First it was her mother’s boyfriend. Then it was the man she married at age 16. Then it was her next partner. Starting at age 6, Melissa Lucio endured repeated sexual abuse from the men in her life. By the time Texas Ranger Victor Escalon demanded that she confess to the death of her 2-year-old daughter, 39-year-old Lucio had been well-conditioned to acquiesce to adult men, even if it meant confessing to a crime she didn’t do.
None of that was explained during her trial. Now, the State of Texas plans to execute Lucio on April 27, 2022. She is the first Latina woman sentenced to death by the State of Texas and the first woman set to be executed by the state since 2014. Lucio has always maintained her innocence.
“Melissa had multiple vulnerabilities and susceptibilities for making a false incriminating statement in a coercive interrogation setting,” Vanessa Potkin, director of special litigation at the Innocence Project and one of Lucio’s attorneys, told Truthout. During an evaluation ordered in earlier years by Child Protective Services, a psychologist found that Lucio had an IQ of 70, placing her in the intellectually disabled range. The National Registry of Exonerations found that in exonerations involving false confessions, 70 percent were by people with mental illness or intellectual disability.
“They took advantage of a woman who had a lifelong experience of gender-based violence,” said Sandra Babcock, faculty director at the Cornell Center on the Death Penalty Worldwide and an expert on women and the death penalty. “Prosecutors minimized the impact of gender-based violence and exploit their trauma to obtain criminal convictions and death sentences.”
Approximately 40 percent of women who have been exonerated had been wrongfully convicted of crimes involving child victims, according to the National Registry of Exonerations. Nearly 30 percent had been wrongfully convicted of killing children and 63 percent had been convicted of crimes that never happened — such as accidents or events that were fabricated. Lucio’s prosecution also illustrates the ways in which state actors — including law enforcement and courts — twist the effects of ongoing trauma and violence as evidence of a survivor’s guilt.
When Trauma Becomes Evidence of Guilt
The majority of incarcerated women have experienced physical and sexual abuse before arrest. This includes Lucio, whose childhood was marked by sexual violence and parental dismissal of that abuse.
Before prison, Lucio lived her entire life in Harlingen, Texas, a town with fewer than 72,000 residents not far from the Mexico border.
Her father abandoned the family when Lucio was an infant. Her mother struggled to support her six children, often working long hours and leaving them in the care of her boyfriends. When Lucio was 6, her mother’s boyfriend began raping her — and continued to do so for the next two years. She was also repeatedly raped by an uncle. She told her mother, but her mother said she did not believe her.
Studies have found that sexual victimization during childhood increases the risk of victimization in adulthood between two and 13.7 times.
That’s what happened with Lucio. At 16, she married 20-year-old Guadalupe Lucio — in large part to escape her family situation — and dropped out of school. By the time she was 24, the couple had five children. But marriage didn’t end the violence. According to court documents, Guadalupe was a “physically and emotionally abusive alcoholic.” His abuse escalated until he abandoned the family in 1994.
Lucio then met and moved in with Robert Alvarez, with whom she had seven more children. Alvarez was also abusive, according to Lucio and others. The principal at Lucio’s children’s school reported seeing Alvarez punch Lucio on school grounds. The family was also economically unstable; during one four-to-six-week period, they lived in a park.
In September 2004, two weeks after Mariah, Lucio’s youngest child, was born, Child Protective Services placed Mariah and six of her minor siblings in foster care after receiving reports of neglect. Lucio was never accused — by Child Protective Services or any of her children — of abuse.
Two years later, in November 2006, Child Protective Services returned Mariah and her siblings to Lucio and Alvarez’s care. By then, the family lived in a second-story apartment which could only be accessed by a steep exterior wooden staircase.
Three months later, in February 2007, while the family was moving to a new home, Mariah, then age 2, fell down those steep stairs. The girl seemed fine after the fall but, two days later, she took a nap and was unresponsive when the family tried to wake her. One of Lucio’s older daughters called 911. Mariah was dead when paramedics arrived. Lucio explained that the girl had fallen down the steps two days earlier, but their new home had only three small steps.
