The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019

Tag: melissa lucio

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

This is the seventh column in a 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.


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 abandonded 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 15th Circuit Solicitor Jim Dunn had asked him 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. 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 14th 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 abandoned, 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 and his 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.

Why The Legal Strategy To Save Melissa Lucio Is Flawed

This is the sixth column in a 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, and the fifth 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.

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 many forms of prosecutorial misconduct — exist. Positions like that aren’t definite to 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.

Why Melissa Lucio's Jury Believed Lethal Lies That Sent Her To Death Row

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.

The Contrived Disciplinary Records That Sent Melissa Lucio To Death Row

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

Determining whether death row inmate Melissa Lucio had a disciplinary record is of the utmost importance in deciding whether her life should be spared. Without a disciplinary record, there’s no indication of her future dangerousness at all, as all of the other state’s witnesses in the penalty phase of her trial testified that they never saw Lucio harm anyone. To be clear, the State of Texas’ witnesses didn’t exculpate Lucio either, but it’s crucial to note that despite this woman allegedly being irredeemably malevolent, no one’s ever eyeballed her hurting another person.

Without a disciplinary record for Lucio, a capital sentence remains unsupported — and the execution scheduled for April 27, 2022 should be halted immediately.

Seeing how Lucio doesn’t have a disciplinary record requires a greater understanding of correctional discipline than most people need or want.

Since the 1970’s, a movement towards more informal dispositions of inmate misconduct has gained traction in prisons and jails. It’s rooted in restorative justice principles but really it’s just a practical management strategy for overcrowded and undermanned correctional spaces. Vernon Fox, a former assistant deputy warden, wrote that informal discipline is necessary because guards and administrators “must be prepared to understand human behavior, rather than trying to judge the amount of pressure necessary to keep a man in line.”

As researchers have noted, it’s really hard to study the effects of informal discipline, usually because there’s a lack of record to study; informal discipline dispositions are supposed to be deleted from an inmate’s file — as long as the inmate agrees to its imposition. Basically, if a prisoner agrees to a puny penalty — even if they haven’t misbehaved — it's possible to short circuit the formal discipline process where they’d likely be held responsible and develop a record within the facility. That’s how it worked when I was incarcerated in Connecticut and the Bureau of Prisons does the same for federal facilities across the country.

In a system dedicated to harsh punishment, informal discipline seems almost progressive, a penological “no harm, no foul.” That’s one way to appreciate it. Or it could be that these procedures bypass the minimal — virtually non existent — protections built into the formal disciplinary process to extract a bit of punishment, a pinch of pain, from an inmate and place her in a situation where she acquiesces to mild sanctions so that she doesn’t eventually develop a disciplinary record to be held against her.

In the penalty phase of Lucio’s trial, the state of Texas entered into evidence a total of ten disciplinary report forms. According to the rules of the jail, though, just the presence of these forms does not a disciplinary record make. According to Discipline Plan, Section T of the Cameron County Jail’s Inmate Handbook, there’s a prescribed way of dispensing discipline:

“Inmates accused of violating the rules of conduct shall be written up on a Notice of Rules Violation form and on an Incident Report. The incident report shall document the incident and must be completed before jailer leaves shift of duty. These reports shall be forwarded to the shift supervisor for initial action. The shift supervisor will determine if the infraction merits a warning to the inmate or if the incident report will be forwarded to the Disciplinary Committee.”

In the Cameron County Jail, there can be no disciplinary report without an incident report. A formal disciplinary record would require the “Disciplinary Board Process” box on the incident report to be checked. Only two incident reports in Lucio’s jail file have the Disciplinary Board Process box checked — and they’re the two reports where Lucio is actively cleared of wrongdoing by staff in the papers themselves.

Although it doesn’t call it an “informal” process per se, the handbook for Lucio’s jail clearly allows an inmate to avoid the formal discipline process by accepting an informal disposition by signing the report. Direct comparison between facilities isn’t always possible, but each of the 4416 state prisons and local jails in the United States has its own specific procedures. The Cameron County Jail doesn’t call theirs an informal disciplinary process but it mirrors those in other jurisdictions that do.

Taking the disciplinary report forms in chronological order (they don’t appear that way in the record) reveals the following:
For a December 1, 2007 disciplinary report for possessing tattoo paraphernalia, the corresponding incident report has the “No Action Taken” box checked. It was not referred for discipline.

A December 12, 2007 disciplinary report doesn’t list a rule violation and instead just says “verbal warning” where the officer should write the rules she violated. There’s no incident report from that same date, but an incident report from the day before details a scenario where a guard said Lucio “kept or used too much cleaning fluid," which the guard didn’t like. Lucio protested that another staff member directed her to clean her area that way. The guard writes in the incident report that she thought Lucio was disrespecting and intimidating her. If there were a rule violation an officer would have written it on the disciplinary form. No one did.

