People For the American Way

Trump Judges Approve Exclusion of Expert Evidence in Trial of Woman Sentenced to Death: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Judges Approve Exclusion of Expert Evidence in Trial of Woman Sentenced to Death: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Fifth Circuit judges James Ho, Don Willett, Andrew Oldham, Kurt Engelhardt, and Kyle Duncan cast deciding votes in a 10-7 ruling of the full Fifth Circuit that overruled a three-judge court decision and upheld the exclusion of expert evidence in a trial that resulted in a woman being sentenced to death for purportedly murdering her two year-old daughter. The February 2021 ruling was in Lucio v Lumpkin.

 The Fifth Circuit first considered the tragic case of Melissa Lucio and he daughter Mariah in a 2019 decision by three judges, nominated by Presidents Reagan, George W Bush, and Obama. The three agreed that Lucio was entitled to post-conviction relief because the potentially important testimony of an expert witness was excluded at the trial. As the court explained, before her daughter’s death, Lucio lived with her husband and nine children.  Paramedics were called to the home one evening and found two year-old Mariah lying on the first floor. Lucio told them that Mariah had “fallen down some stairs.” She was taken to a hospital and declared dead.

Police questioned Lucio beginning just before 10 p.m. and continuing for “about five hour”s until after 3 a.m., with short breaks and no attorney present. Partly because bruises, bite marks, and other injuries were found on the child, in addition to the blow on her head that resulted in her death, police suspected Lucio had abused her and repeatedly questioned Lucio on that issue. Over the first three hours, Lucio continued to state that Mariah had fallen down stairs and maintained that although she sometimes “spanked” her daughters “on the butt,” she had not hit or abused Mariah, although the other children were “rough” with her and may have caused some of her injuries. Police continued to press her and she sometimes made statements that suggested she may have “spanked” her elsewhere on her body. When one officer insisted she was responsible for specific bruises, Lucio stated “I guess I did it” and said to an officer at one point “I don’t know what you want me to say. I’m responsible for it.”

Lucio was charged with “intentionally and knowingly” killing Mariah by striking her, and the appeals court explained that the state’s case “was built primarily” on the “videotaped interrogation,” which the state characterized as a “confession.” To help rebut the confession, Lucio’s attorney tried to call two witnesses to show that her statements during the interrogation “were not trustworthy.” The court explained that the most important was a psychologist who would have testified that Lucio was a “battered woman’ who “takes blame for everything that goes on in the family,” so that statements by Lucio admitting responsibility could well have been false.

The trial judge refused to allow the expert testimony as speculative and not relevant, and the jury convicted Lucio and she was sentenced to death. Her appeal and request for state post-conviction relief were denied, and a federal district court refused to grant her federal post-conviction relief, claiming that the excluded expert testimony was “only tangentially related” to Lucio’s “guilt or innocence.”

The three-judge Fifth Circuit panel reversed, concluding that the exclusion of the expert testimony deprived Lucio of her constitutional right “to present a complete defense.” The court found that the state court that considered her post-conviction petition did not “expressly adjudicate” the “complete defense” claim “on the merits,” so that it should properly review that claim thoroughly. Based on the record, the court concluded that Lucio’s alleged admissions of abuse during the interrogation were “the most significant evidence” in the case, and that explaining why such statements “could not be trusted’ was “critical to Lucio’s defense.”  Without even considering the evidence from the second expert, who the trial judge decided was not qualified, the court concluded that the district court was wrong and that the exclusion of the psychologist’s testimony clearly “infringed Lucio’s right to present a complete defense,” and she should receive a new trial or other post-conviction relief.

The full Fifth Circuit decided to rehear the case. By a narrow 10-7 majority, it effectively reversed the panel ruling and denied any relief to Lucio. Although Trump judge Wilson was not on the considered the case, the other five Trump judges on the court made  that result possible, with Trump judge Oldham writing a plurality opinion.

Oldham maintained that the state court did reject Lucio’s “complete defense” claim “on the merits,” and that she could therefore get federal post-conviction relief only if the state courts had committed an “unreasonable application” of “clearly established” and relevant Supreme Court precedent. Although Lucio was relying on the Supreme Court’s decision in Crane v Kentucky that it was erroneous in a death penalty case to deprive someone of a “complete defense” by excluding evidence that would have demonstrated that a person’s confession was not trustworthy, Oldham claimed that Crane was not on “all fours” with this case because it concerned whether the confession was voluntary. At most, Oldham asserted, the state courts had made an error in a “discretionary” evidentiary ruling as to whether the psychologist’s testimony was relevant, and this was not a “constitutional violation” warranting post-conviction relief.

Seven Fifth Circuit judges strongly dissented, including three nominated by Presidents Reagan or George W Bush. Even assuming that the state courts had in fact rejected Lucio’s “complete defense” contention “on the merits,” the dissenters explained that, based on prior precedent, the majority was interpreting Crane too narrowly, because the broader holding in the case concerned the constitutional right of a person to present evidence showing that a confession was not trustworthy for whatever reason, and thus the psychologist’s proposed testimony was “on par” with the evidence excluded in Crane. Several dissenters pointed out that this evidence was particularly important because there was other evidence in the record of “abuse” of Lucio her by “men closest to her,” including her husband. The dissenters concluded that the psychologist’s proposed testimony on Lucio’s “susceptibility to take blame for everything” was “critical to refuting” the state’s principal evidence against her, and its rejection as irrelevant was “irrational” and an “unreasonable application” of the Supreme Court’s decision in Crane.

As a result of the votes of Trump judges Oldham, Ho, Willett, Duncan, and Engelhardt, however, Melissa Lucio will get no post-conviction relief, and the death sentence against her concerning the tragic death of her youngest daughter will stand. The majority’s narrow interpretation of Supreme Court precedent concerning a person’s right to present a “complete defense,” moreover, may also harm others accused of crime.


Andrew Oldham, Confirmed Judges Confirmed Fears, Don Willett, Fifth Circuit Court of Appeals, James Ho, Kurt Engelhardt, Kyle Duncan