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Sign up for The Brief<\/a>, our daily newsletter that keeps readers up to speed on the most essential Texas news.<\/p>\n At a combative legislative hearing, the Cameron County district attorney indicated Tuesday he may step in and stop Melissa Lucio’s April 27 execution, creating a new level of uncertainty in what many believe is the case of an innocent woman facing lethal injection.<\/p>\n Although he was not district attorney when Lucio was convicted, Cameron County District Attorney Luis Saenz did request the execution date and has the power to withdraw the request. During a heated exchange with a bipartisan group of lawmakers pushing to halt Lucio\u2019s execution, Saenz initially stated he would not intervene.<\/p>\n As outrage has built to a crescendo over Lucio\u2019s case, Saenz has previously stated \u2014 and reaffirmed in the hearing \u2014 that he stood by the process that led to Lucio\u2019s conviction and the many court rulings since that have upheld her death sentence.<\/p>\n But after about an hour of urging from the lawmakers, Saenz\u2019s stance shifted. He said he believes his intervention will be unnecessary because the Texas Court of Criminal Appeals will likely stop Lucio\u2019s execution. If it doesn\u2019t, he said he would, though he didn\u2019t provide details.<\/p>\n \u201cIf defendant Lucio does not get a stay by a certain day,\u201d he said, \u201cthen I will do what I have to do and stop it.\u201d<\/p>\n Because of Saenz\u2019s conflicting statements, and without any court motions or rulings,\u00a0it\u2019s still not certain Lucio\u2019s execution will be stopped. Lucio\u2019s lawyer, Tivon Schardl, seemed skeptical outside the committee room but said he would take Saenz at his word. Saenz\u2019s office did not immediately respond to questions following the hearing.<\/p>\n State Rep. Jeff Leach<\/a>, a Plano Republican and chair of the interim Criminal Justice Reform Committee, said the lawmakers would hold Saenz to his word.<\/p>\n \u201cMy understanding of his remarks to the committee were that if we don\u2019t get a stay or clemency issued \u2026 then he will step in and withdraw his request for an execution date,\u201d Leach said after the hearing. \u201cThat was unequivocal to the committee, and we got it on tape.\u201d<\/p>\n Reasonable doubts have lingered over Lucio\u2019s guilt since the day 14 years ago she was convicted of murdering her daughter, questions that will remain even if her April execution date is canceled.<\/p>\n It\u2019s widely debated whether the fatal head trauma that killed 2-year-old Mariah Alvarez was an accident, and, if it wasn\u2019t, who inflicted the injury. The case against Lucio was built almost entirely around an ambiguous \u201cconfession\u201d obtained after hours of police interrogation, and the judge at her trial barred expert testimony that might have explained why she would admit to police things she didn\u2019t do.<\/p>\n For now, Texas plans to execute Lucio in two weeks. She would become the first Latina executed by the state in the modern era of the death penalty and the first woman killed by Texas since 2014.<\/p>\n As the 53-year-old\u2019s execution date nears, concerns about her possible innocence \u2014 greatest among them whether Mariah\u2019s death was caused by abuse or an accidental fall down the stairs \u2014 have only been amplified.<\/p>\n Forestalling Lucio\u2019s impending execution has become an international cause, her name and picture splashed across newspapers and websites around the world. An ever-growing lineup of her former jurors<\/a>, foreign ambassadors<\/a>, celebrities<\/a> and more than half of the Texas House of Representatives<\/a> has urged the state parole board and governor to spare Lucio\u2019s life.<\/p>\n There are too many unaddressed problems with the police investigation and her trial to carry out her death sentence without more investigation, her supporters insist.<\/p>\n \u201cThe trial left me thinking Melissa Lucio was a monster, but now I see her as a human being who was made to seem evil because I didn\u2019t have all the evidence I needed to make that decision,\u201d Melissa Quintanilla, the foreperson on Lucio\u2019s jury, said in an affidavit to the parole board this week. \u201cMs. Lucio deserves a new trial and for a new jury to hear this evidence.