Courts Grant Stays of Execution on Procedural Grounds in Two Cases Raising Significant Guilt-Related Questions

Courts in Texas and Florida have grant­ed stays of exe­cu­tion to two men who faced immi­nent exe­cu­tion despite seri­ous ques­tions as to their involve­ment in the mur­ders for which they were sen­tenced to death. On October 22, 2019, the Texas Court of Criminal Appeals (CCA) stayed the exe­cu­tion of Ruben Gutierrez (pic­tured, left), which had been sched­uled for October 30. The fol­low­ing day, the U.S. District Court for the Middle District of Florida grant­ed a stay of exe­cu­tion to James Dailey (pic­tured, right), whose exe­cu­tion had been set for November 7. Both stays were issued on pro­ce­dur­al grounds but may pro­vide an oppor­tu­ni­ty for judi­cial con­sid­er­a­tion of sig­nif­i­cant issues of inno­cence or degree of guilt in their cases. 

Ruben Gutierrez was sen­tenced to death for the mur­der of an elder­ly Brownsville, Texas woman in 1988 dur­ing the com­mis­sion of a rob­bery. Gutierrez has been seek­ing DNA test­ing to sup­port his claim that, while he was present dur­ing the rob­bery of Escolastica Harrison, he did not kill her. 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. Although he could still be eli­gi­ble for the death penal­ty under Texas’s ​“law of par­ties” — which holds a par­tic­i­pant in a felony crim­i­nal­ly respon­si­ble for the acts of oth­ers, even if he did not intend those acts to occur — Gutierrez argues that the fact that he is not the killer could have made the dif­fer­ence between life and death in the jury’s sentencing decision.

Gutierrez’s fil­ing seek­ing DNA test­ing is cur­rent­ly pend­ing before the CCA. However, the stay was issued on unre­lat­ed tech­ni­cal grounds as a result of the state’s fail­ure to fol­low man­dat­ed pro­ce­dur­al steps in issu­ing and serv­ing his death war­rant. In Gutierrez’s case, the coun­ty court issued two exe­cu­tion war­rants with con­flict­ing times of exe­cu­tion, failed to affix the prop­er seal estab­lish­ing the authen­tic­i­ty of the war­rant, and failed to serve the war­rant on Gutierrez’s lawyers in the time frame required by Texas law. In his stay appli­ca­tion, Gutierrez’s lawyers wrote, ​“This is about whether the State of Texas may car­ry out the most solemn and irrev­o­ca­ble act of gov­ern­ment with­out com­pli­ance with the statutes that alone autho­rize the gov­ern­ment to take such an act.” The court stayed the exe­cu­tion indef­i­nite­ly, ​“pend­ing fur­ther order by this Court.” 

In Florida, a fed­er­al dis­trict court grant­ed a lim­it­ed stay of exe­cu­tion to James Dailey to pro­vide his new fed­er­al habeas lawyers nine­ty days to pre­pare fil­ings chal­leng­ing his con­vic­tion and death sen­tence. Shortly after his exe­cu­tion date was set, Dailey’s for­mer appel­late lawyers had to with­draw from his case because of a con­flict of inter­est. The fed­er­al court appoint­ed new lawyers to rep­re­sent him on October 1. His new coun­sel advised the court that fed­er­al law grant­ed them at least 90 days to mean­ing­ful­ly review his case and pre­pare and file appro­pri­ate plead­ings. They fur­ther argued that it would be impos­si­ble to do this in the con­strict­ed time frame cre­at­ed by his November 7 exe­cu­tion date. U.S. District Judge William F. Jung issued a 90-day stay from the date of counsel’s appoint­ment, writ­ing, ​“it is in the inter­ests of a just and fair sys­tem for Mr. Dailey’s new coun­sel to have the statu­to­ry grant of time to review and present habeas issues to this Court. Mr. Dailey has been on death row since 1987. Staying his exe­cu­tion for 53 days to ensure that Dailey’s right to coun­sel is mean­ing­ful is scant prej­u­dice to Respondents.”

Dailey main­tains his inno­cence in the 1985 mur­der of Shelley Boggio. He was con­vict­ed on the basis of infor­mant tes­ti­mo­ny that has been dis­cred­it­ed. Dailey’s co-defen­dant, Jack Pearcy, has admit­ted on at least four occa­sions that he alone killed Boggio. In response to the stay, Dailey’s attor­ney Carol Wright wrote, ​“We are grate­ful that the U.S. District Court for the Middle District has grant­ed a stay to allow Mr. Dailey’s new­ly appoint­ed fed­er­al coun­sel time to present his new and sub­stan­tial claims of inno­cence, so that they may final­ly be heard on the mer­its. We urge the Attorney General and Governor DeSantis not to appeal or oth­er­wise oppose this lim­it­ed stay in order to allow Mr. Dailey’s case to pro­ceed under the time­line direct­ed by the Court.”

Gutierrez’s case is the sec­ond time since 2017 that the CCA has halt­ed an exe­cu­tion because of the state’s fail­ure to com­ply with state law in issu­ing a death war­rant. In February of 2017, the court grant­ed a stay of exe­cu­tion to Tilon Carter when coun­ty offi­cials failed to time­ly serve his death war­rant upon the Texas Office of Capital and Forensic Writs.

More exe­cu­tions have been stayed in Texas in 2019 than have been car­ried out so far. Eight exe­cu­tions have been stayed, includ­ing Gutierrez’s, while sev­en pris­on­ers have been exe­cut­ed. Dailey’s stay is the first in Florida this year, and it is still sub­ject to appeal by the state. Florida has exe­cut­ed two peo­ple in 2019. Dailey’s stay will be in effect through December 30, at which point the state may seek a new execution date.