On October 9, 2007, Juan Lizcano was convicted by a jury and sentenced to death for the capital murder of 28-year-old Dallas police officer Brian Jackson during a domestic violence call. But earlier this month, after serving nearly 13 years on death row, Lizcano received a new sentence: life in prison without parole.
Haynes and Boone partners Stephanie Sivinski and Debbie McComas, with associate Jason Jordan, had been working as pro bono habeas counsel on Lizcano’s appeal since 2012, challenging the constitutionality of his death sentence on the grounds of intellectual disability (he had IQ scores as low as 48).
After a series of federal and state habeas petitions, they caught a break in 2017, when the U.S. Supreme Court in Moore v. Texas invalidated the state’s former ad hoc methods for determining intellectual disability. On September 16, 2020, after reconsidering Lizcano’s appeal in light of the new ruling, the Texas Court of Criminal Appeals removed Lizcano from death row, determining he was ineligible for execution due to his intellectual disability.
The facts of the case aren’t pretty. According to the original account of events from the Court of Criminal Appeals, Lizcano and a friend, Jose Fernandez, went to a Dallas dance club on the evening of November 13, 2005. They had a few beers and left a few hours later. On the drive home, Lizcano called his girlfriend, Marta Cruz, and told her that if he came home and found her with another person, he would kill them both.
Lizcano stopped by his uncle’s apartment, where he lived, and took his uncle’s revolver. He then drove to Cruz’s house. At around 2 a.m., he knocked on the door. When Cruz let him in, Lizcano pointed the gun at her head and then fired a warning shot into the ceiling. Lizcano told Cruz the next bullet was for her. He left a few minutes later, and Cruz immediately called the police.
A police officer showed up but was unable to find Lizcano on the property. After the officer left, Lizcano showed back up and started to kick in the front door. Cruz called 911 again, this time while hiding in the closet. When police arrived, they saw Lizcano run into an alley behind the house. Four officers scrambled for cover as Lizcano shot at them from behind a tree.
Officer Brian Jackson took an AR-15 rifle from his vehicle and took a position at the front of the house. When Lizcano ran around to the front, officers said they could hear one shot from Lizcano’s revolver followed by three shots from Officer Jackson’s rifle. The Chief Medical Examiner later determined that Lizcano’s single shot had traveled through Officer Jackson’s right arm and into his heart, bypassing his Kevlar vest and killing him within seconds.
That account, though tragic, only tells part of the story. Last week, I called Sivinski and McComas to find out more. What follows is an edited version of our conversation.
D: Give me the short version of what this case is about from your perspective.
McComas: Our story is one about Juan. It’s about a young man from an extremely impoverished family in Mexico who was his family’s best hope for survival. He crossed the border, almost dying because he was so intellectually challenged. But he gets here. He’s a hard worker. He helps improve his family’s status. And he meets a woman who is much older than he is, which is very common for someone with an intellectual disability.
She helps him survive and function in society, which is difficult for someone who is very intellectually disabled. Until one day, she decides that she’s too old for him and severs the relationship. And at that point, Juan struggles.
Sivinski: I think his life in some ways deteriorated significantly. He developed an issue with substance abuse because he was trying to cope with the sort of breakdown of the relationship that had allowed him to function. I mean, there’s evidence that he couldn’t count his rent money himself, he needed help with that. He needed help paying his cell phone bills. So, sort of day-to-day tasks, he needed a lot of help with. And when his support system deteriorated, his mental health and his behavior deteriorated as well.
He ended up getting in a dispute with his ex-girlfriend, and she called the police. At some point, the police are chasing him, trying to apprehend him. He is carrying a gun and shoots the gun, and one of the bullets hits a police officer and tragically kills him instantly, because it hits him under the armpit where his Kevlar vest was not covering him. Juan gets arrested, and the rest is sort of the procedural posture of his case, which is that he gets convicted and sentenced to death. And the jury finds that he’s not — at the time the words that were used for this are mentally retarded, but the case law shifted and the term is now intellectually disabled.
Among other things, one of the claims that we’ve been pursuing since 2012 was that he is intellectually disabled and not eligible for the death penalty.
McComas: One of the things we struggle with looking at this backwards, coming in as habeas counsel, is the struggle to tell someone’s story. The story we just told you did not come out that way at trial because Juan couldn’t testify. I mean, if you talk to him, he would just nod and agree with anything somebody said. There’s still a competency challenge pending in the federal district court as to whether he was even competent to stand trial, whether he understood what was happening. And I think it was harmful for the entire process because the family and the jurors just saw this person staring there, terrified, who couldn’t tell his story. You couldn’t understand that there may be mitigating circumstances. So they just saw a cold-blooded killer. So the family, that’s what they saw, too.
