The State Of Texas Fabricated Disciplinary Charges To Execute Melissa Lucio

This is the second column in a nine-part series about Melissa Lucio and the State of Texas’ capital case against her. Read the first column here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, the eighth here, and the final column here.

What drives the daily functioning of a prison isn’t a goal of public safety or internal security. It’s not a punitive or rehabilitative principle. The lifeblood of a prison isn’t liquid; it’s paper. Documentation is so important in a prison or jail that one of my work supervisors once told me that in prisons “If it isn’t written down, then it didn’t happen.”

Paper tells the story of a prison, of the people within it. These records are hardly exhaustive narratives and sometimes they aren’t accurate, but the constitutional dimensions of holding a person in custody require some annotation that wards are fed and housed. For example, prison kitchen supervisors have to log that a meal was served so prisoners can’t allege that they were denied sustenance.

Melissa Lucio, the first Latina woman sentenced to death by the state of Texas, is scheduled to be executed at the end of this month, on April 27, and the only reason her life’s in limbo is that district attorneys somehow convinced jurors she has a past of violence and flagrant disobedience.

In Lucio’s case, the paperwork tells a different story. The jury’s finding that Melissa Lucio posed a future danger — a requirement for the imposition of the death penalty in Texas — springs from virtually no evidence whatsoever.

In fact, attorney Sandra Babcock, clinical professor at Cornell Law School and faculty director of the Cornell Center on the Death Penalty Worldwide who is also representing her, said Lucio’s “is the weakest death case I've ever seen in my life.”

The transcripts reveal the state’s case for death wasn’t just weak. It was a sleazy snow job, bordering on fraudulence.
To demonstrate to the jury why the state of Texas should be free and clear to kill a woman, prosecutors called a total of seven witnesses. Up first was A.P. Merillat, a criminal investigator for the State of Texas Special Prosecution. Merillat investigates “free world crimes” committed within Texas state facilities.

There’s no record that Lucio was ever suspected of, much less committed, a crime in custody. On the witness stand, Merillat doesn’t have any paperwork to refer to regarding Lucio. He admits that he can’t predict who’s dangerous and who’s not, even though, in his opening statement the district attorney promised Merillat would “come in and testify as to [Lucio’s] future dangerousness to society.”

Instead prosecutors asked Merillat whether other women had fled the clutches of the Texas Department of Criminal Justice. Escaping custody is not only a crime but also a scary prospect for jurors -- and using it was legally and ethically out of bounds. A prosecutor in Arizona saw his law license suspended for a similar sin and the murder conviction he secured was overturned because of it. In overturning a murder conviction in Georgia, the Eleventh Circuit Court of Appeals panned another prosector’s exhorting the jury to sentence a defendant to death because he might escape would count them as soldiers in the war on crime. The court called it “constitutionally intolerable.”

Unfortunately, Lucio’s attorneys never raised this violation as an issue in post-conviction review. It’s not even mentioned in her petition for commutation of her sentence.

Later the state of Texas called Carlos Javier Borrego, an officer for the Cameron County Jail Sheriff's Department; Lucio was detained at the Cameron County Jail where Borrego oversaw the discipline system. In his testimony, Borrego outlines the contours of correctional discipline. Lucio’s defense attorney Peter Gilman asked Borrego who gave him Lucio’s file.

Borrego answered: “They told me that there (sic) going to have -- need me to refer to the file for any disciplinary actions or any of the reports.”

Paperwork in the hands of a witness should grab the attention of any attorney; generally, a witness shouldn’t refer to or look at anything, including notes or reports, unless they’re directed to do so or otherwise have permission to refresh their memory. It has to do with discovery rules and what documents should be disclosed to opposing parties.

In his time in the witness chair, Borrego both authenticates and testifies about an observation log for Lucio from the day before, after the jury returned the guilty verdict. It’s common for correctional facilities to put people who are facing the most devastating sentences — death or life without parole — in observation after they return from court after to prevent their attempting suicide. They did it to R&B singer R. Kelly last year when the jury found him guilty of multiple sex offenses. Nurses and guards observe those detainees – they check on the inmate in five to 15 minute intervals — and, of course, note whatever the watched person does.

Borrego testifies that observation log for Lucio includes her engaging in the following behaviors: beating on door or wall, yelling and screaming, crying, laughing, singing, mumbling, talking to herself, talking to others, standing still, walking, sitting, lying down, being quiet, sleeping, awakening, taking a shower, sitting on the toilet, recreating, watching TV, receiving medication, receiving meals and fluids and attending visitation. That was Lucio’s response on a day she learned it was in the plans that she would never leave state confinement for the rest of her life.

And that’s it. That’s all Lucio is doing in the notes. Borrego admits she broke no rules. Yet currently incarcerated District Attorney Armando Villalobos uses it against Lucio later, asking jurors in closing argument: “But when she's not in front of you, what does she do? She sleeps like a baby. She doesn't show sadness,” a patently false statement.

Here is the most important part: in the penalty phase, no one testified that Lucio ever broke a rule in prison. The transcript is devoid of any witness testifying that “Melissa Lucio broke the rules.” And Lucio’s jail file was present and admitted into evidence. Officer Borrego, the correct witness — and perhaps the only truly qualified one to enter Lucio’s record into evidence — was present and sworn to validate and explain those records.

But he didn’t because no one — neither a prosecutor nor Lucio’s defense counsel — asked Officer Borrego whether Lucio had a disciplinary record. The closest they get is when the defense’s own expert witness said he was told about disciplinary records but never saw them.

If it’s not written down, it didn’t happen.