Melissa Lucio, in a still from the documentary “The State of Texas vs. Melissa”

A South Texas judge is recommending that the death sentence of Melissa Lucio, convicted in 2008 of murdering her 2-year-old daughter, Mariah, be overturned.

Judge Arturo Nelson signed on to a highly unusual agreement between Cameron County prosecutors and Lucio’s defense attorneys on April 12, finding that the district attorney’s office at trial withheld testimony from Lucio’s children that supported her claims that Mariah died after an illness and a fall down a flight of stairs.

Lucio was nearly executed in 2022 as her case made headlines across the state and nation and the public, including Texas Republican lawmakers, rallied to her defense. The Texas Court of Criminal Appeals stopped the execution two days before it was to have been conducted to examine several issues. The court will now have the final say in whether Lucio’s conviction is overturned. It’s uncertain when the decision will come.

“We hope and pray the Court of Criminal Appeals will agree with the District Attorney, the defense, and Judge Nelson and our mother can come home to her family,” Lucio’s sons, Robert Alvarez and John Lucio, said in a statement. “It’s been 17 years that we have been without her. We love her and miss her and can’t wait to hug her.”

Lucio was accused of murdering Mariah in 2007, after law enforcement officers found bruises on the child’s body. A trio of officers interrogated Lucio for five hours straight, insisting she admit to killing her daughter. Lucio asserted her innocence over a hundred times, telling the officers Mariah had been ill in the days before her death and had fallen down a flight of stairs. Finally, an exhausted Lucio provided a half-hearted confession – “I guess I did it” – that became the major evidence used against her at trial.

But unbeknownst to Lucio’s attorneys, there was evidence supporting her claims of innocence – three documents known to law enforcement that Cameron County prosecutors did not turn over to the defense, as they are required by law to do. The first was a report made by a Child Protective Services investigator who interviewed five of Lucio’s children after Mariah’s death. All the children told the investigator that Lucio had never been abusive and that Mariah had been ill in the days before her death. Lucio’s son, Robert, who was 7 years old at the time, told the investigator that Mariah “fell down some stairs.” Lucio’s then-teenaged daughter, Alexandra Lucio, reported seeing bruises on Mariah’s eye “from when she fell.

Judge Nelson also found that the state suppressed two sworn statements from Alexandra and Daniella Lucio. Alexandra’s statement described how Melissa Lucio and her husband “had been awake all night with the baby” the night before her death and that she had been “breathing heavily.” Daniella also reported that Mariah had been breathing heavily before she died and that her parents had been worried.

Instead of turning over the three documents to Lucio’s attorneys, prosecutors supplied them with summations that left out the favorable testimony, Nelson concluded. The original statements were only found by Lucio’s attorneys in 2019, after Cameron County District Attorney Luis Saenz allowed them to review the case file compiled at the time of the trial.

“[T]he Court concludes first that [Lucio’s] account of Mariah’s fall and declining health would not have been discredited by the prosecution if the corroborating statements of her children were available to the defense,” Judge Nelson wrote in his ruling. “[She] has met her burden of proof, by preponderance of the evidence, that she would not have been convicted in light of the suppressed evidence.”