When the news broke, the small crowd gathered outside the governor’s public reception room at the Texas Capitol erupted with cheers: The state’s Court of Criminal Appeals had stayed Melissa Lucio’s impending execution. It was sending her case back to district court to consider several pressing claims, including that Lucio was innocent in the 2007 death of her 2-year-old daughter, Mariah.
Maggie Luna was beaming from ear to ear, and Jennifer Toon had tears in her eyes. The two women — friends and formerly incarcerated activists — had joined a broad coalition of supporters pressing every lever they could think of to try to stop the execution, scheduled for April 27. Neither woman had been eating very much. Or sleeping well.
Toon had been the inmate librarian at the Mountain View prison unit where Texas’s female death row prisoners are housed, and she’d gotten to know Lucio over the years. Lucio was kind and gentle; Toon couldn’t imagine that she was capable of killing anyone, let alone her own daughter. “Melissa Lucio was the epitome of every system in the state of Texas failing at every level: education, health, faith community,” she said. “And certainly, the court system.”
According to the state, Lucio, then a mother of 12 who struggled with drug addiction, had beaten her toddler to death in February 2007. Mariah’s lifeless body arrived at a hospital in Harlingen, Texas, covered in bruises, which authorities immediately assumed were evidence of abuse. But although Lucio had a history of being investigated by Child Protective Services, she had no history of physically abusing her kids. She tried to explain to no avail that Mariah had fallen down the stairs a few days earlier; the possibility that the child’s death was not murder but the result of a tragic accident was never investigated. Instead, police subjected Lucio to a punishing late-night interrogation lasting more than five hours. After repeatedly denying that she killed her daughter, Lucio finally conceded that she was responsible. In 2008, Lucio was convicted and sentenced to die.
After Toon was released from prison, she remained in touch with Lucio. While bouncing around online, Toon came across the documentary “The State of Texas v. Melissa,” which confirmed her instincts that Lucio was innocent. She prodded Luna, then her roommate, to watch the movie. Lucio’s story resonated with Luna; a mom of three, Luna had struggled with drug addiction, lost her children to the state’s child welfare system, and gone to prison. She could see herself in Lucio’s story. “This could’ve been me,” she said. “This is terrifying — it should be terrifying for everybody.”
Toon wondered why Lucio’s story wasn’t getting as much attention as the cases of some of the men on Texas’s death row. “We felt like David and Goliath,” she said, as she and Luna did what they could to push Lucio’s case into the spotlight. Ultimately, the two women hooked up with Abraham Bonowitz, executive director of Death Penalty Action, who had organized a campaign around Lucio’s case across Texas and beyond. That’s what brought Luna and Toon to the Capitol on April 25.
There were two possible avenues of relief for Lucio. Her legal team, including attorneys from the federal public defender office in Austin and the Innocence Project, had filed a clemency petition with the Texas Board of Pardons and Paroles, asking them to recommend that Gov. Greg Abbott commute Lucio’s sentence, or at least grant a 120-day reprieve from execution. They’d also filed a petition with the Court of Criminal Appeals, arguing that new evidence undermined Lucio’s conviction. The lawyers asked the court to block the execution and send the case back to the lower court for further scrutiny — and ultimately, a new trial.
By Monday morning, there was a fair amount of speculation spreading among activists about what would happen; word was that the board had already made its decision and would make its announcement by early afternoon. Instead, just before 1 p.m., Bonowitz’s phone rang. It was Lucio’s son John, calling to say that the court had intervened.
“It’s not over by a long shot; this campaign has to continue,” Bonowitz told a smattering of TV reporters. “But for us, what’s clear is that there’s a recognition by the court that something is wrong and needs to be fixed.”
Shortly after the court delivered the stay, state Rep. Jeff Leach called Lucio. Have you heard the news? he asked. She hadn’t.
“Are you serious!? Are you serious!?” she exclaimed through tears. “That is wonderful. Oh my God. What does that mean?”
“Well, it means you’re going to wake up on Thursday morning,” Leach replied.
Error Compounding Error
It was fitting that Leach would deliver the news. The conservative Republican from North Texas became an unlikely ally of the condemned mother from the Rio Grande Valley. Leach, a co-chair of the House Criminal Justice Reform Caucus, worked with Democratic Rep. Joe Moody to muster an unprecedented level of support for Lucio among an ideologically diverse group of more than 80 state representatives — more than half of the members of the Texas House, a body that rarely comes to a decisive consensus about anything.
Over the last month, Leach, a self-professed supporter of capital punishment, became increasingly vocal about his concerns, vowing to do “everything I can … in every way possible” to prevent Lucio’s execution. Leach and a handful of colleagues traveled to visit Lucio in prison. He and Moody also convened a committee hearing to question Cameron County District Attorney Luis Saenz, who had requested Lucio’s execution date. They implored him to step up and withdraw it.
“To say I’m wrestling with the very existence of the death penalty in Texas would be a dramatic understatement,” Leach said.
The fact that Lucio was granted a stay at all is also relatively unusual; the Court of Criminal Appeals rarely sticks its neck out to pause the state’s machinery of death. Over the years, it has routinely allowed executions to go forward even in cases where there were serious questions about a defendant’s guilt. In fact, the court had twice ruled against Lucio’s appeals. But it seems the relentless pressure from activists and lawmakers, combined with the mounting evidence of Lucio’s innocence, was too much to simply ignore.
The court’s order sends the case back to Cameron County, where the trial court will be tasked with considering evidence on four claims that cut to the heart of the state’s case against Lucio. Specifically, the question is whether false testimony, faulty forensic practices, and hidden evidence tainted her conviction.
