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Civil Rights & Liberties

Melissa Lucio greets a prison visitor

This is the fiftth column in a series about Melissa Lucio and the State of Texas’ capital case against her. Read the first column here, the second column here, the third column here, and the fourth column here.

It’s impossible that the twelve jurors who decided death row inmate Melissa Lucio’s guilt and punishment weren’t affected by the prosecutor’s evidentiary sleight of hand: knowingly admitting a false disciplinary record for Lucio into the trial record.

Attorneys for Lucio have interviewed former jurors and report that none of them mentioned the discipline record as influencing their decision. Then again, no one asked them, either.

But the jurors might not prove the most reliable sources on what guided their votes. For one, those days of deliberation hang more than thirteen years behind the frenzy to save Lucio’s life; it’s hard to remember. Secondly, the jury charge — the court’s instructions to jurors on how they should arrive at a decision — directed them to settle the issue of whether there is “a probability that Lucio would commit criminal acts of violence in the future.” Unanimously, the twelve of them voted that there was a probability — but they’re taking that back now.

Juror Johnny Galvan, Jr., opined in the Houston Chronicle on April 3 that he wouldn’t have convicted and sentenced Lucio to death. He made a similar statement at a hearing before the Texas legislature on April 12, 2022 when he said other jurors pressured him into the vote.

Identifiable jurors refused to reply to interview requests, except for one juror, Erminio Cruz, who answered my text with “don’t bother me.” Cruz’s post-trial declaration, dated March 5, 2022, includes statements like “I still agree with my decision to give death (sic) because we had enough evidence”, “Nothing the defense presented could have made me not give the death penalty”, “I don’t remember most of what we discussed” and “I think everytime someone is found guilty of murder they should be hung.

The statements seem contradictory. But the addendum to Cruz’s declaration might be the most trustworthy. It states. “I remember someone saying during deliberation on penalty that if we didn’t decide now we’d be there all day.” Neither justice nor retribution motivated the jurors on July 10, 2008; it was convenience. Theirs, not Lucio’s.

Even if asked how Lucio’s jail file affected their decision making that day, juror input on the effect of the illegal jail file wouldn’t help much, although the record indicates that they held these pernicious papers in their hands.

Questioning Lucio’s jurors to review their decision is a waste of time, according to Robert Swafford, JD, founder and owner of the Austin, Texas-based Strike for Cause Jury Consultants. The human ego works hard to justify previously made decisions. “If they were to say… ‘Oh if I had known this, I would have made a different decision’ that would mean that they've done something bad. It would affect their idea of themselves as a human being.”

Capital punishment experts as well as jury experts agree that the file probably filtered into juror consciences. Robert P. Johnson, Professor of Justice, Law and Society at American University and author of Condemned to Die: Life Under Sentence of Death and Death Work: A Study of the Modern Execution Process and expert witness in capital cases [disclosure: Johnson is the editor at Bleakhouse Publishing which published my book of poetry] said of including the disciplinary file: “It would likely have an impact.” [Disclosure: Johnson is the editor at Bleakhouse Publishing, which published my book of poetry.]

Brian Bornstein, professor in the School of Social and Behavioral Sciences at Arizona State University, hasn’t worked on the Lucio case. But he wrote in an email that, assuming that the records were introduced as alleged proof of dangerousness: “it seems quite likely that it would influence jurors’ decisions to sentence her to death, as dangerousness is a key factor in sentencing, especially under Texas’ capital sentencing guidelines.”

Bornstein’s research on juror decision making bears mention here. Lucio’s guilty verdict — rendered just two days before the death sentence and one day before the unexpected witness, Cameron County Jail Disciplinary Officer Carloz Borrego appeared with the file — provided the lens on what punishment she received.

“[J]urors tend to seek out and remember information that is consistent with their verdict preference and scrutinize and reject information that is inconsistent with that preference” Bornstein wrote in a 2011 article in a journal called Current Directions in Psychological Science. By the time they bickered over punishment, these jurors no longer had a predilection for guilt; they had perfected it just days earlier.

Even if the jurors would have landed the same way today as they did on the day of Lucio’s condemnation, that doesn’t mean that the judgment shouldn’t be cracked open like a hollow Easter egg.

The legal aphorism that one can’t “unring a bell” first appeared in American jurisprudence in a 1912 case in the Oregon Supreme Court, where the victim of an alleged arson testified about the defendant’s motive; namely, he was retaliating against the victim for reporting him for “tail-cutting” — slicing the tail off a cow. Without evidence of this specialized butchery, that testimony prejudiced the defendant with the jurors. “It is not an easy task to unring a bell, nor to remove from the mind an impression once firmly imprinted there,” the judges agreed.

