Press Release 02.18.22

FILING: Texas Law Requires the Removal of Judge Garcia and District Attorney Saenz from Melissa Lucio’s Case

"Texas law automatically disqualifies Judge Garcia and D.A. Saenz," said Tivon Shardl, attorney for Ms. Lucio.

By Innocence Staff

Center: Melissa Lucio at court in 2008 in Brownsville, Texas. (Image: AP Photo/Valley Morning Star, Theresa Najera). Other images provided courtesy of the Lucio family.

Two key members of Ms. Lucio’ s original defense team are now working for the Judge overseeing her case and the District Attorney seeking to have her executed

(Brownsville, Texas) Attorneys for Melissa Lucio today filed two separate motions to remove Judge Gabriela Garcia, who is assigned to Ms. Lucio’s case, and District Attorney Luis Saenz because two key members of Ms. Lucio’s original defense team now work for them. Assistant District Attorney Peter Gilman and Judge Garcia’s court administrator, Irma Gilman, previously represented Ms. Lucio at her 2008 trial. 

As her prior defense team, Mr. Gilman and Mrs. Gilman owe Ms. Lucio a continuing duty to cooperate with her current counsel, according to today’s filings in the 138th Judicial District Court of Cameron County. (Judge Motion at pp. 1-2. )(D.A. Motion at pp. 11-13.) Ms. Lucio, who is  scheduled for execution on April 27, 2022, was wrongfully convicted and sentenced to death for the accidental death of her two-year-old daughter, Mariah. 

“Judge Garcia’s and D.A. Saenz’s roles in this case have the effect of obstructing Melissa Lucio’s access to evidence. As Ms. Lucio’s defense team at trial, Peter Gilman and Irma Gilman have a duty to cooperate with Ms. Lucio’s current counsel. But as long as D.A. Saenz is on the case, Peter Gilman’s conflict of interest prevents him from cooperating with Ms. Lucio’s current attorneys. And as long as Judge Garcia is on the case, Irma Gilman can’t cooperate with Ms. Lucio’s counsel because it would be a prohibited ex parte communication,” said Tivon Schardl, Chief of the Capital Habeas Unit of the Federal Defender for the Western District of Texas, and Melissa Lucio’s attorney.

“Texas law automatically disqualifies Judge Garcia and D.A. Saenz. And both circumstances constitute due process violations under the 14th Amendment,” Schardl added.

Melissa Lucio’s Motion to Disqualify or Recuse Judge Gabriela Garcia can be viewed here.

Melissa Lucio’s Motion to Disqualify the Cameron County District Attorney can be viewed here: here.

Ms. Lucio’s Motion to Disqualify or Recuse Judge Garcia states that Judge Garcia’s court administrator, Irma Gilman, worked on Ms. Lucio’s defense when she was a paralegal for Ms. Lucio’s lead trial counsel, Peter Gilman, her husband. (Judge Motion at p. 1.) The motion states that Mrs. Gilman necessarily learned confidential information while working as Mr. Gilman’s paralegal and that information, under Texas law, is imputed to Judge Garcia. (Judge Motion at p. 1.)

“Judge Garcia’s and D.A. Saenz’s roles in this case have the effect of obstructing Melissa Lucio’s access to evidence.”

Among other issues, the motion states, “Mrs. Gilman’s work on Ms. Lucio’s defense made her familiar with the files of defense counsel in Ms. Lucio’s trial. That knowledge makes Mrs. Gilman an important witness for Ms. Lucio as she investigates and presents grounds” for further litigation. (Judge Motion at p. 2.) If Ms. Lucio’s Motion to Disqualify or Recuse the Judge is granted, the judge will void the warrant for Ms. Lucio’s execution. (Judge Motion at pp. 7-8.)

In a separate motion, Ms. Lucio moves to disqualify District Attorney Saenz on the ground that Peter Gilman, who was Ms. Lucio’s lead defense attorney at her trial, now works for the District Attorney and has since 2009. Mr. Gilman’s dual role as an assistant district attorney and predecessor counsel for Ms. Lucio disqualifies the Cameron County District Attorney’s Office. (D.A. Motion at p. 4.)

