Death Watch: Despite SCOTUS Ruling, Inmate Again Faces Execution

With COVID-19 causing the cancellation of most executions, the state of Texas hasn't put anyone to death in months. That may change on Jan. 21 if Blaine Milam's attorneys can't convince the courts that his intellectual disabilities constitutionally bar his execution.

In the fall of 2008, Milam moved his girlfriend Jesseca Carson and her daughter Amora into his trailer outside Tatum, in rural Northeast Texas. Both he and Jesseca were 18 and she may have been experiencing postpartum psychosis. Shortly after moving in, Carson became convinced first that Milam, and then Amora, were possessed by the devil.

On December 2, 2008, Milam called police to report that Amora was dead. Police found the infant horribly battered, with abrasions, broken bones, and what were judged to be 24 human bite marks covering her body. Upon being taken into custody, Carson told police that she and Milam had attempted to perform an exorcism on the child.

Carson admitted to Amora's murder and is currently serving a life sentence without parole. Milam was found guilty of and sentenced to death under Texas' "law of parties," which allows accomplices in a homicide to be held fully responsible for it, no matter what role they played. Milam's attorney, Jennae Swiergula of the Texas Defend­er Service, has argued that prosecutors have never offered any meaningful evidence that Milam caused the infant's death.

Swiergula has also argued, as did Milam's counsel at trial and subsequent appeals, that he is intellectually disabled, presenting evidence of IQ scores in the low 70s and that he is very easily manipulated. Such disability would rule out a death sentence; his attorneys have also argued that Milam's guilt is mitigated by his lack of education beyond the fourth grade and his being under the influence of methamphetamine when Amora was murdered.

In early 2019, the Texas Court of Crim­inal Appeals stayed Milam's execution one day before he was to have been killed, after the U.S. Supreme Court's decision in Moore v. Texas forced the state to abandon its nonmedical system for determining intellectual disability. The CCA kicked Milam's case back to his trial court, which later announced in a one-sentence ruling it was affirming its judgment, with the judge not allowing Swiergula to present evidence. This decision was later accepted by CCA, and Milam's appeals have been unsuccessful.

Milam's attorneys have now asked the 5th Circuit U.S. Court of Appeals to again halt his execution and let them present their case, saying the federal courts have never considered the question of his disability. This also means that, at least for this case, they're arguing that federal rules to safeguard the "finality" of death sentences, which prevent them from bringing forward appeal arguments rejected elsewhere, is also unconstitutional. It's a long shot. If it and all other appeals are rejected, Milam will become the first person executed in Texas in 2021 and the 571st since the resumption of the death penalty in 1982.