“They immediately doubted her story and rushed to judgment and came to the conclusion that this had to be abuse and murder,” explained Potkin. “From that point on, tunnel vision set in and they didn’t consider any other explanation.”
The state’s medical examiner found significant bruising on the girl’s body as well as a weeks-old fracture in her left arm, missing patches of hair, and marks on her back that the examiner said were bites.
Nine years later, in 2016, the President’s Council of Advisors on Science and Technology concluded that forensic bite mark evidence is not scientifically valid. So did the Texas Forensic Science Commission, which called for an end to bite mark testimony in criminal trials.
But in 2007, the medical examiner concluded that Mariah had been severely abused and had died of a head injury that had occurred within 24 hours of her death.
Police interrogated Lucio, who had already been awake for 14 hours and was pregnant with twins. She told detectives that her daughter had fallen down the stairs two days earlier, but the police were fixated on the idea that Lucio had caused her daughter’s death.
“She’s a mother. Her young child has just died. She’s suffering from shock and trauma and immediately taken into interrogation and berated by officers who tell her she’s a horrible mother,” Potkin said. “It was her psychological response to the trauma that was used against her as evidence of guilt. It was a vicious cycle that kicked in — a presumptive questioning and coercive tactics used to break her down and get her to make some inculpatory statement.”
This included yelling and implicit threats, such as one detective telling her, “If I beat you half to death like that little child was beat, I’d bet you’d die too!”
Lucio repeatedly denied hitting or abusing Mariah. She admitted to occasionally spanking her children “on the butt.” She also told police that some of her older children were rough with their youngest sibling, but did not know who caused Mariah’s specific injuries.
By 1 am, Lucio had already been questioned for hours and had neither slept nor eaten when Texas Ranger Victor Escalon took over the interrogation. The Rangers are known for harsh interrogation methods, including coercing false confessions that have sent people to death row.
Escalon showed photos of Mariah’s injuries and prompted her for more details. Lucio told him that she had bit her daughter one day while tickling her although she did not know why she had done so. She continued to insist that she had never hit her daughter in the head and had only spanked her with her hand.
Escalon repeatedly pressed her about the bruises on Mariah’s body until Lucio said, “I guess I did it.” Shortly after, Escalon turned the interrogation camera off.
When he resumed the recording at 3 am, Escalon had brought in a doll, ordering Lucio to show him how she had bit and spanked Mariah and continually urging her to hit the doll harder. He pointed to several sets of bruises and instructed Lucio to spank the doll in those areas to illustrate how she would have caused them. He also had her affirm that she was the only one who spanked Mariah.
A Conviction in an Election Year
Armed with Lucio’s supposed confession, Cameron County prosecutor Armando Villalobos, seeking reelection, charged her with capital murder. If found guilty, she faced execution.
On the trial’s first day, prosecutors played recordings of Lucio’s statements that she was the only one responsible for Mariah’s injuries. They called police and paramedics to testify about Lucio’s demeanor that evening. Texas Ranger Escalon testified about Lucio’s seeming passivity, stating that people who are innocent would have acted outraged and upset.
During their closing arguments, prosecutors replayed portions of the interrogation video and characterized Lucio’s statement as a confession.
Lucio’s lead attorney Peter Gilman attempted to introduce two expert witnesses — social worker Norma Villanueva and psychologist John Pinkerman — to contextualize her responses and counter Escalon’s assertions about Lucio’s guilt. Both had reviewed Lucio’s history and interviewed her several times, and would have illuminated how Lucio’s history of sexual abuse affected her during interrogation, including how the ongoing trauma had conditioned Lucio to acquiesce to male authority figures, thus rendering her vulnerable to repeating what Escalon prompted her to say. Pinkerman concluded that Lucio suffered from post-traumatic stress disorder (PTSD) and that Lucio’s flat affect in response to Mariah’s death and her own trial were dissociations to numb herself from the pain. The trial judge excluded both witnesses.
