In 1863, Josefa “Chipita” Rodríguez, a poor Mexican single mother living in Confederate Texas, was wrongly convicted of killing a white cotton trader with an ax over $600 in gold. Even though the gold was reportedly found near the body, Chipita was sentenced to death anyway.
The trial was overseen by a crooked jury, and Chipita never got much of defence and no appeals. She spoke little English, and her last words before being hung by the Nueces River were reportedly, “No soy culpable (I am not guilty).” She was considered for years the only woman legally hanged in Texas, before being officially absolved in 1985. Local legend has it that her ghost still haunts the region.
Fast forward 160 years, and criminal justice advocates say those ghosts haven’t gone anywhere, and Texas is about to wrongly execute another Latina mother, Melissa Lucio, under another mistaken sentence.
Lucio was sentenced to death in 2008 for the murder of her two-year-old daughter Mariah, whom prosecutors say had been physically abused. The 53-year-old Lucio has insisted the death of her daughter was an accident, the result of an undiagnosed injury after Mariah fell down the stairs
Now, Lucio, along with a powerful group of bipartisan allies, as well as stars like Kim Kardashian, are rallying behind a clemency petition sent to Texas governor Greg Abbott in March. Barring immediate intervention, Lucio is scheduled to be executed on 27 April.
Ms Kardashian, no stranger to death penalty activism, called Mariah’s death a “tragic accident”, but one that shouldn’t result in another life being taken.
“It’s stories like Melissa’s that make me speak so loud about the death penalty in general and why it should be banned when innocent people are suffering,” Ms Kardashian told her millions of followers on Tuesday in a series of posts urging them to sign a petition calling on the governor to stop the execution.
According to Lucio and her backers, the case that sent the woman to death row was flawed from front to back, beginning with her supposed confession.
Hours after her daughter was found dead, Lucio, a survivor of physical and sexual abuse since the age of six, was interrogated for five hours by a group of armed policemen, who berated her as she claimed her innocence over 100 times, according to her clemency application. Lucio, who was grief-stricken, pregnant with twins at the time, and exhausted by an interrogation that stretched to 3am, eventually appeared to admit to spanking and biting her child, which prosecutors alleged proved her guilt in Mariah’s death.
Experts assembled by Lucio’s defence say the scenario is a classic false confession from a vulnerable woman under extreme circumstances, and the death penalty has a long, sordid history of being applied against people shown to have falsely confessed or be wrongfully convicted.
“Mariah’s death was a tragedy, not a murder,” Professor Sandra Babcock, one of Lucio’s attorneys and the director of the Cornell Center on the Death Penalty Worldwide, told The Independent. If Texas moves forward with the execution, it “shows that any innocent woman can be executed.”
The problems allegedly didn’t end there. A coroner examining Mariah’s body was told before the exam even began that it was a homicide. The autopsy was performed with some of the interrogating officers in the room. The exam missed signs that Mariah had had a fever, was dehydrated, and other signs consistent with an accidental head injury and “failed to review any of Mariah’s medical history to look for any explanation or contributing cause to her injuries,” according to Dr Janice Ophoven, a pediatric forensic pathologist cited in the clemency application.
Mariah’s family, as well as multiple jurors in the case, said they don’t believe the conviction, which occurred after a 2008 trial where jurors didn’t hear about the numerous times Lucio pleaded her innocence, or her relevant past as an abuse victim. During the case, the state presented no physical evidence, witness testimony, or information from Lucio’s lengthy past file with state child welfare authorities indicating she’d ever been abusive – because there was none.
“I did not know that her long history of physical and sexual abuse made her vulnerable to falsely confess when subjected to aggressive interrogation tactics on the night of her daughter’s death,” Johnny Galvan Jr, a juror in the case, wrote in a recent Houston Chronicle op-ed. “No one took us through the interrogation to show us how many times she asserted her innocence (over 100) or how she repeated the same words the interrogators fed to her. No evidence was presented of that and it would have mattered to me.”
