June 9, 2021 • 50 mins
On February 17th, 2007, paramedics were dispatched to a residence where they found an unresponsive two-year-old child who subsequently died. Evidence of abuse led to the arrest and conviction of Melissa Lucio, the child’s mother. She was sent to death row where she remains to this day. The DA on the case has since been found to be corrupt and is himself serving 13 years in prison for accepting bribes to sway the outcomes of trials.
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Episode Transcript
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Speaker 1 (00:02):
Melissa Lucia grew up poor in South Texas, a victim
of years of sexual abuse from multiple offenders in the home.
At age sixteen, she married her first boyfriend to escape
tying up her self worth and being a mother, so
much so that she eventually had fourteen children. The final
two were twins that Melissa delivered behind bars after having
(00:22):
been accused of allegedly murdering the next youngest sibling, two
year old Maria, on February fifteenth, two thousand seven. Maria's
older siblings witnessed her take a tumble down the stairs.
Lethargy and a lack of appetite were hoped to be
symptoms of something less severe than head trauma, but when
she became unresponsive on February seventeenth, they called the m s.
(00:43):
Mariah passed away and an aggressive interrogation ensued, resulting in
an admission to an overarching sense of guilt that most
any mother would feel. The usual bruising from rough play
with her siblings was later used to support the state's
theory of a pattern of abuse. Melissa's eviction would also
go a long way to shore up a tough on
crime image for a corrupt district attorney embroiled in a
(01:07):
bribery scandal during an election year, Defying logic and the
scientific method, the state's forensic pathologists ruled out Marah's ball
down the stairs as the cause of the failed head trauma. Further,
the children who witnessed the accident and denied the pattern
of abuse were not called to testify. After trial, Melissa's
defense attorney was immediately hired to the d a's office
(01:28):
with a bump and pay. The d A got re elected,
but was later prosecuted by the FBI, and Melissa is
still on death row. This is Wrongful Conviction with Jason Flom.
(01:56):
Welcome back to Wrongful Conviction with Jason Flam. Today we're
talking about the case of Melissa Lucio, an innocent woman
on death row in Texas. Today. To tell this incredible,
harrowing and urgent story, we have with us Sabrina van Tassel.
Sabrina is an acclaimed documentary filmmaker and investigative journalist who
(02:20):
has made forty five films. And I think maybe it
was all a build up to this one. Not Sabrina,
Welcome to ronfl Conviction. Thank you so much, and with
her is a badass Texas attorney named Margaret Schmucker, and
Margaret has been a fierce advocate for Melissa as her
habeas attorney. Margaret, Welcome to ronfal Conviction. Thank you for
(02:44):
having me, and thank you both for being here. Um So,
over the past few years, Sabrina has visited Melissa Lucia
on death row in Texas, where she's been stuck since
two thousand and eight. And throughout this episode you're gonna
hear excerpts from those interviews. You can also see in
here in Sabrina's film The State of Texas Versus Melissa.
(03:05):
And during those interviews, Melissa really was very candid with
you about her life, which was just beyond tragic from
the very beginning. So Melissa was born in Houston. Her
father left the mom when she was three months old,
and they moved to Harlan in Texas, and the mother
kept being, you know, with different boyfriends. They were all abusive.
(03:29):
I was molested by my mother's boyfriend. I must have
been about seven years old when the abuse started. I
grew up not really loved because of this incident. I
continued to be molested by other family members. I just
(03:50):
allowed myself to be a victim over and over again.
She did tell her mother that the boyfriend was actually
abusing her, and the mother basically did not believe her,
and then she basically allowed herself to be a victim
to other men in the family. Uh. And once she
(04:10):
was about fifteen years old, the first boyfriend that she
got involved with she married, and she started having a
family right after. By the age of twenty two, she
already had five children. Her husband introduced her to drugs,
and one day her husband just left her, and so
all of a sudden, she's twenty two and she has
(04:31):
five children, and she meets her other partner, Robert Alvarez,
and together they're going to have nine other children, right,
And two of those nine were twins that Melissa delivered
in jail while she was being held for the alleged
murder of her youngest child at that time, Mariah. So
(04:52):
before Mariah died, there were five from the first guy
and seven from Robert Alvarez, for a total of twelve.
So some of them were still really little, some of
them were teenagers. Some of them had even moved out
by the time February two thousand seven rolled around, which
is when this incident happened, but before that they were
all living in desperate, desperate poverty and relying on a
(05:14):
charity called Loaves and Fishes for most of their meals.
Melissa and Robert had very unpredictable schedules because they were
doing all sorts of odd jobs trying to support the
family and to keep up with all of it, or too,
I don't know, maybe forget their troubles. Melissa and Robert
were using drugs out of the sight of the children,
but regrettably also while she was pregnant with Maria. When
(05:36):
Melissa had Maria, the seventh child with Roberta Alvarez, she
was born with drugs in her system, and so she
was taken from Melissa and or from Mr Alvarez by
CPS Chold Detective Services, along with all of the other
kids that were in the home at that time, and
they were placed in foster care. They were fairly well
(05:57):
split up. That continued for so were years, and Melissa
and Roberta were given supervised visits with Chop Detective Services
with the kids, and then finally, when Maria's about two
years old, over Thanksgiving, CPS returned the seven children who
were still miners at the time back into the home
(06:19):
of Melissa and Roberta. And so it is from that
point until the point where Mariah dies, where there's nine
children in the home in this small second story apartment
with a rickety, scary stairwell on the exterior, which is
the access point right. And to make this accident even
more likely to happen, Mariah had this is important, a
(06:40):
physical impairment as well. One of her feet was turned
in slightly, which caused her to be unstable and to
fall downstairs occasionally, as was documented while she was in
foster care. But that's not all that was documented in
those Child Protective Services reports. There was a tremendous amount
of inter sibling violence while in foster care and when
(07:00):
they were living at home, especially from the older sisters
disciplining the younger ones who they resented having to care
for while their parents were at work. And then the
boys were very rampunctious as well. Yeah, I mean the
boys were fighting, you know, all the time, and you
know they were big on w W E keeping. My
CPS comes by once in a while, and so we
(07:21):
have the CPS reports, and on one of those, the
very last time they came to visit, which was two
months prior to Mariah's death. There's concerned that, you know,
the place is too small, that they're you know, small
objects on the floor, that those stairs are very dangerous,
and the parents are not around, and basically it's up
(07:42):
to the teenage daughters to supervibe them. So among the
many problems, they've got to move out of this decrepit,
totally unfit apartment with the rickety stairs, and they found
a first floor apartment with just two or three steps
leading up to the door, and that move was going
to be happening over the course of every fifteenth, sixteenth,
(08:04):
and seventeen of two thousand seven, and so Melissa and
Roberto were in the process of trying to get the
family moved, and so some of the kids were with
their moms, some of the kids were with their dad.
They're going back and forth in a pickup truck taking loads. Mariah,
being at that point about two and a half years old,
was in the second story apartment with her mom and
(08:27):
at least one of the teenage daughters while they were
trying to pack things up. Several of the sort of
younger age children about eight nine years old were downstairs
playing in the backyard. At some point, Melissa and the
older daughter are in one of the bedrooms. They're packing
up clothes, what have you, and one of the kids
(08:48):
who's playing in the backyard came upstairs. He went into
the apartment to get a drink of water, and there
was a screen door on that exterior door that had
a latch on it, and when he went back downstairs
to go play, he left that door unlatched. And Maria,
who as we've already discussed, was unstable on her feet
(09:08):
because of her small deformity, went to go follow her
brother and she started down the stairs and felt one
of her brothers saw her as she sort of tumbled
the last three or four steps and hit her head
on the pavement. Melissa, at this point goes looking for
her and finds Maria at the bottom of the stairwell,
(09:29):
and she checks her over and doesn't see any serious injury.
Doesn't look like she's broken any bones or anything. And
Mariah's not crying, she's not acting like she's hurt. And
so she takes Mariah and they go back upstairs and
they continue to pack and complete the move to the
new apartment. So by time Saturday rolls around, Mariah has
(09:52):
already had this closed head injury from this fall down
the stairs that is not noticeable from her head or scalp,
and her progression of symptoms during that time period is
exactly what you would expect for a child at that
age who has had a serious close head injury and
who has swelling on the brain. It progresses from lethargy
(10:14):
to know, not wanting to eat, to ultimately some more
serious symptoms where she has locked jaw, and then she
basically loses consciousness, although to her parents she's still just sleeping.
And at that point they're already in this first floor
apartment and Roberto Albarez goes out on are and he
comes back and he goes to check on Mariah and
(10:36):
she is nonresponsive, and so they do end up calling
E M S. And E M S shows up at
this apartment and they see injuries bruises on Mariah that
they don't have any explanation for, and they hear Melissa say, well,
she fell down the stairs a few days ago and
(10:59):
we thought she was okay, but maybe she wasn't. And
the E M S sort of jumped to the conclusion
that the stairs Melissa is talking about are the two
or three steps from the ground floor apartment they are
now in. And they have no knowledge of this full
flight of stairs at the prior apartment that they were
living in just a few days earlier. And so the
(11:21):
e m s are incredulous to say the least. Oh,
you know, a kid can't get this injured falling down
two or three stairs. And so they try and resuscitate
Maria unsuccessfully, which can leave its own kinds of bruises
on a body. But the ms take her to the hospital.
