Continued calls for mercy for Texas death row inmate Melissa Lucio

NORTH TEXAS (CBSDFW.COM/CNN) - If no action is taken the only Hispanic woman on Texas' death row will be put to death one week from today. But the family and advocates of Melissa Lucio are fighting to stop her execution, arguing she was wrongfully convicted of the murder of her 2-year-old daughter in 2007.

"We don't want our mother executed," Lucio's oldest son, John, said during an interview. "We already lost our sister. And now to lose our mother for an accident is just horrible."

Lucio's attorneys are seeking clemency, calling on the Texas Board of Pardons and Paroles to recommend to Texas Governor Greg Abbott either a commutation of her sentence before her scheduled execution on April 27 or a reprieve for at least 120 days to review evidence they say will show her innocence. Her attorneys, among them lawyers for the Innocence Project, are also arguing her case before the courts.

Calls for mercy have grown louder in recent days, including from Texas legislators on both sides of the aisle, and celebrities like Kim Kardashian. Even some jurors in Lucio's state case now say her execution should be stopped or she should get a new trial based on evidence they did not hear.

At trial, prosecutors argued Lucio was an abusive mother who likely caused the injuries that resulted in her daughter Mariah's death. But Lucio's clemency petition says those were the result of an accidental fall down the stairs outside the family's second-story apartment and authorities, plagued by a crucial misunderstanding about the fall, assumed Mariah's injuries stemmed from abuse and discounted or ignored evidence that could have proven Lucio's innocence.

Lucio, now 53, was convicted in large part, her attorneys argue, on the basis of a coerced "confession" she gave authorities in an "aggressive" late night interrogation the same night her daughter died. Lucio was particularly susceptible to coercion by authorities because of her history as a lifelong survivor of sexual abuse and domestic violence, they say, citing medical experts who reviewed her case.

For Lucio's surviving children like John, the prospect of losing their mother is hard to accept. He's the first to admit his mother had "imperfections," pointing to her struggles with drug addiction.

"But she's a great mother," he said, who "never laid a hand on any of us."

Living in 'survival mode'

"It's been a journey."

That's how John, 32, describes the decade-and-a-half since his mother was found guilty and sentenced to death. But the last several months have been the most nerve-racking, he said, after the court set her execution date.

"It was devastating news," he said. "It just broke our family completely."

It's a big family. Lucio had 12 children at the time of Mariah's death and then gave birth to twins while in prison. But Lucio's children are "united in asking that their mother not be executed," Tivon Schardl, a federal public defender and one of Lucio's attorneys, told reporters last month, "that the pain that they've been suffering all these years, that those wounds be allowed to heal and not be torn open by the state of Texas."

"They have lived now for 14 years with this threat hanging over them, after already losing Mariah to a tragic accident," he said. "Now that trauma has come home."

Lucio's impending execution would follow a long series of traumatic events for her family, according to her son, her clemency petition and court documents.

Growing up was hard, John said, describing an impoverished childhood in which he watched his mother do her best but struggle to provide. There were times the family's electricity or water was shut off for nonpayment or it had to rely on community organizations for food.

Child Protective Services records from that time "tell a story of Melissa's love for the children, as well as her inability to care for them properly," according to Lucio's clemency petition. The home wasn't clean, there wasn't enough food, and the children didn't have enough supervision, those records show, per the petition. They struggled with homelessness.

But among more than 1,000 pages of records, per her attorneys, none indicate the children ever reported being abused by Lucio.

"Basically, we were in survival mode," John said. But his mother was no stranger to that, he added: Her own childhood was hard, and now she "was a very stressed woman. She was a battered woman," he said. "She'd been through a lot."

Lucio herself was sexually assaulted, abused and raped by her mother's partners and others during her childhood, according to her petition. She continued to suffer abuse at the hands of her own partners, beginning at 16 when she dropped out of high school and married her first husband. By 23, she'd had five children with him, but he eventually abandoned the family, court documents say.

In 2004, the seven youngest children were placed in foster care and split up among different homes -- due to neglect, her attorneys said in a court filing, not abuse. But Lucio worked to bring them back, getting a job and staying off drugs, the petition says. Eventually, the family was reunited in the fall of 2006.