A federal appeals court in 2019 found the trial deprived her of “her constitutional right to present a meaningful defence,” but the Supreme Court has declined to intervene after an appeal from the state of Texas.
“She’s innocent,” Sonya Valencia, Lucio’s sister, said at a rally in February. “I wouldn’t be here if I didn’t believe in my sister’s innocence.”
The case has attracted bipartisan attention in typically conservative Texas. More than half of the state’s Republican House of Representative has joined in calls to stop the execution, either by commuting Lucio’s sentence or delaying it until more evidence can be considered.
“When we do everything that we can to ensure that an innocent Texan is not put to death by the state, or even a potentially innocent Texan is not put to death by the state … we are strengthening our criminal justice system,” GOP representative Jeff Leach of Plano, who co-chairs the House Criminal Justice Reform Caucus, said in March.
Others have argued the case and those like it show the double standard against women in the criminal justice system, who can be punished more harshly for domestic crimes because of ingrained ideas about gender roles.
“A crime is seen as particularly heinous because it is committed by a woman,” Mary Atwell, professor of criminal justice at Radford University, told The Independent, in our in-depth investigation into women on death row. “Our societal expectations are that women are non-violent, kind, and gentle so it is easy to play up to emotions that a woman who commits a violent crime is not a normal woman, that she is against the pale and ‘not like us’.”
Melissa Lucio’s husband, also responsible for Mariah’s care, was not sentenced to death.
Though Lucio is the sole Latina on Texas death row, that the state is heading towards the execution of a person of colour is no surprise, according to experts.
Texas has a long history of executing Latinos legally and extra-legally through lynchings. The state has also executed far and away the most people, 573, in modern US history. A disproportionate number of those on death row in the state are people of colour compared with the overall population, according to Kristin Houlé Cuellar, executive director of the Texas Coalition to Abolish the Death Penalty.
“What we are seeing, even as use of the death penalty and new death sentences are declining, they remain disproportionately imposed on people of colour,” she told The Independent.
In this context, pardons and successful clemency applications are extremely rare, she says. Governors George W Bush and Rick Perry each only granted one such application. Governor Abbott has granted one application for commutation, in 2018, on a rare, unanimous recommendation from state parole authorities in the case of Thomas Whitaker, a man who ordered the killing of his family, whose father forgave him and pleaded with officials not to carry out the execution.
“Mr Whitaker’s father, who survived the attempt on his life, passionately opposes the execution of his son,” the governor wrote at the time. “Mr Whitaker’s father insists that he would be victimized again if the state put to death his last remaining immediate family member.
Whether the governor and state pardon and parole officials take a similar view of calls from Lucio’s family remains to be seen.
But the large amount of media attention around the case, between the Kardashian tweets and the 2020 documentary The State of Texas vs Melissa on Hulu, could have an impact. A similar campaign helped get Oklahoma inmate Julius Jones, who has long maintained his innocence, off of death row.
The energy might not end Texas’ generations-long embrace of executions, but it could bring more attention to the disparities in the state, and shine a light on other upcoming death sentences which present serious ethical questions.
On 21 of April, Texas is set to kill an elderly man named Carl Wayne Buntion, who is 78 years old. He us set ti be the oldest person ever executed in the state.
TCADP’s Kristin Houlé Cuellar called the planned execution a “gross spectacle that serves no purpose whatsoever.”
“He is a frail elderly mean with serious health issues he doesn’t pose a threat to anyone,” she said, highlighting the man’s pending clemency request to serve out his dwindling days in prison.
“There are so many people impacted by this issue that are not necessarily seen or recognized,” she added. “At the end of the day, we have to remember executions are an act committed by the government and there are individuals who are carrying these acts out in the name of the people. It is incumbent on the people to speak out and raise their voices on all executions.”
Unlike with Chipita, the state now has a chance to right a potentially wrongful execution before it’s too late, not centuries after.
The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to their Business Leaders Declaration Against the Death Penalty – with The Independent as the latest on the list. We join high-profile executives like Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.