Lying For a Good Cause

As the pandemic fades, states with active capital punishment laws are resuming executions of their worst murderers.  Over the coming weeks as condemned murderers in Missouri, Arizona and Texas are scheduled for execution, death penalty opponents have resumed their insistence that innocent people are facing execution.  The latest “wrongly convicted” posterboy is actually a woman named Melissa Lucio.  Lucio was convicted in 2007 for the murder of her two-year-old daughter Mariah.  ABC, CNN, CBS, Yahoo News, Time and several other news outlets are regurgitating the press releases from the Innocence Project and other anti-death penalty groups which assert that Lucio was forced to confess by police, and that medical evidence proves that she did not commit the murder.  An example is a story by Ed Pilkington in the April 21 issue of The Guardian, “Texas mother set for execution – yet evidence suggests she did not kill her child.”

Update:  The Texas Court of Criminal Appeals has granted Lucio a stay of execution, as reported here.

Pilkington tells us a tragic story of an abused, pregnant mother of nine who’s daughter died after falling down stairs two days earlier.  She was relentlessly interrogated by five police detectives until, after nearly six hours, she broke down and began to “repeat the (incriminating) phrases that the investigators had effectively coached her to say….That coerced confession was the core evidence presented at Lucio’s subsequent trial.  It was critical to the jury’s guilty verdict, and to the death sentence that followed.”

The tactics of anti-death penalty organizations were well documented by the article.  “Hundreds of religious bodies, along with women’s and domestic violence advocacy groups, have joined celebrities such as Kim Kardashian to plead with Republican governor Greg Abbot and the state’s board of pardons to intervene.  A documentary about the case, The State of Texas v. Melissa, was released in 2020.”

Somebody contacted and coordinated all those religious and advocacy groups and recruited the celebrities.  Somebody paid for the documentary and sold it to Hulu.  Somebody called and harangued jurors with claims about new evidence that exonerated Lucio, convincing five of them to support a reprieve.  The new evidence consisted of discrediting the testimony of one of the detectives at Lucio’s interview who said that based on his long experience, her body language suggested that she was lying when she initially denied guilt; a claim that the defense attorney failed to present evidence supporting a brain injury when the toddler allegedly fell down stairs two days before her death;  a claim that the jury was not allowed to hear testimony from experts about the propensity of victims of domestic violence to make a false confession;  a challenge to the presentation by the government pathologist regarding of bruises and bite mark evidence on the little girl’s body ; and the post-conviction statement of a pediatric forensic pathologist that the investigation into the child’s death appears to have been significantly prejudiced, creating a risk of a miscarriage of justice.

If one did not know anything beyond what the article presented, it would seem clear that Lucio’s conviction and death sentence are a gross injustice.

Last year the Fifth Circuit U.S. Court of Appeals reviewed every claim raised by Lucio’s three government and five private attorneys.  It should be noted that all of the so-called new evidence had been presented on multiple occasions in lower state and federal courts over the past fourteen years.  On February 9, 2021 a divided court rejected Lucio’s claims and upheld her conviction and sentence.

Here’s an excerpt from the court’s majority opinion:

On the night of February 17, 2007, paramedics responded to a call at the home shared by Lucio and her husband Robert Alvarez. The call concerned the couple’s young daughter, Mariah. When the EMTs arrived, they found Mariah on the living-room floor. No one was near her. Her body was covered with bruises in various stages of healing, her arm had been broken for several weeks, she had a bite mark on her back, and some of her hair had been pulled out. She was not breathing. She had no pulse. The EMTs tried to resuscitate Mariah and rushed her to the hospital. In the emergency room, a doctor also tried to revive Mariah. Those efforts were unsuccessful. Mariah was pronounced dead. She was two years old.

