Melissa Lucio Files Motions to Vacate Death Warrant, Remove Judge and District Attorney Based on Conflicts of Interest

Lawyers for Texas death-row pris­on­er Melissa Lucio (pic­tured) have moved to vacate her April 27, 2022 exe­cu­tion date and remove the judge and dis­trict attor­ney in her case because of con­flicts of inter­est stem­ming from their employ­ment of key mem­bers of Lucio’s orig­i­nal defense team. 

Lucio’s lead tri­al coun­sel, Peter Gilman, is now employed as an assis­tant dis­trict attor­ney in the Cameron County District Attorney’s office and Irma Gilman, who was counsel’s para­le­gal at the time of tri­al, is now court admin­is­tra­tor for Judge Gabriela Garcia, who is pre­sid­ing over the case. In sep­a­rate plead­ings filed in Cameron County District Court February 18, 2022, Lucio alleges that the hir­ing of the Gilmans, who are mar­ried, vio­lates due process and uncon­sti­tu­tion­al­ly denies her access to crit­i­cal wit­ness­es in her attempt to inves­ti­gate and lit­i­gate sig­nif­i­cant issues in the case. 

The Cameron County D.A.’s office sought and obtained a death war­rant from Judge Garcia sched­ul­ing Lucio’s exe­cu­tion for April 27, 2022. Garcia’s recusal would vacate that death warrant. 

Lucio’s Motions to Remove the Prosecution and the Judge

Lucio’s motion to remove the Cameron County District Attorney alleges that Peter Gilman’s employ­ment in the D.A.’s office vio­lates ​“the con­tin­u­ing duties of loy­al­ty and coop­er­a­tion that Mr. Gilman owes Ms. Lucio.” The motion asserts that ​“short­ly after Ms. Lucio was sen­tenced to death and while Ms. Lucio’s post-con­vic­tion coun­sel was inves­ti­gat­ing whether Mr. Gilman was iIneffective,” for­mer District Attorney Armando Villalobos hired the Gilmans, manip­u­lat­ing the appeals process by mak­ing them unavail­able to the defense. 

The Gilmans’ refusal to coop­er­ate with the defense in the post-con­vic­tion process was so extreme that Lucio’s post-con­vic­tion coun­sel filed a bar griev­ance against Peter Gilman alleg­ing that both he and his wife had obstruct­ed Lucio’s access to her files. Villalobos was lat­er con­vict­ed on fed­er­al cor­rup­tion charges for accept­ing more than $100,000 in cash from defense lawyers in exchange for favor­able treat­ment on criminal cases. 

Peter Gilman, the motion states, ​“con­tin­ues to work as an at-will employ­ee for cur­rent District Attorney Luis Saenz.” His con­tin­u­ing ​“dual loy­al­ty,” the motion says, cre­ates a con­flict of inter­est for the D.A.’s office and ​“denies Ms. Lucio due process by pre­vent­ing her from obtain­ing un-con­flict­ed coop­er­a­tion from Mr. Gilman as she inves­ti­gates whether DA Villalobos sup­pressed excul­pa­to­ry or mit­i­gat­ing evi­dence at the time of tri­al.” As a result, she says, the Cameron County pros­e­cu­tors must be removed from the case. 

Irma Gilman now serves as court admin­is­tra­tor to Judge Garcia. The motion to recuse Garcia alleges that as long as Peter Gilman is D.A. Saenz’s at-will employ­ee, ​“Ms. Lucio can­not rely on Mr. Gilman to coop­er­ate with her present coun­sel,” mak­ing Mrs. Gilman ​“the only wit­ness on whom Ms. Lucio could rely in this ongo­ing inves­ti­ga­tion.” However, Lucio’s coun­sel argue, sev­er­al canons of the Texas Code of Judicial Conduct ​“pro­hib­it Mrs. Gilman from com­mu­ni­cat­ing ex parte with Ms. Lucio’s coun­sel” if Judge Garcia is pre­sid­ing in the case. ​“Judge Garcia must dis­qual­i­fy or recuse her­self in order to remove this obstruc­tion to Ms. Lucio’s access to vital infor­ma­tion,” the motion says.

“Judge Garcia’s and D.A. Saenz’s roles in this case have the effect of obstruct­ing Melissa Lucio’s access to evi­dence,” Tivon Schardl, Chief of the Capital Habeas Unit of the Federal Defender for the Western District of Texas, said in a news release accom­pa­ny­ing the motions. ​“Texas law auto­mat­i­cal­ly dis­qual­i­fies Judge Garcia and D.A. Saenz. And both cir­cum­stances con­sti­tute due process vio­la­tions under the 14^th Amendment,” he said.

