Petition for Writ of Certiorari — Melissa Elizabeth Lucio, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No.

In the Supreme Court of the United States

MELISSA ELIZABETH LUCIO,

Petitioner,

v.

BOBBY LUMPKIN, Director, Texas

Department of Criminal Justice, Correctional Institutions Division,

Respondent.

On Petition for Writ of Certiorari

To the United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

A. RICHARD ELLIS*

Attorney at Law

75 Magee Avenue

Mill Valley, CA 94941

(415) 389-6771

a.r.ellis@att.net

*Counsel of Record

MAUREEN FRANCO

Federal Public Defender

Western District of Texas

TIVON SCHARDL

Chief, Capital Habeas Unit

TIMOTHY GUMKOWSKI

Assistant Federal Public Defender

919 Congress Ave., Suite 950

Austin, TX 78701

CAPITAL CASE

QUESTION PRESENTED

Melissa Lucio’s culpability in the death of her two-year-old daughter turned on

whether Mariah fell down a flight of stairs, as Lucio told medics and police, or was

beaten, something Lucio took responsibility for at the end of a five-hour interrogation.

The Texas Ranger who interrogated Lucio testified that her demeanor showed

she was “hiding the truth,” but was “beat” and “giving up” before she took responsibility. The defense tried to present a social worker and psychologist who concluded

Lucio’s flat affect and acquiescence reflected her lifetime of being used by abusive

men. Records showing abuse by Lucio’s older children, but not her, and Lucio’s mental

condition indicated she took responsibility for failing to prevent abuse by her older

children. The trial court excluded the social worker as unqualified and the psychologist as irrelevant.

Lucio claimed those rulings violated her right to present a complete defense

because they “disabled [her] from answering the one question every rational juror

needs answered: If the defendant is innocent, why did [she] previously admit [her]

guilt?” Crane v. Kentucky, 476 U.S. 683, 689 (1986).

In a fractured en banc decision, ten of seventeen judges on the Fifth Circuit

agreed the exclusion of the psychologist was “the key evidentiary ruling” at Lucio’s

trial because the testimony “might have cast doubt on her confession.” App. 37a-38a

(Southwick, J., concurring). The decisive three-judge concurrence held this Court’s

cases had not “established with sufficient clarity” a rule that permitted “justice to a

defendant” such as Lucio. App. 40a. That ruling gives rise to the following question:

i

1. Whether, as the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Tenth,

and Eleventh Circuits have held, this Court’s cases clearly establish a complete-defense right that can be violated by the arbitrary and disproportionate application of

a general evidentiary standard when it infringes a weighty interest of the accused

such as explaining why she falsely confessed, or as the Fifth Circuit held in this case,

there is no clearly established federal law applicable to such a ruling.

ii

CORPORATE DISCLOSURE STATEMENT

Petitioner Melissa Lucio, a death-sentenced Texas inmate, was the appellant

in the United States Court of Appeals for the Fifth Circuit. Respondent, Bobby Lumpkin, the Director of the Texas Department of Criminal Justice, Correctional Institutions Division, was the appellee in that court.

LIST OF PROCEEDINGS

State v. Lucio, No. 07-CR-885-B (138th District Court of Cameron County, July

30, 2008) (conviction of capital murder and sentence of death at trial)

Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. Sept. 14, 2011) (affirming conviction and sentence on direct appeal)

Lucio v. Texas, 566 U.S. 1036 (June 4, 2012) (mem.) (denial of petition for certiorari)

Ex parte Lucio, No. 72,702-02, 2013 WL 105179, (Tex. Crim. App. Jan. 9, 2013)

(denying state post-conviction relief)

Lucio v. Davis, No. 13-cv-125 (S.D. Tex. Sept. 28, 2016) (federal district court

memorandum and order denying habeas relief)

Lucio v. Davis, 751 F. App’x 484 (5th Cir. Oct. 17, 2018) (granting a certificate

of appealability on the issue in question)

Lucio v. Davis, 783 F. App’x 313 (5th Cir. July 29, 2019) (reversing district

court and granting habeas relief)

Lucio v. Davis, 947 F.3d 331 (5th Cir. Jan. 20, 2020) (en banc) (granting rehearing en banc)

iii

Lucio v. Lumpkin, 987 F.3d 451 (5th Cir. Feb. 9, 2021) (en banc) (denying relief

on rehearing en banc)

iv

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

CORPORATE DISCLOSURE STATEMENT .............................................................. iii

LIST OF PROCEEDINGS ............................................................................................ iii

INDEX TO APPENDICES .......................................................................................... vii

TABLE OF AUTHORITIES ....................................................................................... viii

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

INTRODUCTION .......................................................................................................... 1

LOWER COURT OPINIONS AND ORDERS .............................................................. 3

JURISDICTION............................................................................................................. 4

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED ............................. 4

STATEMENT OF THE CASE ....................................................................................... 5

I.

The Facts ................................................................................................................ 5

A. Melissa Lucio’s Background ............................................................................. 5

B. Mariah Alvarez’s Life & Death ........................................................................ 6

C. Melissa Takes Responsibility Under Interrogation ........................................ 8

D. Texas Prosecutors: “She Admitted It”............................................................ 10

E. Lucio’s Preempted Defense ............................................................................ 11

II.

Procedural History ............................................................................................... 15

A. Direct Appeal .................................................................................................. 15

B. State Habeas ................................................................................................... 15

C. District Court Decision ................................................................................... 18

D. Fifth Circuit Decisions.................................................................................... 19

REASONS FOR GRANTING THE PETITION .......................................................... 21

I.

This Court Should Resolve the Question Whether Clearly Established

Federal Law Applies the Right to Present a Complete Defense to

Arbitrary and Disproportionate Exclusions of Defense Evidence Made

Pursuant to Generally Valid Rules of Evidence ................................................. 21

A. The En Banc Fifth Circuit’s Fractured Decision Deepens the Conflict

Among the Circuits About What Chambers v. Mississippi and Its

Progeny Established. .................................................................................... 23

1. The majority approach ................................................................................ 23

2. The minority approach ................................................................................ 28

v

B. The Decision Below Fundamentally Misreads This Court’s Precedent. ...... 30

1. The Fifth Circuit and other minority circuits misread this Court’s

complete-defense cases ............................................................................. 30

2. The Fifth Circuit flouted this Court’s precedent on what counts as

“clearly established Federal law.” ........................................................... 34

C. This Question Concerns an Issue of Paramount Importance: The

Ability of a Defendant To Make a Defense of Her Innocence. .................... 36

D. Lucio’s Case Is the Ideal Vehicle for Resolving the Circuit Split ................. 38

CONCLUSION............................................................................................................. 40

vi

INDEX TO APPENDICES

APPENDIX

DESCRIPTION

PAGES

A

Opinion of the U.S. Court of Appeals for the Fifth Circuit denying habeas relief on rehearing en banc

(Feb. 9, 2021)

1a-68a

B

Order of the Fifth Circuit granting rehearing en banc

(Jan. 20, 2020)

69a

C

Opinion of the Fifth Circuit granting habeas relief

(July 29, 2019)

70a-89a

D

Opinion of the Fifth Circuit granting certificate of appealability in part (Oct. 17, 2018)

90a-105a

E

Memorandum and order of the United States District

Court denying habeas relief (Sept. 28, 2016)

106a-170a

F

Order of the Texas Court of Criminal Appeals denying

state habeas relief (Jan. 9, 2013)

171a-172a

G

Findings of fact and conclusions of law, 138th Judicial

District Court of Cameron County, Texas

(June 29, 2012)

173a-189a

vii

TABLE OF AUTHORITIES

Cases

Page(s)

Abdul Kabir v. Quarterman,

550 U.S. 233 (2007) ................................................................................................ 35

Barbe v. McBride,

521 F.3d 443 (4th Cir. 2008) .................................................................................. 27

Brown v. Luebbers,

371 F.3d 458 (8th Cir. 2004) .................................................................................. 24

Brown v. Ruane,

630 F.3d 62 (1st Cir. 2011) ..................................................................................... 26

Butler v. State,

608 So.2d 314 (Miss. 1992) ..................................................................................... 37

Carey v. Musladin,

549 U.S. 70 (2006) .................................................................................................... 3

