As Federal Litigation Continues, Ruben Gutierrez Seeks Stay of Execution, Citing Concerns About Pandemic

Texas death-row pris­on­er Ruben Gutierrez (pic­tured) has asked the Texas state courts to stay his exe­cu­tion because of the COVID-19 pan­dem­ic as fed­er­al lit­i­ga­tion con­tin­ues on his efforts to obtain DNA test­ing and to require Texas to per­mit him to have a chap­lain present in the exe­cu­tion cham­ber if his execution proceeds. 

Attorneys for Gutierrez, whose exe­cu­tion is cur­rent­ly sched­uled for June 16, 2020, argue that the pan­dem­ic has made it impos­si­ble for them to per­form crit­i­cal inves­ti­ga­tion nec­es­sary to rep­re­sent him in pend­ing clemen­cy pro­ceed­ings and ongo­ing lit­i­ga­tion. They fur­ther argue that the explo­sion of COVID-19 cas­es in the Texas pris­ons and in the Huntsville met­ro­pol­i­tan area where death-row is locat­ed makes an exe­cu­tion a pub­lic health risk.

“It would be irre­spon­si­ble and against the public’s inter­est to con­duct the nec­es­sary inves­ti­ga­tion dur­ing this pan­dem­ic,” the motion, filed on June 2, states. ​“Mr. Gutierrez’s team mem­bers can­not con­duct the work nec­es­sary to ful­fill their oblig­a­tion to him with­out putting them­selves and oth­ers at risk.” 

Gutierrez, who has main­tained his inno­cence through­out his time on death row, also has a civ­il rights com­plaint pend­ing before a fed­er­al court seek­ing DNA test­ing of evi­dence in his case. On June 4, the fed­er­al dis­trict court denied the state attor­ney general’s motion to dis­miss the com­plaint. Gutierrez had alleged that the Texas DNA statute, as inter­pret­ed by the state courts, uncon­sti­tu­tion­al­ly denies a death-row pris­on­er test­ing of ​“evi­dence that would demon­strate he is inno­cent of the death penal­ty.” He fur­ther alleged that the DNA statute is unfair­ly and unequal­ly applied to those con­vict­ed under a pro­vi­sion of Texas law called ​“the law of par­ties” that holds an accom­plice who did not kill or intend that a killing take place equal­ly cul­pa­ble for the acts of the killer. 

The fed­er­al court also allowed a por­tion of Gutierrez’s com­plaint to pro­ceed that seeks the pres­ence of a Texas prison chap­lain to pro­vide him spir­i­tu­al assis­tance in the exe­cu­tion cham­ber. Texas had pre­vi­ous­ly per­mit­ted the pres­ence of one of its own Christian or Muslim chap­lains, but changed its pol­i­cy rather than pro­vide pris­on­ers of oth­er reli­gions to have their own spir­i­tu­al advis­ers in the exe­cu­tion cham­ber. Gutierrez alleges that the change con­sti­tutes a gov­ern­men­tal ​“act hos­tile to reli­gion” in vio­la­tion of the First Amendment.

Texas courts have already halt­ed six exe­cu­tions since March as a result of the pan­dem­ic. In a March 16 order stay­ing the exe­cu­tion of John Hummel, the Texas Court of Criminal Appeals wrote that the stay was nec­es­sary because of ​“the cur­rent health cri­sis and the enor­mous resources need­ed to address that emer­gency.” Concerns that the pan­dem­ic had restrict­ed defense efforts to con­duct final inves­ti­ga­tions and clemen­cy efforts also led the Tennessee Supreme Court to stay the exe­cu­tion of Oscar Franklin Smith, which had been sched­uled for June 4.

In addi­tion to counsel’s inabil­i­ty to pro­vide Gutierrez with nec­es­sary rep­re­sen­ta­tion, the motion also high­lights con­cerns that coro­n­avirus could impact the exe­cu­tion itself, if it is allowed to pro­ceed. ​“Executions require many per­sons func­tion­ing in spe­cif­ic roles… [who] are essen­tial to the process,” the motion explains. ​“If any of these nec­es­sary per­sons are absent — a fact that might not be known until short­ly before the exe­cu­tion, and a risk that is sig­nif­i­cant giv­en the high num­bers of cas­es in the pris­ons and in Walker County — TDCJ could be unable to car­ry out Mr. Gutierrez’s exe­cu­tion in accor­dance with its pro­to­col, or the exe­cu­tion could be botched. Importantly, the Warden of the Huntsville Unit can­not know if he will have all nec­es­sary mem­bers of the spe­cial­ly trained exe­cu­tion team until the day or moment of the exe­cu­tion — between now and then, any one could fall ill or have been exposed to the virus.” 

The motion describes the Huntsville Unit, where the exe­cu­tion is set to occur, as a ​“hotspot” for coro­n­avirus infec­tions. The prison reports 137 active and 41 recov­ered cas­es of the dis­ease among pris­on­ers, and five active cas­es among employ­ees. Social dis­tanc­ing would be impos­si­ble in the wit­ness rooms, the motion says, ​“forcing…witnesses to choose between their right to attend and their risk of infect­ing them­selves and oth­ers.” As of June 3, 2020, a New York Times analy­sis found that the Huntsville met­ro­pol­i­tan area had the high­est per capi­ta rate of new coro­n­avirus cas­es in the United States, with more than 13 new cas­es per 1,000 res­i­dents over the last two weeks. The Times found that Huntsville’s 15% dai­ly growth rate in COVID-19 cas­es was the sec­ond high­est in the nation, with cas­es dou­bling every five days. The analy­sis showed that, since the out­break began, Huntsville has been the 7^th hard­est hit met­ro­pol­i­tan area in the United States, with more than 18 cas­es per 1,000 residents.

Gutierrez’s com­plaint in fed­er­al court alleges that DNA test­ing will prove he is inno­cent of the mur­der of Escolastica Harrison. ​“For more than two decades on Texas’ death row in soli­tary con­fine­ment, Mr. Gutierrez has always main­tained that he did not com­mit this crime,” his lawyer, Shawn Nolan, said in a state­ment. ​“There is no phys­i­cal or foren­sic evi­dence con­nect­ing Mr. Gutierrez to the crime.” Nolan said Gutierrez’s ​“wrong­ful con­vic­tion was based sole­ly upon two weak ele­ments: a false con­fes­sion elicit­ed when police threat­ened to take Mr. Gutierrez’s chil­dren away and threat­ened his wife, and an unre­li­able wit­ness [who] claimed to have iden­ti­fied Mr. Gutierrez as being in the area of the crime at the time it was committed.”

DNA evi­dence from fin­ger­nail scrap­ings, a hair held in the victim’s hand, and blood stains has been pre­served, but it has nev­er been test­ed. Gutierrez says test­ing could prove that the mur­der was com­mit­ted by one of his co-defen­dants, not by him. Because he has admit­ted he helped plan to rob the vic­tim, he could still be eli­gi­ble for the death penal­ty under Texas’ ​“law of par­ties.” However, Gutierrez argues, the fact that he is not the killer could have made the dif­fer­ence between life and death in the jury’s sentencing decision.