Tag: melissa lucio
If You Want Us To Help Prove Your Innocence, Start With This Checklist

If You Want Us To Help Prove Your Innocence, Start With This Checklist

The year 2022 closed out with many readers reaching out to me with cases that they think deserve more scrutiny. I’m flattered and I would like to help. But, on occasion, the outreach I receive is a little light on foundational documents.

I’m kicking off 2023 with a guide that anyone can use if they’re looking for help on a criminal case from a journalist or trying to help a prisoner reduce their sentence.

This is what you should do before and while seeking any journalist's assistance on a criminal case or post-conviction challenge.

Come correct: Collect all your information before reaching out: docket numbers, copies of court files (never walk out of court with original records; that’s a crime), lawyers’ names and all of their contact information (physical and email addresses as well as office telephone numbers and cell phone numbers).

All correspondence between the defendant/prisoner and lawyers can illuminate what happened. An inmate file would be helpful if the person is incarcerated. A signed release of information allowing attorneys to speak with the reporter should be handed over up front. It can accelerate our research.

Write a timeline: As Tennessee Senator Howard Baker asked former White House Counsel John Dean about Watergate: “What did the president know, and when did he know it?”

Often it’s the order of events that matters in these cases because it either confirms or challenges what people know. This is key. Without a linear depiction of what happened and when, it’s hard to see who knew what and when. Because criminal cases aren’t just about actions but also the accused persons’ state of mind, seeing the events spatially can be essential to any inquiry.

Get transcripts: Transcripts are tricky to take to a reporter because technically they’re not public records; court reporters/monitors own them privately. Their private nature makes them costly. Courts can grant fee waivers for transcripts to applicants who qualify (an incarcerated person, friends and family members with limited means). The clerk in the courthouse where the hearing or trial was held can provide these forms; they vary from jurisdiction to jurisdiction.

Courts won’t approve these fee waivers for journalists and news outlets. We have to pay for these volumes and it’s an expensive gambit if they don’t reveal much to assist with the investigation.

The effort of applying for the waiver and having master copies of testimony is worth it. Sometimes you might wonder if the judges who write appellate opinions even read the transcripts at all when you see the way the testimony (the content of the transcripts) appears in a court’s opinion. Those inconsistencies provide fertile ground for someone other than a lawyer to find a reversible error.

We did exactly that here at The National Memo in 2022; we found false evidence in the trial transcripts of Melissa Lucio, the only Hispanic woman sentenced to death in Texas. Her execution was paused pending a hearing after her attorneys included our reporting in a petition to the court. Read the Lucio series here.

Keep a copy: Do this for all paperwork you complete, like fee waiver applications you file, rejections to requests for records.

Sometimes agencies don’t cooperate and it may seem impossible to get the documents you need. But that may be part of the story and we’ll need that proof.

Don’t be offended when a journalist doesn't take your word for it: When we ask for confirmation of a part of the story, it’s not because we suspect you of misrepresenting anything. We need confirmation for our editors.

If there’s no other evidence besides your knowledge of a particular situation, then turn that knowledge into evidence. It can be done relatively easily. In that case, use this template to make out an affidavit. An affidavit — sworn, out-of-court testimony — can be used as evidence. It doesn’t prove that the facts within are true, but it does show the witness’ willingness to expose themselves to perjury charges if the contents of the statement are proven false. Often journalists can use these statements in their reporting.

Find a therapist: This isn’t a layperson diagnosis of mental illness. I’m not pointing out flaws in those people seeking justice for friends, family members or even prisoners. It’s quite the opposite.

Wrongful convictions, lengthy incarceration, waiting for a languid bureaucracy to fix mistakes they made in a millisecond are traumatic experiences even for bystanders. Trying to explain the facts and the trauma to a journalist wastes time and asks them to act as an advisor of sorts. We know — and especially I know — how harmful injustice is, not just to the defendant or inmate, but also people close to them.

But explaining to us how stressful all of this doesn't help anyone — we’re supposed to be investigating — but it’s also pointless because we’re not trained to assist in those ways. Finding a professional with whom you can work out your feelings will enhance your ability to secure attention — and therefore assistance for your cause. Find A Therapist is just one source of information on service providers in your area.

Be Patient: Getting new records or finding the best witness can take time. It won’t happen overnight.

Be Realistic: While pressure from the press can break logjams and even expose innocence, it’s not always possible. We’d love to clear some names and spring some bodies from custody but we’re not magicians.

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.

