Anti-Violence Advocates, Prosecutors, and Innocence Groups File Supreme Court Briefs in Support of Battered Woman on Texas Death Row

A coali­tion of advo­cates for vic­tims of domes­tic and gen­der-based vio­lence, for­mer pros­e­cu­tors, legal schol­ars, and inno­cence orga­ni­za­tions have filed briefs in the U.S. Supreme Court in sup­port of a Texas woman who was sen­tenced to death for what foren­sic evi­dence sug­gests may have been an acci­den­tal fall that killed her two-year-old daughter.

Melissa Elizabeth Lucio (pic­tured) is ask­ing the Court to reverse her con­vic­tion for the death of her daugh­ter, Mariah, argu­ing that she was denied the right to present a com­plete defense when, after pros­e­cu­tors told the jury she had con­fessed to killing her daugh­ter, the tri­al judge refused to allow her to present expert tes­ti­mo­ny to explain how her life­long his­to­ry as a vic­tim of sex­u­al abuse and domes­tic vio­lence had affect­ed her response to coer­cive police interrogation.

On August 11, 2021, six­teen anti-vio­lence orga­ni­za­tions, joined by eight experts in the field of gen­der-based vio­lence and for­mer pros­e­cu­tors, filed an ami­cus brief urg­ing the Court to review Lucio’s case. Their brief explains that Lucio’s ​“flat affect and acqui­es­cence” to police sug­ges­tions that she had killed her daugh­ter, which pros­e­cu­tors told the jury were proof of her guilt, instead ​“were symp­toms of trau­ma result­ing from the vio­lence she had endured through­out her life.” The tri­al court’s order exclud­ing expert tes­ti­mo­ny about the effects of that trau­ma, they wrote, ​“deprived Melissa of the only means she had of explain­ing that, notwith­stand­ing her demeanor and self-incrim­i­nat­ing state­ments, she was inno­cent of her daughter’s murder.”

A sec­ond brief, filed the same day by The Innocence Project and the Innocence Network, explained to the Court that “[p]olice inter­ro­ga­tion may some­times psy­cho­log­i­cal­ly pres­sure even inno­cent peo­ple to con­fess to crimes they did not com­mit,” and that the risk of a false con­fes­sion is ​“height­ened” when, as in Lucio’s case, ​“the inter­ro­gat­ed sus­pect is a battered woman.”

In July 2019, a three-judge pan­el of the U.S. Court of Appeals for the Fifth Circuit grant­ed Lucio a new tri­al, unan­i­mous­ly hold­ing that the tri­al court’s rul­ing had vio­lat­ed Lucio’s right to present a com­plete defense. Texas pros­e­cu­tors sought rear­gu­ment before the full cir­cuit court of appeals, and in a frac­tured 10 – 7 deci­sion that did not com­mand a major­i­ty in its rea­son­ing, the court reversed the pan­el and restored Lucio’s death sen­tence. Ten judges agreed that the tri­al court rul­ing ​“was the key evi­den­tiary rul­ing at tri­al” and exclud­ed ​“tes­ti­mo­ny that might have cast doubt on the cred­i­bil­i­ty of Lucio’s con­fes­sion.” But while they believed that the expert tes­ti­mo­ny could have affect­ed the ver­dict, three of those ten judges wrote that they were pre­clud­ed under fed­er­al habeas cor­pus law from rul­ing in Lucio’s favor because they believed the U.S. Supreme Court had not clear­ly spo­ken on this issue at the time of Lucio’s tri­al and appeal.

The circuit’s rul­ing con­tin­ued the Fifth Circuit’s unpar­al­leled hos­til­i­ty to cap­i­tal habeas peti­tions. Grants of relief in Texas cap­i­tal cas­es have been described as ​“van­ish­ing­ly rare,” with a rever­sal rate of 0.66%. A 2020 study found that the cir­cuit had grant­ed or upheld grants of relief to only one of the 151 Texas pris­on­ers who have been sen­tenced to death since 2000. Since that time, the cir­cuit over­turned the pan­el rul­ing that had grant­ed Lucio a new tri­al and has upheld every low­er court denial of relief.

Lucio’s Long History of Severe Abuse

The ami­cus brief filed the gen­der-vio­lence experts recounts Lucio’s long his­to­ry of severe abuse. Lucio and her sib­lings were aban­doned by their father. Starting at age six, Lucio expe­ri­enced repeat­ed abuse from her mother’s part­ner. She dropped out of high school and, to escape the abuse at home, got mar­ried at age 16. Her alco­holic hus­band was vio­lent towards her, and lat­er aban­doned her and their five chil­dren, ​“repeat­ing the cycle of abuse and aban­don­ment Melissa had expe­ri­enced as a child.” 

