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The Supreme Court on Monday was divided over whether a Texas man on death row has a legal right to sue, known as standing, to bring federal civil rights claims challenging the constitutionality of the Texas laws governing DNA testing. Ruben Gutierrez is trying to obtain DNA testing of evidence that he says would clear him, but it was unclear whether a majority of the justices agreed that his challenge should be allowed to move forward.  

Gutierrez was sentenced to death for the 1998 murder of 85-year-old Escolastica Harrison in Brownsville, Tex. Gutierrez concedes that he was involved in a scheme to rob Harrison of $600,000 in cash that she kept in her home, but he insists now that he never entered Harrison’s home and did not participate in her murder.

Gutierrez contends that DNA from several pieces of evidence — such as a hair and nail scrapings from Harrison’s finger and blood stains — would prove that he never went into Harrison’s home. And if that DNA evidence had been available, he argues, the jury would not have sentenced him to death.

The Texas Court of Criminal Appeals, the state’s highest court for criminal cases, in 2011 upheld a state trial court’s denial of Gutierrez’s request for DNA testing. It ruled that the Texas law governing requests for DNA testing does not allow testing when the results of the testing would only affect the sentence that a prisoner received, rather than the determination of guilt or innocence. In other words, the Texas law would only allow Gutierrez the DNA testing if he could prove that, with that evidence, he wouldn’t have been convicted at all.

Several years later, Gutierrez filed a federal civil rights lawsuit against Luis Saenz, the district attorney who prosecuted him, and Felix Sauceda, the Brownsville police chief. He challenged the constitutionality of the state’s DNA testing procedures, arguing that they violated his right to due process – that is, fair treatment by the government.

A federal district court in agreed that the Texas scheme governing DNA testing and post-conviction relief violated his constitutional right to due process. Although Texas law gives prisoners the right to file a second request for post-conviction relief if they can provide “clear and convincing” evidence that they should not have been sentenced to death, Senior U.S. District Judge Hilda Tagle explained, the state’s DNA testing laws take away a prisoner’s ability to obtain that evidence.

A divided panel of the U.S. Court of Appeals for the 5th Circuit threw out that ruling last year. It held that Gutierrez did not have standing to bring his lawsuit because the state court of criminal appeals had held that even if DNA testing showed that Gutierrez never went inside Harrison’s house, he still would have been eligible for the death penalty because of his role in the robbery scheme that led to her murder. Therefore, the court of appeals concluded, prosecutors would not be likely to order DNA testing, and so the courts cannot provide him with any relief – one of the criteria for standing.

The Supreme Court once again put Gutierrez’s execution on hold in July 2024, just 20 minutes before he was scheduled to be executed, to give the justices time to consider his petition for review of the 5th Circuit’s ruling. The justices agreed in October 2024 to take up his case.

At the Supreme Court on Monday morning, Gutierrez’s lawyer, Anne Fisher, told the justices that his injury – the denial of evidence for DNA testing – can be addressed through a ruling in his favor because a ruling “that finds certain procedures in” Texas law unconstitutional “eliminates those statutory procedures as a lawful reason” for state officials to bar the testing.

On the other hand, William Cole, a deputy solicitor general from Texas, countered that the district court’s ruling did not provide relief for Gutierrez’s injury. Under the Supreme Court’s recent decision allowing Rodney Reed’s challenge to the state’s DNA testing law to move forward, the question whether a lawsuit will provide a remedy hinges on whether the ruling in the defendant’s favor will “eliminate the state prosecutor’s justification for denying the testing and thereby … significantly increase the likelihood that the prosecutor would hand over the evidence.” But here, Cole said, the prosecutor has relied on “several independent” reasons to reject Gutierrez’s request for access to the evidence.

Some of the court’s conservative justices were skeptical that a ruling in Gutierrez’s favor would actually make a difference. Justice Neil Gorsuch referred to a ruling by the state court of criminal appeals indicating that even if the DNA testing law does apply to the death penalty stage, Gutierrez still would not receive relief. It was, Gorsuch suggested, effectively “harmless error.”

Fisher pushed back, arguing that the courts should take a broader look at the evidence to determine whether Gutierrez should still be subject to the death penalty.

But Chief Justice John Roberts was skeptical of that contention, asking how much more evidence would be required to tip the scale in Gutierrez’s favor. Is it, he queried, “a tiny thimbleful of additional evidence? I mean, how is a court supposed to figure that out?”

Justice Samuel Alito expressed frustration more generally, noting to Fisher that “this litigation has been going on for more than 25 years. I just am interested in knowing whether it’s going anywhere.”

Justice Brett Kavanaugh was more sympathetic to Gutierrez. He resisted the suggestion that Gutierrez lacked standing to sue because prosecutors, even in the face of a ruling in Gutierrez’s favor, might not turn over evidence for testing. “I just don’t see,” Kavanaugh said, “how we can say something’s not redressable just because the prosecutor is going to say I’m not going to comply with a court order. You know, if President Nixon said I’m not going to come 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.”

Justice Elena Kagan was unconvinced that Gutierrez was not entitled to testing because, even if the evidence were tested and were helpful to him, he would still be eligible for the death penalty. A state court made “the identical backup argument in” Reed’s case, she observed, but the Supreme Court “clearly did not care about” it – and instead ruled that Reed’s challenge was allowed to move forward.

For her part, Justice Sonia Sotomayor also appeared frustrated – but with the state’s failure to order the testing, rather than the length of the litigation. “It seems odd to be fighting it tooth and nail,” she told Cole, particularly when there is more evidence about the “potential culpability” of the victim’s nephew. “Don’t you want to know,” she asked Cole, “you’re convicting the right person for the right thing?”

A decision in the case is expected by summer.

This article was originally published at Howe on the Court. 

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