Texas Set to Execute Melissa Lucio Despite Credible Claims of Innocence

Melissa Lucio is set to be executed in April. Lucio’s defense team is fighting to have her execution withdrawn—but had Texas’s social service system done its job, this tragic story might have had a different ending.  

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Melissa Lucio’s attorneys are fighting to overturn her conviction and set aside her execution date based on her continued innocence claims and other procedural issues. (Courtesy of the Lucio team via the Innocence Project)

The state of Texas plans to put Melissa Lucio to death by lethal injection on April 27, 2022, which would make her the sixth woman executed in the United States in the last decade and the first Hispanic woman in Texas history.

Lucio was convicted of murder in 2008 for the death of her 2-year-old daughter, Mariah, which she and her family claim was instead a tragic accident. Her defense team has filed motions to withdraw her execution date based on claims of innocence as well as other grounds, including the prosecution’s use of a false confession made the night her daughter died. Lucio, a survivor of decades of sexual and gender-based violence (SGBV) by family members and two husbands, offered her statements to end hours of harsh interrogation by investigators, which is a common response for SGBV survivors. This case, beyond being a personal tragedy for the Lucio family, illuminates the many ways the criminal justice system persistently fails to understand the role that SGBV plays in cases involving survivors.

Lucio’s 2-year-old daughter, Mariah, fell down a steep flight of stairs in February 2007. Although she appeared uninjured at the time, Mariah died two days later as a result of her injuries. Though this incident, as her attorneys claim, could have been a tragic accident and not a crime, investigators brought Lucio in for questioning just hours after her daughter’s death, despite the already traumatizing events of the day. At the time, Lucio was pregnant with twins and had 11 other children. After hours of maintaining her innocence in the face of aggressive and leading questioning, she finally acquiesced and said, among other ambiguous statements, “I’m responsible for it.”

Research shows that prosecutors frequently trivialize women’s experiences as victims of gender-based violence when they are charged with crimes. Yet Melissa was a victim long before she was a defendant.

Sandra Babcock, one of Lucio’s attorneys

Her attorneys are fighting to overturn her conviction and set aside her execution date based on her continued innocence claims and other procedural issues. Her conviction was almost exclusively based on a mischaracterization of her statements as a “confession” by then-Cameron County District Attorney Armando Villalobos, who was seeking a high-profile conviction in the face of a reelection campaign and is currently serving a 13-year federal prison sentence for bribery and extortion.

The state provided no physical evidence, eyewitnesses or prior history of violence. In fact, thousands of pages of Child Protective Services records show that Lucio was not violent but struggling to provide for her children, in part due to substance abuse issues, which are not uncommon for SGBV survivors with untreated trauma. Prosecutors also relied on the testimony of Texas Ranger Victor Escalon, Jr., who participated in her interrogation and claimed that her slumping posture and failure to make eye contact led him to conclude that she was hiding the truth, precluding consideration of alternative theories for the incident or her behavior.

In fact, Lucio’s statement was made under duress and was the result of her extensive prior history of SGBV. Beginning at age 6, two adult male relatives sexually abused her and she later suffered decades of sexual and physical abuse at the hands of her two husbands. Her case is the subject of a 2020 Hulu documentary, The State of Texas vs. Melissa, which supports her defense team’s claims of innocence and presents evidence of this abuse.

Trailer for The State of Texas vs. Melissa, a 2020 documentary by Sabrina Van Tassel.

Independent research has shown that SGBV survivors are more vulnerable to pressure and coercive interrogation tactics. Experts claim, including in a filing in support of Lucio’s appeal, that survivors often experience severe reactions to aggression. This can lead to certain physical behaviors, such as failing to make eye contact, that are often misinterpreted as signs of guilt, and even cause survivors to take the blame for crimes they did not commit. Half of women who falsely confessed to crimes reported past trauma or abuse, according to research from Nova Southeastern University. Additional research has shown 70 percent of exonerated women were convicted of crimes that turned out to be accidents or suicides.

