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Melissa Elizabeth Lucio: My name is Melissa Elizabeth Lucio. I'm 48 years old. I have 14 children. I've been on death row 11 years.

Melissa Harris-Perry: You're hearing there the voice of Melissa Lucio from the 2020 documentary, The State of Texas versus Melissa. The film tells the story of Melissa Lucio who was scheduled to be executed by lethal injection in Huntsville, Texas on Wednesday, but yesterday, two days before the scheduled execution, she got a phone call from Republican Texas State Representative Jeff Leach.

Jeff Leach: You haven't heard the news yet?

Melissa Elizabeth Lucio: No. What happened?

Jeff Leach: The Court of Criminal Appeals issued a stay of your execution for Wednesday.

Melissa Elizabeth Lucio: Are you serious? Are you serious? [crying] When did this happen?

Jeff Leach: We just got word about 15 minutes ago.

Melissa Elizabeth Lucio: Oh my God. [crying] That is wonderful. Oh my God. What does that mean?

Jeff Leach: [chuckles] Well, it means you're going to wake up on Thursday morning.

Melissa Harris-Perry: Lucio was sentenced to death in 2008 for capital murder after the death of her two-year-old daughter Mariah. Now at the time, prosecutors hinged their case on testimony from medical examiners, who said that Mariah had died due to injuries from child abuse. They also pointed to Lucio's supposed confession at the end of a five-hour interrogation when she said at 3:00 AM with tears in her eyes, "I guess I did it."

Now, advocates say that her confession came under duress and that Lucio's history of being a survivor of abuse made her especially vulnerable to the aggressive interrogation tactics used by investigators. Advocates say that two-year-old Mariah had sustained fatal injuries after falling down a steep set of stairs. They point out that the prosecutor of the case then Cameron County District Attorney Armando Villalobos is now spending 13 years in federal prison for bribery.

Lucio's case has received widespread attention, thanks in part to the documentary, The State of Texas versus Melissa, and the Innocence Project, a nonprofit organization working to exonerate people who've been wrongfully convicted, has been defending her in court. Last month, a bipartisan group of Texas lawmakers sent a letter urging Governor Greg Abbott and the Texas Parole Board to cancel Melissa's execution, calling for clemency or reprieve.

Indeed, five of the original jurors on the Lucio's murder trial asked that she receive a new trial. Lucio's case will now be reviewed by the Cameron County Court. I'm Melissa Harris-Perry, and this is where we begin today's episode of The Takeaway.

Jolie McCullough is a reporter for The Texas Tribune, covering criminal justice and policy. Jolie, thanks so much for being here today.

Jolie McCullough: Thank you for having me.

Melissa Harris-Perry: What does a stay mean in Lucio's case? What's going to happen next?

Jolie McCullough: What happened was, yesterday, the Texas Court of Criminal Appeals essentially canceled the execution that was set to happen Wednesday for Melissa Lucio. Now, this was a pretty big order in that it actually sent back to the trial court to review her claim that she's actually innocent, which is pretty uncommon. It's not uncommon for the Court of Criminal Appeals to sometimes stop executions to send back technical concerns, concerns with different pieces of how the process went through during appeals and her conviction, but this was one that said, "Hey, you need to review whether this woman is actually innocent."

It's kind of an intermediate step at this point. It's not saying she deserves a new trial because that's just not procedurally where it would be at this point, but essentially, what they're saying is, "We have gotten all of this new evidence from Lucio's attorneys, including the Innocence Project, as you mentioned, and we need you to take a look at that and really weigh it and decide if she deserves a new trial."

Melissa Harris-Perry: In some ways, the fact that there was a bipartisan group of Texas lawmakers urging the courts to move in this direction is stunning, simply because Texas is a place where there has not been a lot of bipartisan efforts in recent months and years. Can you explain how this political reality came to be?

Jolie McCullough: Yes. I think that really speaks to just how different this case is. Texas is a state that has, by far, executed more people than any other state in the modern era of the death penalty. This is something that the state is comfortable with, the death penalty is not something that is being seriously considered taken off the table. At any time, there's always moves by Democrats every legislative session, but it's never anything that is really seriously considered, but this was something that, as you said, more than half of the Texas House of Representatives, more than two-thirds of the Texas Senate, which is even more conservative, that, essentially, the parole board and the governor say, "Hey, you need to stop this execution because there's in-jury concerning."

Melissa Harris-Perry: Just a last question for you. You're going to continue to report this story, what are you looking at as you're looking ahead?