Chambers v. Mississippi,

410 U.S. 284 (1973) .........................................................................................passim

Chia v. Cambra,

360 F.3d 997 (9th Cir. 2004) ............................................................................ 24, 29

Coy v. Iowa,

487 U.S. 1012 (1988) ................................................................................................ 1

Crane v. Kentucky,

476 U.S. 683 (1986) .........................................................................................passim

Dodd v. Trammell,

753 F.3d 971 (10th Cir. 2013) ................................................................................ 27

Ferensic v. Birkett,

501 F.3d 469 (6th Cir. 2007) ...................................................................... 23, 25, 29

Fieldman v. Brannon,

969 F.3d 792 (7th Cir. 2020) .................................................................................. 25

Ford v. Wainwright,

477 U.S. 399 (1986) ................................................................................................ 35

viii

Fortini v. Murphy,

257 F.3d 39 (1st Cir. 2001) ..................................................................................... 24

Fry v. Pliler,

551 U.S. 112 (2007) ................................................................................................ 31

Gagne v. Booker,

680 F.3d 493 (6th Cir. 2012) (en banc) ............................................................ 28, 29

Grant v. Royal,

886 F.3d 874 (10th Cir. 2018) ................................................................................ 28

Green v. Georgia,

442 U.S. 95 (1979) ...................................................................................... 23, 24, 31

Guinn v. Kemna,

489 F.3d 351 (8th Cir. 2007) ............................................................................ 27, 28

Holmes v. South Carolina,

547 U.S. 319 (2006) .........................................................................................passim

Kittelson v. Dretke,

426 F.3d 306 (5th Cir. 2005) ........................................................................... 29, 30

Kubsch v. Neal,

838 F.3d 845 (7th Cir. 2016) ...........................................................................passim

Lockyer v. Andrade,

538 U.S. 63 (2003) ............................................................................................ 34, 35

Louis v. State,

393 S.W.3d 246 (Tex. Crim. App. 2012)................................................................. 14

McWilliams v. Dunn,

137 S. Ct. 1790 (2017) (Alito, J., dissenting) ......................................................... 38

Milke v. Ryan,

711 F.3d 998 (9th Cir. 2013) .................................................................................. 38

Montana v. Egelhoff,

518 U.S. 37 (1996) ............................................................................................ 28, 31

Moses v. Payne,

555 F.3d 742 (9th Cir. 2009) ...................................................................... 28, 29, 34

Nash v. Russell,

807 F.3d 892 (8th Cir. 2015) .................................................................................. 33

ix

Nevada v. Jackson,

569 U.S. 505 (2013) ................................................................................................ 29

Panetti v. Quarterman,

551 U.S. 930 (2007) ................................................................................................ 35

Perry v. Rushen,

713 F.2d 1447 (9th Cir. 1983) ................................................................................ 29

Pittman v. Sec’y, Fla. Dep’t of Corr.,

871 F.3d 1231 (11th Cir. 2017) ........................................................................ 24, 26

Rock v. Arkansas,

483 U.S. 44 (1987) .................................................................................. 1, 22, 23, 27

Santiago v. O’Brien,

628 F.3d 30 (1st Cir. 2010) ............................................................................... 26, 33

Savage v. Dist. Att’y of Cty. of Philadelphia,

116 F. App’x 332 (3d Cir. 2004).............................................................................. 27

Scrimo v. Lee,

935 F.3d 103 (2d Cir. 2019) .............................................................................. 24, 26

Sears v. Upton,

561 U.S. 945 (2010) ................................................................................................ 31

Strickland v. Washington,

466 U.S. 668 (1984) ................................................................................................ 34

Troy v. Sec’y, Fla. Dep’t of Corr.,

763 F.3d 1305 (11th Cir. 2014) .............................................................................. 28

United States v. Scheffer,

523 U.S. 303 (1998) ................................................................................................ 22

Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442 (2008) ................................................................................................ 33

Washington v. Texas,

388 U.S. 14 (1967) .............................................................................................. 1, 22

Williams v. Taylor,

529 U.S. 362 (2000) ...................................................................................... 2, 34, 35

Yarborough v. Alvarado,

541 U.S. 652 (2004) ................................................................................................ 36

x

Constitutional Provision

U.S. Const. amend. VI ......................................................................................... 1, 4, 21

U.S. Const. amend. XIV ....................................................................................... 1, 4, 21

Statutes and Rule

28 U.S.C. § 1254(1) ........................................................................................................ 4

28 U.S.C. § 2253(c) ......................................................................................................... 4

28 U.S.C. § 2254(d) ...............................................................................................passim

28 U.S.C. § 2254(d)(1) .............................................................................................. 3, 34

Antiterrorism and Effective Death Penalty Act of 1996 ............................ 4, 20, 24, 35

Tex. Code Crim. Proc. art. 37.071, § 2(b) .................................................................... 14

Tex. Penal Code § 19.02(b)(1) ...................................................................................... 10

Tex. Penal Code § 19.03(a)(8) ...................................................................................... 10

Other Authorities

Connor F. Lang, The Intersection of Wrongful Convictions and Gender

in Cases Where Women Were Sentenced to Death or Life in Prison

Without Parole, 27 Mich. J. Gender & L. 403 (2020) ............................................ 36

John W. Strong, McCormick on Evidence § 185 (4th ed.) .......................................... 39

4 William Blackstone, Commentaries on the Laws of England ................................. 22

xi

PETITION FOR WRIT OF CERTIORARI

Petitioner Melissa Elizabeth Lucio respectfully prays that a writ of certiorari

issue to review the decision of the U.S. Court of Appeals for the Fifth Circuit affirming

the denial of her petition for a writ of habeas corpus.

INTRODUCTION

Our society recoils at the prospect of “‘deliver[ing] any man up to die before the

accused … has been given a chance to defend himself against the charges.’” Coy v.

Iowa, 487 U.S. 1012, 1015-16 (1988) (quoting Acts of the Apostles 25:16). Thus, the

Due Process Clause of the Fourteenth Amendment and the Compulsory Process

Clause of the Sixth Amendment guarantee a right to “‘a meaningful opportunity to

present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting

California v. Trombetta, 467 U.S. 479, 485 (1984)). A long line of decisions from this

Court hold that the right to present one’s own witnesses to establish a defense ranks

as a “fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14,

19 (1967); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Crane, 476 U.S.

at 690; Rock v. Arkansas, 483 U.S. 44, 55 (1987); Holmes v. South Carolina, 547 U.S.

319, 324 (2006).

The court below joined one other circuit in parsing this Court’s cases into a rule

they never announced, and that rests on an illusory distinction between “blanket,”

non-discretionary rules of evidence, which can violate the complete-defense right, and

the “discretionary application of a general evidentiary standard,” for which there is

no clearly established law. App. 39a-40a. As the concurring Lucio judges said, that

left Melissa Lucio with no access to justice. App. 40a.

1

The overwhelming majority of circuits disagrees with the Fifth Circuit’s approach. Under the majority’s view, cases like Crane and Chambers clearly gave Lucio

the right to present testimony that she succumbed to aggressive interrogation tactics

because a lifetime of sexual, physical, psychological, and verbal abuse by men left her

vulnerable to those pressures.

As the seven dissenting Lucio judges recognized, just as in Crane, the exclusion

of Lucio’s witnesses meant she “was barred from offering evidence to explain why she

would confess if she were innocent,” App. 44a. That ruling “amounted to a complete

rejection of her defense.” App. 43a. “If the confession was false, the State’s case crumbles,” App. 46a-47a, because Lucio’s “admissions” were “the State’s primary evidence

of her guilt” App. 65a. And the three-judge concurrence agreed, the exclusions were

“key” because the testimony “might have cast doubt on the credibility of Luico’s confession.” App. 37a.

The wrongly excluded testimony was not psychological conjecture. It was reliably supported by thousands of pages of records from years of protective service observations of Lucio’s children in her care and in foster care. Those records showed

Lucio was a neglectful, ineffectual parent, but never abusive. Her older children, however, beat, bit, and otherwise abused each other and their younger siblings.

The question presented is at the heart of federal habeas review of completedefense cases. Section 2254(d) of Title 28 imposes a “constraint on the power of a

federal habeas court to grant a state prisoner’s application for a writ of habeas corpus

with respect to claims adjudicated on the merits in state court.” Williams v. Taylor,

2

529 U.S. 362, 412 (2000) (O’Connor, J., op. for the Court). When a federal claim was

“adjudicated on the merits in State court,” the statute bars federal relief on the claim

unless the state court’s “adjudication of the claim . . . resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). The threshold question in applying § 2254(d)(1) is to determine the

“clearly established Federal law, as determined by the Supreme Court of the United

States.” See Carey v. Musladin, 549 U.S. 70, 73 (2006).

This Court should grant the petition because resolution of the question presented here—unencumbered by procedural issues—is vital to ensuring the innocent

are not wrongly convicted. As shown infra, false confessions are common in cases of

women wrongly accused of killing their children.

LOWER COURT OPINIONS AND ORDERS

The Fifth Circuit opinion affirming the denial of relief on rehearing en banc is

reported at Lucio v. Lumpkin, 987 F.3d 451 (5th Cir. 2021), and attached as Appendix

A. The Fifth Circuit’s order granting rehearing en banc is reported at 947 F.3d 331

and attached as Appendix B. The Fifth Circuit panel opinion reversing the district

court and granting habeas relief is unpublished and attached as Appendix C. The

Fifth Circuit opinion granting a certificate of appealability is unpublished and attached as Appendix D. The federal district court’s memorandum and order denying

habeas relief is attached as Appendix E. The Texas Court of Criminal Appeals’ unpublished decision denying state habeas relief is attached as Appendix F. The state

trial court’s findings of fact and conclusions of law is attached as Appendix G.

3

JURISDICTION

The Fifth Circuit granted a certificate of appealability, App. 104a, and therefore had jurisdiction pursuant to 28 U.S.C. § 2253(c). The opinion of the Fifth Circuit

en banc was entered on February 9, 2021. App. 1. This Court has jurisdiction under

28 U.S.C. § 1254(1).

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED

The Sixth Amendment provides, in relevant part:

In all criminal prosecutions, the accused shall enjoy the right . . . to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

The Fourteenth Amendment provides, in relevant part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due process of

law . . . .

Section 2254(d), Title 28 of the U.S. Code, enacted as part of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), provides in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.

4

STATEMENT OF THE CASE

I.

The Facts

A. Melissa Lucio’s Background

Melissa Lucio’s father abandoned his wife and six children, leaving Melissa’s

mother to provide for the family. ROA.5010.1 Although she “was working 24/7,”

ROA.5010, Melissa’s mother struggled, and care for Melissa and her siblings often

devolved to their mother’s lovers. ROA.5010-11. When Melissa was six years old, one

of her mother’s live-in lovers began to sexually abuse her. ROA.5011. This sexual

abuse continued for two years. ROA.5012. Melissa told her mother, but her mother

did not intervene. ROA.5006. See also App. 40a-41a.