Prosecutor Robbed Lucio Of The Most Compelling Evidence To Defend Her Life

Prosecutor Robbed Lucio Of The Most Compelling Evidence To Defend Her Life

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

I didn’t know she was 13, but I did it,” Ronald Skipper testified in his own defense with candor.

The State of South Carolina was trying Skipper for the rape and murder of Maryanne Wray, a 23-year-old woman he had been seen kissing before she turned up dead underneath an abandoned beach house in Garden City, South Carolina.

Skipper took the stand during the penalty phase to provide evidence that he lived an unproblematic life in correctional custody and could be trusted to serve a life sentence without posing a danger to anyone. South Carolina's 15th Circuit Solicitor Jim Dunn had asked Skipper about a prior crime, a 1978 conviction for raping a 13-year-old girl. It was one of Skipper’s three prior convictions for sexual crimes.

To offset the prior bad acts and to bolster Skipper’s testimony, his attorney, Richard Dusenbery, wanted to elicit testimony from two jail guards and a regular visitor to show the absence of problematic behavior while in prison and therefore, the appropriateness of a life sentence. Citing the reason that such evidence was irrelevant, the court disallowed these witnesses and their testimony. On June 28, 1983, a jury sentenced Skipper to death in approximately 90 minutes.

In oral argument before the country’s highest court, Skipper’s appellate counsel, David I. Bruck, warned that, without the ability to demonstrate good conduct as evidence of both character and likelihood to behave:

the jury will answer the question in an artificially created blackout of information, as happened in this case, where the most reliable evidence of what was likely to happen if we spared this man’s life, the testimony of his jailers, the people that had had him and could see him day to day and could form a judgment of how he would likely do…

The Supreme Court of the United States saved Skipper’s life by relying on recently developed precedent to hold that preventing testimony about Skipper’s good conduct in jail violated his Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment and to due process, respectively.

The Court vacated Skipper’s death sentence and quoted Supreme Court precedent, insisting in the opinion of Skipper v. South Carolina: "'the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Defense attorneys can use pretty much anything that can sway a jury not to condemn a defendant. Skipper’s alive today in Perry Correctional Institution in Pelzer, South Carolina, because the Supreme Court recognized that; the state was free to pursue the death penalty again but didn’t.

The decision upholding Skipper’s constitutional rights was the first time a court recognized that the behavior after a crime was potentially mitigating evidence.

In extreme pathos, the inequities and outrages in Lucio’s situation compound themselves: a corrupt prosecutor motivated to compensate for letting a man convicted of murder to slip away; abysmal — even nonexistent — legal representation; courts that wouldn’t order a transcript of her alleged confession to be entered into the record to show that she denied abusing her daughter over 100 times to police; abuse priming her throughout her life to make her amenable to coercion; poverty so severe that she had to move 26 times between 1994 and 2007 because she couldn’t pay her utilities; a deceased child, Mariah, who died accidentally but whose passing landed her mother in jail, awaiting state-sanctioned murder.

But there’s an even deeper sadness in denying Melissa Lucio the opportunity to present evidence of her conduct in jail. Not only did false notions about her conduct appear before the jury but so did the same “blackout of information” experienced by Skipper’s jury. No one knew that Lucio managed herself quite well with guards who can be capricious and cruel and fellow inmates who can get out of control.

The absence of a disciplinary record was one of the few positives Lucio could have presented to the jury because trauma and poverty consumed so many opportunities for her. Although she had a steady job as a janitor when she was arrested, she had no significant work history to speak of. She had completed only the 11th grade. Much of the evidence that weighed in her favor proved that others had neglected, beaten, and manipulated her. That she walked the line in jail was to her credit.

Then-Cameron County District Attorney Armando Villalobos prevented her from illuminating that success. There’s a reason why a spotless discipline record appears in defense of people facing capital punishment: It’s not easily achieved, especially for female detainees who are taken to task two to three times more frequently than their male counterparts.

To be clear, it’s not only Villalobos’ fault that the jury worked with a completely false depiction of Lucio’s character. Lucio’s defense attorneys never examined her record either to see if such an argument was viable.

The larger question here is whether the pretrial disciplinary records of defendants are valuable evidence at all. The outcomes of these disciplinary systems are so specious that they hardly support any sentence, much less one of eternal slumber.