Jolie McCullough: I am interested, I cover policy. I'm obviously interested in Melissa's case, specifically, but I'm also interested to see how this plays out in the legislative session next year. This is something where the lawmakers have thrown their hands up to say, "Hey, this is unacceptable," while essentially it's not in their control. This death sentence was carried out under laws that they've created, so I'm curious to see if this is something that is so problematic for them, what steps they take in the next legislative session to try to correct something like this from happening again.

Melissa Harris-Perry: Jolie McCullough is a reporter for The Texas Tribune, covering criminal justice and policy. Jolie, thanks so much for joining us.

Jolie McCullough: Thanks for having me.

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Melissa Harris-Perry: For now, Melissa Lucio's life has been spared, but the 14 years she's spent on death row are years lost to her and to her children. Understanding why Lucio was convicted goes beyond the individual facts of her case and sheds light on how women and mothers experience the system of criminal justice. It's an experience which began for Melissa Lucio on the night of her child's death. When, during a six-hour interrogation, a team of officers repeatedly accused her of being a bad, neglectful, and abusive mother.

Interrogator: First of all, were you sad that this child died? When I first saw you in there, I knew something was wrong. Do you know something is wrong?

Melissa Elizabeth Lucio: No sir, I don't.

Interrogator: You know something is wrong.

Melissa Elizabeth Lucio: No sir, I don't.

Interrogator: If I bring you all those pictures, if I beat you half to death like that little child was beat, I bet you'd die too.

Melissa Elizabeth Lucio: I swear I did not beat my daughter, sir.

Interrogator: No?

Melissa Elizabeth Lucio: I'm not that cruel to my children.

Interrogator: What are those bruises on your little child? Thing is that I got a mom. We can clearly see here who doesn't know who didn't that. Wasn't me. I didn't cause her death.

Melissa Harris-Perry: For more on this, I'm joined by Jane Aiken, Dean of law and Professor of Law at Wake Forest University. Dean Aiken is also author of the article Motherhood as Misogyny. Welcome to The Takeaway, Dean Aiken.

Jane Aiken: Hello. Nice to be with you.

Melissa Harris-Perry: You write in this piece, Motherhood as Misogyny, that in cases where a mother is charged with killing a child, that mother's motherhood is on trial. Can you say more?

Jane Aiken: Yes. There are plenty cases in which mothers are charged with killing a child, sometimes by neglect or by allowing an abuser to kill that child. Others when really doesn't know why the death happened. What we know is that juries, prosecutors, even defense attorneys often come to these cases with the assumption that, first, that women have a preternatural idea of when a child is at risk, and that it is their fault if something happens. Their goal in life is to be selfless.

Melissa Harris-Perry: Indeed, if one listens carefully to the, at least, the portions of the interrogation tape of Melissa Lucio that are publicly available, you can almost hear from her something very similar, a belief, herself, that even if she was not directly responsible for the death of her child that because she was Mariah's parent, and particularly because she was her mother, that however this happened, she was ultimately responsible.

Jane Aiken: I think that resonates with a lot of mothers in the world. In particular, she was interrogated right after the death. She's overwhelmed with grief, and she starts thinking about all the ways she might be responsible. It was not surprising to me that she allegedly confessed to it. I've had clients where boyfriends have killed their children and they just take on all the responsibility and have gone to prison for life without parole for it.

Melissa Harris-Perry: You also write in this piece that given the penalties for not being selfless it's hardly surprising that mothers put their children's needs before their own often at the cost of their own lives. Is there something different about the social construction of motherhood that leads to this presumption of guilt perhaps even by the mother herself that is different than for fatherhood, even for loving and not abusive fathers?

Jane Aiken: I absolutely believe there is a background in which women are expected to put themselves second to children and that often it goes unrecognized by both the mothers and society and fathers. There's an assumption that all care for children really is in the responsibility of the mother and that background often doesn't get named, it just plays its way out. People get blamed, women get blamed for problems that happen with their children whether or not they had anything to do with it.

Melissa Harris-Perry: Jane Aiken, we're going to take a quick break, we'll be right back with more on the politics of motherhood and criminal justice in just a moment. This is The Takeaway.

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Melissa Harris-Perry: Okay, we're back with Jane Aiken, Dean and Professor of Law at Wake Forest University and author of the article Motherhood as Misogyny.

I want to dig in on this a bit at the intersections because, certainly, Melissa Lucio being on death row coming up within 48 hours of execution is in fact somewhat surprising. On the one hand, we've been talking about mothers and women being more open to punishment as a result of motherhood, on the other hand, states and the federal government are much less likely to put women to death for any crime, so how do we square those?

