on my way somewhere, I don’t remember where, on a different reporting trip. And I got a tweet. I was checking Twitter and I was checking my mentions, and I saw this tweet out of nowhere that said: ‘I hope you don’t think that Charles Raby is innocent.’

LS: As it turned out, it was Linda McClain, the daughter of Edna Franklin, the woman Charles was accused of killing in 1992. 

After a brief game of phone tag, I caught up with her two days before Christmas.

Linda McClain: Yeah, I was just surprised to hear from you.

LS: Oh, well, I was surprised to hear from you! [Laughs.] On Twitter. [Laughs.]

LM: Well, I couldn’t figure out any other way to do it, so I thought: Well, Twitter, surely somebody will get a message or I can reach somebody on this Twitter. But yeah. Did you have a question?

LS: Yeah. Well, I was just — I was curious how you thought to contact me about Mr. Raby.

LM: So, every time something happens with Charles Baby, I’m notified as a victim because my mother was murdered by Charles Raby.

JS: That’s how she got our names. She wanted to know if we had an agenda.

LM: I’m assuming, in case you’re out there blathering all over the world: Oh, this man is innocent! He didn’t do this. Oh, my goodness! 

You know, that’s what makes me mad is the Innocence Project people, they don’t go and find out the other story. And do they even read the transcripts and the confessions and the witnesses? I don’t know.

JS: Man, from the minute that we met her it was like: Oh my god, we have to talk to this woman again. [Laughs.] And she was very skeptical of us the entire time, constantly telling us that she didn’t want to be misrepresented, but then also incredibly accommodating and willing to talk. And we got to know her pretty well. 

And she’s just — I mean, golly, she would make arrangements to talk to Lilian on the phone, she’d be like sitting in her bathroom because it was like the only place where she’d get good reception. [Laughs.] So she’d hang out in her bathroom so Liliana could call her, or she’d go sit in the parking lot of Dollar General, another place where she could get good reception. Even the people that you’re writing about who theoretically are wanting you to write about them aren’t even always that accommodating. [Laughs.]

But Linda would also get mad at us: I don’t want you to misrepresent me! 

She’s just — she’s like a pendulum swinging wildly. 

LS: As much as Linda was open to talking, she often reminded us that she was skeptical about what we were doing. She wanted to make sure that we didn’t misrepresent her. And from the start, she was clear that she didn’t exactly align with The Intercept’s progressive values — at least as she perceived them.

In our second phone call, I asked if she thought her son, Lee Rose, might also be willing to meet with us. Lee had lived with his grandmother and found her body the night she was murdered. 

LS: Have you talked to your son at all about the possibility of talking?

LM: Yeah, I talked to the one son who said he wouldn’t mind giving an interview. And then I talked to another son who said to be leery of interviews because of the way people misconstrue things. 

LS: Mmm. 

LM: And I do know that you’re a Democratic magazine.

LS: [Laughs.]

LM: And I am not a Democratic, and I think they’re completely insane. Those people need to be just erased off the planet or the Earth. But anyway, it’s neither here nor there. I don’t know what your goal is. I think that your goal is against the death penalty.

LS: You know, as we said at one point, Linda had a story to tell that she clearly wanted to tell. And this isn’t all that unusual. A lot of times when you do connect with someone who’s been through the kind of trauma she’s been through, maybe it’s not at that particular time, but a lot of times people want to be heard, or they want to feel understood, they want to be seen and they want to be seen maybe in a way that’s not entirely about their loved one’s murder, or this particular trauma. 

And Linda had all of that. And so as we got to know her, we came to sort of learn more about her and discovered dimensions to her that just were additionally fascinating, but also informed the lens through which she saw this case and experienced our reporting. I mean, as Jordan described, one of the trickiest things for Linda about participating in these conversations was that she was constantly wrestling with her perception of her mother’s murder. Everything that she had always believed to be true — for very good reasons — about this case, and about her mother’s death, about who Charles Baby was and is, it was hard for her to receive information and to sit with it and not to struggle with that. And a lot of that played out over the course of our conversations. 