And, as Justice Lewis F. Powell, Jr. noted in a concurrence in the decision to reverse Skipper’s death sentence, capital defendants may behave themselves to generate some record of compliance, only to offend later. To wit, Skipper’s public record shows a number of rule violations since 2010. He unsuccessfully sued the South Carolina Department of Corrections for violating his due process rights when the department disciplined him for possession of marijuana.

Exploring the reasons why a person disobeys rules or laws is often necessary, but why someone behaves well doesn’t really deserve inquiry. It demonstrates a capacity to abide and that’s basically what prosecutors argue is absent in defendants they want to sentence to death. If lawbreaking is to be rebuked, then law abiding merits equal and opposite respect — especially if it can keep someone alive.

I can’t and I won’t impute Ronald Skipper’s propensity to break rules to Melissa Lucio. Her role in the history of violence in her life was victim, not perpetrator. Skipper may deny raping and killing Maryanne Wray, but no one doubts Wray’s assault or murder; they're real and they're crimes. Skipper's three prior sex crime convictions are not in dispute. For Lucio, the event she’s scheduled to die for wasn’t even a crime, according to many experts.

It’s not just that the Cameron County, Texas district attorneys cheated to make Lucio look bad to seduce jurors into sentencing her to death. They robbed her of a chance to make the case for her own decency, to demonstrate that what she actually did could be righteous, to say “I did it” without shame and perhaps with a hint of accomplishment.

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 will now appear regularly in The National Memo.

Legal Strategy To Save Melissa Lucio Is Flawed

Legal Strategy To Save Melissa Lucio Is Flawed

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

The criminal legal system values finality over accuracy. It’s better to be done than definite.

That’s why re-litigating the same issues doesn’t work -- if it’s even allowed. Post-conviction review generally happens through either what’s called a direct appeal — where a reviewing court examines only the record and the evidence at trial and determines whether reversible error occurred — or a legal application called a petition for a writ of habeas corpus — where another reviewing court can consider evidence outside the record: expert or supplemental testimony. Other differences between appeals and habeas corpus actions separate them, but laws and rules govern both types of review to assure that issues terminate in a final decision and don’t get opened again.

Finality’s prominence in American jurisprudence is bad news for people who lose in court, but it’s also necessary so that litigation finishes eventually. That a case ends in ways we don’t like is, unfortunately, insufficient justification to keep it going. This juridical truth disappoints lawyers and supporters of those inmates on Texas’s death row because they know what the case’s terminus often looks like: a coffin picked up by the family or interred at Byrd Cemetery in Huntsville, Texas, where all unclaimed inmate bodies go to their final rest.

Very little is definite about the case against Melissa Lucio except that her execution is less than a week away. Even with the death chamber so close, Lucio’s lawyers — a team of attorneys from Cornell Law School, the Texas Federal Defenders Office, and the Innocence Project — selectively decide what to present to save her life.

Other arguments that can save Lucio’s life aren’t as final as the ones these attorneys have presented — and they’re a lot more promising. But they’re still in the ether and haven’t made their way to paper and a clerk’s stamp for reasons no one can discern.

Namely, no specific claims of prosecutorial misconduct have appeared yet. In fact, the entire record of this case is devoid of any mention of the phrase.

Lucio’s original habeas corpus petition, one that addressed certain issues of ineffective assistance of counsel, doesn't deal with the district attorney’s behavior because earlier attorneys didn’t catch former Cameron County District Attorney Armando Villalobos’ misconduct. That in itself may constitute ineffective assistance of counsel, but it also provides reasonable explanation as to why they didn’t include it in the petition.

Attorneys who filed the most recent petitions — Amended Petition for Clemency on April 12 and a new, successive petition for a writ of habeas corpus on April 15 — know about the misconduct and they didn’t use the phrase “prosecutorial misconduct” either.

It’s not that they didn’t address the fact that prosecutors withheld exculpatory information and introduced false evidence; they did, but they buried those claims under their tautological pitch that Lucio’s case would have been different if it hadn’t been the same.

There’s time and potential for one court to react and spring Lucio from the execution chamber. Texas Code of Criminal Procedure Article 43.141 allows a trial court to withdraw or modify a death warrant if “a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071” requires additional proceedings. The petition filed on April 15, 2022 satisfies this rule, but in it, attorneys seem intent on developing a narrative of juror regret, that jurors might not have voted to convict or condemn Lucio under certain circumstances.

That may be true for every trial; it’s certainly not unique to Lucio’s case. But more importantly, that’s actually not a legal basis for reopening a case.