She does pass away, and Melissa is arrested and take
(11:44):
into the police station. So when she was pronounced that Mariah,
of course I'm talking about in the er, she was
examined initially by any R physician named Vargas, and he
noted that she had sustained significant physical abuse. He said
that she had several bruises that were in very stages
of healing, and that there were bite marks on her back,
(12:07):
and that one of her arms had been broken sometime
two to seven weeks prior, and that she was missing
portions of her hair. But Vargas said he found no
outward sign of head injury. So you can see how
there's like a straight line connecting this to the interrogation.
The interrogator was taking these findings from this doctor and
(12:31):
then trying to put those words into Melissa's mouth. I mean,
you're not wrong. This information was all then conveyed to
the police, and the police went into the interrogation room
with Melissa with already the preconceived notion that this had
to have been physical abuse, and it had to have
been physical abuse by Melissa in their view, because she
(12:52):
was Mariah's primary caretaker, because she was the mother, and
that's where her nightmare really sort of begins ends as
far as her involvement with the criminal justice system in
this case, because she is interrogated at length, well into
the night and early wee hours of the morning by
multiple police officers who are aggressively denying her explanation that
(13:18):
Mariah had fallen down the stairs and her attempts to
explain any older injuries that Maria might have as having
been the result of the rough play with her other
older kids, which is well documented by CPS and by
other just sort of slips and balls, because she has
a tendency to do that, and they just aggressively deny this,
(13:38):
deny this, deny this, They won't believe her, and finally,
in the wee hours of the morning, they get her
to say that she's responsible. And they never get her
to say really that she murdered Maria or that she
hit her on the head or anything. They just get
her basically to admit responsibility in the sort of overarching
way of a mother responsible for the circumstances that led
(14:02):
to her child's death, and so she is charged with
capital murder. At that point, it's actually remarkable that she
was able to not really confess. I mean, they called
it a confession, but she didn't really confess. But eventually
she was questioned by a Texas ranger named Esteban. She
confessed basically having spanked Mariah several times, quote, day after day,
(14:27):
and other minor abuses which we now know didn't happen,
like biting her. So she was confessing to things that
didn't even make any sense at all because they weren't true.
She was just basically trying to say, I guess anything
she could to get out of this awful situation, and
that terrging her went so far as to ask Meilissa
to demonstrate the spanking on a doll, and it was
(14:48):
encouraged by the investigator to spank the doll harder, right,
I mean, and this is on video, right, show me
how you would do it, but I mean the way
you actually did it. We'll just get it over. Oh,
just hard on her back. We'll do it real hard.
Lucky Lucky would do it. But the way you would
(15:09):
do it, that's the way would do it. I mean,
I wouldn't pound on her or do it do was
it harder? No? Because I just I don't do it's hard. Cool,
you're doing it on yourself. This is I mean, I
(15:30):
was in polling on her exactly. You can do it, yes, okay,
and this is just what spanking. My name is. Dr
John pinkerman I was the clinical psychologist appointed to Miss
Melissa Lucio's defense team. Melissa had a history of certainly abuse,
(15:54):
sexual abuse, and mistreatment going back into adolescence and can
tinuing throughout her adulthood in which she acquiesced to multiple
individuals that abused her. She became pretty compliant with individuals,
didn't tend to break free from them, and often continued
(16:15):
the relationships even though they were really self defeating. For
so we felt this was you know, and I felt
it was really a problem issue that helped explain some
of the behavior that she evidenced during the interrogation and
how she came to provide an acquiescence. I don't know
if I want to call it a confession, but an
acquiescence to the investigators in regard to her conduct. I
(16:39):
was struck by how she was explaining that she was
spanking the children, or spanking Melissa, and she was it
appeared like coach too, to show stronger force in striking
the table in the interview room. You know, all of
that contradicted every piece of information that we had that
(17:01):
she provided physical discipline to the children. You know, we
never heard that from any of the children, and certainly
not to the extent of causing the alleged injury and
subsequent death. It's important to note that he didn't just
encourage her to spank the dull harder. I mean, he
encouraged her to confess to things which she had no
(17:22):
knowledge of or had no part of. He told her
there was a bite on Mariah's back and got her
to confess to having bitten Mariah, and at least my
medical expert so that wasn't even a bite mark. It
was parallel striation bruises from having fallen down the flight
of stairs on her shoulder blade. And so Ranger Eskalan
(17:46):
got Melissa to admit to a type of abuse of
Mariah that did not exist, that had not happened at all.
And again that's sort of hallmark of a false confession,
is getting somebody to confess to something that there's no
evidence off at the end of it. And this really
(18:08):
is such a painful thing to think about. And I
saw it, of course in the film. But you know,
she ultimately says, I wish it was me that got hurt,
and then started crying, how are you do when you
see these pictures? No, she was maybe about hurt. Is
(18:31):
there anything else you want to add? Very yeah, yeah, okay,
(18:54):
you listen. It's three am, and that will end the interview.
This episode is underwritten by Paul Weiss Rifkin, Wharton and Garrison,
a leading international law firm. Paul Weiss has long had
(19:16):
an unwavering commitment to providing impactful, pro bono legal assistance
to the most vulnerable members of our society and in
support of the public interest, including extensive work in the
criminal justice area. So during the interrogation, Escalon asked Melissa
(19:39):
if they would find a fractured skulled during the autopsy,
even though the e er physicians said there was no
sign of head injury. But Escalan had a theory right.
So on Monday February two thousand seven, the chief forensic
pathologist of Cameron and Nidago County is a woman named
Norma Jeane Farley had conducted an autopsy and ruled that
(20:00):
due to the presence of blood poolled and the crandial vault,
that the cause of death was quote blunt force head trauma.
And then she went on during the trial to say
that a fall downstairs could not possibly have been the cause.
But that doesn't sound like science. That sounds like conjecture, right.
(20:22):
My name is Dr Thomas Young. I am a forensic pathologist.
Back in two thousand and ten, I was contacted by
Margaret Schmucker, who served as an appellate attorney on the
case of Texas versus Melissa Lucio. She wanted me to
look at the records and offer opinions that I could
make to a reasonable degree of medical certainty. Dr Norma
(20:44):
Jean Farley, who was also forensic pathologist, has made a
mistake very common in forensic pathologist, the idea that you
can look at an autopsy, that you can look at
findings on a body and be able to determine the
very very complex succession of events that happened in the
past to lead to that event. This is reasoning backwards.
(21:08):
It doesn't work. It is like trying to solve blank
plus blank equals four. If you think four is the
consequence of blank plus blank, looking at four doesn't give
you the answer to what goes in the blanks. They
are already numerous witnesses as to what happened to see
the succession of events that occurred that led to the outcome.
(21:32):
What Dr Farley did was she reasoned backwards, ignoring all
these witness accounts. She says that she knows for certain
what happened here to Mariah Alvarez. And this is arrogant
where you ignored what multiple witnesses say who were there
to actually see what happened. This is absurd. This is
(21:54):
just a flat out guess. But Dr Farley approaches it
as if he is certain about this. How did she
know that? You cannot get high trauma from a full
down the stairs. I mean, it makes no sense. You know,
the science has developed at the time of Moriah's death,
(22:15):
and sinse that it is possible for a child to
fall down even a very short flight of stairs and
have a fatal head injury. All I can say is
Norma Farley was just wrong on the science on that.
You know, you put an expert on the witness stand
and the jury, you know, gives them an awful lot
of credence if they have appropriate credentials. And of course
Norma Jeane Farley was the medical examiner for the county,
(22:36):
and so they give her testimony quite a bit of
credibility clearly in reaching the verdict that they did. It
sure sounds like the science is being adjusted to fit
the narrative when that is exactly the opposite of how
this all should function. Right now, we get to the trial,
which the state argued that Melissa had confessed to a
pattern of abuse and inflicting the fatal blows that killed Mariah.
(22:59):
Even oh, the video clearly shows that that is not
the case. So they supported the theory that Melissa was
abusive with evidence that Mariah had bruises, which you know
she did that were at various stages of healing. But
we also have covered why they were there, and that
had nothing to do with Melissa's after the fact that
she was not in control of her own life at
that point. Right, and Norma Jean Farley, again as the
(23:22):
chief forensic pathologist, testified that Mariah's death was the result
of blood force head trauma. She continued that it must
have occurred within twenty four hours of death and that
it would have been immediately apparent that Mariah was in
distress and in need of medical attention. Now, Farley testified
that Mariah suffered multiple contusions to her head area, but
(23:44):
somehow she was magically able to rule out that the
strikes to the head were not the result of tumbling
down the stairs. Now, I don't think she witnessed the
tumbling down the stairs, So again, how in the world
would she know that, Well, she wouldn't, but this is
probably what she thought that the authorities wanted to hear.