Melissa’s younger sister, Sonia, was “very physically aggressive with her,” but

also protected her when she was bullied at school. ROA.5007. Her brothers were emotionally distant but also punched and bit her. Ibid. Adolescent Melissa witnessed her

mother being abused by two men. ROA.5012.

At sixteen, her mother and her mother’s boyfriend consented to Melissa dropping out of high school to marry 20-year-old Guadalupe Lucio with whom she was

already in a sexual relationship. ROA.5012. At the same age, Guadalupe’s sister introduced Melissa to cocaine. ROA.5008. That was the start of years of addiction.

Melissa had five children by Guadalupe by the time she was 24. ROA.4989;

5013. Guadalupe was “a physically and emotionally abusive alcoholic,” who abandoned Melissa and the children in 1994, when Melissa was 26. App. 41a; ROA.4990,

11 “ROA.___” refers to the electronic record on appeal in the Fifth Circuit.

5

5008. During the last four years of the relationship Guadalupe’s abuse was “rampant.” ROA.5013. Melissa had no clue Guadalupe was preparing to leave. She reported to the police that he was missing. Ibid.

Melissa’s second husband, Robert Alvarez, was father to seven more of

Melissa’s children, including Mariah. Alvarez demonstrated character traits similar

to Guadalupe. He was “emotionally and verbally abusive,” and was seen to “punch

Mrs. Lucio in the park” where the family lived because they were homeless.

ROA.5009; App. 41a.

Shortly after Guadalupe left Melissa and their children, Child Protective Services (“CPS”) stepped in. CPS’s “involvement” in Melissa’s life continued up to and

beyond her arrest.2 In September 2004, two-week-old Mariah Alvarez, Melissa’s

twelfth child, and six of her minor siblings were placed in foster care following reports

of parental neglect—not abuse. ROA.5570-72; ROA.4888-89.

B. Mariah Alvarez’s Life & Death

Mariah had a mild physical disability that made her unstable when walking.

ROA.5591-92. In foster care, she fell down and lost consciousness. ROA.5608. She

required close supervision because she wanted to climb. ROA.5631. Mariah would

also hit her head on the floor when having “tantrums,” ROA.5503, and would bite her

peers. ROA.5588.

2 The role CPS played in Melissa’s life (and possibly in Mariah’s death) is depicted

in Judge Higginbotham’s dissent below. See App. 40a-43a. CPS “recognized that

Melissa’s troubles centered on her inability to escape a succession of relationships

with dominating and abusive men who to their own ends, encouraged her use of cocaine, a stimulant.” Id. at 43a.

6

Mariah’s older siblings were “aggressive to the point of becoming violent.”

ROA.5694. Her brothers wrestled, hit, punched, and bit each other leaving marks and

bruises. ROA.4667, 4675-76. Her cousins were also “very aggressive,” pushing, shoving and hitting Mariah, ROA.4658-59, and physically abusing one another.

ROA.4675.

On November 21, 2006, Mariah and eight siblings were returned to the care of

Lucio and Robert Alvarez. ROA.4465. Lucio and Alvarez lived in a second-story apartment accessed by a steep exterior staircase.3 ROA.4315-16, 4543.

On February 15, 2007, while Lucio and Alvarez were moving out of their apartment, one of Lucio’s children saw Mariah fall down the stairs. ROA.6019-21.

Two days later, paramedics were called to Lucio’s new apartment where Mariah was found dead. ROA.4378. Lucio told the responders that Mariah had fallen

down the stairs at the other apartment. ROA.4372.

Mariah had “bruises all over her body,” ROA.4506, a weeks-old fracture in her

left arm, ROA.4524, some of her hair had been pulled out, and there were bite marks

on her back, ROA.4509-10. The medical examiner concluded she had been severely

abused,4 ROA.4506, and died of a head injury that occurred within 24 hours of death.

ROA.4531,4553.

3 The facts related in the foregoing three paragraphs were documented in the CPS

records that Lucio’s excluded witnesses—Villanueva and Pinkerman—reviewed

when forming their opinions prior to trial.

4 In state post-conviction proceedings, Lucio proffered expert testimony that disputed the medical examiner’s opinions regarding Mariah’s arm injury, the supposed

bite, bruises, and missing hair. ROA.8806-8820.

7

C. Melissa Takes Responsibility Under Interrogation

The night Mariah died, investigators questioned Lucio for over five hours.

When the interrogation began, Lucio had been awake for roughly fourteen hours.

ROA.8111. Interrogators provided her nothing to eat and allowed her no sleep.

ROA.4333. Some of the interrogation was recorded on three videos that were played

to the jury on the first day of trial.5 ROA.4254-56, 4266-68, 4290.

The police told Lucio they needed to know “how [Mariah] died—the way she

died.” ROA.8101. Lucio told police she didn’t know; her “oldest daughter was there.”

ROA.8188. Lucio told the interrogators that Mariah fell down the stairs outside of

their apartment two days before she died. ROA.8102-06. She admitted that she sometimes spanked her daughters “on the butt,” ROA.8108, but she repeatedly denied hitting or abusing Mariah. ROA.8118, 8137, 8165. Lucio consistently told the police her

kids were rough with Mariah, but she did not know who caused Mariah’s specific

injuries. ROA.8159.

Three hours into the interrogation, after 1:00 a.m., Texas Ranger Victor Escalon entered the interview room and counseled Lucio that the interrogators were

there to “help [her] along,” ROA.8177, that she was “gonna explain everything …

[a]dmit to this,” and “God’s gonna forgive you.” ROA.8177-78. After Escalon repeatedly reassured Lucio, ROA.8177-82, she said she wanted to talk to her husband “and

nobody else.” ROA.8182. This request was acknowledged, but ignored. Ibid.

5 The petition cites to the transcript of the recording created by state habeas coun-

sel.

8

After Escalon showed Lucio Mariah’s injuries and urged her on, Lucio said that

the spanking was “all over [Mariah’s] body.” ROA.8184. Prompted for more details,

Lucio responded, “I don’t know what you want me to say. I’m responsible for it.”

ROA.8184. She said that she bit Mariah one day while tickling her. ROA.8185. Lucio

didn’t know why she did that; it wasn’t because she was mad or frustrated. Ibid.

When Escalon suggested that the bite marks did not happen “because you were playing around,” Lucio responded, “They weren’t playing around.” ROA.8185 (emphasis

added).

Lucio maintained that she had not hit Mariah in the head and only spanked

her with her hand. ROA.8187, 8189; see also ROA.8191 (“I would not beat her I would

spank her.”).

Escalon asked Lucio how specific bruises were made. ROA.8190. Lucio said she

caused some of them, ROA.8207-08, but she did not know about others because she

didn’t hit Mariah in particular places. ROA.8202-04. Escalon insisted Lucio was responsible for specific bruises, to which Lucio responded, “I guess I did it. I guess I did

it.” ROA.8204. She suggested that some of the other injuries, like scratches, could

have been caused by her other daughters. ROA.8205-06.

At 1:22 a.m., Escalon left the interrogation “for now.” ROA.8212. When he returned, the camera was turned away from Lucio, and Escalon told her that he wanted

to “let [her] hair down cause I’m gonna put it … put in a pony tail.” ROA.8215-16.

Then the camera was turned off. ROA.8216.

9

At 3:00 a.m., Escalon resumed recording. He brought in a doll to have Lucio

show him how she bit and spanked Mariah. ROA.8220-21. He told Lucio to “do it real

hard,” like she had done it, and gave his own demonstration. ROA.8224. Escalon

pointed to several sets of bruises and had Lucio spank the doll in those areas to

demonstrate how she would have caused them. ROA.8224-25. He also had Lucio affirm that she was the only one who spanked Mariah—not her husband, not the other

kids—and ended the interrogation at 3:15 a.m. ROA.8229-30.

D. Texas Prosecutors: “She Admitted It”

Texas charged Lucio with capital murder, see Tex. Penal Code §§ 19.02(b)(1),

19.03(a)(8), for “intentionally and knowingly” causing Mariah’s death “by striking,

shaking or throwing Maria[h] Alvarez with [her] hand, or foot, or other object.”

ROA.7664.

Knowing there would be conflicting expert testimony about the cause of Mariah’s fatal head injury, the prosecution’s case centered on Lucio’s statements. The

first day of trial, prosecutors played the recorded portions of Lucio’s custodial statement to establish that only she was responsible for Mariah’s injuries. Paramedics and

police described and interpreted Lucio’s demeanor on the night Mariah died.

ROA.4364-65; ROA.4367-68; ROA.4372; ROA.4386-87; ROA.4397; see also ROA.4227

(police officer testifying Lucio had “no emotion” and appeared “relieved”). Escalon

opined that Lucio’s demeanor during interrogation meant she was “beat,” “giving up,”

and “hiding the truth” when she said others harmed Mariah. ROA.4409-10.

During its closing argument, the State replayed portions of the interrogation

video, and characterized Lucio’s statement as a “confession,” which proved beyond a

10

“reasonable doubt that [Lucio] killed that little girl.” ROA.4782. See also ROA.4783,

4802-03, 4811, 4816-18. Regarding Lucio’s denials of responsibility, the State argued

the jury could find “the true and correct statement at the end. She admitted it. She

admitted that she caused all of the injuries to that child, ladies and gentlemen.”

ROA.4803; ROA.4805-06 (inference from pattern of abuse was that Lucio caused Mariah’s death).

The prosecutor also highlighted Lucio’s demeanor during the interrogation,

ROA.4803, rhetorically asking why she would look or act a certain way if all she did

“was physically beat the child, but didn’t cause the death.” ROA.4811. The prosecutor

also amplified what he called Escalon’s opinion that Lucio was “really guilty” and

hiding the truth because of her body language. ROA.4816.

