A ​“Meaningless Ritual”? U.S. Supreme Court Agrees to Decide Whether Ruben Gutierrez Can Challenge Texas DNA Testing Procedures to Prove His Innocence

On Friday, October 4, the Supreme Court agreed to hear argu­ments in Gutierrez v. Saenz, a case regard­ing death-sen­tenced Texas pris­on­er Ruben Gutierrez’s abil­i­ty to sue the state for DNA test­ing in sup­port of his inno­cence claim. The Court had issued a stay to Mr. Gutierrez on July 16, just twen­ty min­utes before his sched­uled exe­cu­tion. Mr. Gutierrez was con­vict­ed and sen­tenced to death in 1999 for the mur­der and rob­bery of an 85-year-old woman but has long main­tained his inno­cence. Forensic evi­dence from inside the trail­er where the killing occurred has nev­er been test­ed for DNA, but the state has refused Mr. Gutierrez’s test­ing requests. The Court will now decide whether the Fifth Circuit was cor­rect when it ruled that Mr. Gutierrez did not have stand­ing to sue Texas over its refusal to give him access to DNA test­ing. The Court will like­ly hear Mr. Gutierrez’s case next spring.

Mr. Gutierrez was con­vict­ed and sen­tenced to death for the mur­der of Escolastica Harrison, an elder­ly man­ag­er of a trail­er park who kept over $600,000 in her home due to her mis­trust of banks. Mr. Gutierrez admit­ted to par­tic­i­pat­ing in plan­ning the rob­bery but said he stayed out­side the trail­er and did not know that Rene Garcia and Pedro Gracia, his code­fen­dants, would kill her. Rene Garcia was sen­tenced to life in prison while Pedro Gracia remains at large. Mr. Gutierrez’s legal team argues that ​“no phys­i­cal or foren­sic evi­dence con­nects him to the crime,” and his con­vic­tion was ​“based on a false con­fes­sion elicit­ed after police threat­ed to arrest his wife and take away their chil­dren, and on an unre­li­able eye­wit­ness who could not even iden­ti­fy Mr. Gutierrez in the court­room at trial.” 

For over a decade, Mr. Gutierrez has sought DNA test­ing of crime scene evi­dence, includ­ing blood­stains, scrap­ings from Ms. Harrison’s fin­ger­nails, and hair wrapped around her fin­ger. If DNA test­ing showed that Mr. Gutierrez was not present in the trail­er, he could still be con­vict­ed of mur­der under Texas’ law of par­ties,¹ but it would sup­port his argu­ment that he did not actu­al­ly kill, intend to kill, or antic­i­pate a killing — which would the­o­ret­i­cal­ly bar the death penal­ty in his case. However, courts denied his requests under Texas’ unusu­al­ly strict post-con­vic­tion DNA statute, which only allows for test­ing when a per­son can prove that he would not have been con­vict­ed if the DNA test­ing pro­duced excul­pa­to­ry results. The statute does not allow DNA test­ing when the results would only affect the person’s death sen­tence. Mr. Gutierrez’s attor­ney Shawn Nolan called this require­ment a ​“catch-22.” 

After his requests were denied under the DNA statute, Mr. Gutierrez brought a sec­tion 1983 fed­er­al law­suit argu­ing that the statute had uncon­sti­tu­tion­al­ly denied him due process. Texas law guar­an­tees death-sen­tenced pris­on­ers the right to file post-con­vic­tion peti­tions show­ing that they are not eli­gi­ble for the death penal­ty — but they can­not use DNA to do so because of the statute’s lim­it­ed applic­a­bil­i­ty. A fed­er­al dis­trict court agreed with Mr. Gutierrez and ruled that the lim­its of the DNA statute made that right ​“illu­so­ry,” a ​“mean­ing­less rit­u­al” that vio­lat­ed pro­ce­dur­al due process.

Mr. Gutierrez’s legal argu­ments close­ly track those of Rodney Reed, a death-sen­tenced pris­on­er who also brought a sec­tion 1983 law­suit against Texas offi­cials argu­ing that the state’s DNA statute had denied him due process. Mr. Reed’s claim focused on the statute’s strict chain-of-cus­tody require­ments for evi­dence, which he could not meet because pros­e­cu­tors had mis­han­dled and poten­tial­ly cor­rupt­ed the evi­dence. The state argued that Mr. Reed did not have stand­ing, a legal con­cept which refers to a person’s right to bring a law­suit. A plain­tiff has stand­ing if he can prove an injury, that the injury can be traced to the defendant’s con­duct, and that a favor­able rul­ing from the court will like­ly rem­e­dy the injury. In 2023 the Supreme Court sided with Mr. Reed and ruled that he did have stand­ing because he was injured by the denial of DNA test­ing, the injury could be traced to the state prosecutor’s behav­ior, and a court judg­ment find­ing that the DNA statute had vio­lat­ed Mr. Reed’s due process rights would like­ly rem­e­dy his injury by induc­ing the state pros­e­cu­tor to grant access to the evi­dence for test­ing. Therefore, Mr. Reed could pro­ceed with his legal effort to seek DNA test­ing. Several oth­er fed­er­al cir­cuit courts have since applied this rul­ing in favor of death-sen­tenced pris­on­ers bring­ing law­suits alleg­ing their rights were violated. 