So just just so we're clear, Melissa's defense did put
(24:07):
on the stand an expert named Dr Curry. Correct, yes,
they did. But when they qualified Dr Curry as an
expert since he was a pediatric neurologist. He was not
a forensic scientist, and so they did not allow him
to testify it regarding the source of any of her
other injuries anywhere below the neck. And so because of
the defense didn't hire a better expert or more appropriate expert,
(24:29):
they were not able to counter the state's case that
all of these prior injuries were from being beaten repeatedly
over a period of weeks or months. But he did
contradict nor Regine Farley's testimony in the timing of the
head injury that caused her death. Normagine Farley had said
(24:50):
that the injury had to have occurred approximately twenty four
hours prior to her death. Dr Curry, who was a
pediatric neurologist, testified that it could have occurred earlier than that,
you know, anywhere from forty eight to seventy two hours
before she died. And so that becomes important when you
look at the timeline of events of the family moving
(25:10):
and everybody being together, you know, either at the old place,
in the new place, or in transit about whether or
not Melissa was ever alone with Maria. Melissa was never
alone with Mariah. Yeah, when you go back through all
of the evidence that the state had collected, whether they
used it or not at trial, you find that Melissa
(25:32):
was never alone with the kids at all, whether you
look at the timeline suggested by Dr Farley or you
look at the timeline suggested by Dr Curry. She was
always with family members. They were always together as a family,
either you know, a few kids or more everybody during
that whole seventy two hour period. And not one of
(25:53):
those kids has ever said that during that time period
that Melissa ever hurt Mariah, ever touched her in any
kind of aggressive way. How could you possibly be alone
in the two room or so apartment with nine kids
is It's preposterous. So they did not present the evidence
(26:16):
that she was never alone within that seventy two hours
prior to Mariah's death, and that the kids were never
allowed to testify that they had never seen their mom
hit Maria during that period time and she was never
alone with Maria during that period of time. And then
there's the issue with Dr Pekerman. The defense did try
to put Dr Pinckerman on to talk about why Molyssa
(26:36):
might have made this so called confession of being responsible,
when in fact she was not and the court refused
to allow Dr Pancerman to testify to that. My colleague
Normal Villanueva and was a social worker, and she and
(26:57):
I developed different viewpoints and theory about the case as
we went along in our meetings with the defense team.
We raised questions in our meetings, and I can remember
at least on one occasion going to this second Share
Councils just sort of asking, you know, is it possible
that we could take a look at these issues and concerns.
(27:19):
That individual said that he thought it might be a
good idea, but he deferred to the lead attorney, Mr. Gilman.
I was not asked to provide any testimony during the
guilt innocence phase of the trial, but in the sentencing
phase I felt my testimony was abbreviated and truncated in
(27:40):
a way because there was a lot of background information
that I was prepared to offer to the court that would,
I hope, mitigate the ultimate sentence. It seemed that there
was not much interest in having that information, as I understand,
of course, the appeal was based on specifically on my
opportunity or lack of opportunity to present that kind of viewpoint.
(28:04):
Melissa didn't have anybody on her behalf. Her kids weren't
allowed to testify, nobody was allowed to defy. She was
alone in her defense because no one was really brought
in to testify. Even though her trial attorneys knew that
the older girls had admitted to causing Mariah's injuries, They
(28:25):
knew that the younger kids had testified to seeing Mariah
fall down the stairs. And they knew, or should have
known if they put sort of two and two together
of all the various pieces of evidence that were available
to them, that Melissa was never alone with Maria at
the time, but they never put any of that evidence
on with what the jury was presented with. The results
(28:47):
were as predictable as they were tragic and wrong. She
was convicted and sentenced to death. When the jury came
back and said that they found me guilty, even though
I did hear the word guilty, I didn't want to
accept it. The best way to describe it is I
(29:08):
felt like I was in a dream and then I
would wake up and I would be at home with
my kids. You know. Everybody was screaming and crying, and
they let me out from the courtroom and they took
me back to my cell and I remember I slept.
I just tried to block out everything that had happened
(29:28):
in that courtroom. I figured my children would would be
able to testify, that they would be able to get
on that stand, and I know that they would, they
(29:50):
would come out and say the truth. And Mr Gilman
he didn't want to. He told me no because he
didn't know what the prob secutors had in store for them,
and he didn't want them to try to manipulate them.
And he felt that it wasn't there wasn't a need
(30:11):
for my children to be understand. You know, someone listening
to this cold would probably come away with the impression
that the defense attorney was almost like an adjunct prosecutor.
And as crazy as that sounds, it's not that crazy
when you think about the fact that he went to
work for the prosecutor immediately after the trial, and why
(30:31):
would the prosecutor's office hire him at a higher salary
than the season prosecutors that were already working there immediately
after having watched him do as terrible of a job
as an attorney can possibly do for their client. It's
just stinks so bad. It's it does stink, But let
(30:52):
me make some clarifying points about what really happened. Right
before Mariah dies, there was another murder case in the
Brownsville area and the defendant was a guy by the
name of Ahmad Livingston. And Mr Livingston ends up, I believe,
pleading guilty to murder, but with the agreement of the
District Attorney's office Armando via Lobos, he is released in
(31:16):
order to go put his affairs in order before he
has to go to prison. When he's released, he disappears
into the wind. He's found more than a decade later,
hiding out in India. But in any event, at the
time he's gone missing in action. And the newspapers picked
this up and they're like, you know, why did the
District Attorney's office agree with this? You know what's going
(31:37):
on here? This was all very bad press for Mr. Violobos,
who was getting ready to run for re election of
the District Attorney of Cameron County. He needed a win,
and he needed a win big. And right after all
this happened is when Mariah died. And Melissa's the perfect target.
She's poor, she's Hispanic. There's a dead baby, you with
(32:00):
a lot of bruises. This is the perfect vehicle for
Mr vo Lobos to go. I'm hard on crime, re
elect me to District Attorney's office. So obviously Melissa gets
convicted since to death. Mr via Lobos gets re elected,
and within a fairly reasonable time after Mr Vio Lobos
(32:20):
is reelected, that's when Pete Gilman goes to work for
the District Attorney's office. Un fucking believable. Please continue now.
I did an open records request to find out about
the hiring process for Mr. Gilman, and what I found
out was he was supposedly interviewed on an unknown or
(32:44):
unstated date by Mr via Lobos himself and was hired
and had accepted the job before he had even submitted
a CD or a resume to the human resources department.
He was hired first and then he submitted those papers,
so that was kind of shady. And then you find
out that he gets a pretty good salary. District attorneys
(33:05):
don't usually get paid the way attorneys in private practice do.
It's usually a starter salary, a stepping stone to something bigger.
He gets hired in at a pretty significant rate, and
then his wife is also hired at the courthouse, and
between the two of them are bringing down a six
figure salary. Wow, you know, just when you think you've
(33:26):
heard everything, and I always think every week I said,
I think I've heard it all, and then then then
there's this. I mean, where where do these people come from?
How do they sleep at night? I mean, just to recap.
So he's accepted the job. We don't know exactly what
it could have been before the trial. For all we know, right,
he could have actually been working for the prosecution while
(33:47):
supposedly defending Melissa. And let's just look at what he
did and did not do during the trial. This Gilman
character failed to call as witnesses enyable US's children who
had seen my rifle down the stairs. Okay, that alone
is sucking shocking. Then there's just there was the social worker, right,
Norma Villenueva, to whom Melissa's daughter Alexandra bravely had said
(34:11):
that she was the reason Mariah fell down the stairs.
The social worker was instructed by Gilman to not alert
anyone to this statement that sounds like the work of
an adjunct prosecutor. She was not, of course, called to testify.
That testimony could have been extremely valuable. There was also
a host of witnesses that were interviewed and or put
(34:32):
on the stand by the state that together never placed
Melissa alone with Mariah. The had to that no witness
ever saw Melissa beat Mariah at any time, and Melissa
Maria whever alone. We know that Farley's theory. A first
year law student could have connected these dots and shown
that Farley's theory was nonsense, but none of that was
(34:53):
ever done for the jury. And then just process this
with me for a second. Right, So there's a horrible
interview with Gilman after he had already joined the prosecutor's
office formally, instead of only you know well anyway, but
he said and I quote, she was not a good mother.
(35:15):
Did she kill her child? I don't know? End quote. Well,
I can tell you something. When I interviewed Peter Gillman,
because that's in the film, you would have thought that
Melissa was his worst enemy. He had nothing nice to
say about her. He went on and on. It was
quite an extraordinary And I said to him, I kept
asking him. I was like, what was your strategy? What
(35:39):
was your strategy at Trow? And he couldn't answer. I
think I asked him that question maybe seven times. What
was your strategy? I mean, did you believe that it
was an accident? Did you believe? He couldn't answer, he
had no strategy. He had a strategy. It wasn't a
defense strategy, but he had a strategy and to get
himself a better job. So, in case you haven't heard
(36:01):
enough yet, and in case you were looking for an
even more terrible villain in this story, if such a
thing is possible, boy, do we have one for you now.
The elected district attorney, a gentleman named Armando via Lobos
and Mr via Lobos was at the time of this
(36:26):
all that stuff taking place. He himself was at the
center of an FBI investigation and for good reason. There
was a public scandal that emerged because he was using
his office to enrich and empower himself through several different schemes,
one of which was bribery and exchange for favorable outcomes
(36:49):
at trial. He was involved with cartels. He would bring
lawyers and judges to Las Vegas and pretend to lose
and poker games so you know, he could drive them.
It goes on and on. Basically, his agenda was to
take money from you know, people who could pay him
and then for people like Melissa. He would use to
be reelected. The moment he heard about Melissa's case, he
(37:12):
was at the police station, I mean, while Melissa's being interrogated.
I mean he's already there. He just completely used her case.
