The availability of DNA testing has had a profound impact on the American criminal justice system and on the way Americans think about that system. Time and again, DNA has shown that our criminal justice system is anything but foolproof.
The Innocence Project reports that between the first DNA exoneration in 1989 and April 2023, “575 wrongly convicted people have been exonerated based on DNA tests that demonstrated their innocence.” During that same time period, DNA played a key role in the exonerations of 35 people who had been convicted of a capital crime. That is part of the reason why a majority of Americans now believe that the death penalty is applied unfairly.
But DNA generally has been used in capital cases only to show whether someone was falsely convicted. On Friday, the Supreme Court agreed to hear a case that could change that and make DNA an even more powerful tool in the quest to achieve justice in capital cases.
That case comes from Texas. It involves Ruben Gutierrez who, along with two others, was convicted of the robbery and murder of 85-year-old Escolastica Harrison. Harrison was stabbed to death with a screwdriver.
Gutierrez does not dispute his involvement in the crime. Instead, he argues that “he should not face the death penalty because he did not stab Harrison or anticipate that she would be killed in the robbery.” He wants to use DNA evidence for that purpose.
The state of Texas says he should not be allowed to do so because the law only allows post-conviction DNA testing to show innocence, not to challenge whether a sentence is appropriate.
When it hears Gutierrez’s case, the Supreme Court should make sure that he has a chance to challenge that restriction and argue for an expanded use of DNA in capital cases.
The Gutierrez case could have nationwide implications since Texas is not alone in limiting the use of DNA. As the Innocence Project states, “Though all 50 states have post-conviction DNA laws, many of these laws are so restrictive or limited in scope that few people can actually access DNA testing after being convicted.”
It offers two examples. “In Alabama, a convicted person can only get DNA testing in their case if they have been charged with a capital offense, while in Kentucky, people who plead guilty are barred from accessing DNA testing, even if they falsely confessed or were coerced.”
Other examples include laws in Arkansas, Delaware, and New Hampshire requiring “that a prisoner prove their innocence or show DNA testing will implicate someone else in the crime before DNA testing is allowed, requiring petitioners to essentially solve the crime they’re accused of.”
States may impose such restrictions because they fear that expanding the role of DNA would highlight the flaws in their criminal justice systems and, in death cases, the risk of executing people who do not deserve to die.
In addition to the statutory restrictions that they impose, the Death Penalty Information Center reports that states routinely “oppose DNA testing in death penalty appeals.” Across the country, prosecutors, the report continues, “are aggressively opposing post-conviction DNA testing and state courts have declined to allow it.”
The federal government also limits the use of DNA in various ways.
Under federal law, anyone seeking to make DNA part of a post-conviction proceeding must assert “ under penalty of perjury, that the applicant is actually innocent of…the Federal offense for which the applicant is sentenced to imprisonment or death; or another Federal or State offense, if evidence of such offense was admitted during a Federal sentencing hearing and exoneration of such offense would entitle the applicant to a reduced sentence or new sentencing hearing.”
In his appeal to the Supreme Court, Gutierrez contends that restrictions such as those discussed above are preventing him from obtaining “DNA testing…of items recovered from the crime scene, including a blood-stained shirt belonging to Harrison’s nephew and housemate, nail scrapings from Harrison, a loose hair wrapped around one of her fingers, and various blood samples from within the mobile home.”
He was sentenced to death under Texas’s so-called law of parties. That law says that “those who do not actually kill, intend to kill, or anticipate someone would be killed can be guilty of capital murder….[but] not all who are guilty under the law of parties are eligible for the death penalty.” He contends that Texas “does not allow an individual to be put to death for merely being a party to a murder.”
Gutierrez claims that “the biological evidence collected at the crime scene…[would] establish that he did not actually kill, intend to kill, or anticipate someone would be killed.” He is asking the Supreme Court to reverse a Fifth Circuit Court of Appeals decision finding that he did not have the right to sue Texas.
That court held that he lacked standing because his request for post-conviction DNA testing only pertained to his death sentence, not whether he was actually innocent.
Gutierrez argues that the Fifth Circuit ignored applicable precedent and that he should have the right to sue because Texas’s limitation on DNA use in post-conviction proceedings violates the constitutional guarantee of due process of law. Since he is allowed under Texas law to challenge his death sentence in a post-conviction proceeding, Gutierrez says he should be able to use DNA as evidence in such a proceeding.
In addition, Gutierrez told the Supreme Court that since he was tried, Texas has changed its DNA testing protocol “to require mandatory testing of all items with biological material where the State pursues the death penalty….” This means that “If this crime were committed today, DNA testing of these items would have already happened, and Gutierrez never would have been sentenced to death.”
Texas responded to Gutierrez’s request for a writ of certiorari by saying that even if his request for post-conviction DNA testing were granted, he would not be entitled a reconsideration of his sentence. It cited a decision of the state Court of Criminal Appeals that even if he had not been present when Escolastica Harrison was murdered, Gutierrez could still be sentenced to death under the Texas law of parties.
The state characterized Gutierrez’s request for a stay of execution as being based “on nothing more than…[an] overwrought interpretation” of the Fifth Circuit’s decision. It urged the Court to find that his case “presents nothing worthy of this Court’s attention.”
The Supreme Court was right to disagree.
Now it will have a chance to decide whether Gutierrez has a right to sue Texas and show why its statutory limitation on the use of DNA is unconstitutional. At the end of the day, those limitations seem to be premised on little more than what death penalty opponents Stephan Bright and James Kwak call “a fear of too much justice.”
In death cases there can never be too much justice.
