Last-Minute Appeals Aim to Stop First Texas Execution of 2019
Drugs, mental illness, disability factors in 2008 infant murder
Updated Tuesday, January 15:
The Texas Court of Criminal Appeals granted its first stay of 2019 on Monday, Jan. 14, for Blaine Milam. Due to recent changes in the science "pertaining to bite mark comparisons" and the law surrounding intellectual disability, the CCA concluded Milam fulfilled the necessary appeals requirements and has remanded his case back to the trial court to review the merits of two of his four claims: 1) That Milam is intellectually disabled, therefore making his execution a violation of the Eighth and Fourteenth Amendments. 2) That “current relevant scientific evidence related to the reliability of bite mark comparison contradicts expert testimony presented and relied upon at trial.” (Judge Kevin Yeary filed a three-page dissenting opinion.)
Blaine Milam, a young man from Rusk County, is scheduled to be the state's first execution of 2019. Unlike many death row inmates, Milam's case has moved relatively quickly through the court system; he was sentenced to death in 2011 for the brutal killing of Amora Carson – the 13-month-old daughter of Milam's girlfriend Jessica Carson – during an alleged exorcism in 2008. (Carson was given life in prison without parole, though Milam's trial counsel argued she was responsible for the murder.) The usual appeals were filed, but in September, a month before the U.S. Supreme Court refused to hear Milam's final federal appeal, the state scheduled his execution for Tuesday, Jan. 15.
As his death date nears, Milam's recently appointed lawyer Jennae Swiergula with Texas Defender Services filed an appeal and a stay request in the Texas Court of Criminal Appeals on Jan. 7 and 8, respectively. In an email statement, Swiergula accused the state of relying on "now discredited bite mark junk science" to obtain Milam's capital murder sentence while not possessing "any meaningful evidence that Mr. Milam played any role in causing" Amora's death. She also noted that the prosecution relied on Texas' law of parties, which allows a jury to convict a person based on the conduct of another, to convict Milam despite unpresented evidence that Carson had been experiencing a "psychotic illness involving delusions that her child was possessed by a demon." Swiergula concluded: "Mr. Milam's conviction is unreliable, and his death sentence is arbitrary."
Previously, Milam's appeal in the U.S. 5th Circuit Court of Appeals – filed in January 2018 by his former lawyer Donald Lee Bailey, who resigned in September – argued six claims. Four focused on the consequences, or lack of them, from "extensive testimony" at trial about Milam's drug use; at the time of Amora's murder, Milam was high on methamphetamine. Under the Texas Penal Code, "voluntary intoxication" can be used as a defense in certain crimes if the defendant can prove they were incapable of forming an "intent to commit a crime." In Milam's case, neither his trial nor appellate and habeas counsel, nor the trial court itself, addressed whether and how the jury could or should have addressed "voluntary intoxication" in the punishment phase.
Milam's 5th Circuit appeal also insisted there was a preponderance of evidence at trial to prove Milam "was, and is," intellectually disabled, though his appellate and habeas counsel did not address the issue for state review. Additionally, the filing argued, since a doctor concluded that Milam, now 29, functions at an emotional level between an 8- and 16-year-old, he should be treated as a juvenile, in which case he cannot be sentenced to death. In May, the appellate court concluded "reasonable jurists could not disagree with the district court's disposition" and denied Milam's certificate of appealability, a decision that the Supreme Court let stand in October.
Unless his stay request is approved – or the governor's office intervenes – Milam will be the first man put to death by the state's hand this year, and the 559th inmate executed in Texas since the death penalty was reinstated in 1976.