You know, Margaret will tell you how it's very rare
for d As to actually get personally involved, you know,
in cases. I mean, he even did the ending statement
at her trial. He not only did the ending statement,
but he actually examined one of the state's witnesses, and
(37:36):
he had the state's witness get up off the witness
stand and pretend to shake a child like shaking baby syndrome,
which has questionable scientific background, especially for a child of
Mariah's age. If you talk to the scientists, they will
tell you that a child as large as Mariah, if
(37:57):
you'd shaken her heart enough to cause brain to sort
of shake back and forth inside the skull and be damaged,
you have to have broken her neck. But he nevertheless
has this witness get up off the witness stand and
stand in front of the jury and pretend to violently
shake a child as a demonstration. You know, I don't
(38:18):
know how intensely that played into the jury's verdict, but
I'm sure it wasn't ignored. And then he took part
in this sentencing phase to make sure that she got
death I mean, and he had to prove to the
jury future dangerousness, right, and Melissa had never been arrested before,
and Melissa had no prior history of violence whatsoever. So
(38:40):
all of a sudden, he needs to prove to the
jury that, you know, she is so violent that she
actually might be a danger two prisoners, and that's why
she needs to be on death throw. Right, Let's put
it this way. I mean, if Melissa Lucio is the
type of person that is actually the most dangerous person
in America, that she would end up on death row.
(39:01):
I mean, you know, we were in trouble. She wasn't
even the most dangerous person in the courtroom. That d
A was the most dangerous person in the courtroom. He
was running a continuing criminal enterprise. He's doing back room
deals with cartel's, he's bribing judges and lawyers, He's selling verdicts,
letting murders, serial murderers run free. I mean, this guy,
(39:22):
he would be a cartoon villain, except there's nothing funny
about any of it, so we know how rare it
is for prosecutors to be prosecuted, but this one the
FBI took very seriously and they got involved, to say
the least. Right, How did it end up? Well, I
interviewed Michael Wynn, who was the lead prosecutor against Armande
Villa Lobos, and of course I never had any contact
(39:43):
with the ABI, but he told me that they were
trying to get him because he was running for Congress
and they wanted to make sure that that did not happen.
So they were trying to get him, and they had
so much on him, you know. The feedback that I
got on that eight or was there was so much
on Mr va Lobo's that they decided to stick to
(40:07):
sort of their slam dunk case for conviction because they
just needed him gone. And so Melissa's stuff it came
out a little bit in the Via Lobo's trial. Um,
the bit about Ahmed Livingston and all of that did
come out at trial, and Melissa's involvement and that came
out in trial, but it was very very limited. It
wasn't the focus of their energies at Mr VA Lobos's
(40:29):
Federal criminal truck, you know, I find that extraordinary as
an outsider that you know you have, you know, a
courter pointed attorney who now works at the d a's office,
who basically did not defend Melissa at all. And then
you have a d A who got thirteen years of
federal prison, but you know that has nothing to do
with Melissa's case, and you know her kids should not
(40:51):
be re examined. Gets infuriating. No, You're absolutely right. Every
single case that this guy had anything to do with
needs to be immediately reopened and thoroughly re examined. And
I'm not saying, to be clear that everybody that he
prosecuted is innocent, but a lot of them probably are.
And in any case, it's abundantly clear that almost none
(41:12):
of them could have possibly gotten a fair trial. And
Melissa absolutely did not get what she is constitutionally guaranteed,
which is a fair trial. And what I find particularly
shocking is that Gilman hasn't even been disbarred. I mean,
this case is a literal poster child for ineffective assistance
of counsel. But Melissa remains a death row to this
(41:35):
very day, and the State of Texas is desperately continuing
to try to execute her. So her direct appeal was denied,
you filed her state habeas and then it moved on
to federal habeas and ended up in the Fifth Circuit
Court of Appeals, which is the conservative federal court that
sits on top of Texas among other states. And it's
at that point that I end up kind of being
(41:56):
dropped out of the case. But what ended up happening
there was ultimately the Fifth Circuit, a panel of the
Fifth Circuit three judges who initially heard the case, ordered
that Melissa should get a new trial. UM. The state
was not happy with that outcome. They asked for what's
called a rehearing on bunk, which is a rehearing in
front of all of the justices of the Fifth Circuit
(42:18):
Court of Appeal. UM. The request for on bunk rehearing
was granted, and there was another argument, and just recently
the Fifth Circuit issued an opinion which was deeply divided
UM that denied Melissa the right to a new trial
and again affirmed what happened in the state court. So
from here, she has basically ninety days from that day
(42:40):
to file a request for her case to be heard
in the United States Supreme Court and we take what
one percent of cases, probably probably less than one percent
of cases. So you know, her her odds, you know,
of having her case taken are not good, and you know,
once it's in the Supreme Court, it can take a while.
But if they a nicer it's it's all over. There
(43:02):
are some some additional post conviction procedural maneuvers which may
take place. Since I'm no longer her attorney, I don't
know what they're going to be doing, but from my perspective,
because the state used what I would consider to be
junk science, the shaking baby testimony, the fall down the
stairs can't cause the head injury testimony, That's where I
(43:24):
think that potentially her new council could go back into
the courts on what's called a junk science writ on
her behalf, and they may also be able to file
a civil rights action on her behalf, maybe going back
to some of the issues with Mr via Lobos, that
the way that her case was even presented and ended
(43:44):
up in the court in the first place was a
result of a violation of her civil rights. I ask
you to please join me in supporting Melissa. The one
simple step you can take is go to action network
dot org. That's at network dot org to sign a
petition and there will be more links in our bio
(44:07):
for other constructive steps you can take. Your voice matters,
so please spread the word, get involved. Let's save Melissa
before it's too late. And Sabrina, I watched your movie
and in no small part that's why we're here, because
your movie is such a powerful piece of documentary filmmaking
and tells this story so hauntingly. How can people access
(44:31):
the film? Well, the film is called The State of
Texas Versus Melissa being streamed right now. It's on Hulu.
And now we turned to the part of our show
that always seems to be the best, closing arguments, and
how this works is very simple. First of all, I
want to thank our two esteemed guests for just coming
(44:53):
and sharing your passion and your expertise. Of course I'm
talking about Sabrina and Tassel and Margaret Schmucker. Thank you
both again for being here, Thank you for having us,
Thank you Jason so much. Closing arguments works like this, Um,
I turned off my microphone, kick back in my chair
and just listen to whatever you have to say. Whatever
(45:14):
you feel there is left to say, Um, after this
extraordinary conversation, So we'll start off with Margaret, then Sabrina,
and then Melissa. I've talked about other lawyers in this
I feel like I need to make it clear that
you know, there's nothing I've said today that isn't readily
available as a matter of court record. It's been in
(45:34):
the state courts, it's been in the federal courts. If
you've got the energy, you can go look it up.
But you know the key take home points, Um, you
know that there's is and was, you know, some level
of corruption involved in this case. And that's a concern
that there is evidence that you know, Melissa could not
(45:57):
have caused more injuries in the timeframe that she was
said to have caught them in. Um, that she's never
been violent with her kids. There is an absolute difference
between physical abuse, which is a positive action, and neglect,
which is an absence of an action. And her entire
history is neglect because she just had too many kids.
(46:21):
And we have to always also be concerned about the
fact that are we looking at all of this evidence
through the lens of sort of white privilege, and we
have to take a step back and say you can't
do that. You have to look at it from her
perspective and what was going on in her life and
why she was acting the way she was. And of
course for that we had Dr Pinkerman. And as to
(46:43):
the physical stuff, obviously we have Dr Young, who has
been very helpful in this case. I would really hope
that at some point Melissa's case will get back into
court and that she will be fully exonerated and will
be set free to be with her children. I want
to say her name. Her name is Melissa Lucio, and
(47:04):
she's been away from her children for thirteen years. She
hasn't seen most of her kids in that length of time,
and she's never seen her mother again. She's never seen
her brothers and sisters. I mean, she's been all alone
on that throw twenty four hours a day, waiting for
(47:27):
her fate. And she's someone who didn't stand, you know,
a chance from the first day. And I hope and
pray that, you know, people will get interested in her
case and start tweeting about her and talking about her
and and raise this horrible story. You know, together, will
you know, find a way to get her out of there.
(47:50):
And now we'll hear from Melissa. My name is Melissa
Elizabeth Lucio. I'm forty eight years old. I have parking children.
It's been very hard to wake up each morning and
not not hear them calling out for me. The State
of Texas wants to kill me every day. I asked
(48:15):
God why I often think about my daughter Mariah. I've
had a lot of dreams about her. I've dreamed that
her and I are out there and that she's running
around in her little dress and she's wanting me to
comb her hair, brush her hair, put Bretts on her hair,
(48:38):
paint her nails, paint her toe nails, and put some
lipstick on her lips. It's hard to have dreams about
your children because when you wake up and then you
see where you're at, you wish that it wouldn't happen
a dream, that it would have been reality. There are
(49:01):
days that then I feel that I could just leave
this place in be reunited with Mariah and just tell
her I'm sorry that I wouldn't care to protect her,
and I felt her my beldre in many ways. Thank
(49:29):
you for listening to Wrongful Conviction with Jason Flam. Please
support your local Innocence Projects and go to the link
in our bio to see how you can help. I'd
like to thank our production team Connor Hall, Jeff Clyburne
and Kevin Warns. The music on the show, as always,
is by three time OSCAR nominated composer Jay Ralph. Be
sure to follow us on Instagram at Wrongful Conviction and
(49:52):
on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason
Flam is a production of Lava for Good. Podcasts in
association would signal company number one
Melissa Lucia grew up poor in South Texas, a victim
of years of sexual abuse from multiple offenders in the home.