In response to the motions, District Attorney Saenz said, ​“We will be fil­ing a time­ly response on behalf of the State of Texas.”

A sep­a­rate motion filed February 8, 2022 seeks to with­draw Lucio’s exe­cu­tion date on the grounds that she is inno­cent. Lucio was con­vict­ed and sen­tenced to death on charges that she mur­dered her two-year-old daugh­ter, Mariah. Lucio has long main­tained that Mariah died from an acci­den­tal fall. During a coer­cive inter­ro­ga­tion by police on the night her daugh­ter died, Lucio admit­ted to hav­ing spanked Mariah, but denied 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.” Prosecutors pre­sent­ed this state­ment to the jury as a con­fes­sion to the killing. 

The Inter-American Commission on Human Rights Requests that the Execution be Delayed

Lucio also filed an action in the Inter-American Commission on Human Rights (IACHR) chal­leng­ing her con­vic­tion and death sen­tence and the con­di­tions of her con­fine­ment on the grounds that they vio­lat­ed U.S. human rights oblig­a­tions. On February 18, 2022, writ­ing that Lucio ​“finds her­self in a sit­u­a­tion of seri­ous and urgent risk of irrepara­ble harm to her rights,” the IACHR issued ​“pre­cau­tion­ary mea­sures” ask­ing the United States to delay Lucio’s exe­cu­tion until it could resolve her human rights claims. 

The Commission found that Lucio had pre­sent­ed pri­ma facie evi­dence that Texas had vio­lat­ed her human rights, cit­ing alle­ga­tions that Peter Gilman ​“failed to argue that she was under duress dur­ing the inter­ro­ga­tion, and was sub­mit­ted to coer­cive inter­ro­ga­tion tech­niques that alleged­ly led to her false con­fes­sion” and that Gilman ​“failed to con­duct a com­pre­hen­sive mit­i­ga­tion inves­ti­ga­tion, and failed to obtain crit­i­cal expert assis­tance,” leav­ing the jury igno­rant of Lucio’s ​“long his­to­ry of sex­u­al assault and domes­tic vio­lence.” The IACHR also found that the con­di­tions of Lucio’s con­fine­ment on death row vio­lat­ed U.S. human rights obligations. 

“Ms. Lucio remains on death row in Texas, where she has been held in soli­tary con­fine­ment for over 14 years while await­ing exe­cu­tion,” the Commission wrote. Solitary con­fine­ment should ​“in no instance … last longer than thir­ty days,” it said, adding that ​“it is wide­ly estab­lished in inter­na­tion­al human rights law that soli­tary con­fine­ment for extend­ed peri­ods of time con­sti­tutes at the very least a form of cru­el, inhu­man or degrad­ing treat­ment or punishment.”

Sandra Babcock, Clinical Professor of Law at Cornell Law School, rep­re­sents Lucio in her appeal to the IACHR. ​“U.S. pros­e­cu­tors and courts, includ­ing in Hidalgo County, Texas, have post­poned exe­cu­tion dates to allow the Commission to com­plete its review process,” Babcock wrote in a state­ment issued in response to the IACHR rul­ing. ​“We call on Cameron County District Attorney Luis V. Saenz to do the same, and to inform the court that he does not oppose Ms. Lucio’s pend­ing motion to with­draw the execution date.” 

Texas Catholic Bishops Call for Lucio’s Death Sentence to be Commuted

On February 28, 2022, the Texas Catholic Conference of Bishops released a state­ment ask­ing for the state to reex­am­ine Lucio’s case and call­ing for com­mu­ta­tion of her death sen­tence. ​“Melissa’s case illus­trates yet again why the Texas death penal­ty process can­not be trust­ed to pro­vide jus­tice to all,” the Texas bish­ops wrote. ​“It is a deeply flawed process rife with human error and incon­sis­ten­cy. … We beseech the State of Texas to com­mute her death sen­tence and con­duct a mean­ing­ful review of her case to enable this fam­i­ly to con­tin­ue the hard work of restora­tive jus­tice and healing.”

Rev. Daniel E. Flores, the Bishop of Brownsville, and Rev. Joe S. Vásquez, the Bishop of Austin, also issued state­ments sup­port­ing Lucio. ​“Death is not the answer to death,” Bishop Flores wrote. ​“One tragedy is not some­how made bet­ter by killing some­one else.” Bishop Vásquez wrote, ​“Our faith teach­es us that our response must be root­ed in jus­tice and mer­cy. Together let us pray to bring an end to the death penal­ty so that we may devel­op a greater love and respect for the sacred dig­ni­ty of human life.”