In hindsight, John feels his mother was not given the support she needed to properly care for her children. She had stayed off drugs, yes, but her life still wasn't entirely stable, he said. She didn't have a car or a reliable, long-term home.

"But of course, she's not going to say, I can't take them," John said of his younger siblings being sent back home. "My mother had been fighting for her children for the past two years."

A toddler's death

The family undertook yet another move early the next year. Lucio woke up on February 15, 2007, got some of the children ready for school and then turned her attention to packing up their "run-down, second-floor apartment," the petition says.

Meantime, she did her best to keep an eye on 2-year-old Mariah, who had trouble walking and was prone to falling due to a mild physical disability, court filings say. But while Lucio was busy, Mariah opened an unlocked screen door, wandered outside and fell down a "steep" flight of more than a dozen stairs that led to the apartment.

Lucio soon realized Mariah was missing and found her daughter outside, crying at the bottom of the stairs. Her lip was bleeding, but the 2-year-old appeared not to be seriously injured, the petition says.

But her appearance was deceptive: The girl had just suffered internal injuries that Lucio's clemency petition says would lead to her death. Over the next two days, as the family moved, Mariah's condition deteriorated -- she slept excessively and eventually refused to eat. By February 17, Lucio was considering taking the 2-year-old to the doctor but chose to wait until the next day and put Mariah down for a nap.

Soon, Mariah stopped breathing, and the family called 911. Paramedics at the scene and the hospital tried but failed to resuscitate her. Her body was covered in bruises "in various stages of healing," her arm had been broken several weeks earlier and she had a bite mark on her back, according to court documents recounting the case.

At the scene, Lucio told paramedics Mariah had fallen down the stairs days prior, but one of the emergency responders was skeptical, the petition says, because the residence was a single story with just a few steps out front. He didn't understand, the petition says, that the girl had fallen at the family's prior home.

"This critical misunderstanding set in motion an investigation plagued by tunnel vision," Lucio's petition says, "where the investigators continually assumed the worst about Melissa without investigating or considering alternatives."

Reasons for doubt 'are innumerable,' petition says

That night, hours after Mariah's death, Lucio -- pregnant with twins -- was interrogated by investigators, who, her attorneys write, "shouted at Melissa; berated her as a neglectful mother; repeatedly showed her photos of her dead child; and implied if she wasn't at fault, one of her other children would have to be."

Over the course of the interrogation, Lucio's lawyers say she denied hurting Mariah more than 100 times. Lucio admitted to sometimes spanking her daughters on the buttocks, according to a motion filed by her attorneys after her execution date was set, but consistently denied allegations of abuse.

Eventually though, her resolve waned, and Lucio began "vaguely indicating she was 'responsible' for Mariah's injuries," her petition says. But she never confessed to being responsible for Mariah's death, her attorneys say.

Lucio told investigators she would "spank" Mariah, according to court documents recounting the interrogation.

"I don't know what you want me to say," she told investigators when asked for more details, per court documents. "I'm responsible for it."

Hours into the interrogation, an investigator brought in a doll to have Lucio demonstrate how hard she would spank the child. After she did so, the investigator said, "Well do it real hard like ... like you would do it."

Lucio responded by saying she had demonstrated exactly how she would have spanked Mariah, and the investigator "himself performed what he thought was a hard spank and had Lucio demonstrate again," the court documents say.

Lucio was charged with capital murder, and her attorneys say her purported admission of guilt was used to convict her in a jury trial.

Lucio's defense argued while she was guilty of "injury to a child" and failed to get Mariah timely medical treatment, she was not guilty of causing the injuries that led to her daughter's death. But the medical examiner who conducted the toddler's autopsy testified for the state that Mariah's injuries must have occurred within 24 hours of her death.

"This is a battered child" who died of blunt-force trauma to the head, the medical examiner testified, according to court documents. The ER doctor who'd tried to resuscitate Mariah similarly said it was the "absolute worst" case of child abuse he'd seen in his career and that the injuries could not have been caused by a fall down the stairs.

Prosecutors told jurors they could "draw inferences from the evidence," pointing to Mariah's other injuries and arguing if Lucio had abused her daughter in the past then it would be "consistent with her behavior" to cause the injuries that prompted her death.

