Texas Execution Information Center

Texas court stops first execution of 2019, citing changes in intellectual disability law and bite-mark science

"Texas court stops first execution of 2019, citing changes in intellectual disability law and bite-mark science" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans - and engages with them - about public policy, politics, government and statewide issues.

The Texas Court of Criminal Appeals has stopped the state's first execution of the year, pointing to changes in bite mark science and laws regarding intellectual disability and the death penalty.

Blaine Milam received a stay from the court a day before his death was scheduled on Tuesday. Milam, 29, was convicted in the brutal death of his girlfriend's 13-month-old baby girl in 2008 in East Texas.

In a late appeal, Milam argued against the state's reliance on bite mark testimony, which was a key part of his trial. His lawyers also claimed he was intellectually disabled and therefore ineligible for execution.

"Because of recent changes in the science pertaining to bite mark comparisons and recent changes in the law pertaining to the issue of intellectual disability ... we therefore stay his execution and remand these claims to the trial court for a review of the merits of these claims," the order stated.

In December 2008, Milam called 911 and police in Rusk County arrived to find the body of Amora Carson, according to court opinions. The medical examiner found evidence of blunt force trauma, sexual assault and counted 24 human bite marks on the baby's body.

At trial, the prosecution linked Milam to several of the bite marks. His attorneys now say that science has largely been discredited and pointed to the Court of Criminal Appeals' recent decision overturning the murder conviction of Steven Chaney. The court took the rare step in December of claiming Chaney, after more than 25 years behind bars, was innocent and sent to prison based on bite mark science that "has since been undermined or completely invalidated."

Rusk County prosecutors argued unsuccessfully to the court that the questions over bite mark science were already brought up at Milam's trial in 2010, and that the state had enough other evidence that it wouldn't have affected the jurors anyway. They pointed to Milam telling his sister from jail to get a hidden pipe wrench believed to be used in Carson's assault as well as him confessing in jail to a nurse.

The trial court must also take another look at Milam's claims of intellectual disability, according to the court order. The issue was raised at Milam's trial, which prosecutors said put the issue to bed, but there has been considerable change in how the state determines such disability since 2010.

In 2017, the U.S Supreme Court tossed out the way Texas had previously determined who is intellectually disabled and therefore constitutionally ineligible to be executed. The Court of Criminal Appeals later said it would change its test, which used outdated medical standards and judge-created factors.

The court will now consider Milam's claims under the new test.

The stay was the first from the court without death penalty critic Elsa Alcala, who left the bench at the end of 2018 and was replaced by Judge Michelle Slaughter. Slaughter, along with Presiding Judge Sharon Keller and Judge Kevin Yeary, dissented against the stay.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2019/01/14/texas-court-criminal-appeals-stays-execution-blaine-milam/.

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