At age sixteen, she married her first boyfriend to escape
tying up her self worth and being a mother, so
much so that she eventually had fourteen children. The final
two were twins that Melissa delivered behind bars after having
(00:22):
been accused of allegedly murdering the next youngest sibling, two
year old Maria, on February fifteenth, two thousand seven. Maria's
older siblings witnessed her take a tumble down the stairs.
Lethargy and a lack of appetite were hoped to be
symptoms of something less severe than head trauma, but when
she became unresponsive on February seventeenth, they called the m s.
(00:43):
Mariah passed away and an aggressive interrogation ensued, resulting in
an admission to an overarching sense of guilt that most
any mother would feel. The usual bruising from rough play
with her siblings was later used to support the state's
theory of a pattern of abuse. Melissa's eviction would also
go a long way to shore up a tough on
crime image for a corrupt district attorney embroiled in a
(01:07):
bribery scandal during an election year, Defying logic and the
scientific method, the state's forensic pathologists ruled out Marah's ball
down the stairs as the cause of the failed head trauma. Further,
the children who witnessed the accident and denied the pattern
of abuse were not called to testify. After trial, Melissa's
defense attorney was immediately hired to the d a's office
(01:28):
with a bump and pay. The d A got re elected,
but was later prosecuted by the FBI, and Melissa is
still on death row. This is Wrongful Conviction with Jason Flom.
(01:56):
Welcome back to Wrongful Conviction with Jason Flam. Today we're
talking about the case of Melissa Lucio, an innocent woman
on death row in Texas. Today. To tell this incredible,
harrowing and urgent story, we have with us Sabrina van Tassel.
Sabrina is an acclaimed documentary filmmaker and investigative journalist who
(02:20):
has made forty five films. And I think maybe it
was all a build up to this one. Not Sabrina,
Welcome to ronfl Conviction. Thank you so much, and with
her is a badass Texas attorney named Margaret Schmucker, and
Margaret has been a fierce advocate for Melissa as her
habeas attorney. Margaret, Welcome to ronfal Conviction. Thank you for
(02:44):
having me, and thank you both for being here. Um So,
over the past few years, Sabrina has visited Melissa Lucia
on death row in Texas, where she's been stuck since
two thousand and eight. And throughout this episode you're gonna
hear excerpts from those interviews. You can also see in
here in Sabrina's film The State of Texas Versus Melissa.
(03:05):
And during those interviews, Melissa really was very candid with
you about her life, which was just beyond tragic from
the very beginning. So Melissa was born in Houston. Her
father left the mom when she was three months old,
and they moved to Harlan in Texas, and the mother
kept being, you know, with different boyfriends. They were all abusive.
(03:29):
I was molested by my mother's boyfriend. I must have
been about seven years old when the abuse started. I
grew up not really loved because of this incident. I
continued to be molested by other family members. I just
(03:50):
allowed myself to be a victim over and over again.
She did tell her mother that the boyfriend was actually
abusing her, and the mother basically did not believe her,
and then she basically allowed herself to be a victim
to other men in the family. Uh. And once she
(04:10):
was about fifteen years old, the first boyfriend that she
got involved with she married, and she started having a
family right after. By the age of twenty two, she
already had five children. Her husband introduced her to drugs,
and one day her husband just left her, and so
all of a sudden, she's twenty two and she has
(04:31):
five children, and she meets her other partner, Robert Alvarez,
and together they're going to have nine other children, right,
And two of those nine were twins that Melissa delivered
in jail while she was being held for the alleged
murder of her youngest child at that time, Mariah. So
(04:52):
before Mariah died, there were five from the first guy
and seven from Robert Alvarez, for a total of twelve.
So some of them were still really little, some of
them were teenagers. Some of them had even moved out
by the time February two thousand seven rolled around, which
is when this incident happened, but before that they were
all living in desperate, desperate poverty and relying on a
(05:14):
charity called Loaves and Fishes for most of their meals.
Melissa and Robert had very unpredictable schedules because they were
doing all sorts of odd jobs trying to support the
family and to keep up with all of it, or too,
I don't know, maybe forget their troubles. Melissa and Robert
were using drugs out of the sight of the children,
but regrettably also while she was pregnant with Maria. When
(05:36):
Melissa had Maria, the seventh child with Roberta Alvarez, she
was born with drugs in her system, and so she
was taken from Melissa and or from Mr Alvarez by
CPS Chold Detective Services, along with all of the other
kids that were in the home at that time, and
they were placed in foster care. They were fairly well
(05:57):
split up. That continued for so were years, and Melissa
and Roberta were given supervised visits with Chop Detective Services
with the kids, and then finally, when Maria's about two
years old, over Thanksgiving, CPS returned the seven children who
were still miners at the time back into the home
(06:19):
of Melissa and Roberta. And so it is from that
point until the point where Mariah dies, where there's nine
children in the home in this small second story apartment
with a rickety, scary stairwell on the exterior, which is
the access point right. And to make this accident even
more likely to happen, Mariah had this is important, a
(06:40):
physical impairment as well. One of her feet was turned
in slightly, which caused her to be unstable and to
fall downstairs occasionally, as was documented while she was in
foster care. But that's not all that was documented in
those Child Protective Services reports. There was a tremendous amount
of inter sibling violence while in foster care and when
(07:00):
they were living at home, especially from the older sisters
disciplining the younger ones who they resented having to care
for while their parents were at work. And then the
boys were very rampunctious as well. Yeah, I mean the
boys were fighting, you know, all the time, and you
know they were big on w W E keeping. My
CPS comes by once in a while, and so we
(07:21):
have the CPS reports, and on one of those, the
very last time they came to visit, which was two
months prior to Mariah's death. There's concerned that, you know,
the place is too small, that they're you know, small
objects on the floor, that those stairs are very dangerous,
and the parents are not around, and basically it's up
(07:42):
to the teenage daughters to supervibe them. So among the
many problems, they've got to move out of this decrepit,
totally unfit apartment with the rickety stairs, and they found
a first floor apartment with just two or three steps
leading up to the door, and that move was going
to be happening over the course of every fifteenth, sixteenth,
(08:04):
and seventeen of two thousand seven, and so Melissa and
Roberto were in the process of trying to get the
family moved, and so some of the kids were with
their moms, some of the kids were with their dad.
They're going back and forth in a pickup truck taking loads. Mariah,
being at that point about two and a half years old,
was in the second story apartment with her mom and
(08:27):
at least one of the teenage daughters while they were
trying to pack things up. Several of the sort of
younger age children about eight nine years old were downstairs
playing in the backyard. At some point, Melissa and the
older daughter are in one of the bedrooms. They're packing
up clothes, what have you, and one of the kids
(08:48):
who's playing in the backyard came upstairs. He went into
the apartment to get a drink of water, and there
was a screen door on that exterior door that had
a latch on it, and when he went back downstairs
to go play, he left that door unlatched. And Maria,
who as we've already discussed, was unstable on her feet
(09:08):
because of her small deformity, went to go follow her
brother and she started down the stairs and felt one
of her brothers saw her as she sort of tumbled
the last three or four steps and hit her head
on the pavement. Melissa, at this point goes looking for
her and finds Maria at the bottom of the stairwell,
(09:29):
and she checks her over and doesn't see any serious injury.
Doesn't look like she's broken any bones or anything. And
Mariah's not crying, she's not acting like she's hurt. And
so she takes Mariah and they go back upstairs and
they continue to pack and complete the move to the
new apartment. So by time Saturday rolls around, Mariah has
(09:52):
already had this closed head injury from this fall down
the stairs that is not noticeable from her head or scalp,
and her progression of symptoms during that time period is
exactly what you would expect for a child at that
age who has had a serious close head injury and
who has swelling on the brain. It progresses from lethargy
(10:14):
to know, not wanting to eat, to ultimately some more
serious symptoms where she has locked jaw, and then she
basically loses consciousness, although to her parents she's still just sleeping.
And at that point they're already in this first floor
apartment and Roberto Albarez goes out on are and he
comes back and he goes to check on Mariah and
(10:36):
she is nonresponsive, and so they do end up calling
E M S. And E M S shows up at
this apartment and they see injuries bruises on Mariah that
they don't have any explanation for, and they hear Melissa say, well,
she fell down the stairs a few days ago and
(10:59):
we thought she was okay, but maybe she wasn't. And
the E M S sort of jumped to the conclusion
that the stairs Melissa is talking about are the two
or three steps from the ground floor apartment they are
now in. And they have no knowledge of this full
flight of stairs at the prior apartment that they were
living in just a few days earlier. And so the
(11:21):
e m s are incredulous to say the least. Oh,
you know, a kid can't get this injured falling down
two or three stairs. And so they try and resuscitate
Maria unsuccessfully, which can leave its own kinds of bruises
on a body. But the ms take her to the hospital.