\u201d<\/p>\n Four more of Lucio\u2019s 12 jurors have also asked the parole board and the governor to stop Lucio\u2019s execution.<\/p>\n Outside of court intervention or a motion from Saenz, Lucio\u2019s execution can be stopped if the Texas Board of Pardons and Paroles recommends either changing her sentence from death to life in prison or postponing the execution date for up to 120 days. Gov. Greg Abbott<\/a> would have to accept the board\u2019s recommendation, which is not expected until two days before Lucio\u2019s April 27 execution date. Abbott also has the power on his own to delay the execution for 30 days, but he has never exercised that authority in a death penalty case during his time in office.<\/p>\n Pressure has also been mounting on Saenz to withdraw Lucio’s death warrant. Before Tuesday’s hearing, he indicated he did not intend to halt the execution.<\/p>\n \u201cMelissa Lucio has already thoroughly litigated the issues raised during her defense, including the theories that her statement was coerced and that her two-year-old daughter Mariah Alvarez fell down the stairs. The jury rejected both of these arguments,\u201d Saenz said in a statement to The Texas Tribune last week. \u201cAs officers of the court and servants of our community, we cannot allow the rule of law to be suspended and substituted by a court of public opinion.\u201d<\/p>\n State and federal courts have dismissed Lucio\u2019s petitions at almost every step of the appeals process, which is meant to minimize the chance of a wrongful execution. For the prisoner\u2019s lawyers, as well as a majority of judges on a conservative federal court, some of those rejections shine a light on broader problems with the death penalty and how hard it is for courts to overturn even weak convictions.<\/p>\n \u201cTo these eyes, this case is a systemic failure, producing a train of injustice which only the hand of the Governor can halt,\u201d Judge Patrick Higginbotham, an appointee of President Ronald Reagan to the conservative U.S. 5th Circuit Court of Appeals, wrote in a footnote of the court\u2019s latest denial for Lucio last month.<\/p>\n The \u201cconfession\u201d<\/b><\/p>\n In 2007, emergency personnel rushed to a Harlingen apartment newly occupied by 38-year-old Lucio, her common-law husband and nine of her 12 children. The family had called 911 after finding Mariah unresponsive in the bedroom where she had been sleeping, according to statements given to police. The toddler wasn\u2019t breathing, and her body was covered with bruises and what police believed to be a bite mark. An X-ray revealed her arm had recently been broken.<\/p>\n The medical examiner later concluded that Mariah was severely beaten and ruled her death a homicide caused by blunt force head trauma. At least one other pathologist who has examined the evidence since disagrees with the definitive finding of abuse and homicide.<\/p>\n The signs of child abuse led police to believe Mariah was murdered, and her mother \u2014 thought to be the person most often home alone with the child \u2014 was the prime suspect. The night of her daughter\u2019s death, Lucio told police Mariah had fallen down the steps at their old apartment a couple days earlier. She said she only saw the aftermath, so didn\u2019t know how many stairs Mariah had fallen down. At first, the child seemed fine, she said, but over time became lethargic and would not eat. Under police interrogation, pregnant with twins, Lucio vehemently and repeatedly denied ever abusing her daughter.<\/p>\n Until she didn\u2019t.<\/p>\n After about three hours denying accusations hurled by multiple police investigators, Lucio began to agree with Texas Ranger Victor Escalon, who leaned in closely and spoke softly with reassurances, a video of the interrogation shows.<\/p>\n Lucio said she spanked Mariah but didn\u2019t think she could have caused harm to the extent shown in the pictures of her child\u2019s body that police kept pushing in front of her. When Escalon suggested Lucio bit Mariah, Lucio shook her head. When he pushed her again, she said she did. He asked her to explain.<\/p>\n \u201cWhat do you want me to say? I\u2019m responsible for it,\u201d Lucio said.