Instead, the jury heard three witnesses for the defense — a neurosurgeon who testified that blunt trauma from falling down the stairs could have caused Mariah’s death; Lucio’s sister who testified that Lucio “never disciplined her children,” and a Child Protective Services worker who testified that nothing in the agency’s files indicated that Lucio had been physically abusive to any of her children. In their closing argument, defense attorneys explained Lucio’s statements as products of a coercive and lawyer-less interrogation, not as admissions of guilt.
In July 2008, the jury convicted Lucio of capital murder. Babcock noted that, during the penalty phase, Villalobos called in jail officials to ask if Lucio was ever seen crying or screaming. When told that she spent most of her time lying or sitting on her bed, Villalobos characterized her as “cold-hearted” and “remorseless.” She became the first Latina sentenced to death in Texas.
Villalobos won reelection. Lucio was sent to the women’s death row at the Mountain View Unit, a prison in Gatesville, Texas, where she has remained in solitary confinement for the past 14 years.
In a separate trial, Robert Alvarez, who had a history of assaultive behavior against Lucio and her children, was sentenced to four years in prison for reckless injury to a child.
A Looming Death Sentence and Race Against the Clock
The following year, in October 2009, Lucio’s defense attorney Peter Gilman was hired by district attorney Armando Villalobos. In 2014, Villalobos was sentenced to 13 years in prison for over $100,000 in bribery and extortion in exchange for prosecutorial discretion, such as minimizing charging decisions and agreeing to pretrial diversions. Gilman remains an assistant district attorney.
On October 17, 2018, a three-judge panel on the Fifth Circuit Court of Appeals ruled that Lucio was denied her constitutional right to create a meaningful defense. The state appealed to the full 17-member court. Ten judges agreed that excluding Pinkerman’s testimony deprived Lucio of a fair trial; three of those judges then sided with their colleagues in ruling that the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) required federal courts to defer to the decisions of state courts. In other words, explained Babcock, although the majority of judges agreed that she did not receive a fair trial, “Melissa was condemned to die on a legal technicality.”
Lucio turned to the U.S. Supreme Court. Sixteen organizations as well as eight former prosecutors and legal experts submitted an amicus brief in support of her. But last October, the Supreme Court refused to hear her case.
In December, Lucio’s new legal team petitioned the Inter-American Commission on Human Rights (IACHR), an organization tasked with overseeing human rights in the Western hemisphere. In their petition, Babcock and her law students argued that not only was Lucio inadequately represented at trial and that crucial witnesses were excluded, but also that Lucio’s limited cognitive abilities, depression and post-traumatic stress disorder renders her more vulnerable to the acute trauma of solitary confinement.
The following month, in January 2022, current Cameron County prosecutor Luis V. Saenz filed a motion to set an April execution date. The court granted that motion. If there is no intervention, the State of Texas will execute Melissa Lucio by lethal injection on April 27.
On February 8, Lucio’s lawyers filed a motion to withdraw or modify her April 27 execution date, arguing that Lucio was wrongfully convicted. That motion is currently pending before the 138th Judicial District Court of Cameron County, the same court that set her execution date.
On February 18, the IACHR adopted a resolution requesting that the U.S. refrain from executing Lucio until the commission can reach a decision on her petition.
Texas law requires that any application for clemency, or a lessening of Lucio’s sentence, must be received by the state’s Board of Pardons and Paroles no later than 21 days before the execution; for Lucio, that date is April 6, 2022. Lucio’s lawyers must now race against the clock — and the ongoing COVID restrictions — to finalize and present all exculpatory evidence to the Texas Board of Pardons and Paroles and Gov. Greg Abbott.
In mid-January, Mountain View prison had 52 newly identified COVID cases among incarcerated people and another 27 among staff. “COVID is raging here,” one incarcerated person wrote in a letter to Truthout at the end of January.
“It’s outrageous that Texas has set an execution date while we are still in the midst of a pandemic,” said Babcock. The pandemic imposed a year-long prohibition on in-person contact with Lucio (or any person incarcerated in Texas prisons) and continues to impede lawyers’ and experts’ access to her.
“Texas’s refusal to give her team the time that it would take to put together the most convincing and compelling package is itself a great miscarriage of justice, the likes of which we have not seen in the annals of the death penalty in Texas,” Babcock said.