Lucio sub­se­quent­ly moved in with anoth­er man who was also abu­sive. Her chil­dren called 911 and report­ed domes­tic vio­lence to Child Protective Services, but author­i­ties failed to inter­vene. ​“By the time she gave birth to her twelfth child,” the gen­der-vio­lence experts wrote, ​“Melissa had expe­ri­enced home­less­ness, drug addic­tion, and severe mental illness.”

At tri­al, the pros­e­cu­tion alleged that Lucio had phys­i­cal­ly abused her daugh­ter, Mariah, over an extend­ed peri­od of time and had beat­en her death. Lucio’s lawyers con­test­ed the cause of death, pre­sent­ing expert tes­ti­mo­ny from a neu­ro­sur­geon that Mariah may have died from head trau­ma caused by falling down a flight of stairs. The main evi­dence impli­cat­ing Lucio was a record­ing of state­ments she made to police dur­ing lengthy inter­ro­ga­tion the night her daugh­ter died. During that inter­ro­ga­tion, Lucio admit­ted to spank­ing Mariah, but denied ever hav­ing abused her. Late into the night, after hours of con­tin­u­ous inter­ro­ga­tion, Texas Ranger Victor Escalon pres­sured Lucio to say more. She respond­ed with: ​“I don’t know what you want me to say. I’m respon­si­ble for it.” When Escalon lat­er asked her about spe­cif­ic bruis­es on her daughter’s body, Lucio said, ​“I guess I did it. I guess I did it.”

The Unreliability of Lucio’s Confession

Experts in trau­ma and men­tal health exam­ined Lucio and con­clud­ed that her his­to­ry of abuse affect­ed her demeanor in ways that police wrong­ly inter­pret­ed as indi­cat­ing guilt. Escalon was per­mit­ted to tes­ti­fy at tri­al that Lucio’s ​“slumped pos­ture, pas­siv­i­ty, and fail­ure to make eye con­tact dur­ing inter­ro­ga­tion told him ​‘right there and then’ that she ​‘did it.’” By con­trast, social work­er Norma Villanueva tes­ti­fied dur­ing Lucio’s penal­ty phase that her ​“dead pan face” was ​“very char­ac­ter­is­tic of chil­dren that have been abused, espe­cial­ly, if they’re not being protected.” 

Dr. John Pinkerman, a psy­chol­o­gist who exam­ined Lucio, diag­nosed her with Post-Traumatic Stress Disorder (PTSD) stem­ming from her abuse. His report explained, ​“in times of sig­nif­i­cant stress, [Lucio] ​‘quick­ly numbs her emo­tions and assumes a pas­sive, emp­ty pre­sen­ta­tion.’” The tri­al court did not allow Villanueva and Pinkerman to tes­ti­fy dur­ing the cul­pa­bil­i­ty phase of Lucio’s tri­al, per­mit­ting their tes­ti­mo­ny only in the penal­ty phase, after she had already been convicted.

The anti-vio­lence advo­cates and legal experts wrote in their brief that ​“The State exploit­ed Melissa’s symp­toms of trau­ma to per­suade the jury of her guilt. … Had he been per­mit­ted to tes­ti­fy, Dr. Pinkerman would have explained that Melissa dis­so­ci­at­ed from the real­i­ty of los­ing her daugh­ter and numbed her emo­tions to dis­tance her­self from the pain. In the absence of his expert opin­ion, the jury was apt to con­clude — as the State clear­ly hoped it would — that her lack of vis­i­ble emo­tion was a sign of cold indif­fer­ence to her child’s death.” The brief also explains how Lucio’s his­to­ry made her more like­ly to false­ly con­fess: ​“Research shows that past trau­ma is ​‘sig­nif­i­cant­ly asso­ci­at­ed’ with height­ened sug­gestibil­i­ty among indi­vid­u­als who false­ly con­fess to crimes.” More broad­ly, they argue that ​“The legal pro­ceed­ings in Melissa Lucio’s case expose the legal system’s fail­ure to under­stand the con­se­quences of gen­der-based vio­lence and its rel­e­vance in the crim­i­nal justice system.”

The brief of the Innocence Project and Innocence Network explained how the police inter­ro­ga­tion of Lucio employed ​“high risk tac­tics” that increased the like­li­hood of a false con­fes­sion. Arguing for the impor­tance of defense experts, the brief states, ​“Experts help juries under­stand the phe­nom­e­non of false con­fes­sions and, there­fore, can help safe­guard against mis­car­riages of justice.”

“A sub­stan­tial per­cent­age of women who were wrong­ful­ly con­vict­ed of killing a child were coerced into false­ly con­fess­ing,” the inno­cence groups wrote. When a bat­tered woman is accused of killing her child, they argued, the ​“need for expert tes­ti­mo­ny to explain these risks to lay juries [is] more acute” and is crit­i­cal to assess­ing the reli­a­bil­i­ty of the alleged confession.