<\/p>\n For about two more hours, Lucio conceded to Escalon. She said she guessed she spanked Mariah out of frustration, a word police repeatedly suggested to her. She strongly denied responsibility for what Escalon believed was a pinch mark on Mariah\u2019s vulva, but the Ranger insisted she \u201cget it over with.\u201d She stared at the photo of her daughter\u2019s body and then commented.<\/p>\n \u201cI guess I did it,\u201d she said. When he asked how, she shrugged and said \u201cProbably pinched her or something.\u201d<\/p>\n Lucio consistently denied beating Mariah across the head, however, or knocking her head in any way. But police and prosecutors believed Lucio\u2019s admissions to other abuses would lead a jury to infer she had also caused the fatal injury. They were right.<\/p>\n The conviction<\/p>\n At trial, Escalon told the jury he knew right away that Lucio was guilty. He saw a quiet woman, slouching her head down without asking for an attorney and arrived at his personal verdict.<\/p>\n \u201cRight there and then, I knew she did something,\u201d he said from the witness box.<\/p>\n He could tell from her body language and demeanor that she wanted to confess, he said, adding that \u201cif you get somebody that is being honest, they\u2019re going to be upset with you.\u201d<\/p>\n Escalon\u2019s testimony alarmed the lawyers who would later step in to handle Lucio\u2019s appeals. Some of the techniques used in the interrogation are known to be coercive, her lawyers said, especially with vulnerable people. According to the National Registry of Exonerations, about 12% of convictions later found to be wrongful stem at least in part from false confessions.<\/p>\n \u201cYou\u2019ve decided the person is guilty and the whole purpose is to get a statement of admission,\u201d said Vanessa Potkin, director of special litigation at The Innocence Project, who said the idea of a \u201chuman lie detector\u201d has also been renounced.<\/p>\n Escalon, now the South Texas regional director for the Texas Department of Public Safety, declined to comment for this story, instead referring questions to the Cameron County district attorney\u2019s office.<\/p>\n Dental molds, finger nail clippings and Lucio\u2019s ring were taken to seek matches to injuries on Mariah\u2019s body, but none of the evidence was ever tested, according to trial testimony. With Lucio\u2019s interrogation statements in hand, the prosecution didn\u2019t need to test for things like DNA, the district attorney, Armando Villalobos, said at trial.<\/p>\n Villalobos would later be sent to federal prison for corruption<\/a> in his office that occurred around the time of Lucio\u2019s trial, found to have accepted bribes for lenient prosecutorial action.<\/p>\n Lucio has since recanted her admissions, and supporters have long argued they were false and coerced. Lucio\u2019s lawyers intend to file new appeals based on new expert analysis that they say shows Mariah\u2019s death, as well as much of the bruising on her body, could have been caused by a fall down the stairs and subsequent head injury.<\/p>\n \u201cThey just kept throwing so many words at me, and I just told them I\u2019m responsible for Mariah\u2019s bruises,\u201d Lucio said in an interview for a documentary<\/a> released in 2020. \u201cThey wanted to hear something.\u201d<\/p>\n Lucio\u2019s advocates also argue the jury never got to hear critical testimony that could explain why Lucio, a longtime victim of sexual abuse and domestic violence, might falsely confess. State district Judge Arturo Nelson refused to allow a social worker and psychologist to testify for Lucio\u2019s innocence defense at trial.<\/p>\n Nelson found the clinical social worker unqualified to analyze body language \u2014 despite Escalon having done so without listed qualifications. And he said the psychologist\u2019s expected testimony to cast doubt on Lucio\u2019s statements wasn\u2019t relevant because Lucio never admitted in the interrogation to killing her child, only abusing her.<\/p>\n It was that decision that rattled one of the most conservative appeals courts in the nation.<\/p>\n \u201cThe trial court\u2019s conclusion was inconsistent with the reality of this trial,\u201d a three-judge panel of the 5th Circuit Court of Appeals wrote in 2019. The judges added \u201cthe State\u2019s argument that Lucio struck the fatal blow relied on an inference from the statements that she abused Mariah.