The Supreme Court appeared swayed by a Texas death row inmate’s argument he has the legal right to sue over the state’s laws governing DNA testing, as he seeks to obtain testing on evidence he claims would prevent his execution.
Ruben Gutierrez was convicted of capital murder and other charges tied to the 1998 robbery and killing of 85-year-old Escolastica Harrison. Prosecutors said Gutierrez and two others plotted to lure Harrison out of her mobile home to steal cash, but instead, two men entered the home and killed her.
For more than a decade, the death row inmate has sought DNA testing to prove that he is ineligible for capital punishment because he wasn’t a major participant in the crime, asserting that he was not one of the two men to enter the home though he did participate in the robbery.
Gutierrez contends that Texas’ DNA testing statute violates due process by only allowing testing where favorable results would bolster a defendants’ innocence, instead of their ineligibility for the death penalty. He sued a Texas prosecutor and local police chief, given their custody of the evidence.
But a federal appeals court found that he does not have standing to challenge the laws’ constitutionality because he failed to prove a prosecutor would likely grant access to the DNA evidence if a court ruled in his favor. Gutierrez’s lawyers claim the U.S. Court of Appeals for the Fifth Circuit created its “own novel test” that runs afoul of Supreme Court precedent.
Anne Elizabeth Fisher, a lawyer for Gutierrez, argued before the justices Monday that Gutierrez’s challenge is like that of Texas death row inmate Rodney Reed, who similarly sought leave to challenge Texas’ postconviction DNA testing statute. The Supreme Court ruled 6-3 in Reed’s favor in 2023, with conservative Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett joining the liberal justices.
In that case, the prosecutor whom Reed sued argued that a declaratory judgment would not make it more likely that the state would turn over the DNA evidence — an argument the high court rejected, Fisher said.
“When you apply Reed as it’s written, we fit exactly under that category,” Fisher said.
Justice Brett Kavanaugh seemed sympathetic to Gutierrez’s position, suggesting that the lower court’s ruling can’t be left uncorrected just because prosecutors might decline to turn over evidence.
“You know, if President Nixon said, ‘I’m not going to turn over the tapes, no matter what,’ you wouldn’t say, ‘Oh, I guess we don’t have standing to hear the executive privilege case,’” Kavanaugh said.
Justice Ketanji Brown Jackson also seemed to suggest that the lower court overreached.
“You don’t have to prove that nothing can come up that will defeat your ability to win the claim. And that’s what they seem to be saying,” Jackson said.
“That’s exactly what they’re saying, and that’s what we’re fighting against,” Fisher said.
William Francis Cole, a lawyer for Luis Saenz, the district attorney in Cameron County, Texas, argued that the case is not about Saenz’s discretion, but instead whether he can be “compelled to hand over the evidence.”
The state initially did not oppose Gutierrez’s request for DNA testing, but later, changed its position. Justice Sonia Sotomayor scrutinized the flip-flop, suggesting that it was “odd” the state would not want to confirm if another defendant was more culpable than once thought.
“At one point you decided that you wouldn’t object to doing it, but now you’re fighting a tooth and nail,” Sotomayor said.
“If you are sure of your conviction in your theory, why not do the testing?” she added.
Jackson also expressed concern that, while the case seems “very small and narrow,” a decision in the prosecutor’s favor could have “major implications” for how to determine standing.
“In a discretionary world, if that’s your concept of injury, you would never have discretion,” she said. “You’d never have redressability because the prosecutor could always say… ‘Well, I wouldn’t give it to you anyway,’ no matter what,” she said.
Cole emphasized that, if Saenz were ordered to turn over the evidence, he would.
A decision is expected by this summer.