I don’t know if this is the moment to share, but I guess I will. [Laughs.] One thing about this project, after the podcast has aired, you kind of want to check back with people who were featured in it. And with Linda, I have to admit, it’s been daunting to try to — I wanted to give her space to listen to the podcast for herself. Linda, I should mention, is a true-crime junkie. Linda adores true crime. She listens, she watches, these are the kinds of stories that even before we approached her she’s always been into. So we knew from the beginning that Linda would have some kind of critique, whether it was about our handling of the case, or our narration, or the story. And so I wanted to give her space to listen to the whole podcast before I reached out. And it’s been some time. 

And so I actually — literally this morning — sent her a text. I haven’t even had a chance to tell Jordan this. I can share the text that she sent. 

So I wrote to Linda, and I was frankly kind of nervous. Just for transparency’s sake, I’ll just share what I wrote. And we text. We keep in touch with Linda — but hadn’t heard from her at all, which is a little unnerving not to hear from Linda, she’s not shy. 

So I wrote: “Hey, Linda, I hope you’ve been well. Just wanted to check in and see how you’ve been doing. Jordan and I wondered if you’d had a chance to listen to the podcast. I can imagine it wasn’t always easy to listen to for you. We’re so grateful still for your willingness to tell your story. Feel free to get in touch anytime. Hope you remain safe and healthy.” 

And she wrote back about an hour later, and she said: “Hi, we’re good. I listened to the first episode but haven’t listened to any more. I might. I haven’t decided yet. I wanted to ask why you girls don’t do these podcasts for truly innocent people like Darlie Routier? Or maybe Jeffrey MacDonald. I’m not so sure he’s guilty. Neither of them confessed. Anyway, I’m sure you do what you think is right. Stay safe. Tell Jordan hello.”

JS: [Laughs.] Jeffrey MacDonald. [Laughs.] I’m with her on Darlie, though. Darlie’s been my pet case for years. [Laughs.] Wow, that is very classic Linda. 

LS: Yeah. 

JS: Wow.

LS: I’d literally just read this once before we started talking. 

JS: Interesting. 

LS: So to me this text, it kind of speaks to what we’ve been saying about Linda, which is it doesn’t surprise me actually that she listened to the first episode and then wasn’t sure that she wanted to keep going. 

I think it’s really painful to confront her mother’s murder, obviously. But also, listening to the podcast means also having to tolerate and absorb this information that casts doubt on this case in a way that I think must be incredibly difficult. So I guess on some level, it’s disappointing, because I really want to know what Linda thinks of the episode we did that’s all about her, you know? Which we’ve gotten a lot of positive feedback about. But it’s also entirely up to her whether she continues to listen or never does again. I would understand. I really would.

AJ: This was a case that was impacted, among many others, by a scandal within the Houston Police Crime Lab. And so, Jordan, I was wondering if you could talk about what happened with that scandal and how problems with forensic analysis throw so many cases into doubt, and how those problems continue to affect criminal convictions today?

JS: Well, so to say that the Houston Police Department crime lab was a mess would be a gross, gross understatement. Basically, it took sort of a scandal related to some DNA evidence and an wrongful conviction in a sexual assault case to sort of blow the lid off this. The lab was staffed with people who didn’t know what they were doing. There were a lot of infrastructure problems in the lab that literally physically damaged evidence. But there was a problem that actually still exists with a lot of crime labs today, which is that the Houston Police Department Crime Lab lived within the police department. It was not an independent lab. And so therefore, in many ways, was beholden to the police department. 

And one way in which that would show up was that if forensic analysts working in the lab got results from testing that contradicted what the police department narrative of a crime was — so, for example, if the results of their analysis pointed to someone other than the suspect that the police had identified, they would not report that. Instead, they would use the word “inconclusive” to describe evidence that actually pointed away from someone but who pointed away from the person that cops liked for the crime. And it really took this DNA scandal in the early aughts to blow the lid off this. 