\u201d<\/p>\n In the years that followed Lucio\u2019s convictions, Texas courts rejected her petitions alleging the witnesses\u2019 exclusion kept her from presenting a complete defense of her innocence. Testimony shedding light on Lucio\u2019s body language or explaining why an abused woman would behave a certain way under police interrogation, the Texas Court of Criminal Appeals found<\/a>, had little relevance to how voluntary Lucio\u2019s statement was.<\/p>\n In the federal appellate process, it was the 5th Circuit Court of Appeals that temporarily put the brakes on Lucio\u2019s sentence. In 2019, the three-judge panel determined<\/a> the judge\u2019s decision was indeed harmful and intended to send the case back to lower courts to address the problem. But Texas asked for the full court to again weigh the case and, in a rare move, the judges accepted.<\/p>\n Ten of the court\u2019s 17 judges agreed to deny<\/a>Lucio\u2019s appeal last year, with seven of those 10 joining an opinion that agreed with Nelson\u2019s exclusion of the witnesses. They wrote that the psychologist\u2019s report, which detailed what he was expected to testify, did \u201cat no point \u2026 come close even to hinting that any of these statements were false.\u201d<\/p>\n Three of the 10 denying judges, though, were still concerned with the trial judge\u2019s decision. But they believed their hands were tied by the Antiterrorism and Effective Death Penalty Act, a controversial 1996 federal law passed in a tough-on-crime era that limits both the allowable number of death penalty appeals as well as their paths to success.<\/p>\n \u201cThe [dissenting judges] express well their view that there was expert testimony that, if jurors had only heard it, could have impacted the verdict. We are all, though, working within the constraints of AEDPA,\u201d wrote Judge Leslie Southwick, a President George W. Bush appointee.<\/p>\n \u201cThis case, though, is a clear example that justice to a defendant may necessitate a more comprehensive review of state-court evidentiary rulings than is presently permissible,\u201d he added.<\/p>\n Federal appeals in death penalty cases are meant to be a check against constitutional errors by state courts, according to Rob Owen, a former death penalty law instructor at the University of Texas at Austin. Since AEDPA passed, however, federal courts can\u2019t rule independently on possible violations. Instead, Owen said, they must now defer to state courts\u2019 rulings and can correct them only if the state court has \u201cgone wildly out of bounds.\u201d<\/p>\n \u201cSo ever since 1996, federal courts have been more limited in their power to correct errant state court judgements, and that\u2019s what really I think what you see in Ms. Lucio\u2019s case,\u201d he said. \u201cThere\u2019s a great risk in a case like this where a court seems to be saying there appears to be maybe an innocent person about to be executed, and we can\u2019t do anything about it.\u201d<\/p>\n A family in trouble<\/b><\/p>\n The life of Lucio and her family has never been without strain. She was raised by a single mother with five siblings, and her mother\u2019s boyfriend sexually assaulted her for years starting at age 6, her lawyer reported at trial.<\/p>\n She got married at 16 and had five children before she was 24. Her husband was reportedly abusive physically and emotionally, and Lucio became addicted to cocaine.<\/p>\n After her husband abandoned her at age 26, she moved in with a new man, Robert Alvarez. She had seven more children, with Mariah being the youngest. Lucio\u2019s older children reported Alvarez abused Lucio, and a school principal once reported he saw Alvarez punch her while the family was homeless, living in a park, according to court records.<\/p>\n Child Protective Services was routinely involved in the family\u2019s life, with reports of neglect sometimes resulting in mediation, according to trial testimony. Lucio\u2019s lawyers reported three of Lucio\u2019s children were born with cocaine in their system, including Mariah.<\/p>\n Lucio and Alvarez\u2019s children were removed by the state when Mariah was two weeks old. During Mariah\u2019s time in foster care, she was found to have a physical disability that hampered her walking. Mariah had reportedly fallen on her head and been knocked unconscious in foster care. Lucio\u2019s oldest son said the child\u2019s disability was never disclosed to the family.