Lawyers hope new evidence can stop Texas woman's execution

Melissa Lucio holding one of her sons, John. Photo / AP

During hours of relentless questioning, Melissa Lucio more than 100 times had denied fatally beating her 2-year-old daughter.

But worn down from a lifetime of abuse and the grief of losing her daughter Mariah, her lawyers say, the Texas woman finally acquiesced to investigators. "I guess I did it," Lucio responded when asked if she was responsible for some of Mariah's injuries.

Her lawyers say that statement was wrongly interpreted by prosecutors as a murder confession — tainting the rest of the investigation into Mariah's 2007 death, with evidence gathered only to prove that conclusion, and helping lead to her capital murder conviction. They contend Mariah died from injuries from a fall down the 14 steps of a steep staircase outside the family's apartment in the South Texas city of Harlingen.

As her April 27 execution date nears, Lucio's lawyers are hopeful that new evidence, along with growing public support — including from jurors who now doubt the conviction and from more than half the Texas House of Representatives — will persuade the state's Board of Pardons and Paroles and Greg Abbott to grant an execution reprieve or commute her sentence.

"Mariah's death was a tragedy, not a murder. ... It would be an absolutely devastating message for this execution to go forward. It would send a message that innocence doesn't matter," said Vanessa Potkin, one of Lucio's attorneys who is with the Innocence Project.

Lucio's lawyers say jurors never heard forensic evidence that would have explained that Mariah's various injuries were actually caused by a fall days earlier. They also say Lucio wasn't allowed to present evidence questioning the validity of her confession.

The Texas Attorney General's Office maintains evidence shows Mariah suffered the "absolute worst" case of child abuse her emergency room doctor had seen in 30 years.

"Lucio still advances no evidence that is reliable and supportive of her acquittal," the office wrote in court documents last month.

The Cameron County District Attorney's Office, which prosecuted Lucio, declined to comment.

Lucio, 53, would be the first Latina executed by Texas and the first woman since 2014. Only 17 women have been executed in the U.S. since the Supreme Court lifted its ban on the death penalty in 1976, most recently in January 2021.

Texas death row inmate Melissa Lucio is holding her daughter Mariah, while one of her other daughters, Adriana, stands next to them. Photo / AP

In their clemency petition, Lucio's lawyers say that while she had used drugs, leading her to temporarily lose custody of her children, she was a loving mother who worked to remain drug-free and provide for her family. Lucio has 14 children and was pregnant with the youngest two when Mariah died.

Lucio and her children struggled through poverty. At times, they were homeless and relied on food banks for meals, according to the petition. Child Protective Services was present in the family's life, but there was never any accusation of abuse by any of her children, Potkin said.

Lucio had been sexually assaulted multiple times, starting at age 6, and had been physically and emotionally abused by two husbands. Her lawyers say this lifelong trauma made her susceptible to giving a false confession.

In the 2020 documentary The State of Texas vs. Melissa, Lucio said investigators kept pushing her to say she had hurt Mariah.

"I was not gonna admit to causing her death because I wasn't responsible," Lucio said.

Her lawyers say Lucio's sentence was disproportionate to what her husband and Mariah's father, Robert Alvarez, received. He got a four-year sentence for causing injury to a child by omission even though he also was responsible for Mariah's care, Lucio's lawyers argue.

In 2019, a three-judge panel of the 5th US Circuit Court of Appeals overturned Lucio's conviction, ruling that she was deprived of "her constitutional right to present a meaningful defence." However, the full court in 2021 said the conviction had to be upheld for procedural reasons, "despite the difficult issue of the exclusion of testimony that might have cast doubt on the credibility of Lucio's confession."

Three jurors and one alternate in Lucio's trial have signed affidavits expressing doubts about her conviction.

"She was not evil. She was just struggling. ... If we had heard passionately from the defence defending her in some way, we might have reached a different decision," juror Johnny Galvan wrote in an affidavit.

In a letter, last month to the Board of Pardons and Paroles and to Abbott, 83 Texas House members said executing Lucio would be "a miscarriage of justice."

"As a conservative Republican myself, who has long been a supporter of the death penalty in the most heinous cases ... I have never seen a more troubling case than the case of Melissa Lucio," said state Jeff Leach, who signed the letter.

Abbott can grant a one-time, 30-day reprieve. He can grant clemency if a majority of the paroles board recommends it.

The board plans to vote on Lucio's clemency petition two days before the scheduled execution, Rachel Alderete, the board's director of support operations, said in an email. A spokeswoman for Abbott's office did not return an email seeking comment.

Abbott has granted clemency to only one death row inmate, Thomas Whitaker, since taking office in 2015. Whitaker was convicted of masterminding the fatal shootings of his mother and brother. His father, who survived, led the effort to save Whitaker, saying he would be victimised again if his son was executed.

Lucio's supporters have said her clemency request is similar in that her family would be retraumatised if she were executed.

"Please allow us to reconcile with Mariah's death and remember her without fresh pain, anguish and grief. Please spare the life of our mother," Lucio's children wrote in a letter to Abbott and the board.