And what ends up happening is a whole internal investigation with an outside investigator and all these reports are issued. And you realize that basically this sort of incompetence and malfeasance within the lab went back decades, back into the 80s, and really infected almost every discipline being practiced in the crime lab, so serology, blood work, ballistics, drugs, analysis, and DNA. 

And so I think the HPD lab scandal was probably among the most sort of — it made giant headlines, right? It broke through, it made national headlines, it was a national disgrace. 

But the ways in which forensic analysis is tied to police is still a huge problem across the country. I mean, you can look at Houston now. They came out of the other side of this scandal, now have the model lab for the entire country — the Houston Forensic Science Center — which is independent of the prosecutor’s office, is independent of the police department, and it serves both defense and prosecution. And that’s sort of the model that people have been wanting for years and years, and yet there are only like a couple labs in the entire country that have that model. So the idea that what happened at the Houston Police Crime Lab is somehow unique — you’re kidding yourself. It’s just a matter of: How bad is it? Right? And how biased is the lab work in terms of beholden to the prosecution or to the police? I mean that’s an ongoing problem that is not on too many people’s radars [laughs], and a really difficult problem to solve. But yeah, the Houston Police Department? A giant mess. But that’s not to say it’s an outlier. 

So I guess one of the fundamental things also that people don’t understand is that most forensic science, save for DNA analysis, was basically developed by police and not scientists, right? It’s “science” — with air quotes — in service of law enforcement. So it wasn’t like a bunch of scientists were sitting around being like: Fingerprints, let’s see if that’s a thing! 

That’s not how it happened. Basically cops came up with this idea that fingerprints are unique in order to solve crimes. So there’s an ongoing problem, where science is actually divorced very much from forensics. And I don’t know that that’s something that everybody necessarily appreciates.

[Meditative guitar music.]

AJ: Even when evidence comes to light that suggests the state got it wrong, it can still be very difficult to challenge an old conviction. So I was wondering if you could talk about the obstacles people face when challenging wrongful convictions?

LS: Yeah, I guess I would start by saying one thing about Charles’s story is that it is just such a classic example of the way in which even the best forensic evidence, even the best technology to connect evidence to a perpetrator is only as good as the system that it is used in, or that it’s handled in. And in this case, the system was abysmal at every stage and so so whether it’s DNA evidence, or serology, or from the best, most scientifically solid to the junkiest stuff, at the end of the day, if you have analysts and other actors who mishandle this evidence, well, human error is always going to lead to these really grotesque miscarriages of justice. 

And so Jordan and I have both written a lot of stories where there was powerful exculpatory evidence, even DNA in many cases. And that is not enough. A lot of people think that that’s enough to exonerate somebody, that once you find evidence that points to someone else, or that very powerfully suggests that the person on death row or in prison isn’t the right person, isn’t the person responsible, it doesn’t just happen automatically that somebody’s conviction is overturned. People have to fight like hell to make that happen. And they have to combat just an unbelievable number of procedural hurdles, state laws, federal laws. As we say in the podcast, the criminal legal system is really kind of designed to convict somebody, and once that conviction is final, keep somebody in prison or keep them on death row. 

We talk about finality. In many cases that we write about, it’s very clear that finality has been prioritized over any semblance of fairness, or even accuracy. And so this case is really kind of a case study in that. And in Texas, I can let Jordan explain how this plays out, how she’s seen it over and over again, the system is absolutely not designed to take stock of its mistakes, or do anything to correct them.

JS: Yeah. I mean, the Texas Court of Criminal Appeals is a notorious bad actor in this sort of scenario. They are really, really hesitant to overturn convictions, even where the evidence has completely fallen apart. And I think we have an example — a very sort of infamous example — of how that plays out. 

There is a case of a man named Roy Criner, who was convicted of rape and murder, swears he was not responsible. When DNA evidence comes back basically exonerating him, the court’s presiding judge — as in its head judge — a woman named Sharon Keller goes on national television, on Frontline.

Frontline reporter: According to Judge Keller, there could be other scenarios where Criner could have raped Deanna, while the semen found inside her would belong to someone else.

Reporter: How could that be?