The Motion to Disqualify the Cameron County District Attorney quotes the Texas Court of Criminal Appeals, “’If a prosecuting attorney has formerly represented the defendant in the ‘same’ criminal matter as that currently being prosecuted, he is statutorily disqualified.’ This has been called the ‘hard and fast rule of disqualification’ because when [an attorney] switches sides ‘in the same criminal case [there] is an actual conflict of interest [that] constitutes a due-process violation, even without a specific showing of prejudice.’” (D.A. Motion at p. 4.)(citations omitted.)

’If a prosecuting attorney has formerly represented the defendant in the ‘same’ criminal matter as that currently being prosecuted, he is statutorily disqualified.’

The rules of legal ethics also impose on Mr. Gilman a duty to cooperate with Ms. Lucio’s new counsel, which includes reviewing Mr. Gilman’s files to determine whether the D.A.’s office violated Ms. Lucio’s right to a fair trial by suppressing evidence of her innocence. Mr. Gilman has a conflict of interest because his current boss, D.A. Saenz, has pursued a policy of non-cooperation with Ms. Lucio’s current counsel. (D.A. Motion at pp. 11-13.)

On February 8, 2022, Ms. Lucio filed a motion, which is still pending, to withdraw her execution date because she is innocent, among other grounds. Ms. Lucio, a Mexican-American from the Rio Grande Valley, is on death row despite forensic and eyewitness evidence that her daughter died from a head injury after a fall. Mariah’s death was a tragic accident, not a murder.

At the time of her arrest, Ms. Lucio had no record of violence. Thousands of pages of protective service records and recorded interviews with her children show that Ms. Lucio was not abusive.

Hours after her daughter died, and while pregnant with twins, Ms. Lucio was subjected to a five-hour, late-night, carefully orchestrated, and aggressive interrogation until, physically and emotionally exhausted, she agreed to say, “I guess I did it.”

Lacking any solid physical evidence or eyewitnesses, the prior District Attorney, Armando Villalobos, characterized Ms. Lucio’s acquiescence as a “confession” and prosecuted her for capital murder. D.A. Villalobos, who initially hired Peter Gilman, was corrupt: he is now serving a 13-year federal prison sentence for bribery and extortion, according to the U.S. Department of Justice.

Ms. Lucio suffered a lifetime of sexual abuse, starting at just six years old, and domestic violence, which made her especially vulnerable to the intimidating, coercive, and psychological interrogation tactics that resulted in a false confession. Of the 67 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 (20/67) involved child victims.

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  1. Melissa Hamm says:

    My son is in prison on a plea deal. There was a lot more to his case that didn’t get seen, or heard or investigated.
    All across this country we see innocent people or people who were abused or pushed into plea deal, etc. just because of greed and lack of time in our court rooms. It’s absolute nonsense. Prosecutor’s, defender’s and judges should be liable and so should the state when someone is put in jail or prison with no substantial proof of guilt. Legislatures need to clean up the laws and their pay should be cut if they can’t show effective change and responsibility.
    Parole boards need their pay decreased, they are not professional football players.
    We need more responsible adults ready for changes for the positive and for the benefit of the community.

  2. Diane Fountain says:

    If Melissa is mother who loved her children more than life then why would she have not taken her special needs 2yr old to the ER immediately after the her child feel down the flight of stairs? She just fell down 25 steps from top to the bottom of the stairs. We all know she was uneducated and has low IQ is this why she didn’t bother to take her her baby and have her checked out by medical doctor after falling down flight of steep stairs. Packing and getting ready to move was more important than her 2yr old special needs daughters welfare. This isn’t a fight for Innocence Project. Where’s the forensic evidence? Wasn’t that always the condition of taking on a case. Or, at least brazen evidence of misconduct corruption or fraud leading to wrongful conviction. This reminds of another wrongfully conviction case taken on by North Western University in Illinois where they freed a GUILTY man because they were hoodwinked too. If one doesn’t learn from past mistakes and take precautions to avoid such mistakes from occurring again one will be doomed to make same mistake again.

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