Update: On July 16, the U.S. Supreme Court granted Ruben Gutierrez a stay of execution just 20 minutes before he was scheduled to die by lethal injection. The stay gives the high court time to decide whether to take up Gutierrez’s case to allow post-conviction DNA testing.
Less than a week after an NPR investigation revealed glaring problems with the previously secret supplier of Texas’ lethal injection drugs, the state plans to execute a man on Tuesday evening who has maintained his innocence for more than 20 years.
Ruben Gutierrez was convicted under Texas’ so-called law of parties for the 1998 murder of 85-year-old Escolastica Harrison. Harrison was killed during a robbery of the Brownsville home she shared with her nephew. Shortly after, three men were arrested in connection with the crime: Pedro Gracia, Rene Garcia, and Ruben Gutierrez, who was friends with Harrison’s nephew.
Gutierrez is the only one who received a death sentence. Gracia never stood trial—he disappeared after being released from jail on bond more than 20 years ago. Garcia is serving a life sentence at the Estelle Unit in Huntsville for his role in the crime.
The state’s original theory, and the case they presented against Gutierrez in his 1999 trial, was that he and Garcia had killed Harrison. But in Texas, they didn’t actually have to pin the killing on Gutierrez for him to receive a death sentence. A Texas law allows anyone involved in a crime that led to death to be convicted of murder, even if they never hurt the person or touched a weapon.
The law of parties was instituted in Texas in 1973 to address for-hire killings and organized crime, but it’s become controversial for its modern applications. Jessica Dickerson, director of the Law of Parties Campaign with Texas Prisons Community Advocates, said she documents individual cases because no one is officially tracking how the law is used in Texas. She’s found a startling trend: The person who pulled the trigger usually gets the lightest sentence.
That’s because the person who actually committed the crime usually pleads guilty, often striking a deal for a lesser sentence, Dickerson says. Other co-defendants, however, are more likely to fight their murder charges in court, where juries often find them guilty by association.
“If the state is going to continue to use the death penalty, it really needs to be used in an ethically and morally responsible manner, and executing people who never killed anybody doesn’t seem to be ethically or morally responsible,” Dickerson told the Observer.
In the 1999 trial, state prosecutors argued that because of his friendship with Harrison’s nephew, Gutierrez knew of and planned to steal a large sum of money from Harrison’s home the night of the murder. Gutierrez’s defense—which he maintains today—is that he didn’t enter Harrison’s home that night, that he didn’t participate in the violence, and “he didn’t even know of any plan by anyone to assault or kill her.”
But the jury was told that Gutierrez could be found guilty of capital murder even if he was just “a party” to the death. Jurors decided that was the case and convicted him. An appeals court upheld his conviction in 2002, and several unsuccessful appeals attempts followed in the decades since.
In June, Gutierrez’s lawyers asked the Texas Board of Pardons and Paroles and Governor Greg Abbott to commute Gutierrez’s sentence to life in prison, an appeal supported by two of the original jurors who signed on to the clemency application saying that they no longer believe Gutierrez should be killed. The board denied the request last week.
The application calls out the fact that, despite years of requests, none of the evidence from the crime scene—including fingernail scrapings from the victim and hair found on her body—has ever been tested for DNA.
“The State thus possesses evidence that could prove who actually killed Mrs. Harrison, but the courts have denied every plea Mr. Gutierrez has made for testing,” his lawyers wrote in the clemency application.
Gutierrez has been trying to get both state and federal courts to allow for DNA testing for more than a decade. He filed a federal civil rights suit in 2019, questioning the constitutionality of the Texas law that governs how DNA is tested after someone has already been convicted of a crime. A federal judge partially ruled in his favor in 2021 but the Fifth Circuit Court of Appeals struck a blow in February, saying Gutierrez didn’t have standing to file the suit. His lawyers have asked the U.S. Supreme Court to grant a stay of execution and to rule on the case.
“[Post-conviction DNA] is a really interesting issue, and it’s an issue that we think the Supreme Court will and should be interested in, because it has to do with access to courts and standing to bring lawsuits in these kinds of situations,” Gutierrez’s attorney Shawn Nolan told the Observer.
The state’s original case against Gutierrez relied on eyewitness testimony and incriminating and contradictory statements he made to police. In the years since, Gutierrez has said his statements were false and coerced. ltogether, he and his co-defendants gave nine statements to police in the immediate aftermath of the murder, none of which fully agreed with each other or the crime scene evidence. His lawyers have also called into question the validity of the eyewitness testimony, stating in the clemency application that the lead detective in the case, “testified falsely about the time of death to make it appear that witnesses put Mr. Gutierrez on the scene at the time of the murder.” Two of the eyewitnesses have disavowed their testimony, according to the document.
“In light of all these uncertainties, the State should not be permitted to execute Mr. Gutierrez before DNA testing has been performed,” says the application.
This is the seventh time the state has issued an execution warrant for Gutierrez since 2018. Most of the dates were withdrawn because of clerical or procedural errors, including one instance in which the Cameron County District Attorney’s Office “named the wrong person to be executed” in the warrant. Since 2018, Gutierrez has spent more than 500 days on “death watch”—the high-surveillance housing area for people with scheduled executions.