E. Lucio’s Preempted Defense

Lucio’s defense was innocence. ROA.4220. Defense counsel’s opening statement promised to show that “Lucio … has all of the classic symptoms of a battered

woman” including that “she’ll say things to please people” even if they aren’t true,

and that is what she did under interrogation. ROA.4221.

Lucio attempted to present two expert witnesses to testify that her “confession”

was not trustworthy: social worker Norma Villanueva and psychologist Jonathan

Pinkerman. The prosecution objected to Villanueva on several grounds including expertise. ROA.4687. The court wanted to “hear the Daubert.” ROA.4691. Voir dire established that Villanueva was a licensed social worker with graduate-level education

and possessed “the highest national clinical license to allow [her] to do diagnosis and

treatment of mental health disorders.” ROA.4692-93. Her training in mental health

11

diagnosis included study of what people are “trying to convey by the way they act, by

the way they hold their body, by the way they move their arms and hands.”

ROA.4693. The ability to incorporate non-verbal communication in assessments was

“included in our clinical licenses.”6 ROA.4697-98.

Based on an assessment using standard methods in her field (which were undisputed, see ROA.4698-99), including review of the client’s history, Villanueva identified “[s]everal patterns of behavior” Lucio exhibited when dealing with people in

authority, especially CPS. ROA.4694. Based on Lucio’s history of being abused by

men with authority over her—her stepfather and husbands—and the record of Lucio’s

interactions with CPS over more than a dozen years, ROA.4685-86, Villanueva found

Lucio acquiesced to male authority figures. ROA.4706-07. The defense offered her to

explain “why [Lucio] would have given police officer’s [sic.] information … that was

not correct,” ROA.4691, and is someone who “admits to things that she didn’t do.”

ROA.4687. Villanueva testified she would not opine on whether or not Lucio’s statements were true based on her body language. ROA.4696.

The trial court excluded Villanueva’s testimony on the ground that she was not

qualified on the issue of “whether or not the statement was true or not true.”

ROA.4700.

6 Villanueva’s curriculum vitae evidences a lengthy history of specialized train-

ing. ROA.5433-39.

12

After the court told defense counsel that “a psychologist … may or may not be

appropriate,” ROA.4691, the defense presented Dr. Pinkerman, a Ph.D. in psychology, retained to examine the validity of Lucio’s confession. ROA.8975. Dr. Pinkerman

“reviewed all of the available records” from CPS, the videotapes, autopsy photos, and

other evidence. ROA.8975; ROA.4759-60. Pinkerman met with Lucio four times “to

obtain her social history and conduct psychological tests.” ROA.8975. He also reviewed the literature on Battered Woman Syndrome and false confessions.

ROA.5168-69, 8975.

Pinkerman’s review of the evidence produced “serious questions about the nature of Mrs. Lucio’s interrogation and confession.” ROA.8975. In regards to Lucio’s

custodial statements, he would have testified that Lucio was a “battered woman,”

ROA.4751, that her appearance during the “video statement … shows all the signs …

of being a battered woman,” ROA.4752, who “takes blame for everything that goes on

in the family.” ROA.4751. Her “demeanor, both immediately after the incident and

during the interrogation,” could be understood by taking into account those “psychological elements and previous history and background that she has lived through.”

ROA.4759.

The trial court deemed Pinkerman’s testimony “irrelevant.” The court said it

had “a hard time figuring out how” testimony that cast doubt on Lucio’s incriminating

statement “goes to the issue of guilt or innocence” because “in the statement [Lucio]

did not admit killing the child” but to “actions that she took that could have resulted

13

in the death.”7 ROA.4752. The trial judge left the bench before defense counsel put

Pinkerman’s proffer on the record. App. 51a; ROA.4757-58.

Before the jury, the defense called only three witnesses. A neurosurgeon who

operated on children, ROA.4610-11, and specialized in head injuries, ROA.4589, and

testified that blunt force trauma from a fall down stairs could have caused Mariah’s

death, ROA.4588-89, ROA.4598. Lucio’s sister, Sonia Chavez, testified that Lucio

“never disciplined her children.” ROA.4658. CPS worker Joanne Estrada, a recalled

prosecution witness, testified that Mariah had tantrums while in foster care and had

hit her head on the floor. ROA.4724. Estrada testified that she had not come across

anything in Lucio’s file that showed she was “physically abusive to any of the children.” ROA.4746.

Defense counsel’s closing argument attempted to explain Lucio’s statements as

an admission of abuse and neglect but not murder. ROA.4789. The defense also explained Lucio’s statements as products of a coercive and un-counseled interrogation.

ROA.4798.

During deliberations, the jury asked to see the interrogation video “in its entirety,” ROA.4823, before finding Lucio guilty of capital murder.

Following a trial as to punishment, at which Pinkerman and Villanueva testified to the “special issues” in Tex. Code Crim. Proc. art. 37.071, § 2(b), Lucio was

sentenced to death. See ROA.8093, 8097-98.

7 The question the jury would have to answer was whether Lucio intentionally or

knowingly killed Mariah and did so by striking her. See Louis v. State, 393 S.W.3d

246, 251 (Tex. Crim. App. 2012).

14

II.

Procedural History

A. Direct Appeal

On appeal, Lucio argued “the trial court erroneously excluded Villanueva’s proposed testimony at the guilt phase” because the jury could have relied upon “appellant’s being a battered woman” to find her “statement to the police was involuntary

as a matter of state law.” Lucio v. State, 351 S.W.3d 878, 898 (Tex. Crim. App. 2011),

cert. denied, 566 U.S. 1036 (2012). See ROA.10840-43. The Texas Court of Criminal

Appeals (“CCA”) found Lucio “failed to preserve the claim;” failed to show “the trial

court abused its discretion;” and “any error … was harmless” because, the evidence

“at best, may have been marginally relevant to the issue of the voluntariness.” Lucio,

351 S.W.3d at 900-01 (citing Tex. R. App. P. 44.2(b) (appellate courts must disregard

non-constitutional errors that do not affect substantial rights)).

Lucio’s next claim made the same arguments regarding Pinkerman, id. at 901

(quoting ROA.10843), and the CCA reached the same conclusions, id. at 902.

B. State Habeas

Lucio’s state habeas application alleged the “trial court deprived Melissa of the

constitutional right to present a complete defense when it excluded the testimony of

defense experts during the guilt/innocence phase of trial.” ROA.8029. See also

ROA.8034 (“[T]he trial court violated Melissa’s right to present a complete defense

when it disallowed her expert’s testimony during guilt/innocence as irrelevant.”).

Lucio proffered evidence Villanueva and Pinkerman would have presented “to

attack the credibility of the State’s case.” The factual proffer included “CPS documentary records regarding Melissa’s social history and [her] psychological profile to

15

demonstrate that she was submissive and abused—not an aggressive abuser.”

ROA.8033. As it did in the penalty phase, Villanueva’s presentation would have culminated in two juxtaposed images of Melissa sitting with her head cocked to one side,

her shoulders slumped, and her hands crossed in her lap. One picture was taken when

Melissa was six, when the sexual abuse started, and the other when she was being

interrogated by Escalon. ROA.9017-18.

Dr. Pinkerman would have testified to Lucio’s history of being abused,

ROA.8031, her tendency to disassociate, and her “dependent and acquiescent personality,” ROA.8976. Based on his review of “research related to false confessions,”

Pinkerman was prepared to testify that Lucio’s “psychological characteristics” combined with the prolonged interrogation in isolation made it likely that she would provide “a false confession in order to avoid investigation of her children.” ROA.8976. He

explained that “disassociation … defined as the isolation of thought from feelings”

would explain why she “appear[ed] empty or passive.” Ibid. Rather than taking responsibility for the head injury that caused Mariah’s death, Pinkerman would have

testified that she could have been “taking responsibility for the whole configuration

of the abuse and medical neglect by the family.” ROA.8977.

Lucio’s witnesses would have backed up their analyses with “the sibling-tosibling physical abuse documented in the CPS files,” ROA.9022 (Villanueva);

ROA.8976 (Pinkerman), that “suggest[ed] that there were bite marks on the children

while the children were in foster care before Mariah’s death.” Ibid. Pinkerman would

16

have added that his assessment showed Lucio did not fit any of the psychological

literature’s “identified subtypes of child murder mothers.” ROA.8977.

Texas answered Lucio’s claim without mentioning the complete defense right,

or any related cases. Texas asserted that Lucio’s claim was “nearly identical to issues

nine and ten raised on appeal.” ROA.10027. It argued “[t]he trial court did not err,”

ROA.10027, relying exclusively on state law. ROA.10028-31.

Adopting the State’s proposed findings and conclusions verbatim, the state habeas court recommended that the CCA deny relief. The court found:

39. Applicant’s complaint about this Court’s exclusion of her mitigation

experts from the guilt-innocence portion of the trial is nearly identical

to issues nine and ten raised on direct appeal. Matters raised on direct

appeal should not be re-litigated on habeas unless the judgment is subsequently rendered void or a subsequent change in the law is made retroactive. While additional evidence may warrant relief even when the

issue was raised on direct appeal, Applicant has not demonstrated that

she is entitled to relief herein because of any additional evidence herein.

