Fighting his execution, Texas inmate asks Fifth Circuit to allow DNA testing | Courthouse News Service
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Fighting his execution, Texas inmate asks Fifth Circuit to allow DNA testing

A Texas prisoner says a strand of hair police found in the hand of an elderly woman who had been stabbed to death in her home and robbed of her life savings is key to showing he was not the killer.

(CN) — Ruben Gutierrez was convicted of capital murder for involvement in the killing of an 85-year-old woman. He claims DNA analysis will prove he should not have been sentenced to death.

Escolastica Harrison lived in a Brownsville mobile home park. She also owned the park and her home served as its office.

Harrison’s nephew and roommate, Avel Cuellar, came home around 1 a.m. on Sept. 6, 1998, to find Harrison dead in her bedroom. She had been severely beaten and stabbed numerous times in the head. Her room was in disarray and money she had stashed in her home was gone.

A Cameron County jury convicted Ruben Gutierrez of capital murder for Harrison’s killing and he was sentenced to death in 1999.

Gutierrez and Cuellar were friends; they routinely gathered with their other buddies behind Harrison’s home to hang out and drink beer.

Harrison had also grown friendly with Gutierrez, and he occasionally ran errands for her and borrowed money from her.

Harrison didn't trust banks and had $600,000 cash hidden in her house. Cuellar often talked to Gutierrez and others about how much money she had, according to the case record.

Based on statements given by Gutierrez’s two accomplices, Rene Garcia and Pedro Gracia, Brownsville police obtained an arrest warrant for Gutierrez, then 21 years old, shortly after the murder.

Gutierrez initially told detectives he had planned the “rip off.” But he claimed he had waited at a park for the others, and they picked him up following the murder, with a suitcase and a toolbox full of cash. He also said Garcia was holding a screwdriver covered in blood and said he had killed Harrison.

The next day, Gutierrez gave another statement. He claimed the plan was for Garcia to lure Harrison outside of her home, and for him to run in and steal her money after Gracia dropped them off at the residence.

But he said Garcia had knocked Harrison out and repeatedly stabbed her with a screwdriver inside the home before they made off with a suitcase and toolbox stuffed with currency.

Gutierrez now claims that DNA testing on a strand of hair found in Harrison’s hand, her nightgown and her fingernail scrapings will prove he was not in the home.

To obtain the death penalty, prosecutors had to convince jurors beyond a reasonable doubt Gutierrez had killed Harrison, intended to kill her or anticipated a human life would be taken.

While Gutierrez has conceded that Texas’ law of parties, by which anyone involved in a murder can be convicted of the crime, forecloses any chance he can be proved innocent, he believes the DNA testing could lead a jury to find he should not have been sentenced to death.

After the Texas Court of Criminal Appeals rejected Gutierrez’s request for DNA analysis in 2011, he filed a federal civil rights lawsuit in 2019 against Brownsville’s police Chief Felix Sauceda, Cameron County District Attorney Luis Saenz and several Texas prison officials.

Senior U.S. District Judge Hilda Tagle sided with Gutierrez in a December 2021 order.

She determined that although Texas had granted condemned prisoners the right to obtain relief through a second habeas petition based on newly discovered or available evidence under one part of the state’s code of criminal procedure, the Texas Court of Criminal Appeals had construed another section as only permitting DNA testing to establish innocence of a crime, not innocence of the death penalty.

Tagle found the state’s post-conviction DNA testing scheme “is fundamentally unfair and offends procedural due process.”

With the state prison officials no longer defendants in the case, District Attorney Saenz and Police Chief Sauceda appealed to the Fifth Circuit.

A three-judge panel of the New Orleans-based appellate court heard arguments Wednesday.

This undated photo provided by the Texas Department of Criminal Justice shows Ruben Gutierrez. Texas was set on Tuesday, June 16, 2020, to end its more than four-month delay in executions due to the coronavirus pandemic with the scheduled lethal injection of Gutierrez, a death row inmate condemned for fatally stabbing an 85-year-old woman more than two decades ago. (Texas Department of Criminal Justice via AP)

Michael Abrams, Texas assistant solicitor general, argued in briefs and before the panel that Gutierrez lacks standing to sue Saenz and Sauceda because Tagle’s order is effectively a toothless advisory opinion, and it’s unlikely Texas courts will interpret it as imposing a mandate that Gutierrez be granted DNA testing.

U.S. Circuit Judge Catherina Haynes, a George W. Bush appointee, noted that even if none of Gutierrez’s DNA was found on the evidence, that does not mean he was not in the home at the time of the murder.

Abrams agreed. “Even if his DNA is not on the loose hair, or on the robe, at that point the evidence that was before the state court was enough for him to be sentenced as a party,” he said.

He added that Gutierrez had the requisite culpable mindset because he told police that he and Garcia had entered Harrison’s home with screwdrivers.  

Abrams also argued that Tagle had erred in finding the Texas’ post-conviction relief statutes at issue facially unconstitutional — in other words, unconstitutional in all circumstances.

He said the statutes allow for prisoners facing the death penalty to show they aren’t eligible due to intellectual disability, for instance, or when eyewitnesses who testify against defendants at trial later provide affidavits recanting their testimony.

The statute of limitations also bars Gutierrez’s claims, Abrams argued, because he had two years to file his challenge directly with the U.S. Supreme Court after the Texas Court of Criminal Appeals ruled against him in 2011.

U.S. Circuit Judge Stephen Higginson asked Gutierrez’s counsel, Anne Fisher of the Federal Community Defender Office for the Eastern District of Pennsylvania, to explain what has changed since 2011 to justify letting Gutierrez pursue DNA testing.

Fisher explained that at the time Gutierrez was barred by Texas law from obtaining testing, because he had not sought it during his trial. But the legislature has since amended the statute and nixed that requirement.

She also noted that while state attorneys claimed they no longer had the strand of hair found in Harrison’s hand during proceedings for Gutierrez’s state habeas case, one of his attorneys found it in a sealed envelope in Saenz’s files in 2019, after prosecutors allowed his legal team to review the evidence.

Fisher said the state’s entire theory from their opening statement of his trial to his federal habeas case and his federal civil rights lawsuit is that Gutierrez was in the house and he killed Harrison.

“DNA would rebut that,” she said. “It would rebut his role.”

U.S. Circuit Judge Leslie Southwick, another George W. Bush appointee, rounded out the panel.

The judges gave no timeline for a ruling.

This is not the only route Gutierrez has taken to fend off his punishment.

 Texas had planned to put him to death on June 16, 2020, but the U.S. Supreme Court stayed his execution after he argued the state’s refusal to let his Catholic priest into the death chamber violated his religious rights.

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Categories / Appeals, Criminal, Law

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