She does pass away, and Melissa is arrested and take
(11:44):
into the police station. So when she was pronounced that Mariah,
of course I'm talking about in the er, she was
examined initially by any R physician named Vargas, and he
noted that she had sustained significant physical abuse. He said
that she had several bruises that were in very stages
of healing, and that there were bite marks on her back,
(12:07):
and that one of her arms had been broken sometime
two to seven weeks prior, and that she was missing
portions of her hair. But Vargas said he found no
outward sign of head injury. So you can see how
there's like a straight line connecting this to the interrogation.
The interrogator was taking these findings from this doctor and
(12:31):
then trying to put those words into Melissa's mouth. I mean,
you're not wrong. This information was all then conveyed to
the police, and the police went into the interrogation room
with Melissa with already the preconceived notion that this had
to have been physical abuse, and it had to have
been physical abuse by Melissa in their view, because she
(12:52):
was Mariah's primary caretaker, because she was the mother, and
that's where her nightmare really sort of begins ends as
far as her involvement with the criminal justice system in
this case, because she is interrogated at length, well into
the night and early wee hours of the morning by
multiple police officers who are aggressively denying her explanation that
(13:18):
Mariah had fallen down the stairs and her attempts to
explain any older injuries that Maria might have as having
been the result of the rough play with her other
older kids, which is well documented by CPS and by
other just sort of slips and balls, because she has
a tendency to do that, and they just aggressively deny this,
(13:38):
deny this, deny this, They won't believe her, and finally,
in the wee hours of the morning, they get her
to say that she's responsible. And they never get her
to say really that she murdered Maria or that she
hit her on the head or anything. They just get
her basically to admit responsibility in the sort of overarching
way of a mother responsible for the circumstances that led
(14:02):
to her child's death, and so she is charged with
capital murder. At that point, it's actually remarkable that she
was able to not really confess. I mean, they called
it a confession, but she didn't really confess. But eventually
she was questioned by a Texas ranger named Esteban. She
confessed basically having spanked Mariah several times, quote, day after day,
(14:27):
and other minor abuses which we now know didn't happen,
like biting her. So she was confessing to things that
didn't even make any sense at all because they weren't true.
She was just basically trying to say, I guess anything
she could to get out of this awful situation, and
that terrging her went so far as to ask Meilissa
to demonstrate the spanking on a doll, and it was
(14:48):
encouraged by the investigator to spank the doll harder, right,
I mean, and this is on video, right, show me
how you would do it, but I mean the way
you actually did it. We'll just get it over. Oh,
just hard on her back. We'll do it real hard.
Lucky Lucky would do it. But the way you would
(15:09):
do it, that's the way would do it. I mean,
I wouldn't pound on her or do it do was
it harder? No? Because I just I don't do it's hard. Cool,
you're doing it on yourself. This is I mean, I
(15:30):
was in polling on her exactly. You can do it, yes, okay,
and this is just what spanking. My name is. Dr
John pinkerman I was the clinical psychologist appointed to Miss
Melissa Lucio's defense team. Melissa had a history of certainly abuse,
(15:54):
sexual abuse, and mistreatment going back into adolescence and can
tinuing throughout her adulthood in which she acquiesced to multiple
individuals that abused her. She became pretty compliant with individuals,
didn't tend to break free from them, and often continued
(16:15):
the relationships even though they were really self defeating. For
so we felt this was you know, and I felt
it was really a problem issue that helped explain some
of the behavior that she evidenced during the interrogation and
how she came to provide an acquiescence. I don't know
if I want to call it a confession, but an
acquiescence to the investigators in regard to her conduct. I
(16:39):
was struck by how she was explaining that she was
spanking the children, or spanking Melissa, and she was it
appeared like coach too, to show stronger force in striking
the table in the interview room. You know, all of
that contradicted every piece of information that we had that
(17:01):
she provided physical discipline to the children. You know, we
never heard that from any of the children, and certainly
not to the extent of causing the alleged injury and
subsequent death. It's important to note that he didn't just
encourage her to spank the dull harder. I mean, he
encouraged her to confess to things which she had no
(17:22):
knowledge of or had no part of. He told her
there was a bite on Mariah's back and got her
to confess to having bitten Mariah, and at least my
medical expert so that wasn't even a bite mark. It
was parallel striation bruises from having fallen down the flight
of stairs on her shoulder blade. And so Ranger Eskalan
(17:46):
got Melissa to admit to a type of abuse of
Mariah that did not exist, that had not happened at all.
And again that's sort of hallmark of a false confession,
is getting somebody to confess to something that there's no
evidence off at the end of it. And this really
(18:08):
is such a painful thing to think about. And I
saw it, of course in the film. But you know,
she ultimately says, I wish it was me that got hurt,
and then started crying, how are you do when you
see these pictures? No, she was maybe about hurt. Is
(18:31):
there anything else you want to add? Very yeah, yeah, okay,
(18:54):
you listen. It's three am, and that will end the interview.
This episode is underwritten by Paul Weiss Rifkin, Wharton and Garrison,
a leading international law firm. Paul Weiss has long had
(19:16):
an unwavering commitment to providing impactful, pro bono legal assistance
to the most vulnerable members of our society and in
support of the public interest, including extensive work in the
criminal justice area. So during the interrogation, Escalon asked Melissa
(19:39):
if they would find a fractured skulled during the autopsy,
even though the e er physicians said there was no
sign of head injury. But Escalan had a theory right.
So on Monday February two thousand seven, the chief forensic
pathologist of Cameron and Nidago County is a woman named
Norma Jeane Farley had conducted an autopsy and ruled that
(20:00):
due to the presence of blood poolled and the crandial vault,
that the cause of death was quote blunt force head trauma.
And then she went on during the trial to say
that a fall downstairs could not possibly have been the cause.
But that doesn't sound like science. That sounds like conjecture, right.
(20:22):
My name is Dr Thomas Young. I am a forensic pathologist.
Back in two thousand and ten, I was contacted by
Margaret Schmucker, who served as an appellate attorney on the
case of Texas versus Melissa Lucio. She wanted me to
look at the records and offer opinions that I could
make to a reasonable degree of medical certainty. Dr Norma
(20:44):
Jean Farley, who was also forensic pathologist, has made a
mistake very common in forensic pathologist, the idea that you
can look at an autopsy, that you can look at
findings on a body and be able to determine the
very very complex succession of events that happened in the
past to lead to that event. This is reasoning backwards.
(21:08):
It doesn't work. It is like trying to solve blank
plus blank equals four. If you think four is the
consequence of blank plus blank, looking at four doesn't give
you the answer to what goes in the blanks. They
are already numerous witnesses as to what happened to see
the succession of events that occurred that led to the outcome.
(21:32):
What Dr Farley did was she reasoned backwards, ignoring all
these witness accounts. She says that she knows for certain
what happened here to Mariah Alvarez. And this is arrogant
where you ignored what multiple witnesses say who were there
to actually see what happened. This is absurd. This is
(21:54):
just a flat out guess. But Dr Farley approaches it
as if he is certain about this. How did she
know that? You cannot get high trauma from a full
down the stairs. I mean, it makes no sense. You know,
the science has developed at the time of Moriah's death,
(22:15):
and sinse that it is possible for a child to
fall down even a very short flight of stairs and
have a fatal head injury. All I can say is
Norma Farley was just wrong on the science on that.
You know, you put an expert on the witness stand
and the jury, you know, gives them an awful lot
of credence if they have appropriate credentials. And of course
Norma Jeane Farley was the medical examiner for the county,
(22:36):
and so they give her testimony quite a bit of
credibility clearly in reaching the verdict that they did. It
sure sounds like the science is being adjusted to fit
the narrative when that is exactly the opposite of how
this all should function. Right now, we get to the trial,
which the state argued that Melissa had confessed to a
pattern of abuse and inflicting the fatal blows that killed Mariah.
(22:59):
Even oh, the video clearly shows that that is not
the case. So they supported the theory that Melissa was
abusive with evidence that Mariah had bruises, which you know
she did that were at various stages of healing. But
we also have covered why they were there, and that
had nothing to do with Melissa's after the fact that
she was not in control of her own life at
that point. Right, and Norma Jean Farley, again as the
(23:22):
chief forensic pathologist, testified that Mariah's death was the result
of blood force head trauma. She continued that it must
have occurred within twenty four hours of death and that
it would have been immediately apparent that Mariah was in
distress and in need of medical attention. Now, Farley testified
that Mariah suffered multiple contusions to her head area, but
(23:44):
somehow she was magically able to rule out that the
strikes to the head were not the result of tumbling
down the stairs. Now, I don't think she witnessed the
tumbling down the stairs, So again, how in the world
would she know that, Well, she wouldn't, but this is
probably what she thought that the authorities wanted to hear.
