Alabama and Texas are Set to Execute Prisoners This Week, Despite Serious Constitutional Questions in their Cases

On Thursday, July 18, 2024, the state of Alabama is sched­uled to exe­cute Keith Gavin (pic­tured left) by lethal injec­tion, despite court find­ings that his tri­al coun­sel was inef­fec­tive. Mr. Gavin was con­vict­ed and sen­tenced to death in 1999 for the shoot­ing death of a deliv­ery dri­ver. A non-unan­i­mous jury vot­ed 10 – 2 in favor of the death penal­ty for Mr. Gavin, and the tri­al court accept­ed the jury’s sen­tenc­ing out­come. During the penal­ty phase of tri­al, Mr. Gavin’s defense team did not present any mit­i­gat­ing evi­dence. In 2020, a fed­er­al dis­trict court found that Mr. Gavin had not received effec­tive rep­re­sen­ta­tion and remand­ed the case for a new sen­tenc­ing hear­ing, but a fed­er­al appel­late court reversed this decision.

In the United States Supreme Court’s deci­sion in Woodson v. North Carolina (1976), the Court held that the Constitution requires that jurors must be ​“allow[ed] con­sid­er­a­tion of the char­ac­ter and record of indi­vid­ual defen­dants before inflict­ing the death penal­ty,” which would include the pre­sen­ta­tion of mit­i­gat­ing evi­dence. At Mr. Gavin’s tri­al, defense coun­sel failed to present this crit­i­cal evi­dence that may have per­suad­ed jurors to vote in favor of a life sen­tence with­out the pos­si­bil­i­ty of parole. Following an evi­den­tiary hear­ing, the fed­er­al dis­trict court found that Mr. Gavin ​“grew up in a gang-infest­ed hous­ing project in Chicago, liv[ed] in over­crowd­ed hous­es that were in poor con­di­tion, where he was sur­round­ed by drug activ­i­ty, crime, vio­lence, and riots.” Mr. Gavin also faced vio­lence both at the hands of his father and peers as a child, but suc­cess­ful­ly com­plet­ed his GED and took col­lege cours­es while incar­cer­at­ed in Illinois. After 17 years in an Illinois prison, Mr. Gavin had only one dis­ci­pli­nary write-up, and even Alabama’s expert wit­ness tes­ti­fied dur­ing the post-con­vic­tion pro­ceed­ings that he con­sid­ered Mr. Gavin to be a ​“mod­el prisoner.”

Mr. Gavin’s jury did not hear any of this evi­dence, as his coun­sel failed to inves­ti­gate his back­ground and life in prepa­ra­tion for the penal­ty phase of tri­al. The dis­trict court held that Mr. Gavin’s tri­al lawyers ​“were total­ly unpre­pared for the penal­ty phase,” call­ing just two wit­ness­es — Mr. Gavin’s moth­er and a min­is­ter who did not know Mr. Gavin before arrest. Trial coun­sel admit­ted to the court that they had not pre­pared Mr. Gavin’s moth­er for tes­ti­mo­ny. At tri­al, the jury took just over an hour before return­ing a 10 – 2 ver­dict in favor of the death penal­ty, which is the min­i­mum vote require­ment for a sen­tence of death in Alabama. In near­ly every oth­er death penal­ty state, a non-unan­i­mous jury ver­dict would pre­clude a death sen­tence. The fed­er­al dis­trict court ruled that Mr. Gavin’s tri­al counsel’s fail­ure to present the mit­i­gat­ing evi­dence the Woodson deci­sion requires under­mined the reli­a­bil­i­ty of his death sen­tence. However, the 11^th Circuit of Appeals over­turned this deci­sion, rul­ing that the low­er court did not have the author­i­ty to order a new penal­ty phase hearing.

Today, July 16, 2024, the state of Texas is sched­uled to exe­cute Ruben Gutierrez (pic­tured right) by lethal injec­tion, despite untest­ed DNA evi­dence that he claims will prove he did not com­mit mur­der. Mr. Gutierrez was con­vict­ed and sen­tenced to death in 1999 for con­spir­ing with two oth­er men to rob a trail­er park oper­a­tor in Brownsville, Texas, which end­ed in her death. Evidence pre­sent­ed at tri­al showed that two of the three men entered a mobile home and killed Escolastica Harrison as they looked for mon­ey stored in the home. Mr. Gutierrez has main­tained that he stayed out­side of the trail­er, nev­er enter­ing the home, and that he did not know the oth­ers intend­ed to kill Ms. Harrison. Attorneys for Mr. Gutierrez have argued that there is no phys­i­cal evi­dence tying Mr. Gutierrez to the crime scene and that he offered a false con­fes­sion only after fac­ing threats from police that they would jail his wife and place his kids in foster care.

Mr. Gutierrez has spent more than a decade fight­ing to test the crime scene DNA to prove that he was not present when Ms. Harrison was killed. In 2011, the Texas Court of Criminal Appeals (TCCA) denied test­ing for Mr. Gutierrez, rul­ing that he had been con­vict­ed under Texas’ ​“law of par­ties” statute, which allows any indi­vid­ual involved in a crime to be held account­able for all oth­er crimes com­mit­ted in its com­mis­sion. Mr. Gutierrez was the only indi­vid­ual sen­tenced to death for the mur­der of Ms. Harrison. One of his code­fen­dants was sen­tenced to life in prison, while the oth­er did not stand trial.

In 2019, Shawn Nolan, an attor­ney for Mr. Gutierrez, chal­lenged a Texas law that dic­tates when DNA in set­tled cas­es can be test­ed. Mr. Nolan describes Texas’ law as ​“a Catch-22 that vio­lates due process and the Constitution.” While one statute per­mits an indi­vid­ual to file an appeal argu­ing that he should not have received a death sen­tence, ​“the oth­er statute says you can only get DNA test­ing if you can prove you’re inno­cent. Well, how do you prove you’re inno­cent before you get the test­ing?” asked Mr. Nolan. Mr. Gutierrez was denied clemen­cy by the Texas Board of Pardons and Paroles on July 12, 2024. Attorneys for Mr. Gutierrez have asked the U.S. Supreme Court to grant a stay of exe­cu­tion and to rule on his abil­i­ty to peti­tion for DNA testing.