A disciplinary report from February 15, 2008 for alleged fighting is thrown out; a lieutenant voided it out and wrote “no action” on the bottom of it. An incident report from the same date reads: “No action taken due to investigation. Inmate not involved.”

Then there’s an April 16, 2008 disciplinary report for "possession of contraband." The corresponding incident report, the only one dated April 16, accuses her of "unauthorized communication" and details that an officer found notes from Lucio to another inmate in the other inmate’s possession — which, incidentally, means the other inmate possessed contraband, not Lucio. At the bottom, it’s clear that the matter was not referred to the disciplinary board as the box that would show that isn’t checked.

Moreover, the possession of contraband and unauthorized communication actions would be reconciled in the paperwork, but they’re not.

That leaves five reports. Among those are four identical copies of a December 11, 2007 disciplinary report for allegedly disrespecting other inmates and yelling at them. The corresponding incident reports describing these situations indicate that no disciplinary action was taken.

That leaves one last disciplinary report in Lucio’s file. And it’s blank.

According to Daniel E. Manville, author of the Disciplinary Self-Help Litigation Manual and a clinical professor at the Michigan State University College of Law, guilty findings on disciplinary reports usually find their way into electronic records, if a jail utilizes such a system. A public records request filed with Cameron County, Texas unearthed two of them with a note from Dylbia Jefferies Vega, the Cameron County public information officer, that read: “Attached is all they have.”

One of the electronic records is for the tattoo paraphernalia and the other for "unauthorized communications." These two entries don't mean that Lucio has a disciplinary record; if she did, they would have been reflected under the "Hearings" or "Incidents" headings in her electronic file, but they’re not. Instead they’re under the “Special Custody” portion of Lucio’s file, meaning where she was housed in the jail. These are two instances where supervisors moved Lucio because of an incident.

Jail life is inherently chaotic and paperwork is bound to hit some snags. But the fact remains that the two entries in Lucio’s electronic files weren’t referred to the Disciplinary Board as required by the facility’s own rules.

I can see why the uninitiated might think there’s too much smoke in Lucio’s file to conclude it contains no fire. These informals weren’t supposed to remain in her file; it’s not clear why they did.

But even if a formal “guilty” finding had been entered for every situation, writing a note to someone, possessing tattoo paraphernalia (essentially an electric razor or motor from a radio paired with a paperclip) and raising one’s voice hardly make an inmate so dangerous that they need to be killed.

More than that, the facts recounted in the incident reports offer a lot of insight into Lucio’s behavior and she’s no scofflaw. Stitching these reports into one narrative depicts a woman whose existence is determined less by action than by circumstance. A woman who seems destined to be in the same place as someone else’s misdeeds; the alleged fighting scenario describes her as “blocking ‘defensive punches’” to protect another prisoner. One who gets caught up in scenarios over which she has no ultimate control: The tattoo paraphernalia turns up in a light fixture that can be accessed by a number of people.

The reports tell the story of a woman who will take responsibility for things she hasn’t done, just to avoid conflict. A close read of what’s happening in these informal, should-have-been-deleted reports only enhances our understanding of Lucio’s factual innocence claims.

Ultimately, the question isn’t whether Lucio had a discipline record while she was in jail awaiting trial. She doesn’t. The question is whether the then-District Attorney for Cameron County, Texas, Armando Villalobos, knew she didn’t -- and sold a false story to the jury for no other reason than to extinguish her life.

How The State Of Texas Fabricated Disciplinary Charges To Execute Lucio

This is the second column in a series about Melissa Lucio and the State of Texas’ capital case against her. Read the first 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. Merrillat, a criminal investigator for the State of Texas Special Prosecution. Merrillat 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. Merrilat 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 Merrilat 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 called another prosector’s exhorting the jury that the defendant might escape and thus sentencing him to death would count them as soldiers in the war on crime “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.

Borrego 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 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.

How The Prison Discipline System Takes Lives

This is the first column in a series about Melissa Lucio and the State of Texas’ capital case against her.


A Texas jury sentenced Melissa Lucio to death on July 22, 2008. Just this week, lawyers filed a petition for Commutation of Death Sentence to a Lesser Penalty or, in the Alternative, a 120-Reprieve from Execution, arguing that Lucio is factually innocent of taking her daughter, Mariah’s, life. Cameron County District Attorney Armando Villalobos — who is now serving a 13-year federal sentence for taking bribes for favorable outcomes in criminal cases — called what was essentially acquiescence by Melissa a “confession” to murder.

Melissa Lucio may not even be guilty, but in any case the State of Texas never should have sought the death penalty against her.