So just just so we're clear, Melissa's defense did put
(24:07):
on the stand an expert named Dr Curry. Correct, yes,
they did. But when they qualified Dr Curry as an
expert since he was a pediatric neurologist. He was not
a forensic scientist, and so they did not allow him
to testify it regarding the source of any of her
other injuries anywhere below the neck. And so because of
the defense didn't hire a better expert or more appropriate expert,
(24:29):
they were not able to counter the state's case that
all of these prior injuries were from being beaten repeatedly
over a period of weeks or months. But he did
contradict nor Regine Farley's testimony in the timing of the
head injury that caused her death. Normagine Farley had said
(24:50):
that the injury had to have occurred approximately twenty four
hours prior to her death. Dr Curry, who was a
pediatric neurologist, testified that it could have occurred earlier than that,
you know, anywhere from forty eight to seventy two hours
before she died. And so that becomes important when you
look at the timeline of events of the family moving
(25:10):
and everybody being together, you know, either at the old place,
in the new place, or in transit about whether or
not Melissa was ever alone with Maria. Melissa was never
alone with Mariah. Yeah, when you go back through all
of the evidence that the state had collected, whether they
used it or not at trial, you find that Melissa
(25:32):
was never alone with the kids at all, whether you
look at the timeline suggested by Dr Farley or you
look at the timeline suggested by Dr Curry. She was
always with family members. They were always together as a family,
either you know, a few kids or more everybody during
that whole seventy two hour period. And not one of
(25:53):
those kids has ever said that during that time period
that Melissa ever hurt Mariah, ever touched her in any
kind of aggressive way. How could you possibly be alone
in the two room or so apartment with nine kids
is It's preposterous. So they did not present the evidence
(26:16):
that she was never alone within that seventy two hours
prior to Mariah's death, and that the kids were never
allowed to testify that they had never seen their mom
hit Maria during that period time and she was never
alone with Maria during that period of time. And then
there's the issue with Dr Pekerman. The defense did try
to put Dr Pinckerman on to talk about why Molyssa
(26:36):
might have made this so called confession of being responsible,
when in fact she was not and the court refused
to allow Dr Pancerman to testify to that. My colleague
Normal Villanueva and was a social worker, and she and
(26:57):
I developed different viewpoints and theory about the case as
we went along in our meetings with the defense team.
We raised questions in our meetings, and I can remember
at least on one occasion going to this second Share
Councils just sort of asking, you know, is it possible
that we could take a look at these issues and concerns.
(27:19):
That individual said that he thought it might be a
good idea, but he deferred to the lead attorney, Mr. Gilman.
I was not asked to provide any testimony during the
guilt innocence phase of the trial, but in the sentencing
phase I felt my testimony was abbreviated and truncated in
(27:40):
a way because there was a lot of background information
that I was prepared to offer to the court that would,
I hope, mitigate the ultimate sentence. It seemed that there
was not much interest in having that information, as I understand,
of course, the appeal was based on specifically on my
opportunity or lack of opportunity to present that kind of viewpoint.
(28:04):
Melissa didn't have anybody on her behalf. Her kids weren't
allowed to testify, nobody was allowed to defy. She was
alone in her defense because no one was really brought
in to testify. Even though her trial attorneys knew that
the older girls had admitted to causing Mariah's injuries, They
(28:25):
knew that the younger kids had testified to seeing Mariah
fall down the stairs. And they knew, or should have
known if they put sort of two and two together
of all the various pieces of evidence that were available
to them, that Melissa was never alone with Maria at
the time, but they never put any of that evidence
on with what the jury was presented with. The results
(28:47):
were as predictable as they were tragic and wrong. She
was convicted and sentenced to death. When the jury came
back and said that they found me guilty, even though
I did hear the word guilty, I didn't want to
accept it. The best way to describe it is I
(29:08):
felt like I was in a dream and then I
would wake up and I would be at home with
my kids. You know. Everybody was screaming and crying, and
they let me out from the courtroom and they took
me back to my cell and I remember I slept.
I just tried to block out everything that had happened
(29:28):
in that courtroom. I figured my children would would be
able to testify, that they would be able to get
on that stand, and I know that they would, they
(29:50):
would come out and say the truth. And Mr Gilman
he didn't want to. He told me no because he
didn't know what the prob secutors had in store for them,
and he didn't want them to try to manipulate them.
And he felt that it wasn't there wasn't a need
(30:11):
for my children to be understand. You know, someone listening
to this cold would probably come away with the impression
that the defense attorney was almost like an adjunct prosecutor.
And as crazy as that sounds, it's not that crazy
when you think about the fact that he went to
work for the prosecutor immediately after the trial, and why
(30:31):
would the prosecutor's office hire him at a higher salary
than the season prosecutors that were already working there immediately
after having watched him do as terrible of a job
as an attorney can possibly do for their client. It's
just stinks so bad. It's it does stink, But let
(30:52):
me make some clarifying points about what really happened. Right
before Mariah dies, there was another murder case in the
Brownsville area and the defendant was a guy by the
name of Ahmad Livingston. And Mr Livingston ends up, I believe,
pleading guilty to murder, but with the agreement of the
District Attorney's office Armando via Lobos, he is released in
(31:16):
order to go put his affairs in order before he
has to go to prison. When he's released, he disappears
into the wind. He's found more than a decade later,
hiding out in India. But in any event, at the
time he's gone missing in action. And the newspapers picked
this up and they're like, you know, why did the
District Attorney's office agree with this? You know what's going
(31:37):
on here? This was all very bad press for Mr. Violobos,
who was getting ready to run for re election of
the District Attorney of Cameron County. He needed a win,
and he needed a win big. And right after all
this happened is when Mariah died. And Melissa's the perfect target.
She's poor, she's Hispanic. There's a dead baby, you with
(32:00):
a lot of bruises. This is the perfect vehicle for
Mr vo Lobos to go. I'm hard on crime, re
elect me to District Attorney's office. So obviously Melissa gets
convicted since to death. Mr via Lobos gets re elected,
and within a fairly reasonable time after Mr Vio Lobos
(32:20):
is reelected, that's when Pete Gilman goes to work for
the District Attorney's office. Un fucking believable. Please continue now.
I did an open records request to find out about
the hiring process for Mr. Gilman, and what I found
out was he was supposedly interviewed on an unknown or
(32:44):
unstated date by Mr via Lobos himself and was hired
and had accepted the job before he had even submitted
a CD or a resume to the human resources department.
He was hired first and then he submitted those papers,
so that was kind of shady. And then you find
out that he gets a pretty good salary. District attorneys
(33:05):
don't usually get paid the way attorneys in private practice do.
It's usually a starter salary, a stepping stone to something bigger.
He gets hired in at a pretty significant rate, and
then his wife is also hired at the courthouse, and
between the two of them are bringing down a six
figure salary. Wow, you know, just when you think you've
(33:26):
heard everything, and I always think every week I said,
I think I've heard it all, and then then then
there's this. I mean, where where do these people come from?
How do they sleep at night? I mean, just to recap.
So he's accepted the job. We don't know exactly what
it could have been before the trial. For all we know, right,
he could have actually been working for the prosecution while
(33:47):
supposedly defending Melissa. And let's just look at what he
did and did not do during the trial. This Gilman
character failed to call as witnesses enyable US's children who
had seen my rifle down the stairs. Okay, that alone
is sucking shocking. Then there's just there was the social worker, right,
Norma Villenueva, to whom Melissa's daughter Alexandra bravely had said
(34:11):
that she was the reason Mariah fell down the stairs.
The social worker was instructed by Gilman to not alert
anyone to this statement that sounds like the work of
an adjunct prosecutor. She was not, of course, called to testify.
That testimony could have been extremely valuable. There was also
a host of witnesses that were interviewed and or put
(34:32):
on the stand by the state that together never placed
Melissa alone with Mariah. The had to that no witness
ever saw Melissa beat Mariah at any time, and Melissa
Maria whever alone. We know that Farley's theory. A first
year law student could have connected these dots and shown
that Farley's theory was nonsense, but none of that was
(34:53):
ever done for the jury. And then just process this
with me for a second. Right, So there's a horrible
interview with Gilman after he had already joined the prosecutor's
office formally, instead of only you know well anyway, but
he said and I quote, she was not a good mother.
(35:15):
Did she kill her child? I don't know? End quote. Well,
I can tell you something. When I interviewed Peter Gillman,
because that's in the film, you would have thought that
Melissa was his worst enemy. He had nothing nice to
say about her. He went on and on. It was
quite an extraordinary And I said to him, I kept
asking him. I was like, what was your strategy? What
(35:39):
was your strategy at Trow? And he couldn't answer. I
think I asked him that question maybe seven times. What
was your strategy? I mean, did you believe that it
was an accident? Did you believe? He couldn't answer, he
had no strategy. He had a strategy. It wasn't a
defense strategy, but he had a strategy and to get
himself a better job. So, in case you haven't heard
(36:01):
enough yet, and in case you were looking for an
even more terrible villain in this story, if such a
thing is possible, boy, do we have one for you now.
The elected district attorney, a gentleman named Armando via Lobos
and Mr via Lobos was at the time of this
(36:26):
all that stuff taking place. He himself was at the
center of an FBI investigation and for good reason. There
was a public scandal that emerged because he was using
his office to enrich and empower himself through several different schemes,
one of which was bribery and exchange for favorable outcomes
(36:49):
at trial. He was involved with cartels. He would bring
lawyers and judges to Las Vegas and pretend to lose
and poker games so you know, he could drive them.
It goes on and on. Basically, his agenda was to
take money from you know, people who could pay him
and then for people like Melissa. He would use to
be reelected. The moment he heard about Melissa's case, he
(37:12):
was at the police station, I mean, while Melissa's being interrogated.
I mean he's already there. He just completely used her case.