40. Moreover, this Court did not abuse its discretion in excluding the

testimony of Norma Villanueva and Dr. John Pinkerman from the guiltinnocence portion of the trial. Ms. Villanueva proffered nothing to indicate that she had any sort of specialized experience, knowledge or training in the area of interpreting body language and patterns of behavior

during police interviews. Dr. Pinkerman’s proffered testimony as to Applicant’s psychological functioning, including how there was little supp

ort in the “historical record” for the idea that Applicant physically

abused her children, that she suffered from battered woman syndrome,

and the meaning of her demeanor after the incident and during questioning had no relevance to the question of Applicant’s guilt or innocence.

App. 184a (ROA.10091 ¶¶ 39-40). See also App. 188a.

17

After noting that the “trial court adopted the State’s proposed findings of fact

and conclusions,” the CCA expressly “adopt[ed] the trial judge’s findings and conclusions.” App. 172a.

C. District Court Decision

Lucio sought relief in the federal district court, repeating the allegations raised

in her state habeas application. ROA.157-61.

Texas moved for summary judgment. As to Lucio’s complete-defense claim,

Texas conceded that “Lucio raised this claim in state habeas proceedings,” ROA.374,

but continued to argue the claim was “really a complaint that the trial court erred in

applying a state evidentiary rule” and thus is not cognizable on federal habeas review.” ROA.373 (modified heading).

Texas argued that the constitutional complete-defense right “is constrained by

evidentiary rules,” ROA.375, and “the Supreme Court has only found a violation of

the defendant’s right to present a complete defense where an arbitrary evidentiary

rule kept the evidence out.” ROA.376 (emphasis in original). The State contended that

when Lucio “challenges … not the rule, but the trial court’s application of it,” she is

presenting a state-law claim in the “guise” of a federal constitutional claim. ROA.377.

The district court accepted the State’s view and found “Lucio’s attempt to dress

up this state evidence claim as a constitutional claim is unconvincing,” and her “claim

is without merit.” App. 150a. It concluded that Lucio had not shown that the trial

court’s “exclusion of Villanueva’s testimony on the basis of Villanueva’s lack of expert

qualifications was incorrect” and there were no indications that Lucio’s statements

18

were involuntary. App. 150a. As to Pinkerman, it considered his testimony to be “only

tangentially related to the question of Lucio’s guilt or innocence.” App. 150a.

D. Fifth Circuit Decisions

A unanimous panel of the Fifth Circuit reversed the district court and remanded for the district court to grant Lucio relief. App. 71. It concluded that “no state

court ever adjudicated the claim,” and therefore, reviewed the claim de novo. App. 71.

On the merits, the panel concluded that “the trial court deprived Lucio of her constitutional right to present a meaningful defense.” App. 71. The court found the exclusion of Dr. Pinkerman’s testimony as irrelevant “was inconsistent with the reality of

this trial.” App. 84a. The panel explained that “Lucio’s admissions of abuse within

her interrogation statement were the most significant evidence in the case” and there

was “no physical evidence or witness testimony directly establishing that Lucio

abused Mariah or any of her children, let alone killed Mariah.” App. 85a. Thus, the

panel held, the exclusion of Dr. Pinkerman’s testimony “bears the hallmark sign of

arbitrariness: complete irrationality.” App. 86a. “To undercut the State’s premise

(i.e., Lucio abused Mariah) is to undercut its conclusion (i.e., Lucio killed Mariah).”8

App. 86a.

Texas petitioned for rehearing en banc on three grounds not at issue here.9 The

Fifth Circuit granted rehearing and vacated the panel opinion. App. 69a.

8 The panel did not reach the question whether the exclusion of Norma Villanueva

violated Lucio’s right to present a complete defense but noted that Villanueva’s exclusion also “raises concerns about the fairness of the trial.” App. __ (n.1).

9 Although the 7-judge plurality opinion addressed one of the issues the State

raised in its petition, the 3-judge concurrence addressed none of them.

19

The 17-judge en banc court produced a sharply divided decision. Seven judges

joined a plurality opinion and announced the judgment affirming the district court.

App. 6a-37a. Three judges joined a concurring opinion authored by Judge Southwick

that did not join the plurality opinion, but concurred on narrower grounds. App. 37a40a. Seven judges dissented and would have held the state court unreasonably applied this Court’s complete-defense cases. App. 48a-68a. While a majority of judges

(10) agreed with the result and agreed that 28 U.S.C. § 2254(d) barred relief, no majority agreed on the reasoning for denying relief.

The plurality concluded that Lucio “disclaimed any reliance on Crane [v. Kentucky, 476 U.S. 683 (1986)],” in her state habeas claim, and therefore refused to evaluate the reasonableness of Lucio’s claim under Crane. App. 16a (emphasis in original). Judge Southwick’s decisive concurring opinion considered the application of

Crane and other potentially relevant cases, App. 38a-40a, and held that “clearly established Supreme Court authority falls short of permitting us to reject the state habeas court’s consideration of th[e] issue.” App. 37a; ibid. (“[W]hat is at issue … is

whether [Crane] permits us to conclude that the state court erred … and then to correct the error”).

Judge Southwick found the exclusion of Lucio’s experts was “the key evidentiary ruling at trial,” and agreed with the dissent that it was “imperative that jurors

hear this testimony.” App. 37a. “[W]orking within the constraints of AEDPA,” the

concurrence found that the issue was “whether a Supreme Court decision with language helpful to Lucio’s claim . . . permits us to conclude that the state court erred in

20

rejecting this claim and then correct the error.” App. 38a. Judge Southwick concluded

that “Crane overrides any blanket evidentiary rule that prevented the introduction

in the particular case of reliable, competent evidence central to the defense,” and for

Lucio to prevail, “Crane must do more.” App. 40a. Because “the interpretation of

Crane that is necessary for relief in this case is not clearly established,” App. 38a, the

analysis ended there. Judge Southwick concluded Lucio’s case “is a clear example

that justice to a defendant may necessitate a more comprehensive review of statecourt evidentiary rulings than is presently permissible under law that is established

with sufficient clarity.” App. 40a.

The principal dissent concluded that “the state habeas court’s rejection of Lucio’s complete defense claim as irrelevant was irrational and an unreasonable application of Crane and Chambers.” App. 65a.10

REASONS FOR GRANTING THE PETITION

I.

This Court Should Resolve the Question Whether Clearly

Established Federal Law Applies the Right to Present a

Complete Defense to Arbitrary and Disproportionate Exclusions of Defense Evidence Made Pursuant to Generally

Valid Rules of Evidence

It is well established that the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment guarantee a right

to “a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476

U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).

10 And, while the dissenting opinion analyzed the claim under § 2254(d), it noted

that “several judges joining in this dissenting opinion concur in the now-vacated

panel’s viewpoint that the state habeas court failed to adjudicate Lucio’s complete

defense claim on the merits.” App. 58a.

21

A long line of decisions from this Court hold that the right to present one’s own witnesses to establish a defense ranks as a “fundamental element of due process of

law.”11 Washington v. Texas, 388 U.S. 14, 19 (1967); see also Chambers v. Mississippi,

410 U.S. 284, 302 (1973); Crane, 476 U.S. at 690 (1986); Rock v. Arkansas, 483 U.S.

44, 55 (1987); Holmes v. South Carolina, 547 U.S. 319, 324 (2006).

Generally, this constitutional right is in accord with state rules of evidence

which channel the presentation of a defense. But, as this Court has held—and a majority of circuits have recognized— a trial court violates this right when the exclusion

of reliable evidence “infringe[s] upon a weighty interest of the accused” and is “arbitrary or disproportionate to the purposes [the rules of evidence] are designed to

serve.” United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock, 483 U.S. at

56); see also Holmes, 547 U.S. at 324; Kubsch v. Neal, 838 F.3d 845, 862 (7th Cir.

2016) (en banc). Or, as Chambers held, the exclusion of “critical,” “trustworthy” evidence “directly affecting the ascertainment of guilt” based on “mechanistic[]” application of an otherwise valid rule of evidence violates a defendant’s due process rights.

410 U.S. at 302.

The Fifth Circuit’s deeply divided decision below creates a two-circuity minority that holds this Court’s cases only apply when “a rule govern[s] some evidentiary

11 “[T]he right to compulsory process was included in the Bill of Rights in reaction

to the notorious common-law rule that in cases of treason or felony the accused was

not allowed to introduce witnesses in his defense at all.” Washington, 388 U.S. at 19

(citing 3 Story, Commentaries on the Constitution of the United States §§ 1786-88 (1st

ed. 1833)). See also 4 William Blackstone, Commentaries on the Laws of England

*345, *351-53 (critiquing common-law prohibition as “oppressive” and “unreasonable”).

22

category,” and imposes a non-discretionary, “blanket” rule preventing the introduction of evidence in that category. App. 40a. On that view, this Court’s cases are not

sufficiently clear as to whether a “discretionary application of a general evidentiary

standard” can support habeas relief. App. 39a-40a. These two circuits fundamentally

misread this Court’s precedents, depend on an illusory, inconsequential distinction,

and prevent federal courts from remedying fundamental injustices in cases where

defendants have been prevented from presenting evidence of their innocence.

A. The En Banc Fifth Circuit’s Fractured Decision Deepens

the Conflict Among the Circuits About What Chambers

v. Mississippi and Its Progeny Established.

1. The majority approach

The vast majority of circuits—the First, Second, Third, Fourth, Sixth, Seventh,

Eighth, Tenth, and Eleventh—have held that Chambers, Green v. Georgia, 442 U.S.

95 (1979) (per curiam), Rock, Crane, and Holmes clearly establish a complete-defense

right that applies when a state trial court excludes evidence based on a generally

applicable and valid rule such as relevance, hearsay, or that the evidence is more

confusing than probative.