It used to be that two states, Oregon and Texas, required jurors in capital cases to find that a defendant posed a continuing threat to society to impose a sentence of death, but then Oregon placed a moratorium on capital punishment in 2011. Now the Lone Star State is alone in insisting that jurors assess a defendant’s “future dangerousness.”

Part of me sees the logic and the efficiency in future dangerousness standard. If a state is going to murder someone and invest $1.26 million — the latest overall median cost, calculated by Amnesty International — in doing so, they might as well get some public safety buck out of it, save some lives while barbarically taking another.

The screwy logic and amoral efficiency may be there for future dangerousness but the certainty isn’t. The Texas Defender’s Service studied 155 capital cases and found that expert witnesses in 95 percent of the cases wrongly predicted dangerousness. It’s not that difficult to track. Researchers found 155 cases where an expert guessed that a defendant would act violently in the future and then examined their discipline records to see if they had any “assaultive behavior” after the expert testified.

Incarceration’s ability to incapacitate people doesn’t explain the lack of violence. Remember that death penalty jurors choose between life without parole and death. The reason why they vote for execution is that they’re convinced that no matter the type and severity of custody, it can’t cure the person’s propensity for violence.

No one can predict the future actions of another person. Villalobos admitted that himself in the closing argument: “No expert here and no one here can predict what this woman will do.”

If such forecasts were possible, there would be no January 6ths, no 9/11’s, no mass shootings.That’s the scariest part of crime: No one has no idea who’s going to what, or when they’ll do it.

Yet Texas clings to this future dangerousness indicator for when even though the way it’s plied proves pretty racist. In the case of Buck v. Davis, Buck’s own defense attorney called an expert witness, Dr. Walter Quijano, who testified that Black people are more likely to be violent. Quijano slid this inside his opinion that Buck wasn’t violent but the testimony was there for jurors. The Supreme Court of the United States ordered Buck re-sentenced and he’s alive in Beauford H. Jester Complex in Harlem, Texas today. Notably, though, Buck never had a disciplinary infraction.

For Lucio, the finding of her future dangerousness came from her past, not future, alleged disciplinary record in jail. During her sentencing hearing or penalty phase trial, everyone in the courtroom — prosecutors, defense attorneys and the judge — acted on the assumption that correctional discipline systems are reliable. They aren’t. In fact, they’re so unreliable that they shouldn’t be used in any court proceeding as evidence of misconduct.

To start, the evidentiary bar is too low to commence a discipline case and it stays low throughout the proceeding; officers only need “some evidence” to prove a prisoner broke the rules. Officers don’t even need an actual offense to occur. Between 40 and 50 percent of all disciplinary reports are bogus, according to Daniel E. Manville, clinical professor of law and director of the Civil Rights Clinic at Michigan State University College of Law, who is also formerly incarcerated.

Whether the accusation is accurate or not, inmates can’t win disciplinary hearings. The same power differential that makes it impossible for inmates to consent to sexual activity exists throughout a prison. That powerlessness makes officers and staff more credible to discipline officers even when they’re lying.

Besides, inmates can’t go around and collect statements from witnesses or get the evidence tested the way a typical defense would proceed, which is why 1600 New York State inmates underwent punishment — solitary confinement for 140 of them — when they were falsely found to have used drugs while incarcerated. The tests from private company Microgenics were both faulty and not designed for final drug analysis, solely for screening.

The New York inmates were lucky. The only reason why any of them were cleared of drug use was that a critical mass of complaints reached the Office of the Inspector General and too many people who had no drug history were popping positive for synthetic cannabinoids and buprenorphine. It was too hinky for authorities to ignore. Individually, though, none of them had much chance to overturn the decisions against them.

Sometimes inmates misbehave. The problem with the current disciplinary landscape in modern corrections is that no one knows how to pick out those inmates; there’s too many false allegations mixed in. And some infractions hardly indicate dangerousness. One woman I was incarcerated with received a disciplinary report for contraband because her duly prescribed asthma inhaler had expired.
For most inmates, the consequences of prison discipline are steep — they include time in solitary confinement, torpedoed parole prospects, “good time credits” gone (although in certain circumstances, courts have held that a liberty interest resides in good time credits) — and stable; it’s virtually hopeless to remedy a wrongful finding of misconduct. “Unless you’re going to solitary for more than six months, you basically don’t have any rights at all,” says Manville of the prison discipline process.

The faulty products of this system — one that supports false allegations, affords the accused essentially no rights, and is so fixed that there’s virtually no way to undo its effects — clinched a capital sentence for prosecutors in the case of State of Texas v. Maria Elizabeth “Melissa” Lucio. It shouldn’t be that easy to slip pentobarbital into someone’s bloodstream but that’s exactly what’s scheduled to happen to Lucio on April 27.

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.