However, in Mr. Gutierrez’s case, the Fifth Circuit Court of Appeals reversed the dis­trict court and ruled that he did not have stand­ing. The court agreed that Mr. Gutierrez had been injured by the state’s denial of DNA test­ing but depart­ed from Reed and the oth­er cir­cuit rul­ings on the third require­ment of a like­ly rem­e­dy. Where the Supreme Court assumed that a state pros­e­cu­tor would autho­rize DNA test­ing in response to a court order in Mr. Reed’s favor, the Fifth Circuit dove into the facts of Mr. Gutierrez’s case and con­clud­ed that the state pros­e­cu­tor in his case might nev­er­the­less refuse to fol­low the court’s order. In oth­er words, the Fifth Circuit denied Mr. Gutierrez the oppor­tu­ni­ty to pur­sue his chal­lenge to a poten­tial­ly uncon­sti­tu­tion­al statute on the rea­son­ing that an order find­ing the statute uncon­sti­tu­tion­al was not like­ly to pro­vide him with a remedy. 

Judge Stephen A. Higginson dis­sent­ed from the Fifth Circuit’s rul­ing because he did ​“not see a mean­ing­ful dis­tinc­tion from Reed.” He wrote: 

“Like Reed, Gutierrez filed suit against the appro­pri­ate local pros­e­cu­tor and made a sim­i­lar claim regard­ing Texas’s DNA test­ing regime. While I appre­ci­ate 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, I do not per­ceive that the Supreme Court con­tem­plat­ed this nuance and dis­tinc­tion. Instead of con­duct­ing a fact-spe­cif­ic inquiry and delv­ing into what District Attorney Goertz him­self would do, the Court deter­mined that a declara­to­ry judg­ment 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 grant­ed cer­tio­rari to Mr. Gutierrez on the ques­tion of whether, under its rul­ing in Reed, the stand­ing require­ment includes a ​“par­tic­u­lar­ized deter­mi­na­tion” of what the ​“spe­cif­ic state offi­cial” would do ​“fol­low­ing a favor­able declaratory judgment.” 

Mr. Gutierrez’s case illus­trates some of the pro­ce­dur­al hoops peo­ple on death row must jump through to pur­sue inno­cence claims. He sought DNA test­ing of key crime scene evi­dence under a state law, but the state fought his efforts and the state law itself lim­it­ed his options. Today Texas requires DNA test­ing for all items with bio­log­i­cal mate­r­i­al when the state pur­sues the death penal­ty — but state offi­cials often refuse to apply that prin­ci­ple to old­er cas­es. ​“If this crime were com­mit­ted today, DNA test­ing of these items would have already hap­pened, and Gutierrez nev­er would have been sen­tenced to death,” his attor­neys argue in their Supreme Court peti­tion. He was then forced to file a fed­er­al law­suit, which state offi­cials chal­lenged his very author­i­ty to bring. Under Supreme Court prece­dent, an actu­al inno­cence claim does not save a per­son from exe­cu­tion—the pris­on­er must show an inde­pen­dent con­sti­tu­tion­al vio­la­tion in the legal process. Despite strong foren­sic evi­dence of inno­cence, Marcellus Williams was exe­cut­ed in Missouri on September 24, and Robert Roberson faces exe­cu­tion on October 17 in Texas despite experts say­ing no crime ever occurred. 

The Supreme Court extend­ed Mr. Gutierrez’s stay of exe­cu­tion while it con­sid­ers his case. This was not the first stay for Mr. Gutierrez; in 2020, the Court inter­vened an hour before his sched­uled exe­cu­tion because Texas had refused to allow a chap­lain to accom­pa­ny him into the exe­cu­tion cham­ber. The cur­rent stay came just 20 min­utes before the exe­cu­tion, as Mr. Gutierrez was about to be led to the cham­ber. ​“He was vis­i­bly emo­tion­al,” said prison spokes­woman Amanda Hernandez. ​“He turned around to the back of the cell, cov­ered his mouth. He was tear­ing up, speech­less. He was shocked.”