There’s a reason for that, too, as Shannon Edmonds, staff attorney at the Texas District and County Attorneys Association said during an April 12, 2022 hearing on the Lucio case before the Criminal Justice Reform Committee of the Texas House of Representatives: “...if the legislature made [jurors changing their minds] a legal basis for creating a new way to to encourage more litigation, you unfortunately, are creating an open season on every juror who is sat on a death penalty case because the defense who zealously represents their clients will be duty bound to try to find whatever you set the threshold at, three jurors, five jurors, to hound those jurors in an effort to try to clear that threshold and get their client another bite at the apple.”

It’s an end-run around the finality that this system prizes so much.

The argument about prosecutorial misconduct is much less a dodge. It’s never been raised, much less litigated, and its effects on jurors probably don’t matter for the purpose of staying this execution. Bennett L. Gershman, professor of law at the Elisabeth Haub School of Law at Pace University and one of the nation’s leading experts on prosecutorial misconduct said: This young woman is about to be killed… You're talking about the sense of justice and mercy and so on. I can't see this execution going forward under these circumstances because there is a serious question of this prosecutor tricking the jury into voting to sentence her to death and that is a serious issue here, regardless of what you would like to say or not say.

“If the prosecutor presented to the jury false evidence that would aggravate the defendant's potential for being executed, which this clearly did,” Gershman continued. “I don't think the court is going to count whether the jurors were in fact prejudiced or not.”

It appears that attorneys are banking more on discretionary relief — sparing Lucio’s life because of her innocence and background of trauma and gender-based violence — from Texas’ Board of Pardons and Paroles than on court intervention. It’s a bad call. In the gamble on Lucio’s life, it’s like staking another bet when the line has already closed, rather than opening a new round.

Making a more explicit case of prosecutorial misconduct enhances the case for mercy. Texas Gov. Abbott was a trial judge, a supreme court judge and attorney general of the state before Texans elected him governor in 2014. His record of deciding legal claims is stronger than his sense of sympathy or empathy for defendants who aren’t employed in law enforcement. His recent grants of clemency are small in number and usually go to people convicted of minor crimes. He and his Board of Pardons and Paroles have denied George Floyd a posthumous pardon — on procedural grounds. They like it when technicalities prevent hard decisions.

Swelling Abbott’s heart to make room for a woman whom courts have decided — however erroneously — is guilty of capital murder is a lot harder to do than explaining what’s very clear in the record: The prosecutor in the case against Lucio cheated.

Concentrating on getting what is essentially discretionary relief on things that have already been decided and considered final is too risky when so many other meritorious positions — including alleging many forms of prosecutorial misconduct — exist. Positions like that aren’t definite, but they’re also not done.

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 will now appear regularly in The National Memo.

Death Row Inmate Melissa Lucio's Jury Believed Lethal Lies, Sentenced Her To Die

Death Row Inmate Melissa Lucio's Jury Believed Lethal Lies, Sentenced Her To Die

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

Race cannot go without mention in any discussion of capital punishment. The death penalty finds victims in minority populations. About 43 percent of total executions since 1976 and 55 percent of those currently awaiting execution are racial minorities.

Lucio’s race may or may have been a factor for her jury without their knowing it; most times when the race of a defendant influences a jury verdict on death it’s the result of implicit bias, a prejudiced worldview that’s much more pronounced in death-qualified jurors (those who state that they can and would impose death as a sanction if they thought the law and the facts supported it).

Women accused of capital crimes are understudied and bias in deliberations becomes a multi-factorial analysis; the role of gender complicates racial prejudice.

Juries impose the death penalty on women much less frequently than they do men. To wit, 18 women have been executed in the United States since 1976, compared to 1345 men. And the racial composition of that group of 18 women isn’t disproportionately minority. Thirteen women or 72 percent who perished at the hands of the government were white. Four were Black and one was Native American; there’s no record of a Latina woman undergoing capital punishment since it was deemed constitutional again in 1976 after a four-year hiatus brought on by the Supreme Court’s opinion in the case of Furman v. Georgia.

While a death sentence can hardly be described as unique in Texas – the state with the most executions since 1976 – Lucio’s case blazes a trail in that she was the first Latina sentenced in this way in the South. Other Hispanic women sentenced to death have come from the western region of the country. The South is known for sentencing women to capital punishment but not Latina women.

Lucio would be the only Latina on death row outside California, a singularity that made allegations of misconduct easier for a jury to accept.

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 Processand 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.

Shop our Store


Editor's Blog

Corona Virus