Echoing this Court, these circuits recognize the “broad latitude” afforded “state

and federal rulemakers” to prescribe evidentiary standards. Kubsch, 838 F.3d at 857

(quoting Holmes, 547 U.S. at 324). But they also recognize that “[t]his latitude . . .

has limits.” Ibid. (quoting Holmes, 547 U.S. at 324). Accordingly, these circuits narrowly hold that “the exclusion of evidence in a criminal trial ‘abridge[s] an accused’s

right to present a defense’ only where the exclusion is ‘“arbitrary’” or ‘“disproportionate to the purpose[ ] [it is] designed to serve.”’” Ferensic v. Birkett, 501 F.3d 469, 475

23

(6th Cir. 2007) (quoting Scheffer, 523 U.S. at 308, in turn quoting Rock, 483 U.S. at

56). In addition, these courts recognize that due process can override the application

of a state rule only in “extreme cases,” such that “a state law justification for exclusion

will prevail unless it is ‘arbitrary or disproportionate’ and ‘infringe[s] upon a weighty

interest of the accused.’”12 Fortini v. Murphy, 257 F.3d 39, 46 (1st Cir. 2001) (citing

Crane, 476 U.S. at 690, and quoting Scheffer, 523 U.S. at 308). Finally, these circuits

apply this Court’s requirement that the accused demonstrate that the excluded testimony was “unusually reliable.”13 Kubsch, 838 F.3d at 860.

The en banc Seventh Circuit’s decision in Kubsch illustrates the approach

taken by the majority of circuits to determine what law this Court has clearly established. The Seventh Circuit observed that “AEDPA does not require state and federal

courts to wait for some nearly identical factual pattern before a legal rule must be

applied.” 838 F.3d at 859 (quoting Panetti v. Quarterman, 551 U.S. 930, 953 (2007)).

Therefore, the court, like others, carefully reviewed the facts and reasoning of this

12 See also Scrimo v. Lee, 935 F.3d 103, 112 (2d Cir. 2019) (reasoning that the

right to present evidence cannot be limited by arbitrary or disproportionate rules);

Brown v. Luebbers, 371 F.3d 458, 467-68 (8th Cir. 2004) (en banc) (state court reasonably applied Green when it determined “stale evidence of a convicted murderer’s

character … well before the murder was committed [] not “highly relevant” to a “critical issue” and cumulative of other evidence).

13 See also Pittman v. Sec’y, Fla. Dep’t of Corr., 871 F.3d 1231, 1248 (11th Cir.

2017) (upholding exclusion where defendant failed to show “hearsay statement was

sufficiently trustworthy and reliable”); Brown, 371 F.3d at 467-68 (upholding state

court’s exclusion of hearsay where state court implicitly found defendant failed to

satisfy Green’s requirement to show “substantial reasons exist to assume … reliability”); cf. Chia, 360 F.3d at 1006 (finding sufficient indicia of reliability under Chambers).

24

Courts cases beginning with Chambers to ascertain what “the Chambers line of Supreme Court precedent” requires. Id. at 862. That review led the court to conclude

that “the Supreme Court in Chambers and the cases following it has said that when

hearsay is otherwise reliable, is critical to the theory of the defense, and the case

involves a murder prosecution, due process requires its admission.” Ibid.

After applying a stringent five-part test, Kubsch held that the Indiana Supreme Court’s conclusion that Chambers did not require the admission of an exculpatory video that was excluded on hearsay grounds was contrary to or an unreasonable application of this Court’s clearly established complete-defense law. Ibid. The

Seventh Circuit has applied this approach in reviewing exclusions of evidence pursuant to other generally valid state rules of evidence. E.g., Fieldman v. Brannon, 969

F.3d 792, 800 (7th Cir. 2020) (holding state court’s ruling that excluded as irrelevant

defendant’s testimony attempting to discredit incriminating video was contrary to

clearly established federal law).

In Ferensic, the Sixth Circuit found the “entirety of the evidence against Ferensic was based upon eyewitness identifications.” 501 F.3d at 470. Therefore, the trial

court’s exclusion of lay and expert testimony casting doubt on those identifications

infringed the defendant’s “weighty interests”. Id. at 475-76 (citing Scheffer, 523 U.S.

at 308). The state court unreasonably applied the complete-defense rule when it applied an “outcome-based prejudice standard,” rather than evaluate whether the exclusion of the expert’s testimony was disproportionate to the purpose of the rule requiring timely expert disclosures, as this Court’s cases clearly required. Ibid.

25

The Second Circuit similarly concluded this Court’s cases clearly establish a

limited complete-defense inquiry even when an “evidentiary ruling was correct pursuant to a state evidentiary rule.” Scrimo v. Lee, 935 F.3d 103, 115 (2d Cir. 2019)

(quoting Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir. 2006)). Under those circumstances, the Court “‘consider[s] whether the evidentiary rule is arbitrary or disproportionate to the purposes it is designed to serve.’” Ibid.

The Eleventh Circuit recognizes that Chambers held “that the generally valid

prohibition on hearsay was overcome because the hearsay evidence ‘bore persuasive

assurances of trustworthiness’” and so, even when an evidentiary rule is generally

“not arbitrary,” a petitioner may still “be entitled to a constitutional override” of the

rule if the petitioner “ha[s] offered evidence that [the excluded evidence] was sufficiently trustworthy and reliable.” Pittman v. Sec’y, Fla. Dep’t of Corr., 871 F.3d 1231,

1248 (11th Cir. 2017) (citing Chambers, 410 U.S. at 302).

The First Circuit has likewise deduced from this Court’s cases that “[e]ven a

generally defensible rule of evidence may be applied so as to produce an unconstitutional infringement.” Brown v. Ruane, 630 F.3d 62, 72 (1st Cir. 2011) (citing White v.

Coplan, 399 F.3d 18, 24 (1st Cir. 2005)). Thus, the First Circuit has recognized that

clearly established law permits a petitioner to attack “the application of the rule by

the state court to the present facts—essentially, an ‘as applied’ challenge to the fit

between the generalization and the circumstances.” Santiago v. O’Brien, 628 F.3d 30,

34-35 (1st Cir. 2010).

26

The Tenth Circuit also has held that “Supreme Court precedents

like Rock and Chambers ‘make[ ] clear that a state court may not apply a state rule

of evidence in a per se or mechanistic manner so as to infringe upon a defendant’s

constitutional right to a fundamentally fair trial.’” Dodd v. Trammell, 753 F.3d 971,

988 (10th Cir. 2013) (quoting Paxton v. Ward, 199 F.3d 1197, 1214 (10th Cir. 1999)).

In an unpublished case, the Third Circuit has similarly recognized that this

Court’s clearly established precedent holds that “state evidentiary rules cannot be

inflexibly applied in such a way as to violate fundamental fairness.” Savage v. Dist.

Att’y of Cty. of Philadelphia, 116 F. App’x 332, 338 (3d Cir. 2004) (citing Chambers,

410 U.S. 299-302). The clearly established right protects a defendant from a government restriction on the opportunity to be heard, “be it in the form of an unnecessary

evidentiary rule . . . or an arbitrary ruling from the trial judge.” Id. at 339 (quoting

Gov’t of Virgin Islands v. Mills, 956 F.2d 443, 445 (3d Cir. 1992)).

Consistent with this approach, the Fourth Circuit has implicitly found applications of generally valid rules of evidence fell within the clearly established ambit of

the complete-defense cases, and found state court applications of this rule unreasonable. Barbe v. McBride, 521 F.3d 443, 460 (4th Cir. 2008) (concluding “that application of the West Virginia rape shield law at Barbe’s trial was disproportionate to the

State’s interests in having the law applied”).

The Eighth Circuit has also identified Chambers as “articulat[ing] the legal

principles applicable to” a petitioner’s complete-defense claim. Guinn v. Kemna, 489

F.3d 351, 354 (8th Cir. 2007). Relying on the shared views about Chambers in the

27

plurality and dissenting opinions in Montana v. Egelhoff, 518 U.S. 37 (1996) (neither

of which were precedential), Guinn stated that Chambers stood for the proposition

that an “erroneous evidentiary ruling’ can, of course, be one made ‘without sufficient

justification.” See 489 F.3d at 354.

2. The minority approach

The position adopted by the Fifth Circuit stands in stark contrast to this

broadly held view about Chambers and its progeny. The Fifth Circuit joins just one

other circuit in holding that this Court’s cases only clearly apply when the validity of

a state evidentiary rule excluding an entire category of defense evidence is at issue.14

Along with the Fifth, the Ninth Circuit has sharply narrowed the reach of this

Court’s complete-defense cases to determining the validity vel non of the rules applied

in trial courts. Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009). According to the

Ninth Circuit, this Court’s cases “have focused only on whether an evidentiary rule,

by its own terms, violated a defendant’s right to present evidence.” Ibid. Hence, Supreme Court law “do[es] not squarely address whether a court’s exercise of discretion

to exclude expert testimony violates a criminal defendant’s constitutional right to

present relevant evidence,” id. at 758 (citing Wright v. Van Patten, 552 U.S. 120, 124

14 The plurality purported to find four circuits that shared its approach. See App.

20a-21a (citing Rucker v. Norris, 563 F.3d 766, 770 (8th Cir. 2009); Grant v. Royal,

886 F.3d 874, 957, 960 (10th Cir. 2018); Troy v. Sec’y, Fla. Dep’t of Corr., 763 F.3d

1305, 1316 (11th Cir. 2014); Gagne v. Booker, 680 F.3d 493, 516 (6th Cir. 2012) (en

banc), but as the principal dissent below pointed out, only the Ninth Circuit in Moses

has actually made such a determination. App. 64a.