Jane Aiken: I think our understanding of the way violence occurs is sort of a ballroom fight or a premeditated murder or a robbery gone awry. Those cases are vastly done by men. I mean, there's just a lot more crime by men. Women's crimes often are property crimes or crimes in which they are being of assistance like being a mule for drugs for men. They are therefore less likely to be prosecuted for serious crimes and therefore less likely to go to death row.

On the other hand, once a woman violates certain kinds of social norms about effective mothering and appropriate mothering, they somewhat get taken away from the softness that we think of women that might protect them from the worst penalties. They're treated, in many ways when you look at those cases, worse than a man who's engaged in similar behavior.

Melissa Harris-Perry: This notion of women, of mothers potentially being softer, or having that courts that juries might have some sense of sympathy towards them, how much is that racialized? I'm wondering if part of what goes on with Melissa Lucio, with-- you write about custody cases, as well, that sometimes led to broader acts of violence. I'm wondering the ways in which courts, prosecutors, juries are maybe less likely to see Black and brown mothers as maternal, as soft, as like themselves.

Jane Aiken: I think that's a great insight. In fact, I do believe that this is definitely racialized for a lot of reasons. There's the association with socioeconomics and race in this country, and poor women are often vilified, particularly poor women with lots of children. That often correlates, in fact, with Latino women and with African American women, and therefore that is considered, in and of itself, bad mothering to have so many children as if a man had nothing to do with it. There is a racial aspect of this like there is in all criminal justice that puts those women under scrutiny that white women can avoid.

Melissa Harris-Perry: I kept thinking about that as I would each time Melissa Lucio was described as a mother of 14. I kept wondering how is that being received? What is it that people hear when they hear mother of 14? Do they hear this grand maternal figure capable of doing these extraordinary feats of keeping young people fed and clothed and housed, or do they see something here that is, again, particularly with a Latina mother in Texas, this notion that somehow simply by having the children she has done something over and against society?

Jane Aiken: I think that's exactly right. I think when you see someone-- and why would it be relevant there were 14 children unless it was used to show how difficult it must have been to be managing all those children and how accidents happen in circumstances like that. That's not how it was played. It was played as if somehow she had created this mess and she was responsible for it, and the mess was having too many children.

Melissa Harris-Perry: I know that you also write here about white women who actually have, in fact, been responsible for the death of their children, Susan Smith in particular. Help us to understand the ways that these women who did kill their children might also have been understanding social norms around motherhood?

Jane Aiken: I think Susan Smith is not a bad example of that. In fact, she decided she needed to die because she wasn't finding a man, she felt like she wouldn't be able to take care of her children. A lot of what she talked about was this belief that she was inadequate as a mother and therefore she needed to take them with her when she died. It was an unfinished suicide is how she thought about it.

Yes, Susan Smith is a great example of this, yet again another high expectations of motherhood that have led a mother to try to do what she thought was the right thing as crazy as that was to protect her children.

Melissa Harris-Perry: One last piece here that shows up in the Melissa Lucio case and in so many of the cases that you write about and I think that we at this point simply know that so many women who are incarcerated, whether for acts of violence or whether for property crimes are themselves also survivors of sexual assault, of domestic violence.

If our goal is, in part, not just to have a system that is more fair and equitable but to, in fact, interrupt violence that affects children, to have Mariah still with us, to have Susan Smith's children still alive, what are some of the things courts need to be thinking about relative to assault and violence experienced by women, both as young people, as girls, and as women?

Jane Aiken: We do know that particularly women who've been abused as children end up in abusive relationships when they're partnering and that that's something we look at. We also know that abuse is ubiquitous in this country and treat it as if it's not. I mean, if this were happening to a man where they were constantly encountering violence, my guess is it would be looked at seriously.

I think what we're going to have to do is start realizing the secondhand cost of abuse in this country, to find some way to involve those people who distance themselves from people who are being abused, women who are being abused, and recognize that it's affecting lots of things like cost of medical care and cost of employment absence. There are costs to the non violated that may get people paying attention but right now, they aren't, and these are the consequences of it, and it's a failure to understand and it's a failure to appreciate and it's a failure to prevent.

Melissa Harris-Perry: Jane Aiken is the Dean of Law and Professor of Law at Wake Forest University. Thank you so much for being here, Dean Aiken.

Jane Aiken: Thank you.

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