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The U.S. Supreme Court on Friday agreed to review a Texas death penalty appeal by Ruben Gutierrez that challenged the constitutionality of a state law limiting DNA testing after conviction.
The high court agreed to take another look after halting Gutierrez's scheduled execution on July 16, just minutes before he was set to die. Friday's announcement extends the delay of execution until the court decides on the appeal.
Gutierrez was sentenced to death in 1999 for the murder of an elderly woman in Brownsville. He spent the past decade fighting for DNA testing of evidence that he says would prove he did not kill her.
Delaying the "execution brings us one step closer to finally doing the DNA testing that will overturn Ruben’s wrongful conviction and death sentence,” said Shawn Nolan, Gutierrez's attorney, in a statement on Friday.
Gutierrez, 47, was convicted of fatally stabbing and beating 85-year-old Escolastica Harrison during a home robbery. Harrison, who lived with her nephew in the mobile home park she owned and who distrusted banks, had $600,000 stashed in her home at the time of her death, according to court records.
Gutierrez has maintained that he did not kill Harrison, that he was not inside her home when she was killed and that he did not know of nor consent to any intention to kill her.
In multiple appeals, he has requested, and been denied, DNA testing of evidence that was collected at the scene but never examined, including fingernail scrapings, a hair found in Harrison’s hand and blood stains. Gutierrez has argued that DNA testing of those materials would corroborate his claims — and because the court has denied his requests for testing, he has said that his due process rights were violated, rendering his execution unjust and premature.
In 2019, Gutierrez’s attorneys disputed the constitutionality of a Texas law that limits when evidence can be DNA-tested after conviction. That law requires a convicted person, in order to get DNA testing, to show that he “would not have been convicted if exculpatory results had been obtained through DNA testing.”
“It’s a catch-22,” Nolan said.
Nolan argued, and a federal district court agreed, that Texas’ DNA statute was unconstitutional because it denied Gutierrez the ability to test evidence that would demonstrate his innocence and challenge his death sentence. But the Fifth Circuit Court of Appeals reversed that ruling this year, saying the federal district court did not have jurisdiction over Gutierrez’s lawsuit.
Next, the U.S. Supreme Court will review the Fifth Circuit's ruling.
Cameron County prosecutors argued that because there may have been multiple killers, any evidence tested that did not match Gutierrez’s DNA would not prove his innocence. Gutierrez and two other suspects — Rene Garcia and Pedro Gracia — were accused of planning to rob Harrison, but each pegged the other two for the murder. Garcia, who pleaded guilty, is serving a life sentence. Gracia was released from jail on a $75,000 bond and vanished. He has been wanted by authorities since.
But if the case happened today, Nolan argued, “they would test everything. That’s what they do with these cases, always, especially in a murder case, and especially in a capital case.”
Gutierrez's attorneys also argued that a jury would not have sentenced him to death if the results of DNA testing pointed to another suspect as the killer.
“A juror who’s going to decide whether they're going to sentence somebody to death or not surely should know whether that person was the actual killer,” Nolan said. “In this case, the prosecution argued to the jury that Ruben was the actual killer, even though there was no direct evidence of that.”
Prosecutors had also argued that under Texas’ law of parties — which allows all those involved in a crime to be held criminally responsible for it, even if they did not carry it out themselves — Gutierrez remained eligible for the death penalty, regardless of any DNA test results, given his admission that he had “planned the whole rip off.”
Gutierrez has maintained that the statement he gave about planning the robbery was false, and that he had “assented to it only after detectives threatened to arrest his wife and take away his children,” his attorneys said in a June 2019 court filing.
Gutierrez’s lawyers further argued that evidence suggested that Harrison’s nephew, Avel Cuellar, masterminded the robbery. Cuellar, who is now dead, was initially considered a suspect by law enforcement but then dropped from the investigation.
Alex Hernandez, the victim’s nephew and godson, drove six hours from his home in Brownsville to the Texas State Penitentiary in Huntsville to attend the execution with a few friends in July. He had made the trip in 2020 and was in the waiting room when the warden told him the U.S. Supreme Court had halted Gutierrez’s execution just over an hour before it was set to take place. He thought the news then was a “really bad joke.
“It's just devastating. It's unbelievable,” Hernandez said while preparing for the drive home. “Every time we have to wait is just more painful for us. We just want this over. We want an end to this chapter. We want to start over.”
Hernandez, 55, remembered his aunt, whom family members affectionately called “Aunt Peco,” as “a really happy person, always wanting to sing and always having a smile on her face.”
She taught ESL at the local elementary school, where Hernandez said she was a “really strict teacher” intent on helping her students, many of whom were migrants, learn English. Hernandez spent summers growing up with his aunt and uncle, and he recalled chasing butterflies around the trailer park and eating peaches plucked off the trees that surrounded Harrison’s home.
“She was just the most beautiful person,” he said on Monday. “She wasn't just some old lady.”
Gutierrez’s application for clemency was denied unanimously by the Texas Board of Pardons and Parole on July 16.
His execution has been delayed several times since his sentencing 25 years ago.
In 2020, the U.S. Supreme Court halted Gutierrez's execution just over an hour before he was set to die on the basis of an appeal he had filed saying that a new Texas policy banning religious advisers in the execution room with inmates violated his religious freedoms.
His execution was previously stayed in October 2019 by Texas’ highest criminal court due to a clerical error. Gutierrez’s attorneys had argued his death warrant was invalid because it didn’t have the proper seal from the court when it was delivered to the sheriff and an attorney. Before that, a federal district judge halted a September 2018 execution date to give Gutierrez's new attorney more time to investigate his case.
Hernandez said in July that he had promised his mother that he would bear witness to Gutierrez’s execution.
“I’m not looking forward to the execution. I’m looking forward to the end,” he said. “My aunt would probably want me to forgive him, and I do. But he has to pay for his crime.”
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