Sharon Keller: Well, you’re not forgetting, or you’re not taking into account the fact that she was a promiscuous girl.

Frontline reporter: Do we know that?

SK: Yes. I mean the state, actually, there’s evidence in the record that the state could have put on testimony and there is specific kinds of testimony that she was promiscuous. Yes.

JS: I mean, which is just — think about that. Neither of those things were true. And she was just making shit up in order to ignore the fact that Criner was exonerated by DNA evidence. That is the Texas Court of Criminal Appeals. So that is what people like Charles Rabee are up against, regardless of how much evidence is on their side to show that they were not responsible for the crime. 

AJ: I want to switch gears a bit for a moment. But still focusing on the death penalty in Texas. 

You’ve been reporting recently on a separate case out of Texas, the case of Melissa Lucio, and her execution date is scheduled for later this month. And this is a situation in which she was sentenced to death much more recently than Charles Baby was. 

So I was wondering if you could talk about the ways the death penalty in Texas have changed over this period of time and the ways in which they haven’t, the problems that that still persist.

LS: Melissa Lucio is a woman who is facing an execution date of April 27. So as we discuss it, I mean, this is about a week and a half away. And it’s a really disturbing case in any number of ways. 

I have to say one of the things that disturbed me about it is that it’s a case that comes out of Texas in 2008, which in the sort of grand scheme of the so-called modern death penalty era, is a time when there were a number of efforts to improve different aspects of the system, not the least of which is supposed to be the lawyering that people get when they’re facing the death penalty. A lot of states, including Texas, have taken steps to provide more resources, to ensure that people aren’t sent to death row in part because somebody’s lawyer was just completely ineffective. 

And yet in Melissa Lucio’s case, you just see a textbook case of terrible lawyering and any number of other issues that actually relate to some of the aspects of Charles Raby’s case.

But Melissa Lucio, just the long and short of it, she’s a woman who, in 2007, her two-year-old daughter, Mariah arrived at a hospital in Harlingen, Texas, which is the Rio Grande Valley, essentially dead on arrival. She appeared to be covered in bruises and she had suffered a fatal head wound. Melissa Lucio insisted, described, that her daughter Mariah had fallen down a set of stairs a few days earlier when they were packing up for a move. But from the beginning, the first responders, the paramedics, the doctors at the hospital saw this child covered in bruises and immediately — immediately — suspected child abuse. 

Melissa Lucio, had a lot of kids, she lived in poverty, she had a lot of problems. She kind of fit the profile, I think that is often one that people assume to be criminal in some form or other. She had run-ins with child protective services a lot. Suffice to say, if this had been a wealthy white woman whose daughter showed up dead at a hospital, I think there would have been a very different set of questions or priorities placed on this tragedy. 

But Melissa Lucio being who she was was taken to be interrogated in this late night ordeal that lasted more than five hours, and that ultimately, according to the state, ended in a confession. But which was questionable from the jump. 

So this is a case that’s really evaded scrutiny for a while now, with the exception of a really good documentary called “The State of Texas vs. Melissa,” that gets into the case, into a lot of the evidence that wasn’t presented. And right now there’s just this very strong coalition of vocal opponents to her execution, saying to execute Melissa Lucia would be a horrific miscarriage of justice. And so Jordan and I have written a few stories about her case.

[Slow, meditative music.]

AJ: So you’ve both been on the criminal justice beat for years and years and I’d love to hear about your approach to these sorts of stories, to investigating possible wrongful convictions, to reporting on junk science and forensics and the death penalty? How do you gather information and dive into the stories at the outset?

LS: I guess one way to approach your question that I was thinking about this morning, one interesting thing about Charles Raby’s case is that his lawyer, Sarah Frazier, who has done a tremendous job handling this case, she wasn’t a death penalty lawyer. She sort of ended up representing Charles Raby, I don’t want to say by accident, but by virtue of being at this firm that was doing some pro bono work. And one of the interesting things about reporting on this case and interviewing Sarah Frazier is that we would ask her questions like: When you were looking at this trial transcript, and at this case for the first time, like, what really jumped out at you? Thinking that she would sort of share some things that she found to be particularly outrageous.

