AUSTIN (Nexstar) — With only three days left until Melissa Lucio’s execution, set for Wednesday, April 27, rallies at the Texas Capitol continued Sunday to garner state officials’ attention to stop it.
Lucio was convicted of killing her 2-year-old daughter Mariah in Harlingen 15 years ago.
Her lawyers now point to new evidence, showing that Mariah’s injuries were caused by a fall down a steep staircase. They also claim Lucio may have been coerced by law enforcement into confessing to the murder on the day of her daughter’s death.
Since the conviction, five of the 12 jurors have publicly stated if they had known about the new evidence, they would not have sentenced her to death.
With three days left, Tivon Schardl, the Supervisory Federal Public Defender in Austin who is representing Lucio, sat down with KXAN to discuss how the state could step in to either completely halt, or delay, the execution Wednesday.
What’s the legal latest on Melissa Lucio?
This Q&A has been edited for length and clarity.
Q: Where do things stand legally heading into this week, with both the request for clemency and several filings in the court of appeals?
A: The current situation is that the Board of Pardons and Paroles is considering a clemency petition on behalf of Melissa Lucio that’s supported by a supermajority of both the House and the Senate in the Texas Legislature, as well as hundreds of anti-domestic violence groups, and religious organizations and tens of thousands, if not hundreds of thousands of Texans. The Texas Court of Criminal Appeals has before it, several filings on behalf of Melissa Lucio, most of them have not been responded to by the state. So there’s no opposition from the state to these filings that seek a stay of execution and ultimately to get a new trial for Melissa Lucio. Also, the Federal Court of Appeals, the Fifth Circuit has before it, a motion for a stay of execution as well.
Q: With that being said, walk us through the possibilities of what could happen this week.
A: We will hear from the Board of Pardons and Paroles [Monday] afternoon. That’s their normal way of doing business. They issue their results two days before the scheduled execution date. Then, of course, it’s up to the governor whether he is going to accept that recommendation or not. Or if the recommendation is against clemency, to grant a reprieve, which he has the power to do regardless of what the board decides. In terms of the courts, we can expect to hear from them at any time. There’s really no way to predict when they’re going to rule.
Q: Earlier this month, state lawmakers grilled District Attorney Luis Saenz to withdraw the warrant for the execution, but he refused at the time. Does he currently have the power to revoke the warrant?
A: Yes, the district attorney has had the power all along to consult with counsel before seeking an execution date. And there’s been a motion pending in the trial court since February to withdraw the execution date or to reconsider setting it. And the district attorney has been able to join that motion… to say he doesn’t oppose that motion for months now.
Q: In your opinion, what’s the best case scenario this week?
A: I think the best-case scenario would be for the Texas Court of Criminal Appeals to stay the execution and send the case back to the trial court to consider whether Melissa Lucio should get a new trial.
Q: Is there any way to compare this to any other death row cases in recent history?
A: There hasn’t been a case like this in recent Texas history that I’m familiar with. And I’ve been working on these cases here — on and off for 26 years. There hasn’t been a case where a supermajority of the Texas Legislature is supporting a stop to the execution. There hasn’t been a case where hundreds of thousands of people have been calling, emailing, tweeting to the district attorney and the governor to stop the execution. This is a truly extraordinary case. Now, you can compare it favorably to other cases in which the governor granted clemency. For example, in the Bart Whitaker case, Governor Abbott commuted his sentence to life, in part because the victim’s family who were also Mr. Whitaker’s family, supported clemency. That’s the same here. In other cases where there has been powerful evidence of innocence, governors, including Gov. Bush and Gov. Perry, have stopped executions. So that’s comparable.
Q: How is Melissa’s family holding up while they wait for an answer?
A: It’s torture for them. It is absolute torture. And I think the people who are following John Lucio and Michelle Lucio on social media, they see the agony that this family is going through, because public officials do not speak up and just make the right decision about this innocent woman facing execution in what, three, four days. They have been just going through hell and the state of Texas is putting them through hell, and there is no reason for it.