D: Did you communicate with Juan’s family much at all?
McComas: They were our witnesses in the original evidentiary hearing. A lot of the family traveled for the first time ever to come and explain what behavioral deficits he had as a child. And a lot of them did not wind up testifying because it was very slow, laborious with the translators, and we wound up putting them on by affidavit. But a lot of that evidence is the evidence that ultimately was used to show what his life was like and how he had a deficit even in the context of rural Mexico.
D: Well, then, why was he the one that was sent to the United States to help support the family financially?
McComas: That should tell you what the rest of his family is like, Kathy.
Sivinski: There was a lot of evidence that we had to sort of ingest, so let me tell you the serious answer. A lot of the evidence that we developed was that this intellectual disability on Juan’s part is likely, at least in part, inherited. It’s congenital. Intellectual disability runs in his family, as does a host of other psychiatric problems. And so he had several other siblings, but he was the one that his family thought was the most capable and able to travel to the United States, because his siblings’ deficits were significant as well.
D: Have you had any communication with Officer Jackson’s family?
McComas: During the habeas hearing, the family was there. I sincerely hope that that process helped them heal a little bit, because they did get to hear a little bit more about Juan’s deficiencies and the struggles. Those hearings were more about what his childhood was like. We were showing the adapted deficits and the clinical standards for intellectual disabilities. So it still wasn’t a discussion about what happened on those days, but it at least would have showed them the inability that he had and the struggles he had and that this wasn’t someone that just set out to hurt Officer Jackson.
D: How did you get involved in the case in the first place?
McComas: We at Haynes and Boone got called at the habeas stage. After all the appeals were exhausted, the Texas Defenders Service had taken this case. There were some staffing issues as to who was working on the case, and they just needed somebody to take it over. At the time, Alan Wright, who is not at Haynes and Boone anymore, was head of the pro bono committee. They called him. He’s been my mentor since I started here 25 years ago. He walked down and he said, “Hey, you want to take a capital case with me?” That was the second one I had taken with him.
By the time we were called, Atkins v. Virgina [in which the U.S. Supreme Court determined that the execution of intellectually disabled individuals violates the Constitutional prohibition against cruel and unusual punishment] had come down. But the judge had granted a habeas evidentiary hearing on the intellectual disability issue. So they were preparing to go to trial and put forth the evidence both from an ineffective assistance side and from the specific intellectual disability side, to show that Juan was intellectually disabled. And that’s where we started.
Sivinski: It was my first year at the firm, and I saw it come through on a conflicts check. When I saw Alan in the break room, I was like, “Can I work on this with you?” Because I had done capital punishment work at the clinic at law school and it was something I was really interested in. He said, “Yeah, sure.” So I got to take my first witnesses ever, in the first habeas proceeding in this case. So I’ve worked on this case my entire career.
D: How has working on the case impacted your career?
Sivinski: Well, I’m mostly a patent lawyer by day. So it’s interesting. It’s on my bio, and it’s the question I probably get asked most often from people that we’re recruiting — I’m heavily involved with the firm’s recruiting. And so it’s a story I tell often. Pro bono work is really important to me. I think I really enjoy my patent litigation and my commercial litigation docket, but it is important to me to make sure that I’m using my legal skills, and the privilege I have to be licensed by the state to do this job, to do something that’s really meaningful for people’s lives. And what better example can you find of something that’s meaningful than when you’re trying to save a man from execution? It’s literally life and death stakes. So it is important to me to always have something on my docket that is a pro bono representation. I feel like I’m making a difference in individual lives and not just protecting my clients, who are normally companies.
D: How about for you, Debbie? How has it impacted you?
McComas: I knew you were going to ask that. I was trying to come up with a great little buzz phrase for you. Pro bono has a lot of rewards. Those cases are often very, very hard because they’re so personal, but they also have also exceptional rewards. My first day I was licensed as a lawyer, I got to go to court and do a prove up on a pro bono divorce case. A lot of my first experiences were in pro bono cases, and we have a woman now who is preparing for her first custody trial on a case that she got through the Genesis Women’s Shelter to help a battered woman and protect the children. It’s a nice balance for us.
For Juan’s case, I got to know him personally. Working with Juan and getting to know his story and who he was, separate and apart from what the media had been saying, made it very hard sometimes, knowing that he could wind up being put to death. But at the same time, it made it very rewarding.
It’s been a long journey. We’re grateful the system worked out right, but sad that it took so long.