28

(2006)), and doesn’t “clearly establish ‘a controlling legal standard’ for evaluating discretionary decisions to exclude the kind of evidence at issue here.” Id. at 758-59 (citing

Panetti, 551 U.S. at 955).15

Given that the minority circuits’ view breaks with the longstanding application

of this Court’s cases, it is unsurprising that they tend to create intra-circuit conflicts.16 For example, the Ninth Circuit in Moses did not distinguish or overrule earlier

precedent applying this Court’s cases differently, see Chia v. Cambra, 360 F.3d 997

(holding exclusion of a declarant’s out-of-court statements violated his due process

rights under Crane); Perry v. Rushen, 713 F.2d 1447 (9th Cir. 1983). The en banc

decision below similarly did not mention Kittelson v. Dretke, 426 F.3d 306, (5th Cir.

2005) (per curiam), a case in which the Fifth Circuit held, contrary to the majority in

Lucio, that the state trial court’s discretionary limitation on cross-examination was

15 The Sixth Circuit nearly embraced this minority view on at least one occasion.

But cf. Ferensic. In Gagne, 680 F.3d 493, another en banc court fractured badly in

interpreting the scope of Chambers, Crane, and other complete-defense cases. A plurality of judges rejected any as-applied attack on the application of Michigan’s rape

shield law, finding that no clearly established case had held that an exclusion could

ever trump the state’s legitimate interest in the law. While one judge who concurred

in the judgment seemed to agree with this result for the same reasons as the Ninth

Circuit in Moses, see id. at 526 (Clay, J.), three other concurring judges deprived that

view of precedential force and interpreted Chambers et al. differently. See id. at 521

(Moore, J.); id. at 526-27 (White, J.).

16 The gloss the court below gives to this Court’s cases also is inconsistent with

Nevada v. Jackson, 569 U.S. 505 (2013). There, this Court addressed a state court’s

reasonable application of the clearly established complete-defense right. This Court

treated “the constitutional propriety of [the evidence] rule” as the starting point—not

the end point—for its analysis, id. at 510, and then examined the “enforcement of the

Nevada rule,” id. at 510-11. If all that was clearly required was a state court’s compliance with a constitutionally valid rule of evidence, Jackson engaged in needless

analysis.

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an unreasonable application of this Court’s complete-defense precedents. Id. at 310,

319-21.17

B. The Decision Below Fundamentally Misreads This

Court’s Precedent.

1. The Fifth Circuit and other minority circuits misread this Court’s complete-defense cases

The decisions of the Lucio plurality and concurrence are predicated on a basic

misreading of this Court’s precedent, beginning with an incomplete account of the

holding in Chambers. The Lucio concurrence is typical in saying that Chambers “concerned a bar to any evidence that ran afoul of the common-law voucher rule.” App.

40a; see also App. 23a (plurality) (discussing only the voucher rule aspect of Chambers). While Chambers held that the “‘voucher’ rule, as applied in this case, plainly

interfered with Chambers’ right to defend against the State’s charges,” 410 U.S. at

298 (emphasis added), that was not the only, or even a sufficient, basis for the holding. Chambers said it “need not decide … whether this [voucher] error alone would

occasion reversal” because there was other evidence excluded as hearsay that, together with the “voucher” evidence violated Chambers’ rights. Id. at 298-300.

As the en banc Seventh Circuit noted, although Chambers was critical of the

voucher rule, this Court “did not rest its holding on any criticism of Mississippi’s rules

of evidence, either the voucher rule or the hearsay rule.” Kubsch, 838 F.3d at 855.

Rather, it looked to the reliability of the evidence Chambers was proffering and found

17 Kittelson was discussed at length by the vacated panel opinion and dissent,

App. 65a (Haynes, J., dissenting), 84a, 87a (panel) but not even mentioned by either

the plurality or concurrence.

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that it bore “persuasive assurances of trustworthiness.” Ibid. (quoting Chambers, 410

U.S. at 302). Justice Scalia’s dictum about Chambers is much closer to the mark:

Chambers shows that “erroneous evidentiary rulings can, in combination, rise to the

level of a due process violation.” Egelhoff, 518 U.S. at 53 (plurality op.); cf. Fry v.

Pliler, 551 U.S. 112, 126 (2007) (Breyer, J., concurring in part & dissenting in part)

(“A garden-variety nonharmless misapplication of evidentiary principles normally

will not rise to the level of a constitutional, Chambers, mistake.” (citing Scheffer, 523

U.S. at 308)).

Indeed, the minority view cannot be reconciled with this Court’s application of

Chambers in Green v. Georgia. In Green, this Court vacated the petitioner’s death

sentence because the trial court denied his request to present a State’s witness’s testimony, at the punishment stage, that the co-defendant confessed to them. The testimony was excluded under Georgia’s hearsay rule. Id. at 96. Noting that Chambers

held that “the hearsay rule may not be applied mechanistically,” Green found these

facts violated due process. Id. at 97. (quoting Chambers, 410 U.S. at 302.) See also

Sears v. Upton, 561 U.S. 945, 950 & n.6 (2010) (“[W]e have also recognized that reliable hearsay evidence that is relevant to a capital defendant’s mitigation defense

should not be excluded by rote application of a state hearsay rule.”) (referencing

Green, 442 U.S. at 97).

The categorical prohibition rule that the Fifth and Ninth Circuits apply is contrary to precedent and based on a specious distinction.

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Instead of identifying the principles clearly established in this Court’s holdings, the Fifth and Ninth Circuits derive a limiting principle from their erroneous

readings—that only a “blanket” evidentiary rule that categorically prohibits a class

of evidence can violate a defendant’s complete defense right. E.g., App. 40a (Crane

“overrides any blanket evidentiary rule that prevented the introduction in the particular case of reliable, competent evidence for the defense.”); App. 20a-21a (plurality).

Holmes v. South Carolina reveals how illusory the purported distinction is between categorical rules (i.e. cases where this Court invalidated a State’s rule), and

discretionary-application cases. In Holmes, this Court reviewed a particular interpretation of a common—and presumptively valid—“third-party guilt rule,” “regulating

the admission of evidence proffered by criminal defendants to show that someone else

committed the crime with which they are charged.” 547 U.S. at 327. In Bobby

Holmes’s case, the South Carolina Supreme Court “radically changed” that valid rule

by holding in effect that, “[i]f the prosecution’s case is strong enough, the evidence of

third-party guilt is excluded even if that evidence, if viewed independently, would

have great probative value and even if it would not pose an undue risk of harassment,

prejudice, or confusion of the issues.” Id. at 329. That rule would seem to categorically

prohibit any third-party evidence when the prosecution’s case was strong enough. But

it also entrusted to the reviewing court a highly discretionary judgment—how strong

the prosecution’s case was. Thus, this Court noted that “as applied in this case” the

state supreme court had overlooked defense objections to the prosecution’s evidence

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in evaluating the strength of the case. Ibid. So, Holmes involved the type of “discretionary application of a general evidentiary standard” that the Lucio court believed

was excluded from this Court’s case law. App. 39a-40a.

By the same token, the rules in Lucio’s case do not fit neatly into the categorical/discretionary dichotomy. As the principal dissent below rightly recognized,

Texas’s rule of relevance entrusts the determination of relevancy to the discretion of

the trial court, but “provides trial courts no discretion to admit or exclude irrelevant

evidence.” App. 64a (Haynes, J., dissenting). Consequently, like in Holmes, the trial

court here “categorically denied [Lucio] the ability to scientifically explain about how

Battered Woman Syndrome played a role in her supposed confession.” App. 47a (Elrod J., dissenting); see Holmes, 547 U.S. at 329.

Federal habeas courts’ application of the complete-defense right cannot be

made to turn on such a novel and specious distinction.

Relatedly, the minority, blanket-ban-only view also reaches an absurd conclusion—that this Court requires defendants to pursue exclusively “facial” invalidation

of state evidence rules. See Nash v. Russell, 807 F.3d 892, 898 (8th Cir. 2015) (finding

Holmes represents a species of “facial challenge” to state evidence rules and holding

petitioner’s “as-applied” challenge to state evidentiary ruling was not fairly presented

in state court); Santiago, 628 F.3d at 34-35 (describing “as applied” challenge to state

rule). That turns principles of constitutional litigation on their head: for this right

alone, facial challenges are required when in all other circumstances they “are disfavored.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51

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(2008). This Court has never said the complete-defense rule carries the power invalidate entire evidentiary rules. Since “respect” for state rule-makers is the touchstone,

see Crane, 476 U.S. at 690, it makes sense that this Court has always narrowly tailored its remedy to exclusions in specific cases, id. at 691; see also Chambers, 410 U.S.

at 298 (“The ‘voucher’ rule, as applied in this case, plainly interfered with Chambers’

right to defend against the State’s charges.”).

2. The Fifth Circuit flouted this Court’s precedent on

what counts as “clearly established Federal law.”

The Lucio concurrence and Ninth Circuit in Moses also badly misapply this

Court’s cases on what constitutes “clearly established federal law,” 28 U.S.C.

