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Melissa Lucio was granted a stay of execution: what happens now?

Melissa Lucio stands in the visitation area of a Texas federal prison.
Courtesy photo.
Melissa Lucio stands in the visitation area of the Mountain View Unit federal prison in Gatesville.

A Harlingen woman set for execution Wednesday will have another chance to prove her innocence in court.

Melissa Lucio, who was sentenced to death in 2008 for the death of her 2-year-old daughter Mariah, received a stay of execution on Monday. Lucio will now be removed from death row indefinitely, pending a new trial.

Lucio’s case was remanded back to Cameron County, in the same court system that convicted her of capital murder. Lucio’s legal team is now working to get sitting judge Gabriela Garcia, of the 138th District Court, removed from the case.

Lucio’s attorneys are pursuing the removal because one of Garcia’s staff members, Irma Gilman, served as a paralegal in Lucio’s murder trial. Her husband, Peter Gilman, was Lucio’s defense counsel. He’s now a prosecutor under Cameron County District Attorney Luis Saenz. Saenz issued Lucio’s execution warrant earlier this year. Lucio’s attorneys are also pursuing Saenz’s removal from her case.

If Garcia is removed, Lucio’s attorneys will present the court with new evidence to weigh on whether Lucio is innocent. Some of that evidence includes forensic analysis of Mariah’s bruising that medical experts say is indicative of a rare blood clotting disorder and not of abuse, as prosecutors alleged during Lucio’s trial.

Other evidence includes psychological analysis of Lucio that was left out of her murder trial. Lucio’s attorneys say her past experience with abuse made her vulnerable to police coercion.

“We hope that, going forward, reason and science will carry the day, and Melissa will get a recommendation from the trial court joined by the State of Texas to get a new trial,” Tivon Shardl, Assistant Federal Public Defender and one of Lucio’s attorneys, said at a press conference yesterday.

That recommendation would go to the Texas Court of Criminal Appeals, which granted Lucio the stay of execution. The court would then decide whether to grant Lucio a new trial.

The Texas Criminal Court of Appeals granted the stay of just minutes before the state’s Pardon and Paroles Board was to make their recommendation on Lucio’s case. The board suspended making a recommendation after the stay was granted.

If the board had made a recommendation, Gov. Greg Abbott would have decided whether to grant Lucio a stay. Abbott has this power without a Pardon and Paroles Board recommendation, however. He declined to tell media outlets in the last few weeks whether he would issue a stay of execution order, instead saying he did not receive a recommendation from the board.

Lucio’s family will return to the Rio Grande Valley on Wednesday from Gatesville, where she is imprisoned. The family will host a rally in front of the Cameron County Courthouse. Lucio’s oldest son, John, is asking Saenz to drop the charges against his mother and remove the execution order.

"My mother is innocent. She should not have to spend another night in prison,” John Lucio said in a statement. “I am asking everyone who cares about justice to help us get as many people as possible to Brownsville to ask Mr. Saenz to be the hero here. He has the power to drop the charges and free Melissa Lucio now."

Saenz did not respond to TPR’s question on whether he could grant Lucio freedom.

In a media statement after Lucio received the stay, Saenz said he would “welcome” the opportunity to prosecute the case.

“I fully expected the Court of Criminal Appeals to stay Lucio’s execution to allow time for those motions to be heard,” Saenz said.

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Gaige Davila is the Border and Immigration Reporter for Texas Public Radio.