Divided Federal Appeals Court Reinstates Death Sentence for Texas Mother of Child Who May Have Died in Accidental Fall

Continuing an unpar­al­leled pat­tern of rul­ings adverse to Texas death-row pris­on­ers, a divid­ed U.S. Court of Appeals for the Fifth Circuit has rein­stat­ed the con­vic­tion and death sen­tence of a moth­er con­vict­ed of killing her two-year-old daugh­ter in what, the defense has argued, was actu­al­ly an accidental fall. 

In a 10 – 7 rul­ing issued a on February 9, 2021, the en banc court of appeals reversed a 2019 rul­ing by a unan­i­mous three-judge pan­el of the same court, which had grant­ed Melissa Lucio (pic­tured) a new tri­al. The pan­el had ruled that Lucio’s right to present a ​“com­plete defense” had been vio­lat­ed at tri­al when the tri­al court exclud­ed two expert wit­ness­es from tes­ti­fy­ing on her behalf.

A University of Houston Law Center study pub­lished in April 2020 found that the Texas fed­er­al court rul­ings on behalf of death-row pris­on­ers had become ​“van­ish­ing­ly rare.” The study found that only one of the 151 Texas cap­i­tal habeas cor­pus peti­tion­ers sen­tenced to death this cen­tu­ry who had com­plet­ed fed­er­al habeas cor­pus review (0.66%) had been grant­ed relief. The report­ed not­ed at that time that the Fifth Circuit had vacat­ed the grant of relief in Lucio’s case — the only oth­er habeas rul­ing favor­ing a Texas death-row pris­on­er — pend­ing recon­sid­er­a­tion by the full court.

At Lucio’s tri­al, the pros­e­cu­tion alleged that she had phys­i­cal­ly abused her daugh­ter, Mariah, over a peri­od of time and that the child had been beat­en to death by her moth­er. Lucio’s lawyers con­test­ed the cause of death, pre­sent­ing expert tes­ti­mo­ny from a neu­ro­sur­geon that Mariah may instead have died from head trau­ma caused by falling down a flight of stairs. The pri­ma­ry 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.” Lucio’s lawyers sought to present tes­ti­mo­ny from a psy­chol­o­gist to explain the coer­cive effect of the police inter­ro­ga­tion on Lucio, whom Dr. John Pinkerman described as a ​“bat­tered woman” who ​“takes blame for every­thing that goes on in the family.”

A major­i­ty of the Fifth Circuit found that Lucio’s con­vic­tion had to be upheld for pro­ce­dur­al rea­sons under the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Judge Leslie H. Southwick, in a con­cur­ring opin­ion joined by two oth­er judges, wrote that AEDPA and Supreme Court prece­dent forced the court to over­look ​“the dif­fi­cult issue of the exclu­sion of tes­ti­mo­ny that might have cast doubt on the cred­i­bil­i­ty of Lucio’s con­fes­sion.” ​“This 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 under law that is estab­lished with suf­fi­cient clar­i­ty,” Judge Southwick wrote.

Emphasizing the impor­tance of the expert tes­ti­mo­ny to Lucio’s defense, the dis­sent­ing judges agreed with the panel’s con­clu­sion that the exclu­sion of the evi­dence was ​“of such a mag­ni­tude or so egre­gious that [it] render[ed] the tri­al fundamentally unfair.”