Lucio’s case illustrates the many ways that the criminal justice system fails to account for SGBV, especially for women facing extreme sentences. The trauma experienced by SGBV survivors impacts their response to police interrogators, how judges and juries perceive their behavior, and how they interact with their legal team. Yet, the criminal justice system does not understand this connection, provide an adequate support system for survivors or allow the introduction of evidence to explain this crucial context. The Cornell Center on the Death Penalty Worldwide has tried to address this gap by publishing a practical guide, “Defending Women and Transgender Persons Facing Extreme Sentences,” which details best practices for defending survivors facing extreme sentences, building a gender-sensitive team and conducting gender-sensitive interviews.

“Cornell’s research shows that prosecutors frequently trivialize women’s experiences as victims of gender-based violence when they are charged with crimes,” said Sandra Babcock, director of the Cornell Center on the Death Penalty Worldwide and one of Lucio’s attorneys. “Yet Melissa was a victim long before she was a defendant.”

During the trial, the presiding judge rejected defense efforts to present witnesses to prove that her history of abuse made the alleged confession untrustworthy, as well as to offer proof of other mitigating factors. This decision was upheld on appeal. A majority of the U.S. Court of Appeals for the Fifth Circuit agreed that the trial court rulings denied her the right to defend herself fully but held that federal law, namely the Anti-Terrorism and Effective Death Penalty Act of 1996, prevented the court from granting relief. The Supreme Court refused to hear the case.

Lucio’s case also illustrates another troubling criminal justice trend—a sharp increase in the number of women serving extreme sentences. A recent report, “In the Extreme: Women Serving Life Without Parole and Death Sentences in the United States,” puts the increase from 2008 to 2020 of women serving a life sentence at 19 percent, including a staggering 43 percent increase in the number of women serving life without parole sentences, compared to only a 2 percent increase in the number of women imprisoned for violent crime during the same period. The report also highlights the pivotal role played by prior SGBV and the failure of the criminal justice system to acknowledge this correlation—for example, by limiting the use of trauma as a mitigating factor in culpability and punishment.

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From 2008 to 202, there was a 43 percent increase in the number of women serving life without parole sentences, compared to only a 2 percent increase in the number of women imprisoned for violent crime during the same period. (The State of Texas vs Melissa via Hulu /  Sabrina Van Tassel)

Lucio’s defense team is fighting to have her execution date withdrawn on other grounds as well. In response to a complaint alleging multiple violations of Lucio’s human rights, the Inter-American Commission on Human Rights issued so-called precautionary measures on Feb. 18, 2022, asking Texas officials to postpone her execution to allow the commission to complete its review of her case. The U.S. is a party to the convention that created the commission and U.S. officials and courts, including in other Texas counties, have complied with precautionary measures in prior cases.

Motions have been made to remove the current presiding judge, Judge Gabriela Garcia, and the current district attorney, Luis Saenz, because two key members of Lucio’s original defense team now work for them, inhibiting their duty to cooperate with her current counsel and presenting a critical conflict of interest. Their disqualification is required by Texas state law and the 14th Amendment’s due process guarantees and would invalidate Judge Garcia’s order setting an execution date.

Whatever the outcome of these efforts, Lucio’s story is tragic on a personal and systemic level. The Lucio family already has lost one family member and, unless Lucio’s appeals are successful, will soon lose another.

On a systemic level, the case also illustrates the continued failure to understand how SGBV affects survivors’ pathways to and interactions with the criminal justice system. The case underscores the need for an examination of this relationship, greater training of criminal justice personnel, and more support for survivors. It should also spur a reckoning for the state social service system that followed the Lucio family for years, yet did not do enough to support them or address the violence Melissa herself was experiencing. Had the state done its job, this tragic story might have had a very different ending.  

The petition to stop Melissa Lucio’s execution can be found here.

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About

Michelle Onello is a human rights lawyer and senior counsel at the Global Justice Center, a nonprofit advocating for gender equality and reproductive rights in international law, and a signatory of the letter urging President Biden to repeal the Helms Amendment.