Melissa Lucio is scheduled to be executed next week for a crime she says she didn't commit — one that may not have even occurred. She was convicted 14 years ago of murdering her 2-year-old daughter, Mariah, and a Texas jury sentenced her to death.
The state says Lucio beat her daughter to death. But as new details have emerged about her case, a growing chorus of lawmakers, faith leaders, anti-domestic violence organizations and celebrities has called for clemency. At least one juror from the trial says the jury wasn't given the full picture — and that if he had known more, he would have never voted for the death penalty.
"No court has ever considered the new evidence of Melissa Lucio's innocence," says Vanessa Potkin, director of special litigation at the Innocence Project and one of Lucio's attorneys. "So first and foremost, the Texas Court of Criminal Appeals could issue a stay so that the evidence of Melissa Lucio's innocence can be fully litigated in the court. And that's what we're hoping for."
The case hinges on an interrogation of Lucio conducted two hours after Mariah died, during which officers tried to get Lucio to confess to hurting her daughter.
Lucio's attorneys say police had already decided on a narrative when they brought her in for interrogation. After five hours of questioning, during which Lucio expressed her innocence more than 100 times, she eventually said "I guess I did it" when asked if she was responsible for some of her daughter's injuries. The state called it an admission of guilt for Mariah's death.
Potkin says Lucio had inadequate defense during her trial. Witness testimony from one of Mariah's siblings about the 2-year-old's fall down an uneven staircase two days before her death never made it before the jury, and expert witnesses were not allowed to testify on reasons why Lucio might have made a false "confession."
She is scheduled to die by lethal injection on Wednesday. If she is killed, she would be the first Hispanic woman to be executed in Texas in the modern era of the death penalty, and the first woman executed in Texas since 2014.
Who is Melissa Lucio?
Lucio, 53, is a Mexican American woman who has struggled against poverty and abuse since childhood. She is the mother of 14 children, including Mariah.
According to court documents submitted by Lucio's attorneys, she was sexually abused by her mother's boyfriend starting at the age of 6 — abuse that lasted for two years. She married at age 16. According to the Innocence Project, it was an abusive marriage. Her first husband, the group says, was a violent alcoholic who left her after she gave birth to their five children.
"Her next partner continued the cycle of violence, punching her in public and beating her at home. By the time she gave birth to her twelfth child, Melissa had experienced homelessness, drug addiction, and severe mental illness," according to an amicus brief filed by former prosecutors, anti-violence organizations and others on Lucio's behalf.
Lucio was pregnant with twin boys at the time of Mariah's death and when she was interrogated. She gave birth to the twins while in jail and was forced to give them up for adoption.
In 2007, Lucio's family was living in a second-floor apartment in Harlingen, in Texas' Rio Grande Valley, and the family was preparing and packing to move to a new home.
"At some point they didn't hear Mariah playing anymore, went to check on her, and she had managed to get out of the screen door and was at the bottom of the staircase," says Potkin, the Innocence Project attorney. "Melissa didn't observe the fall herself. She saw Mariah at the bottom with a bleeding lip, but she otherwise didn't appear to be seriously injured. One of Mariah's other siblings witnessed the fall and later, when interviewed by Child Protective Services after Mariah's death, stated that he saw his sibling fall down the stairs."
Some of that evidence, says Potkin, was not disclosed to the defense as they were preparing for trial.
Why do people think she's innocent?
At Lucio's trial, expert witnesses for the defense were not allowed to testify as to why she might have given a false confession. Among the experts her attorneys sought to put on the stand was a psychologist who planned to testify that Lucio's history as a survivor of domestic and sexual abuse helped explain why she told interrogators what they wanted to hear — even if it wasn't true. But the trial judge ruled that testimony "irrelevant," according to court documents.
Potkin says it's now recognized that "having a trauma history such as Melissa had, being a survivor of sexual abuse and domestic abuse, is a risk factor and vulnerability during custodial interrogation for false confession."
False confessions are more common than you might think. More than a quarter of people exonerated by the Innocence Project in recent decades had confessed to the crime they allegedly committed, as Science reported.
There have also been questions about the testimony provided by the medical examiner alleging that injuries on Mariah's body were clear signs of abuse. But Lucio had no history of child abuse. She admitted that she had spanked Mariah on the butt, but denied abusing her. A pathologist interviewed by The Intercept says the medical examiner who conducted Mariah's autopsy jumped to conclusions and ignored evidence that Mariah died due to an accident.
There is significant evidence of her innocence that no court, no fact finder has ever considered.
"There is significant evidence of her innocence that no court, no fact finder has ever considered," Potkin says. She says that after Mariah's family discovered the child had stopped breathing, they frantically called for help — and the responding police rushed to judgment in concluding that Mariah's death had been a murder, due to profound bruising on her body.
Instead, Potkin says, the blood coagulation seen in Mariah's autopsy was the result of an accidental head injury, like a fall down stairs. It's a disorder, she says, that in other cases has been "confused for child abuse because it causes extensive bleeding and bruising throughout the body."
Lucio's supporters say many of the issues in her trial trace back to the head prosecutor in the case, Armando Villalobos. The former Cameron County district attorney recently spent several years in federal prison for bribery and extortion. At the time of Lucio's trial, Villalobos was running for reelection against a challenger who criticized him for not thoroughly investigating or prosecuting charges of child abuse. Lucio's attorneys say Villalobos wanted to make an example of Lucio to prove he was tough on crime.
Her family maintains her innocence and has pushed hard to get her off death row. Five of the trial's 12 jurors have called for her clemency.
"She is an innocent woman," John Lucio, Melissa's eldest son, told Latino USA at a protest outside the Cameron County Courthouse in February. "She is not guilty of the death of my baby sister."
What have the courts said?
Lucio and her attorneys have not had success in reversing the initial verdict. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit reviewed Lucio's case and overturned it, finding that she had been denied the opportunity to present a full defense at her trial and that a new trial was warranted.
But the state of Texas appealed the decision, and the case then went to the 17 judges that comprise the 5th Circuit. A majority of the judges said the conviction had to be upheld because they were barred by a procedural rule that limits a federal court's ability to review state court findings.
Last October, the Supreme Court declined to hear the case.
What chances does she have left?
To prevent Lucio from being executed, Texas Gov. Greg Abbott could grant her clemency. The Texas Court of Criminal Appeals could also stop the execution.
Abbott's office did not respond to a request for comment, but in March the governor said he was awaiting a decision by the Texas Board of Pardons and Paroles. "I'll make a decision once it comes to me," Abbott told KRGV, an ABC News affiliate in the Rio Grande Valley.
Cameron County District Attorney Luis Saenz — who was not the DA at the time of Lucio's trial — told Texas lawmakers last week that he would move to delay Lucio's execution if the Board of Pardons and Paroles rejects calls for clemency and the courts don't intervene.
"If Melissa does not get a stay by a certain day, then I will do what I have to do and stop it," Saenz said, as the Austin American-Statesman reported.
Saenz's office did not respond to a request for comment on the case.
Potkin said that now is a complicated time emotionally for Lucio.
"While there is great optimism in some regards because of the support and because it seems to be resonating with so many people, that she has a compelling claim of innocence and just the injustice that would happen if this execution goes forward," Potkin said on Wednesday. "At the same time, here we are, seven days away from her execution date. And so she has to confront that reality, too, that the execution could go forward."
Lucio's thoughts are with her children, Potkin said, as she talks to friends about the roles they could play in the life of her kids if she is not alive after next week.
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