And she, she would sort of toss the question back to us — I don’t know if you remember this, Jordan — but she’d be like: Well, I don’t know if I knew enough then to really recognize certain problems in the case, which, as a journalist, made me frustrated, because I’m, like: Come on, give me something to work with! But but she was saying something really honest, which is like: I think until you’ve handled these kinds of cases, as a lawyer, or until you’ve written about these cases over and over again as a journalist, you don’t necessarily know enough to sort of see some of the red flags that I think both of us have come to be able to see. 

And that’s definitely true for Jordan. I mean, Jordan has been reporting on Texas death row and Texas more generally, for so long. I mean, I really have learned a lot from her, both in terms of the legal system and certainly forensics. And so I think one of the ways in which we get hooked into a case is sort of recognizing those red flags from the beginning. 

And I was just thinking this morning — I don’t know why this memory popped up — I was in Memphis, Tennessee, doing some reporting on a different story when Jordan had received the materials in this case, and was starting to read the trial transcript for the first time, and I was in some sort of meeting or interview scenario, I don’t remember, and Jordan calls me up. She’s like: I’m sorry, I know you’re busy, but you have to hear this. 

And she shares with me that she had just started reading the trial transcript in this case, and there is this totally surreal moment where it’s like day one of the trial, and the judge is there, and the prosecutor is there, and the defense attorney is there — Felix Cantu — and then: 

JS: The trial did not get off to a good start — at least for the defense.

LS: The first thing that happened? Cantu, Charles’s attorney, asked Judge Densen for the trial to be delayed. His co-counsel, a guy named Michael Fosher, was nowhere to be found.

JS: This isn’t just a minor wrinkle. In death penalty trials, it is standard practice to have two attorneys representing a defendant: first and second chair. Fosher was the second chair, which means Cantu was the lead guy. So you’d think he’d know where his co-counsel was. But Cantu told the judge that he hadn’t heard from him. At this point, Gutierrez piped up helpfully. “I spoke to him yesterday, Judge. I talked with co-counsel at his home.”

Gutierrez said that Fosher had a ruptured disc and was in a lot of pain and had been given medication. As Gutierrez recalled, Fosher said he was going to see his doctor that morning and then would “try to make it to court.”

The judge seemed unfazed by this.

LS: And this is in the transcript and Jordan’s reading it. And she’s like: This is completely off the wall. 

And so she called to describe this. And I was like: That is truly bizarre. 

Like, I don’t think either of us had ever seen something quite like that. 

And so you know from the start if you’re reading a trial transcript and something like that occurs — and then, on top of that, the judge is like: OK, well, anything else? Let’s get started! — that things are not going to proceed well from there. 

So I will always remember that phone call because Jordan immediately recognized the significance of that moment and had to share it. And things like that really draw you in, because it’s like: Oh, my God, if that happened literally on the first day, what else happened in this case that led to this really questionable outcome? [Laughs.] 

So yeah, I don’t know if you remember that, Jordan. But I was just thinking about it earlier. [Laughs.]

JS: [Laughs.] Oh yeah, I do. Like, wait a minute. You’re just starting, like nothing has happened yet, and the wheels have already come off the bus? [Laughs.] It’s like: Oh, no. We are definitely going to be sliding into the station on this one. I mean, it’s just like, no good, man. So yeah, I think, you know, just — we’ve been doing this a long time. 

For me, personally, like literally the first feature story I ever wrote as a journalist was about a wrongful conviction. And I feel like for me — it’s a long story — but I had gotten a free assignment, I was still in grad school, I was trying to do some contract work. And I had gotten this little assignment to go to this protest that was outside the courthouse. And all these people were railing against this conviction of this young girl. And I thought: What is going on here? Completely got sucked in, and so easily can see right off the bat how what seems on its face, perhaps, simple and straightforward, often is not. 

