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

The Texas Court of Criminal Appeals has stopped the state’s first execution of the year, calling for a lower court to take another look at the case following changes in bite-mark science and laws regarding intellectual disability and the death penalty.

Blaine Milam received a stay from the court on Monday, a day before his death was scheduled. 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's lawyers 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.

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 counted 24 human bite marks on the baby’s body and found evidence of blunt force trauma and sexual assault.

At trial, the prosecution linked Milam to several of the bite marks. But his attorneys now say that science has largely been discredited, pointing to the Court of Criminal Appeals’ recent decision to overturn the murder conviction of Steven Chaney. (In December, the court took the rare step of asserting Chaney's innocence, saying his conviction was based on bite-mark science that “has since been undermined or completely invalidated.” Chaney spent more than 25 years behind bars.)

Rusk County prosecutors, meanwhile, argued to the court that the questions over bite-mark science were settled at Milam’s trial in 2010. And they said the state had enough other evidence that it wouldn’t have affected the jury's decision at the time. They pointed to testimony that Milam told his sister from jail to find a hidden pipe wrench believed to be used in Carson’s assault — and his apparent confession to a jail 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 method the Texas Court of Criminal Appeals had previously used to determine 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 nonclinical factors created by its judges, including how well the person could lie.

“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 court said in its order Monday.

The court will now consider Milam’s claims under current medical standards.

The stay was not only the court's first of 2019 but also its first 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.

Despite the court's decision, Texas is still set to host the nation's first execution of the year. Robert Jennings is scheduled to die on Jan. 30, according to the Texas Department of Criminal Justice. Five other executions are scheduled in the state through May.