Lucio was found guilty, and she's been on Texas' death row ever since.

Her conviction has been upheld on appeal, though a panel of judges for the Fifth Circuit Court of Appeals ruled in 2019 she had been denied the opportunity to present a full defense.

The panel pointed to the court's exclusion at her trial of two expert witnesses, including a psychologist who indicated he planned to testify about her "demeanor" during the interrogation and how it and her purported confession "could have been accounted for" by her abusive relationships with men.

That psychologist and a social worker indicated they would have testified about what Lucio might have been going through immediately after Mariah's death and during the interrogation, and how that might have influenced her behavior and confession, according to court documents.

But the Fifth Circuit later reversed its decision in February 2021, and Lucio's conviction and death sentence was reinstated.

The argument for mercy

A similar argument now sits at the heart of the last-ditch effort to save Lucio's life. Her petition seeks clemency on five grounds, including the claim that the symptoms of her own trauma stemming from lifelong abuse were misinterpreted or dismissed by authorities at every level of the investigation and prosecution.

As a survivor of abuse, Lucio suffers from post-traumatic stress disorder, clinical depression and "battered woman syndrome," her attorneys say, citing the assessment of the psychologist who reviewed her case. As a result, she turns "inwards" and becomes "passive" in the face of stressful situations -- a psychological defense and "survival tactic" that Lucio's petition says could explain her behavior during the interrogation that secured her alleged coerced confession.

This misunderstanding of her behavior and her background led "directly to her conviction and death sentence," her petition says.

Lucio's clemency petition similarly claims there are scientific explanations that explain Mariah's severe bruising, citing their medical experts who say there were signs Mariah suffered from a blood coagulation disorder known as disseminated intravascular coagulation, or DIC, which could explain the bruising seen on her body.

Head trauma is a common cause of DIC, the petition says -- head trauma that could have been sustained in her fall down the stairs two days before her death.

"The reasons for doubt here are innumerable," Lucio's attorneys write in her petition. "The prospect that the State might shed innocent blood for a death Melissa Lucio did not cause, much less intend, should strike righteous fury in the heart of Texans."

'Free Mellisa Lucio'

The moment his mother was convicted was "unbelievable," said John, who remembered thinking, "This can't be real. This cannot be true."

That is how he's felt for the last 15 years, in which he's gotten in trouble with the law, as well, he said. He's been out of prison now for a little over a year, and he said he's done his best to mature and "wise up." He was aspiring to become a barber and earn his license, while training for marathons and a triathlon in the downtime.

But once his mother's execution date was set, he felt he needed to set those ambitions aside and throw himself into raising awareness of his mother's case. John feels a responsibility to be his mother's advocate in the same way she was his, attending his own court dates when he was getting in trouble as a teenager.

Lucio's family is not alone in believing she does not deserve to die: Dozens of Texas state legislators have signed a letter urging the Board of Pardons and Parole to grant clemency. Even Kardashian, who has championed other cases with the specter of wrongful conviction, voiced her support for Lucio, saying in a post on Facebook she hopes Lucio's life is spared.

But perhaps most crucially, at least five of the jurors who convicted Lucio have come forward to call her for execution to be stopped, citing the evidence they never heard.

"I was disheartened to learn that there was additional evidence that was not presented at trial," Melissa Quintanilla, the foreperson on Lucio's jury, wrote in a declaration. "I believe that Ms. Lucio deserves a new trial and for a new jury to hear this evidence. Knowing what I know now, I don't think she should be executed."

John also credits his mother with restoring his and his wife's faith in God -- something John said he lost when Mariah died and his mother went to prison. On death row, Lucio's clemency petition says, she's become a devout Catholic, attending Mass every week and reading the Bible daily.

Recently, John has visited his mother regularly, he said, driving about seven hours from his home in Harlingen, Texas, to see her where she's held in Gatesville, Texas. Their visits always begin with a half-hour of prayer and worship, he said.

"She's an amazing woman," he said, reiterating his hope that her execution won't just be stopped but that maybe one day she can come home.

"My vision is just tunnel vision, and all the walls just say, 'Free Melissa Lucio' all around it," he says. "That's my mother. I know she's innocent."