You know, Margaret will tell you how it's very rare
for d As to actually get personally involved, you know,
in cases. I mean, he even did the ending statement
at her trial. He not only did the ending statement,
but he actually examined one of the state's witnesses, and
(37:36):
he had the state's witness get up off the witness
stand and pretend to shake a child like shaking baby syndrome,
which has questionable scientific background, especially for a child of
Mariah's age. If you talk to the scientists, they will
tell you that a child as large as Mariah, if
(37:57):
you'd shaken her heart enough to cause brain to sort
of shake back and forth inside the skull and be damaged,
you have to have broken her neck. But he nevertheless
has this witness get up off the witness stand and
stand in front of the jury and pretend to violently
shake a child as a demonstration. You know, I don't
(38:18):
know how intensely that played into the jury's verdict, but
I'm sure it wasn't ignored. And then he took part
in this sentencing phase to make sure that she got
death I mean, and he had to prove to the
jury future dangerousness, right, and Melissa had never been arrested before,
and Melissa had no prior history of violence whatsoever. So
(38:40):
all of a sudden, he needs to prove to the
jury that, you know, she is so violent that she
actually might be a danger two prisoners, and that's why
she needs to be on death throw. Right, Let's put
it this way. I mean, if Melissa Lucio is the
type of person that is actually the most dangerous person
in America, that she would end up on death row.
(39:01):
I mean, you know, we were in trouble. She wasn't
even the most dangerous person in the courtroom. That d
A was the most dangerous person in the courtroom. He
was running a continuing criminal enterprise. He's doing back room
deals with cartel's, he's bribing judges and lawyers, He's selling verdicts,
letting murders, serial murderers run free. I mean, this guy,
(39:22):
he would be a cartoon villain, except there's nothing funny
about any of it, so we know how rare it
is for prosecutors to be prosecuted, but this one the
FBI took very seriously and they got involved, to say
the least. Right, How did it end up? Well, I
interviewed Michael Wynn, who was the lead prosecutor against Armande
Villa Lobos, and of course I never had any contact
(39:43):
with the ABI, but he told me that they were
trying to get him because he was running for Congress
and they wanted to make sure that that did not happen.
So they were trying to get him, and they had
so much on him, you know. The feedback that I
got on that eight or was there was so much
on Mr va Lobo's that they decided to stick to
(40:07):
sort of their slam dunk case for conviction because they
just needed him gone. And so Melissa's stuff it came
out a little bit in the Via Lobo's trial. Um,
the bit about Ahmed Livingston and all of that did
come out at trial, and Melissa's involvement and that came
out in trial, but it was very very limited. It
wasn't the focus of their energies at Mr VA Lobos's
(40:29):
Federal criminal truck, you know, I find that extraordinary as
an outsider that you know you have, you know, a
courter pointed attorney who now works at the d a's office,
who basically did not defend Melissa at all. And then
you have a d A who got thirteen years of
federal prison, but you know that has nothing to do
with Melissa's case, and you know her kids should not
(40:51):
be re examined. Gets infuriating. No, You're absolutely right. Every
single case that this guy had anything to do with
needs to be immediately reopened and thoroughly re examined. And
I'm not saying, to be clear that everybody that he
prosecuted is innocent, but a lot of them probably are.
And in any case, it's abundantly clear that almost none
(41:12):
of them could have possibly gotten a fair trial. And
Melissa absolutely did not get what she is constitutionally guaranteed,
which is a fair trial. And what I find particularly
shocking is that Gilman hasn't even been disbarred. I mean,
this case is a literal poster child for ineffective assistance
of counsel. But Melissa remains a death row to this
(41:35):
very day, and the State of Texas is desperately continuing
to try to execute her. So her direct appeal was denied,
you filed her state habeas and then it moved on
to federal habeas and ended up in the Fifth Circuit
Court of Appeals, which is the conservative federal court that
sits on top of Texas among other states. And it's
at that point that I end up kind of being
(41:56):
dropped out of the case. But what ended up happening
there was ultimately the Fifth Circuit, a panel of the
Fifth Circuit three judges who initially heard the case, ordered
that Melissa should get a new trial. UM. The state
was not happy with that outcome. They asked for what's
called a rehearing on bunk, which is a rehearing in
front of all of the justices of the Fifth Circuit
(42:18):
Court of Appeal. UM. The request for on bunk rehearing
was granted, and there was another argument, and just recently
the Fifth Circuit issued an opinion which was deeply divided
UM that denied Melissa the right to a new trial
and again affirmed what happened in the state court. So
from here, she has basically ninety days from that day
(42:40):
to file a request for her case to be heard
in the United States Supreme Court and we take what
one percent of cases, probably probably less than one percent
of cases. So you know, her her odds, you know,
of having her case taken are not good, and you know,
once it's in the Supreme Court, it can take a while.
But if they a nicer it's it's all over. There
(43:02):
are some some additional post conviction procedural maneuvers which may
take place. Since I'm no longer her attorney, I don't
know what they're going to be doing, but from my perspective,
because the state used what I would consider to be
junk science, the shaking baby testimony, the fall down the
stairs can't cause the head injury testimony, That's where I
(43:24):
think that potentially her new council could go back into
the courts on what's called a junk science writ on
her behalf, and they may also be able to file
a civil rights action on her behalf, maybe going back
to some of the issues with Mr via Lobos, that
the way that her case was even presented and ended
(43:44):
up in the court in the first place was a
result of a violation of her civil rights. I ask
you to please join me in supporting Melissa. The one
simple step you can take is go to action network
dot org. That's at network dot org to sign a
petition and there will be more links in our bio
(44:07):
for other constructive steps you can take. Your voice matters,
so please spread the word, get involved. Let's save Melissa
before it's too late. And Sabrina, I watched your movie
and in no small part that's why we're here, because
your movie is such a powerful piece of documentary filmmaking
and tells this story so hauntingly. How can people access
(44:31):
the film? Well, the film is called The State of
Texas Versus Melissa being streamed right now. It's on Hulu.
And now we turned to the part of our show
that always seems to be the best, closing arguments, and
how this works is very simple. First of all, I
want to thank our two esteemed guests for just coming
(44:53):
and sharing your passion and your expertise. Of course I'm
talking about Sabrina and Tassel and Margaret Schmucker. Thank you
both again for being here, Thank you for having us,
Thank you Jason so much. Closing arguments works like this, Um,
I turned off my microphone, kick back in my chair
and just listen to whatever you have to say. Whatever
(45:14):
you feel there is left to say, Um, after this
extraordinary conversation, So we'll start off with Margaret, then Sabrina,
and then Melissa. I've talked about other lawyers in this
I feel like I need to make it clear that
you know, there's nothing I've said today that isn't readily
available as a matter of court record. It's been in
(45:34):
the state courts, it's been in the federal courts. If
you've got the energy, you can go look it up.
But you know the key take home points, Um, you
know that there's is and was, you know, some level
of corruption involved in this case. And that's a concern
that there is evidence that you know, Melissa could not
(45:57):
have caused more injuries in the timeframe that she was
said to have caught them in. Um, that she's never
been violent with her kids. There is an absolute difference
between physical abuse, which is a positive action, and neglect,
which is an absence of an action. And her entire
history is neglect because she just had too many kids.
(46:21):
And we have to always also be concerned about the
fact that are we looking at all of this evidence
through the lens of sort of white privilege, and we
have to take a step back and say you can't
do that. You have to look at it from her
perspective and what was going on in her life and
why she was acting the way she was. And of
course for that we had Dr Pinkerman. And as to
(46:43):
the physical stuff, obviously we have Dr Young, who has
been very helpful in this case. I would really hope
that at some point Melissa's case will get back into
court and that she will be fully exonerated and will
be set free to be with her children. I want
to say her name. Her name is Melissa Lucio, and
(47:04):
she's been away from her children for thirteen years. She
hasn't seen most of her kids in that length of time,
and she's never seen her mother again. She's never seen
her brothers and sisters. I mean, she's been all alone
on that throw twenty four hours a day, waiting for
(47:27):
her fate. And she's someone who didn't stand, you know,
a chance from the first day. And I hope and
pray that, you know, people will get interested in her
case and start tweeting about her and talking about her
and and raise this horrible story. You know, together, will
you know, find a way to get her out of there.
(47:50):
And now we'll hear from Melissa. My name is Melissa
Elizabeth Lucio. I'm forty eight years old. I have parking children.
It's been very hard to wake up each morning and
not not hear them calling out for me. The State
of Texas wants to kill me every day. I asked
(48:15):
God why I often think about my daughter Mariah. I've
had a lot of dreams about her. I've dreamed that
her and I are out there and that she's running
around in her little dress and she's wanting me to
comb her hair, brush her hair, put Bretts on her hair,
(48:38):
paint her nails, paint her toe nails, and put some
lipstick on her lips. It's hard to have dreams about
your children because when you wake up and then you
see where you're at, you wish that it wouldn't happen
a dream, that it would have been reality. There are
(49:01):
days that then I feel that I could just leave
this place in be reunited with Mariah and just tell
her I'm sorry that I wouldn't care to protect her,
and I felt her my beldre in many ways. Thank
(49:29):
you for listening to Wrongful Conviction with Jason Flam. Please
support your local Innocence Projects and go to the link
in our bio to see how you can help. I'd
like to thank our production team Connor Hall, Jeff Clyburne
and Kevin Warns. The music on the show, as always,
is by three time OSCAR nominated composer Jay Ralph. Be
sure to follow us on Instagram at Wrongful Conviction and
(49:52):
on Facebook at Wrongful Conviction Podcast. Wrongful Conviction with Jason
Flam is a production of Lava for Good. Podcasts in
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Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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