Texas Prisoner Seeks Stay of Execution on Claims of Junk Science, Arbitrary Sentencing

[UPDATE: The Texas Court of Criminal Appeals issued a stay of exe­cu­tion to Blaine Milam on January 14, 2019] As Texas pre­pares to exe­cute Blaine Milam (pic­tured) on January 15, 2019, Milam’s lawyers say his con­vic­tion and sen­tence rest on dis­cred­it­ed bite-mark tes­ti­mo­ny and have asked for the exe­cu­tion to be halted. 

Milam filed a habeas cor­pus peti­tion in the Texas Court of Criminal Appeals on January 10 chal­leng­ing his con­vic­tion and sen­tence, along with a motion to stay his exe­cu­tion. While the con­tents of those plead­ings do not appear on the pub­lic dock­et and have not been released to the media, his lawyers issued a state­ment say­ing that “[Texas] obtained Blaine Milam’s con­vic­tion and death sen­tence for cap­i­tal mur­der based on now dis­cred­it­ed bite mark junk sci­ence” and that ​“Mr. Milam’s con­vic­tion is unre­li­able, and his death sen­tence is arbitrary.”

Milam — who pri­or court plead­ings have argued is intel­lec­tu­al­ly dis­abled — and his men­tal­ly ill girl­friend, Jessica Carson, were con­vict­ed of killing Carson’s 13-month-old daugh­ter, Amora, dur­ing an alleged exor­cism in 2008. Both defen­dants were 18 years old at the time. Milam’s cur­rent lawyer, Jennae Swiergula, the Post-Conviction Director of the Texas Defender Service, said in the state­ment that Carson ​“had been expe­ri­enc­ing a psy­chot­ic ill­ness involv­ing delu­sions that her child was pos­sessed by a demon.” 

Carson, who Milam says actu­al­ly killed the baby, received a sen­tence of life with­out parole, while Milam was sen­tenced to death. Milam was con­vict­ed under Texas’s con­tro­ver­sial ​“law of par­ties,” which allows defen­dants to be con­vict­ed and sen­tenced to death based upon the actions and intent of oth­ers if the defen­dant played even a small role in a crime that result­ed in someone’s death. 

Swiergula said the state did not have ​“any mean­ing­ful evi­dence that Mr. Milam played any role in caus­ing” Amora’s death, and the jury did not hear evi­dence of Carson’s psy­chot­ic ill­ness. ​“Even under the law of par­ties,” she said, ​“the State’s evi­dence that Mr. Milam ​‘aid­ed’ in the offense rest­ed on junk science.” 

Bite-mark evi­dence has long been the sub­ject of con­tro­ver­sy, and the National Academy of Sciences and the President’s Council of Advisors on Science and Technology have crit­i­cized it as lack­ing sci­en­tif­ic valid­i­ty. In 2016, the Texas Forensic Science Commission called for a mora­to­ri­um on its use in court. 

Previous appeals for Milam have raised ques­tions about his degree of cul­pa­bil­i­ty for the crime. His appeal before the U.S. Court of Appeals for the Fifth Circuit argued that he was under the influ­ence of metham­phet­a­mine at the time of the crime, and there­fore could not form an ​“intent to com­mit a crime.” The same appeal also pre­sent­ed evi­dence that he is intel­lec­tu­al­ly dis­abled, ren­der­ing him inel­i­gi­ble for exe­cu­tion. The appeals court declined to hear both claims.

The Texas Court of Criminal Appeals has grant­ed sev­en stays of exe­cu­tion since 2016 to per­mit review of claims that defen­dants were con­vict­ed or sen­tenced to death based on false or mis­lead­ing foren­sic evi­dence or tes­ti­mo­ny. If the exe­cu­tion is not stayed, Milam will be the first per­son exe­cut­ed in the United States in 2019.