§ 2254(d)(1). Clearly established federal law refers to “the governing legal principle

or principles set forth by the Supreme Court at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

This Court has shown numerous times that “clearly established federal law”

need not originate in a single case, the way the concurrence treated Crane, or a case

involving a victorious defendant, or apply to cases on all-fours. This Court’s seminal

case on the application of § 2254(d), Williams v. Taylor, 529 U.S. 362 (2000), held that

Strickland v. Washington, 466 U.S. 668 (1984), was clearly established law governing

an ineffective-assistance-of-counsel claim even though this Court had not ever ruled

for a defendant under Strickland before. 529 U.S. at 391. In Andrade, this Court held

that although its cases had “not established a clear or consistent path for courts to

follow,” 538 U.S. at 72, and it had never invalidated a non-capital sentence, it had

clearly established a principle of “gross disproportionality” that was subject to review

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under § 2254(d). Ibid. See also Abdul Kabir v. Quarterman, 550 U.S. 233, 260 (2007)

(clearly established law derived from a line of cases). Finally, in Panetti, this Court

held that Justice Powell’s concurring opinion in Ford v. Wainwright, 477 U.S. 399

(1986), was clearly established law even though it “did not set forth ‘the precise limits

that due process imposes in this area.’” 551 U.S. at 949. The “AEDPA does not ‘require

state and federal courts to wait for some nearly identical factual pattern before a legal

rule must be applied,’” Id. at 953.

The Fifth Circuit’s misunderstanding of these basic rules for identifying the

clearly established law heightens the need for this Court’s review. Contrary to Andrade and Panetti, the concurrence demanded that Crane be on all-fours with Lucio’s

case. App. 39a-40a. Despite Williams, the plurality professed ignorance of any “authority for turning the Supreme Court’s rejection of one prisoner’s claim into clearly

established law that supports a second prisoner’s claim.” App. 35a. And notwithstanding the fact “clearly established” law often derives from multiple cases, the concurrence looked to other cases only to interpret Crane’s clearly established rule. See

App. 40a.18

As a result, the Fifth Circuit failed to recognize that the Chambers line of cases

establish a set of principles that “are fundamental enough that when new factual

18 Applying a highly idiosyncratic interpretation of § 2254(d) and the record, the

plurality purported to review two different state-court claims (one of which had not

been presented to the federal court) and assessed their reasonableness according to

Crane or Chambers, but not both, based on whether Lucio had expressly cited (or

disavowed) the particular case. App. 17a-27a.

35

permutations arise, the necessity to apply the earlier rule will be beyond doubt.” Yarborough v. Alvarado, 541 U.S. 652, 666 (2004).

C. This Question Concerns an Issue of Paramount Importance: The Ability of a Defendant To Make a Defense

of Her Innocence.

As the dissenting judges found, the trial court’s exclusion of Dr. Pinkerman’s

testimony undermining confidence in Lucio’s confession did not merely exclude a

piece of evidence, it precluded her defense almost entirely. App. 60a-61a. While the

issue is a matter of life or death for Lucio, it reaches far beyond her. Data and research show that two factors—false confessions and child victims—are recurring elements in cases where innocent women have been convicted and sentenced to death or

life without parole. False confessions and the presence of a child victim are “more

prevalent in cases of women exonerees convicted of murder who were sentenced to

death or life without parole than those who received life or less than life sentences.”

Connor F. Lang, The Intersection of Wrongful Convictions and Gender in Cases Where

Women Were Sentenced to Death or Life in Prison Without Parole, 27 Mich. J. Gender

& L. 403, 408 (2020).19 Those two factors were prominent in the cases of the eight

women who, as of August 2020, were convicted of murder, received sentences of death

or life without parole, and were later exonerated. Id. at 410.

19 Women, while they make up a smaller number of overall exonerees for murders,

have a larger proportion of false confession and child victims as factors than men. Of

the sixty-seven women listed on the National Registry of Exonerations who were exonerated after a murder conviction, over one quarter (17/67) involved false confessions, and nearly one third involved (20/67) involved child victims. See Detailed View,

Nat’l Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx.

36

Gender roles are a factor: “women are the likely victims of false convictions for

violent crimes that are believed to have been committed by care-takers in roles that

are overwhelmingly filled by women.” Id. at 410 n.33 (quoting Kaitlin Jackson &

Samuel Gross, Female Exonerees: Trends and Patterns, Nat’l Registry of Exonerations (Sept. 27, 2014)).

As in Lucio’s interrogation, investigators use gender roles and physical contact

when obtaining false confessions in cases involving women charged with murder. In

the case of Sabrina Butler, whose murder conviction and death sentence were overturned by the Mississippi Supreme Court, Butler v. State, 608 So.2d 314, 315 (Miss.

1992),20 Ms. Butler was questioned for hours late at night and into the early morning

after she found her nine-month-old son not breathing and took him to the hospital.

See Lang, supra, at 414 (citing Maurice Possley, Sabrina Butler, Nat’l Registry of

Exonerations). Ms. Butler described her interrogation and confession where, “Ambitious men questioned, demoralized and intimidated me. In that state of mind, I signed

the lies they wrote on a piece of paper. I signed my name in tiny letters in the margins

to show some form of resistance to the power they had over me.” Id. at 415 (quoting

Maurice Possley, Sabrina Butler, Nat’l Registry of Exonerations).

Similar to the way Ranger Escalon let down Lucio’s hair, when exoneree Debra

Milke told her male interrogator that she did not understand the Miranda warnings,

20 At a second trial, Ms. Butler was acquitted. See Lang, supra, at 415.

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the interrogator responded by putting his hand on her knee and continuing to interrogate her. See Milke v. Ryan, 711 F.3d 998, 1002 (9th Cir. 2013).21 In the case of

Michelle Murphy, who allegedly confessed after eight hours of interrogation, the detective who interrogated her admitted to touching her head and examining her thighs

during the interrogation, which he claimed was only to search for evidence.22 Lang,

supra, at 420.

D. Lucio’s Case Is the Ideal Vehicle for Resolving the Circuit Split

Not only is this a compelling case to review because of the miscarriage of justice

at Melissa Lucio’s trial. Several features make Lucio’s case an ideal vehicle for resolving the split described above.

First, the blanket-ban-only position has been consistently aired at all stages of

this case. The State has urged its radical view of the complete-defense right from

state habeas onward. Second, the decision below tees up a purely legal question about

clearly established law, not a narrower, fact-bound inquiry into whether the state

court unreasonably applied the clearly established law under the circumstances. See

McWilliams v. Dunn, 137 S. Ct. 1790, 1802 (2017) (Alito, J., dissenting). Third, the

State conceded this claim was fairly presented to the state court. ROA.374. Fourth,

and most significantly, the question here is almost certainly outcome-determinative.

21 After the Ninth Circuit granted Ms. Milke’s habeas petition and vacated her

conviction, charges against her were dismissed in 2015, over twenty-four years after

she was convicted and sentenced to death. See Lang, supra, at 417.

22 Ms. Murphy was exonerated in 2015 after DNA testing showed there was DNA

matching the profile of an unknown individual found at the scene that did not match

Ms. Murphy or her child. Lang, supra, at 420.

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Under the majority-circuit approach, Lucio would prevail on remand. There is

no question the exclusion infringed Lucio’s weighty interests by excluding material

evidence. The three concurring and seven dissenting judges of the Fifth Circuit

agreed the exclusion of Dr. Pinkerman was “the key evidentiary ruling at trial” because it was a “factual imperative that jurors hear” the testimony casting doubt on

the supposed confession. App. 37a. The concurring judges also shared the dissent’s

view that “if jurors had only heard” the excluded testimony, it “could have impacted

the verdict” App. 38a.

The judges’ descriptions of the evidence leaves little doubt that the exclusion

of Dr. Pinkerman, at least, was arbitrary and disproportionate to the purposes of the

relevancy rule. Relevance is a rule of efficiency, designed to streamline evidence and

to focus the jury on evidence that makes the question of guilt more or less probable.

See John W. Strong, McCormick on Evidence § 185 (4th ed.). The State’s decision to

elicit testimony about Lucio’s flat affect from paramedics and Ranger Escalon undermines any claim the State could make that how Lucio reacted lacked probative value.

Moreover, as the Seventh Circuit has said, arbitrariness “might be shown by a lack

of parity between the prosecution and defense; the state cannot regard evidence as

reliable enough for the prosecution, but not for the defense.” Kubsch, 838 F.3d 845 at

858. The concurrence’s reluctance to deny relief (noting this case was “a clear example

that justice to a defendant may necessitate a more comprehensive review of statecourt evidentiary rulings than [it believed] is presently permissible,” App. 40a shares

39

much with the dissent’s view that the state court’s ruling arbitrarily prevented Lucio

from presenting a defense. App. 43a.

There is no reason to doubt the reliability of Lucio’s evidence. Dr. Pinkerman

and Ms. Villanueva each reviewed thousands of pages of CPS records that showed:

(1) Mariah had an awkward gate that caused her to fall a lot; (2) there was no evidence Lucio was ever physically abusive to any of her children; (3) there were reports

of Lucio’s older children being physically abusive to their siblings. Both Villaneva and

Pinkerman were reliable enough to be competent witnesses in the penalty phase. And

Texas never questioned Dr. Pinkerman’s clinical observations of Lucio, his research

into Battered Women Syndrome, or his opinion that Lucio does not fit any of the psychological profiles of women who killed their children.

Once the Fifth Circuit’s crabbed understanding of clearly established law is

corrected, all that is left is analyzing the nonsensical state court holdings that Pinkerman’s testimony was irrelevant and Villanueva unqualified. No coherent rationale

could support that assessment.

CONCLUSION

This Court should grant certiorari to resolve this important question.

40

Respectfully submitted,

A. RICHARD ELLIS

Attorney at Law

75 Magee Avenue

Mill Valley, CA 94941

(415) 389-6771

a.r.ellis@att.net

MAUREEN SCOTT FRANCO

Federal Public Defender

Western District of Texas

TIVON SCHARDL

Chief, Capital Habeas Unit

TIMOTHY GUMKOWSKI

Assistant Federal Public Defender

919 Congress Ave., Ste. 950

Austin, Texas 78701

Counsel for Petitioner

Dated: July 9, 2021

41