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The Supreme Court will hear oral arguments on Feb. 24 in the case of a man on Texas death row who has long tried to obtain postconviction DNA testing on evidence that he says would exonerate him. Ruben Gutierrez was sentenced to death for the 1998 murder of 85-year-old Escolastica Harrison in Brownsville, Tex. Gutierrez has maintained his innocence and says DNA from several pieces of evidence — such as a hair and nail scrapings from Harrison’s finger and blood stains — would show that he was never in Harrison’s home. And if the DNA evidence shows that he never entered Harrison’s home, he contends, the jury would not have sentenced him to death.
But a federal appeals court ruled last year that Gutierrez does not have a legal right to sue, known as standing, to bring federal civil rights claims challenging the constitutionality of the Texas laws governing DNA testing. Now the Supreme Court will weigh in.
At his trial, prosecutors contended that Gutierrez and two other men – Rene Garcia and Pedro Gracia – wanted to steal $600,000 in cash that Harrison, who did not trust banks, kept in her home. Harrison was beaten and stabbed repeatedly with a screwdriver. Garcia and Gutierrez attacked Harrison, prosecutors alleged, while Gracia was the getaway driver.
Gutierrez concedes that he was involved in the robbery, but he insists now that he never entered Harrison’s home and did not participate in her murder. Under Texas’s “law of parties,” defendants can be convicted of capital murder (which does not make them automatically eligible for the death penalty) even if they did not actually kill the victim, as long as they participated in the underlying crime that led to the murder. Gutierrez was convicted of capital murder in 1999 and sentenced to death.
The Texas Court of Criminal Appeals, the state’s highest court for criminal cases, upheld Gutierrez’s death sentence in 2002.
When Gutierrez’s trial took place, DNA testing was not required in Texas in capital cases in which the state was seeking the death penalty – a policy that has since changed. Gutierrez’s efforts to seek that testing were initially unsuccessful.
In 2011, the state court of criminal appeals upheld a state trial court’s denial of Gutierrez’s request for DNA testing. It reasoned, among other things, that the Texas law governing requests for DNA testing does not allow testing when the results of the testing would only affect the sentence that a prisoner received, rather than the determination of guilt or innocence. In other words, the Texas law would only allow Gutierrez the DNA testing if he could prove that, with that evidence, he wouldn’t have been convicted at all.
Gutierrez also brought a federal civil rights lawsuit in 2020 against Luis Saenz, the district attorney who prosecuted him, and Felix Sauceda, the Brownsville police chief. He challenged the constitutionality of the state’s DNA testing procedures, arguing that they violated his right to due process – that is, fair treatment by the government.
In 2020, the Supreme Court put Gutierrez’s execution on hold to give the lower courts a chance to consider his separate claims that he was entitled to have a spiritual advisor in the execution chamber with him. The state eventually changed its policy, leading to the dismissal of those claims.
A federal district court in Brownsville agreed that the Texas scheme governing DNA testing and post-conviction relief violated his constitutional right to due process. On the one hand, Senior U.S. District Judge Hilda Tagle explained, Texas law gives prisoners the right to file a second request for post-conviction relief if they can provide “clear and convincing” evidence that they should not have been sentenced to death. But on the other hand, Tagle continued, the state’s DNA testing laws take away a prisoner’s ability to obtain that evidence.
A divided panel of the U.S. Court of Appeals for the 5th Circuit threw out that ruling in February 2024. It held that Gutierrez did not have a legal right, known as standing, to bring his lawsuit. The Texas Court of Criminal Appeals held, the 5th Circuit noted, that even if DNA testing showed that Gutierrez never went inside Harrison’s house, he still would have been eligible for the death penalty because of his role in the robbery scheme that led to her murder. Therefore the 5th Circuit reasoned, prosecutors would not be likely to order DNA testing, and so the courts cannot provide him with a remedy – one of the requirements for standing.