The unrung bell appeared again in a case before the Fifth Circuit Court of Appeals, the federal circuit that includes Texas, in 1962. “It is better to follow the rules than to try to undo what has been done. Otherwise stated, one "cannot unring a bell"; "after the thrust of the saber it is difficult to say forget the wound"; and finally, "if you throw a skunk into the jury box, you can't instruct the jury not to smell it."

Lawyers and judges talk about unringing bells to emphasize that if the prejudicial effect of a piece of evidence outweighs its probative value, the evidence should be excluded or any result drawn from it should be reversed. It’s fancy language but it’s not clear it would even apply in Lucio’s case. Lucio’s file was false. It had zero probative value. It was all prejudice.

Reversing Lucio’s judgment of death should be easy for any court regardless of the jurors’ positions, even though, according to Texas case law, it can consider a defense attorney’s failure to object to inadmissible evidence like this perfidious file as a valid trial strategy. That’s an outrage in itself.

But neither of Lucio’s lawyers ever justified it that way. They didn’t have to. Up until now, no one ever realized the file that undoubtedly colored jurors’ perceptions was a lethal falsehood.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

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Elon Musk

Washington (AFP) - Twitter moved Friday to defend itself against Elon Musk's $43 billion hostile takeover bid, announcing a "poison pill" plan that would make it harder for the billionaire to get a controlling stake.

Musk's proposed buyout faces several hazards, including possible rejection and the challenge of assembling the money, but could have significant impacts on the key social media service if consummated.

Twitter said its board unanimously adopted a so-called shareholder rights plan, also known as a "poison pill," which kicks in if an investor buys more than 15 percent in shares without the directors' agreement. Musk holds nine percent.

The maneuver makes it harder for a buyer to build too big of a stake without board approval, by triggering an option that allows other investors to buy more of a company's shares at a discount.

Twitter said the plan, which experts consider a potent tool against corporate raiders, does not prevent discussing or even agreeing to an acquisition.

Musk sent shockwaves through the tech world on Thursday with an unsolicited bid to buy the company, stating the promotion of freedom of speech on Twitter as a key motive for what he called his "best and final offer."

The world's richest person offered $54.20 a share, which values the social media firm at some $43 billion, in a filing with the Securities and Exchange Commission.

He has not directly addressed the poison pill, but tweeted after his bid was announced that the board would face "titanic" legal liability if it goes against the interests of shareholders in rejecting his offer.

Analyst Dan Ives predicted that the board's move would "not be viewed positively by shareholders" given both the potential dilution of stock and the signal it sends of hostility towards being bought. He foresaw a "likely" court challenge.

Musk has already acknowledged he was "not sure" he would succeed and refused to elaborate on a "plan B," though in the filing he noted a rejection would make him consider selling his existing shares.

He also said he "could technically afford" the buyout while offering no information on financing, though he would likely need to borrow money or part with some of his mountain of Tesla or SpaceX shares.

'Frightened' By Musk Ownership

Some investors had already spoken against the proposal, including businessman and Saudi Prince Alwaleed bin Talal.

Morningstar Research analysts echoed that perspective, saying, "While the board will take the Tesla CEO's offer into consideration, we believe the probability of Twitter accepting it is likely below 50 percent."

Twitter stock closed down nearly two percent Thursday.

Musk's move throws another curve into the roller-coaster ride of his volatile relationship with the global social media service, and raises many questions about what comes next.

He was offered a seat on the board but turned it down over the weekend.

Musk's shock offer to buy Twitter drew worries -- and some cheers -- over putting the platform in the hands of a mercurial billionaire who advocates generally for few limits on what users can post.

He provided some detail Thursday on his vision, saying he'd like to lift the veil on the algorithm that runs on the platform, even allowing people to look through it and suggest changes.

He also reiterated his support for a more hands-off approach to policing the platform, a thorny matter particularly in high-profile cases such as Donald Trump who was banned after the assault on the US Capitol last year.

Critics argued that free speech absolutism on social media can be very messy in the real world.

"I am frightened by the impact on society and politics if Elon Musk acquires Twitter," tweeted Max Boot, a Washington Post columnist, on Thursday.

"He seems to believe that on social media anything goes. For democracy to survive, we need more content moderation, not less," Boot added.

Still Musk was rallying support on Twitter, where he has over 81 million followers, for the fight ahead.

"Thanks for the support!" he tweeted in reply to a poll that overwhelmingly backed his bid.