On the night of Mariah’s death, Lucio told the EMTs and the police that Mariah fell down the stairs. Later that night, during a videotaped interview with investigators, Lucio explained that she had caused the bruises on Mariah’s body by spanking Mariah “real hard” and by pinching her vagina. Lucio said “nobody else would hit her.” As for the bitemark on Mariah, Lucio explained that two weeks before Mariah’s death, while Lucio combed Mariah’s hair, Lucio grew frustrated with her other “kids jumping around.” Although Mariah had done nothing wrong, Lucio “placed [her] mouth over [Mariah’s] back and bit her.” During the interrogation, Lucio denied ever punching Mariah, causing the scratches on Mariah’s face, hitting Mariah on the head, or killing Mariah. But she also told investigators, “I’m responsible for it.” Following the interrogation, Lucio made a phone call. A police officer who had been present with Lucio during the phone call testified that Lucio had told her sister, “Don’t blame Robert. This was me. I did it. So don’t blame Robert.”

The State of Texas charged Lucio with capital murder. At the trial, Lucio’s sister took the stand and testified about the phone call. She denied that Lucio said, “This was me. I did it.” Rather, Lucio’s sister said that they only discussed spanking, and that Lucio said, “I would spank the kids.” Lucio’s sister also denied that Lucio spanked Mariah.  In the sister’s account, Lucio “never disciplined her children.” The jury also heard testimony concerning Mariah’s injuries. The forensic pathologist who performed Mariah’s autopsy testified that her injuries were not the result of a fall: “[T]his is a child that’s been beaten. This is a battered child.” In the pathologist’s expert opinion, Mariah died from blunt-force trauma to the head. At trial, the emergency-room doctor who tried to revive Mariah testified that this was the “absolute worst” case of child abuse he’d seen in his thirty-year career. To rebut this evidence, Lucio’s medical expert opined that Mariah was physically abused. But he also stated that her death could’ve been caused by either a fall or being “[h]it by a strong force.”

The Pilkington article suggests that after experiencing years of domestic violence, “never told to the jury,” Lucio was “singularly  vulnerable to making a false confession in the course of a coercive interrogation.”  He is referring to a psychologist and a social worker Lucio’s defense attorney wanted to have testify at the trial.  Both submitted statements to the defense attorney about what they intended to present during the trial.  As the Fifth Circuit noted, neither suggested that their testimony would infer that Lucio made a false confession to the police.  The judge denied their testimony at the trial, but allowed their testimony at the sentencing hearing.

Finally, the Fifth Circuit documented multiple interventions of Texas Child Protective Services beginning in 1995, involving Lucio’s use of drugs, the presence of drugs in her newborn children, including Mariah, multiple incidents of neglect, the use of drugs by her children, and a two-year period where her children were put in foster homes due to Lucio’s drug use and neglect.   Without question, Child Protective Services failed to take the appropriate action to protect Lucio’s children from her, but this does not excuse her behavior.  She was not mentally incompetent.

At trial, evidence about Lucio’s difficult life, including evidence of Lucio’s abusive childhood, abuse at the hands of her two husbands, and her psychological, emotional and drug problems was presented to the jury.  Jurors voted unanimously to convict her of aggravated murder and, after a separate sentencing trial, voted unanimously for the death sentence.

This is, without question, a difficult case.  But the suggestion that the police, the doctors, the prosecutors and the judges were prejudiced against Lucio, and that her conviction was unjust and death sentence undeserved is insulting.  If prosecutors had presented video of this woman beating her two-year-old daughter to death with a baseball bat, Mr. Pilkington, Kym Kardashian and most of the others featured in his article would still be opposing her death sentence.

My guess is  Lucio’s sentence will be commuted.




2 Responses

  1. Chuck Pergiel says:

    I’m tired of seeing these death penalty cases consume so much of the court’s time and the state’s budget. Perhaps once someone is convicted of a crime, we should let the fight over sentencing should be paid for by contributions from the public instead of by tax dollars. Both prosecution and defense need to share the cost of the judge and the courtroom. Maybe not the best idea, but spending ten million dollars to get a death penalty is absurd.

    • Judge Henry Friendly had the right idea half a century ago, in my opinion. Limit collateral attacks on criminal judgments to prisoners with a colorable claim of actual innocence. As most capital cases have none, they would end with the direct appeal. Executive clemency would remain as the relief valve for the rare case of a murderer sentenced to death who is nonetheless deserving of mercy.