Lucio’s lawyers argue that Dr. Norma Farley, the forensic pathologist who autopsied Mariah, misled the jury when she insisted that Mariah’s injuries could only have resulted from a fatal beating. As The Intercept has previously reported, Farley was unequivocal in testifying that she knew right away that Mariah had been murdered. “This child had more bruises than I’ve ever seen in any case that I had before,” she said. “This is a beating.” Medical experts who reviewed Lucio’s case now say that Mariah’s injuries were entirely consistent with a fall down the stairs, and that Farley failed to rule out that possibility before jumping to her inflammatory conclusion.
The lawyers also argue that Farley deployed junk science, including testimony about an alleged bite mark on Mariah’s back, to bolster her insistence that Mariah had been abused. And they say that Lucio’s interrogators — a phalanx of investigators that included Texas Ranger Victor Escalon — engaged in their own junk science. From the moment he walked into the interview room, Escalon testified, he knew that Lucio “had done something.” The notion that a person can determine another’s guilt or deception through their body language has been roundly discredited.
The lawyers also claim that the DA’s office illegally withheld from Lucio’s trial counsel crucial documents generated by the state’s child welfare agency. Those documents, her lawyers argue, support Lucio’s claim that Mariah’s health had deteriorated after falling down the stairs. The idea that the office might’ve engaged in legal trickery to invigorate their case against Lucio is hardly surprising; then-District Attorney Armando Villalobos was trying to rehabilitate his reelection campaign amid allegations of corruption, and he was up against a challenger who had taken him to task for failing to prosecute child abuse cases. In 2014, Villalobos was sentenced to 13 years in federal prison for racketeering and extortion.
The trial court will also be asked to consider the claim that Lucio is innocent of murder. Her lawyers argue that credible science demonstrates that Mariah’s death was caused by an accident and that Lucio was sentenced to death for a crime that never happened.
“Error compounded error,” the lawyers wrote in their petition to the Court of Criminal Appeals. “The biased investigation supported a prosecution — led by a criminally corrupt prosecutor — centered on an unreliable, contaminated ‘confession’ and false scientific evidence that misled and inflamed the jury. Viewing all of the available evidence … no rational juror would have found Ms. Lucio guilty beyond a reasonable doubt.”
In a phone call on Monday, Johnny Galvan, one of several jurors who supported Lucio’s clemency petition, expressed relief upon hearing that the court had stayed Lucio’s execution. “This makes my day,” he said.
Lucio’s son John was in Gatesville, Texas, on Monday afternoon, preparing for a visit with his mother at the nearby Mountain View unit. It was potentially one of the last times he would see her alive. He was accompanied by family members as well as Sabrina Van Tassel, the director of “The State of Texas v. Melissa,” who had traveled from Paris to witness Lucio’s execution. John and his wife, Michelle, were filming an interview with Univision in their hotel lobby when John stepped away to take a phone call from Assistant Federal Public Defender Tivon Schardl. Moments later, he interrupted the interview. “Babe,” he said to Michelle, his voice filled with emotion. “My mom got a stay.”
After sobs and hugs in the lobby, the family raced to see Lucio. “As fast as my heart was pacing, that’s how fast I was driving,” John later told reporters at a press conference. Michelle described the moment they saw Lucio inside the visitation area. “We put our hands up to the glass, and we all began to cry.”
The press conference was still underway when Saenz, the Cameron County district attorney, released a statement responding to the stay of execution: “I welcome the opportunity to prosecute this case in the courtroom, where witnesses testify under oath, where witnesses can be cross-examined, where evidence is governed by the rules of evidence and criminal procedure, and where the court rules pursuant to the rule of law,” it read. “That is our criminal jurisprudence system and it is working.”
The notion that Saenz would be eager to retry Lucio rather than drop the charges offended Death Penalty Action activist Charles Keith, who spent the past several months traveling to the Cameron County courthouse in Brownsville. Keith knew all too well what Lucio’s loved ones had just been through: His own brother, Kevin Keith, came less than two weeks from execution in Ohio despite doubts over his guilt. Speaking at the press conference, Keith responded to Saenz’s statement. “What evidence would you have? I’m hoping it’s not the same evidence Mr. Villalobos had. … If you’re gonna bring it, bring it right. And if he didn’t have none 15 years ago, you don’t have any today.”
Lawyers for Lucio have expressed optimism that a new trial would ultimately exonerate their client. “We’re confident that with the new evidence of innocence, if Melissa was retried today that she would be acquitted,” Innocence Project attorney Vanessa Potkin told reporters on Monday afternoon. The legal team also addressed lingering questions about whether Saenz would even be eligible to retry Lucio. Attorneys for Lucio have long argued that Saenz has a conflict of interest due to the fact that Lucio’s defense attorney at trial, Peter Gilman, now works for him. “There is a motion pending in the trial court to disqualify him from further participation in this case,” Schardl said.
That decision will ultimately turn on another motion filed by Lucio’s lawyers, seeking the recusal of Cameron County District Court Judge Gabriela Garcia, whose court administrator was also part of Lucio’s legal team. On Monday, the CCA ordered Garcia to either recuse herself or have another judge rule on her disqualification within three days, Schardl explained. “And then whichever judge remains on the case will decide the disqualification of the district attorney if he does not recuse himself.”
Regardless of who ends up in charge, Lucio’s family and advocates are not waiting on the courts. On April 27, the day Lucio was set to die, they held another rally outside the Cameron Country DA’s office, this time calling on Saenz to drop the charges. In front of a large white “Free Melissa Lucio” banner, Van Tassel looked up toward the courthouse where she had spent so much time working on the film that would bring Lucio’s story to the rest of the world. The state of Texas had planned to execute an anonymous woman, she said. “And today she’s no longer anonymous. Everybody knows who she is.”