And I think that when you look at wrongful convictions, it’s not just that there is a false confession. It’s not just that there was some sort of police misconduct. It’s not just that some forensic analysts lied. It’s not just that the cops didn’t investigate. It’s generally all the things, right? And I think the best way in my mind to sort of talk about how the criminal justice system should be reformed and how it can do better, is to show how all the ways in which it does not work where the outcomes are literally taking away someone’s life. 

And I think that’s the kind of thing that’s kept me on this beat, so to speak, and looking at the system through these kinds of cases, is because all these things literally can result in the state taking somebody’s life. And we have to do better, right? We have to do better. And so you can see the ways in which we could do better through a lot of these cases. And so I think that’s kind of one of the things that drives me on those things. I don’t know, I think it’s the same with Liliana. [Laughs.]

LS: I like what Jordan said, but I did not necessarily plan to spend so much of my professional life looking at wrongful convictions or questionable convictions. And I think one of the most sobering things about doing this work is just the realization that the system gets it wrong this frequently. And once you have seen that, it’s really hard to unsee. 

And certainly I don’t believe that the biggest failure of our carceral system is that innocent people end up convicted for things that they didn’t do. I think that is absolutely a travesty and a failure. But I think that there’s a much broader critique that both of us make of this system — we write about a lot of guilty people, too — certainly, when it comes to the death penalty, there’s a lot to criticize in terms of its stated goals versus the reality, including for victims. But it’s been incredibly disturbing to realize that wrongful convictions are as common as they are, including in death penalty cases. And I think that once you know that, once you see the human toll of that, once you see the people on all sides who are impacted by that, it’s really hard to let go of that. 

And going back to the Melissa Lucio case, one thing I was thinking about in our most recent story, I spent a little time with one of the jurors who sent Melissa Lucio to death row. And this is a guy who now is confronted with the prospect of seeing a woman executed because of him, because of a decision he made, essentially giving into what was peer pressure. And, it was something that he took seriously. He did what he thought was the right thing — and now it’s coming back to haunt him. And it’s really haunting him.

And we saw in our conversations with jurors in Charles Raby’s case, there was a juror who said: I don’t think I could ever do that again. It’s bothered me for a long time that I decided that that guy was supposed to die.

Anonymous Juror: I can tell you that, ever since that trial, I would never again in my life, convict someone of murder. I don’t think that is my job in life. That’s God’s decision. So [chuckles], I did it because we “followed the law” — and that’s what the law told us to do. But if I was ever confronted with something like that again, I would have to tell the judge and everyone that I can’t do that ever again in my life. It haunted me for a long time that I decided that that guy was supposed to die.

LS: And so you know, there’s just so many people who are harmed or impacted in some way by these cases. And that’s true whether the person at the heart of the story is innocent or guilty. And I think probing that, meeting those people, it’s really kept me doing this work because it matters. And people who are sort of promised closure, like Linda McClain, and then instead get the opposite, they get doubt and re-traumatizing experiences, that matters too. All of it matters to represent. And hopefully people can kind of approach the system with a little more skepticism — and a lot of compassion, I think, for people on all sides.

AJ: Liliana, Jordan, thank you so much for speaking with me. 

LS: Thank you.

JS: Thank you.

[Intercepted credits music.]

AJ: And that’s it for this episode of Intercepted. Follow us on Twitter @Intercepted and on Instagram @InterceptedPodcast.

You can listen to all of Murderville, Texas on theintercept.com, or anywhere you get your podcasts. Also check out our weekly news and politics podcast Deconstructed, hosted by D.C. Bureau Chief Ryan Grim.

Intercepted is a production of First Look Media and The Intercept. José Olivares is lead producer. Supervising producer is Laura Flynn. Betsy Reed is editor in chief of The Intercept. And Rick Kwan mixed our show. Our theme music, as always, was composed by DJ Spooky. Original music in this episode by Zach Young.

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Thanks so much.

Until next time, I’m Andrea Jones.

Update: April 25, 2022
Melissa Lucio was granted a stay by the Texas Court of Criminal Appeals and will no longer face execution on April 27. The court also ordered the Cameron County district court to consider new evidence.