<\/p>\n After two years of visitations and Lucio\u2019s repeated negative drug tests, the children were returned three months before Mariah died. Lucio told police she had been clean for a year on the night her daughter died.<\/p>\n Multiple children told police shortly after Mariah\u2019s death that Lucio never abused them, but they did point suspicion elsewhere for potential abuse or causes of the child\u2019s death.<\/p>\n They said the boys were often violent with each other and sometimes the girls, including Mariah. Foster parents reported the boys bit and hit each other while they were in their care, according to Lucio\u2019s appellate briefings. Lucio\u2019s second-oldest daughter, 20 at the time of Mariah\u2019s death, said she told police and Lucio\u2019s lawyers that her 15-year-old sister would abuse Mariah when their parents weren\u2019t around, including slamming her head on the ground a week before the child\u2019s death.<\/p>\n \u201cI can remember the noise it made to this day,\u201d Daniella Lucio said in a sworn affidavit in 2018. She added that her 17-year-old brother and mother had tried to intervene in the sibling abuse, and she believed her mother admitted to the bruises because Lucio didn\u2019t want her daughter to get in trouble.<\/p>\n One of the children, 9 at the time, told investigators that he saw Mariah fall down the stairs. Two months before Mariah\u2019s death, a CPS case worker reported during a home visit that two of the teenaged girls were in the apartment alone with Mariah and her 3-year-old sister, according to a court briefing. The case worker noted with concern that the 3-year-old had started to go down the stairs unsupervised.<\/p>\n The reports from the children and CPS employee did not make it in front of the jurors, causing Lucio\u2019s family to denounce her defense attorney, Peter Gilman. They faulted him for not calling the children, even those who were adults at the time, to testify on behalf of their mother. Their skepticism heightened when Gilman accepted a job to work for the prosecutor about a year after the trial. Gilman did not respond to questions for this story.<\/p>\n Aside from Saenz\u2019s potential action, Lucio\u2019s lawyers plan to file new appeals in court. But after years of rejections, they are also putting hope in the hands of the Texas parole board.<\/p>\n The parole board typically votes two days before an execution. Though it rarely recommends a delay of execution, it did so in 2019 for Rodney Reed<\/a>, whose guilt is also widely doubted. The Court of Criminal Appeals stopped Reed\u2019s execution hours later, however, leaving it unknown if Abbott would have accepted the board\u2019s recommendation.<\/p>\n Even with the cards stacked against them, Lucio and her family remained hopeful even before Saenz\u2019s change in position. John Lucio, the prisoner\u2019s oldest son, has visited his mother regularly, he said at a public showing of the documentary on Lucio in an Austin church last month. He has been steadfast in his hope that Lucio\u2019s execution date won\u2019t come to pass, but he still has to hide his fear in his now-weekly visits to prison.<\/p>\n \u201cWhat makes it harder is knowing that she is an innocent woman,\u201d he said last month, surrounded by family members. \u201cKnowing the fact that we have the evidence here to show and still we can\u2019t get no help from the court systems.\u201d<\/p>\n John Lucio cried throughout Tuesday\u2019s hearing. Afterward, he said he wanted to believe Saenz when he said he would stop Lucio\u2019s execution if need be, but he was still asking supporters to ask the parole board and governor to take action as well.<\/p>\n \u201cI want to put that faith in him and believe that he\u2019s not going to allow it to happen,\u201d he said.<\/p>\n Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete\u00a0list of them here<\/a>.<\/i><\/p>\n We can\u2019t wait to welcome you in person and online to the 2022\u00a0Texas Tribune Festival<\/a>, our multiday celebration of big, bold ideas about politics, public policy and the day\u2019s news \u2014 all taking place just steps away from the Texas Capitol from Sept. 22-24. When tickets go on sale in May, Tribune members will save big.\u00a0Donate to join or renew today.<\/a><\/p>\n<\/p><\/div>\n