Federal Court Approves DNA Testing for Man Who Was Spared Execution by Texas’s Refusal to Allow Religious Adviser in Execution Chamber

A fed­er­al dis­trict court has ruled that Texas uncon­sti­tu­tion­al­ly denied DNA test­ing to a death-row pris­on­er who is alive today only because of a last-minute stay of exe­cu­tion grant­ed because the state refused to allow his reli­gious advis­er to accom­pa­ny him in the exe­cu­tion cham­ber. In a 26-page rul­ing issued on March 23, 2021, Judge Hilda Tagle of the U.S. District Court for the Southern District of Texas paved the way for Ruben Gutierrez (pic­tured) to obtain DNA test­ing that he argues will prove his inno­cence of the death penal­ty. The rul­ing is the lat­est twist in a cir­cuitous jour­ney through the legal sys­tem in which Gutierrez has twice faced exe­cu­tion since 2019 and has been denied DNA test­ing on both occasions. 

Gutierrez was sen­tenced to death for the mur­der of an elder­ly Brownsville, Texas woman in 1988 dur­ing the com­mis­sion of a rob­bery. He told police after his arrest that he knew his co-defen­dants were going to rob the vic­tim, but had no idea they would kill her, and that he was wait­ing in a park while they com­mit­ted the rob­bery and stabbed her to death. He has sought DNA test­ing of fin­ger­nail scrap­ings, a hair held in the victim’s hand, and blood stains to sup­port his claim that the mur­der was com­mit­ted by one of his co-defen­dants and that he nei­ther knew nor intend­ed that any­one would be killed.

Judge Tagle’s opin­ion holds that Texas law grant­ed two sub­stan­tive rights to cap­i­tal defen­dants: the right to DNA test­ing to prove inno­cence and the right to file a state habeas cor­pus peti­tion to prove inno­cence of the death penal­ty. However, Judge Tagle wrote, the state has ren­dered those rights ​“illu­so­ry” by lim­it­ing access to DNA test­ing only to cas­es in which it could prove inno­cence of the crime itself. ​“A process which amounts to a ​‘mean­ing­less rit­u­al’ is his­tor­i­cal­ly and con­tem­porar­i­ly dis­proved of by the courts,” Tagle wrote. “[G]iving a defen­dant the right to a suc­ces­sive habeas peti­tion for inno­cence of the death penal­ty … but then deny­ing him DNA test­ing … unless he can demon­strate inno­cence of the crime is fun­da­men­tal­ly unfair and offends pro­ce­dur­al due process.”

State pros­e­cu­tors argued that Gutierrez is inel­i­gi­ble for DNA test­ing because he is sub­ject to the death penal­ty under Texas law whether or not he was the actu­al killer. The state’s con­tro­ver­sial ​“law of par­ties” holds a par­tic­i­pant in a felony crim­i­nal­ly respon­si­ble for the acts of oth­ers, even if he did not intend those acts to occur. 

Gutierrez argued that in ​“law of par­ties” cas­es, the jury can­not vote for death unless it finds that the defen­dant killed or intend­ed to kill or antic­i­pat­ed that a killing would occur. His lawyers assert that DNA evi­dence prov­ing he is not the killer would have made the dif­fer­ence between life and death in the jury’s sen­tenc­ing deci­sion, prov­ing him inno­cent of the death penalty.

Gutierrez’s defense team issued a state­ment in response to the rul­ing say­ing that Brownsville dis­trict attor­ney Louis Saenz has, ​“with­out expla­na­tion,” repeat­ed­ly refused defense requests for access to the evi­dence to con­duct DNA test­ing. ​“If [Saenz] is so sure that Mr. Gutierrez’s con­vic­tion and death sen­tence are sound and that Mr. Gutierrez deserves to die,” fed­er­al defend­er Shawn Nolan said, ​“there can be no rea­son to con­tin­ue to refuse our rea­son­able requests for this test­ing, which would be done auto­mat­i­cal­ly by law if this case happened today.”

Gutierrez came with­in eight days of exe­cu­tion in October 2019, when, with­out rul­ing on his request for DNA test­ing, the Texas Court of Criminal Appeals stayed his exe­cu­tion because of the state’s fail­ure to fol­low man­dat­ed pro­ce­dur­al steps in issu­ing and serv­ing his death war­rant. He came with­in an hour of exe­cu­tion in June 2020 before the U.S. Supreme Court issued a stay over Texas’s refusal to per­mit a chap­lain to accom­pa­ny Gutierrez in the execution chamber.

Prosecutors imme­di­ate­ly appealed the fed­er­al court’s ruling.