Judge Stephen Higginson dissented from the 5th Circuit’s decision. He would have allowed Gutierrez to bring his claims for DNA testing. In his view, there is no “meaningful distinction” between Gutierrez’s case and that of Rodney Reed, another man on death row in Texas whose challenge to the state’s DNA testing law the Supreme Court permitted to move forward in 2023. Higginson acknowledged the “majority’s careful tracing of the state-court case history and fair inquiry into what the named state prosecutor might or might not do” in Gutierrez’s case, but he did not believe that the Supreme Court’s decision in Reed’s case hinged on “this nuance and distinction.” The court in Reed’s case, Higginson concluded, simply determined that a ruling “invalidating Texas’s DNA testing procedure would significantly increase the likelihood that the state prosecutor would grant access to the requested DNA testing.”
The Supreme Court once again put Gutierrez’s execution on hold in July 2024, just 20 minutes before he was scheduled to be executed, to give the justices time to consider his petition for review of the 5th Circuit’s ruling. The justices agreed in October 2024 to take up his case.
In the Supreme Court, Gutierrez argues that Reed shows that a ruling in his favor can provide him with a remedy. The 5th Circuit majority, he contends, instead “formulated its own novel test” to conclude that he could not obtain a remedy. Specifically, based on the 2011 statement by the Texas Court of Criminal Appeals that Gutierrez would still be eligible for the death penalty even if DNA testing showed that he never went inside Harrison’s home, Saenz and Sauceda insisted that they would not allow the DNA testing. The court of appeals cited that “steadfast refusal to comply” with the district court’s decision to support its decision that Gutierrez does not have standing to sue under federal civil rights laws.
But that analysis “badly misapprehends the law of standing,” Gutierrez counters. A ruling from the Supreme Court indicating that the Texas law on which Saenz and Sauceda are relying to deny DNA testing violates Gutierrez’s right to due process would provide him with the kind of relief that would give him standing to sue. Saenz and Sauceda can always argue later in state court that, even with helpful DNA results, Gutierrez is still eligible for the death penalty, but “whatever may happen in a future state case does not deprive Gutierrez of standing in this current federal one.”
And although the Texas Court of Criminal Appeals concluded that Gutierrez would still be eligible for the death penalty even if the results of the DNA testing showed that he never entered Harrison’s house, Gutierrez continues, there is more evidence – never considered by the state court – that would help to show that he should not have been sentenced to death. For example, he says, he has evidence that the lead detective in his case lied on the stand and that Harrison’s nephew actually “masterminded” the plot to rob her.
In its brief at the Supreme Court, Texas pushes back against Gutierrez’s suggestion that the 5th Circuit adopted a “novel” test. Instead, it counters, “the Fifth Circuit’s decision represents a straightforward application of Reed to the facts of this case.”
Gutierrez’s problem, the state contends, is that he has not shown that he would benefit from a ruling in his favor. The Texas Court of Criminal Appeals has held not once but three times, over a 13-year period, that “Gutierrez would not be eligible for DNA testing under state law even if he could use the results to challenge his sentence,” because he would still be eligible for the death penalty. Indeed, the state stresses, after the district court’s ruling in Gutierrez’s favor, Saenz has relied on that conclusion by the state appeals court to deny the DNA testing.
Moreover, the state continues, there are other state-law reasons why Saenz would deny the request for DNA testing – for example, the state trial court found that Gutierrez was seeking DNA testing to delay his death sentence, which would separately preclude his access to the evidence. The state appeals court did not address that issue when it upheld the trial court’s order, which effectively left the conclusion in place.
Gutierrez’s argument that the results of DNA testing and his additional evidence will show that he should not have been sentenced to death is too speculative, the state suggests. And in any event, the state adds, for purposes of determining whether a defendant is eligible for DNA testing, Texas courts can’t consider new evidence but are instead only supposed to consider evidence that was available when the trial occurred.
This article was originally published at Howe on the Court.
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