Mother set to die needs time to show new evidence

“Idon't know what you want me to say. I'm responsible for it.”

By the time Melissa Lucio uttered those words, she had been interrogated by police for several hours about the death of her 2-year-old, Mariah, who had taken a nap and never woke up one Saturday in February 2007. It wasn't until 3 a.m. that Texas Ranger Victor Escalon Jr. decided he'd heard enough.

By then, the ranger had pushed the Harlingen mother of 12, pregnant with twins, past her repeated insistence of innocence and into a confession that she was responsible for her youngest daughter's death.

Escalon would later tell a Cameron County jury that he knew Lucio was guilty by the way she avoided eye contact and slumped her shoulders — an observation that speaks to the flimsy evidence and analysis in a case that sent Lucio to death row and now, two weeks before her scheduled execution, seems to be withering under the light of international scrutiny, late-hour appellate filings and public pleas for Gov. Greg Abbott to grant clemency.

We urge the governor to intervene and stop the state from killing Lucio. A bipartisan group of lawmakers has made the same request. Five jurors who heard all the evidence at the 2007 trial now express regret or doubt over imposing the death sentence. At the very least, Lucio's attorneys deserve more time to show how new evidence casts doubt not only on her death sentence, but also on her conviction and even on whether a murder occurred at all.

We're not venturing a determination as to Lucio's guilt or innocence but we know one thing for sure: Lucio's deeply flawed case — filled with apparent bias, attorney incompetence, hunches, assumptions and inexplicable judicial reasoning — is exactly why this editorial board opposes the death penalty. Lethal injection is an irreversible act that cannot be undone in the event that a mistake is discovered in a human system susceptible to grievous human error.

In Lucio's case, the errors are as evident as freshly dusted crime scene fingerprints.

From the get-go, Lucio was a suspect in her daughter's death. Responding paramedics were the first to doubt Lucio's explanation that Mariah had fallen down a staircase, in part because the family's first floor apartment had only three steps leading to the front door. Paramedics didn't realize the family had just moved from a second-story apartment with a rickety outdoor wooden staircase.

In the emergency room, a doctor who saw Mariah's injuries, an arm apparently broken for more than two weeks, and bruises that seemed to pock her little body from head to toe, called it the “absolute worst” case of child abuse he'd ever seen, an observation later bolstered by a medical examiner who determined only severe abuse could explain Mariah's death.

It may have been an all-too-easy narrative for investigators to accept of a poor, Latina mother with a drug addiction and a years-long history with Child Protective Services. CPS had documented signs of neglect and found enough reason to temporarily remove children from the home. They had been returned about three months before Mariah died.

To the jury, prosecutors presented a simple story: a bad mother abused her daughter to death. It had to be true, even if no direct evidence connected Lucio to her daughter's death, and even if there was no record of Lucio ever having been physically abusive to her. And what's more: the mother confessed.

“She admitted it. She admitted that she caused all of the injuries to that child,” the prosecutor insisted in closing arguments.

Why would a mother confess to killing her child if it weren't true? The defense had an answer but jurors weren't allowed to hear it from an expert psychologist whose testimony the judge inexplicably deemed irrelevant. The psychologist would have argued that Lucio regularly took blame for things she hadn't done, behavior he attributed to a lifetime of abuse starting at age 6 and continuing at the time with Mariah's father, Robert Alvarez.

Whether the exclusion of the expert testimony deprived Lucio of her right to present a complete defense has been one of her strongest points of appeal, and a question of great controversy for judges. A small panel of the 5th U.S. Circuit Court of Appeals granted her relief, only to be reversed by their colleagues in a 10-7 decision of the full court, largely on technical grounds. The U.S. Supreme Court's refusal to hear the case then led to the setting of

Lucio's execution date.

Lucio still has other appeals pending. On Tuesday, current Cameron County District Attorney Luis Saenz told lawmakers under intense questioning that he expected Texas' highest criminal court to grant a stay and he ultimately even agreed to withdraw the execution request if that didn't happen — a hopeful development, no doubt.

Still, what about the signs of physical abuse? Are Lucio's lawyers asking us to believe that it was merely coincidence that the same child suffered a broken arm, a fall and extensive bruising around the same time? Yes, actually.

Her lawyers, now joined by the national Innocence Project, piece together compelling evidence in their clemency petition arguing that Mariah suffered from developmental delays, behavioral issues and a turned foot that seemed to make her prone to falls, including one at her day care that knocked her unconscious. Even though falls “remain the number one cause for traumatic brain injury in children of Mariah's age,” writes a pediatric forensic pathologist in the clemency petition, a thorough analysis was never completed to rule out the impact of Mariah's falls on her death.

As for the bruising, the same expert said a condition that can result from head injury, known as disseminated intravascular coagulation or “DIC,” can cause widespread bleeding and bruising throughout the body that the medical examiner may have mistaken for abuse.

“There are several potential causes and contributions to Mariah's injuries and death that have nothing to do with intentional force,” wrote the pathologist. The initial “inaccurate testimony” that insisted Mariah had been beaten shortly before her death “creates,” the pathologist concluded, “a risk of a serious miscarriage of justice.”

Other issues too numerous to detail here have been raised, both by Lucio's attorneys and by a recent documentary on the case. Certainly, the fact that the original district attorney was later convicted of corruption and may have had political reasons for pushing the conviction, is troubling, as are the failings of her trial attorneys who later went to work for the DA's office.

“In 27 years and close to 100 cases, this is the first time I've ever had a case where there wasn't actually a murder,” Tivon Schardl, chief of the capital habeas unit of the federal defender's office in the Western District of Texas and one Lucio's lawyers, told the editorial board.

While the clemency petition explicitly asks the governor for a one-time, 30-day reprieve or a commutation to a life sentence, this editorial board feels that the depth of the new, compelling analysis merits a new trial.

The governor has previously granted clemency in a death case where a father argued the execution of his son would only bring more pain and trauma. Lucio's family members argue similarly.

“Please do not kill an innocent mother,” Lucio's daughter, also-named Melissa, who was 18 when her mother was arrested, said in a statement earlier this year, “do not take her away from our family, by killing her you will be killing me too.”

As the governor awaits the parole board's recommendation — expected just days before Lucio's April 27 execution date — we implore him to consider carefully the facts, and the life, before him.

Lucio may well be guilty of a crime for her admitted and, in our view, inexcusable failure to seek medical attention when her daughter fell ill after the fall. For the same failing, Mariah's father was sentenced to four years in prison. Lucio has already served 15. Mariah's death was a tragedy, but one that cannot be avenged, and would only be exacerbated by the unjustified execution of her mother. Texans, join us in urging the governor not to let that happen.

New analysis may cast doubt on whether a murder occurred at all.