The U.S. Supreme Court has made clear in recent years its reluctance to impede state executions, but for one Texas inmate on death row, the high court has made a rare exception.

On Oct. 4, the high court said it would review the case of Ruben Gutierrez, who is suing the Texas government to allow him to test DNA evidence his lawyers say could reverse his death sentence. The justices opted to hear the case after granting a stay on Gutierrez's execution on July 16, just 20 minutes before he was set to be put to death by lethal injection.

It's the first time the court has swooped in to stop an execution since May 2023, when it halted the execution of Richard Glossip in Oklahoma after the state's attorney general admitted prosecutors had failed to hand over critical information to defense attorneys. The move comes amid an uptick in scheduled executions, many embroiled in controversy over whether the people sentenced to death are actually innocent, or if they were denied due process in their initial trials.

The court has largely stayed out of these fights. In the last two Supreme Court terms, the justices have denied 237 petitions for review of capital cases and 37 applications for stays of execution. In contrast, the court has only granted or made judgments on seven petitions during that time and has only halted two executions, including Gutierrez's.


This pattern has gotten more public attention in the past few months, as the high court declined to hear the hotly contested case of Marcellus Williams in Missouri in September, in which advocates and even a state prosecutor backed Williams' petition for a new trial, pointing to alleged bias in jury selection and contamination of evidence. And justices denied the petition of Robert Leslie Roberson III, who would have been the nation's first execution for a conviction based on "shaken baby syndrome" if the Texas Legislature hadn't intervened at the eleventh hour.

What makes Gutierrez's case different is unclear, but Robin Maher, executive director of the Death Penalty Information Center, told Law360 the court's move to take up the case could be interpreted as an attempt by the justices to ensure Texas is adhering to a previous ruling finding another inmate in the state facing execution had standing to sue for DNA testing.

"This one may have had some appeal because it involves Texas complying with a previous judgment of theirs," Maher said. "The court has not hesitated to instruct Texas when it gets the law wrong or it misapplies their precedent."

While the high court's decision to take up the case may have resulted from a pattern of Texas continuing to "flout Supreme Court precedent and even explicit direction," Maher said it could have a broader effect on the direction of death penalty litigation across the country.

"Historically, Supreme Court precedent played an enormous role in how courts interpreted the challenges that came before them, but so much of that effect depends on enforcement of that precedent," she said. "It's really up to the Supreme Court now to enforce that precedent, and if it doesn't, we're losing the effectiveness of those decisions and the precedential power that it has historically had in death penalty cases."

But Charles 'Cully' Stimson, a policy expert at the Heritage Foundation and former prosecutor, said he doesn't foresee the case having any kind of major impact on death penalty appeals as a whole.

"I think the decision, however it comes out, can be very narrowly tailored to this case," Stimson told Law360. "I don't think they're going to make any new law. I really don't. I just don't see this as a case teed up to be anything other than to address the issue as it relates to this guy's particular claim."

Gutierrez's Case

Gutierrez, now 47, was sentenced to death for the 1998 murder of 85-year-old Escolastica Harrison in the mobile home in Brownsville, Texas, where she lived with her nephew.

Prosecutors have said Gutierrez and co-defendants Rene Garcia and Pedro Gracia planned on robbing Harrison, who distrusted banks and was known to have stored $600,000 in her home office. According to the Texas Department of Criminal Justice records, she was stabbed multiple times in the head and struck repeatedly. The perpetrators then made off with more than $56,000.

Gutierrez, who was eventually found guilty of capital murder, has always maintained he did not kill Harrison, but that he had been waiting outside the house when the robbery occurred. During a police investigation, Gutierrez, who at the time was 21, did confess to planning the robbery, but he only did so "after detectives threatened to arrest his wife and take away his children," his attorneys said in a June 2019 court filing.

As Gutierrez pursued appeals in the wake of his May 1999 conviction, his attorneys looked to a provision of Texas law allowing inmates on death row to seek DNA testing. Chapter 64 of Texas' criminal code, which lays out a framework for how and when a court can order DNA testing of evidence related to a case on appeal, requires that the evidence be suitable for testing, that it is relevant to facts that were in question in the original trial, and, most challenging, that the person would not have been convicted of the crime if the DNA evidence proves to be exculpatory.

Gutierrez and his lawyers maintain that if the state were to perform DNA analysis of the crime scene evidence that was not tested at the time — fingernail scrapings, a hair found in Harrison's hand and blood stains — it would corroborate his claims that he wasn't in the trailer home at the time of the killing. Although it would not entirely exonerate him, they argue it would be enough to change his capital murder sentence from death to life in prison.

However, this argument is less straightforward given Texas' "law of parties," which allows anyone involved in a killing to be charged with capital murder, and thus potentially sentenced to death, even if they were not proven to have carried out the act themselves or have intended to kill.

"The way Texas law works, people who are not directly involved in a killing have been sentenced to death in the past," Maher said. "But the argument [from Gutierrez's team] is that, if they can demonstrate that he was not in the trailer and that he did not participate in a killing, they would have a whole new set of arguments to make about whether his sentence is legally appropriate."

This has become a particular sticking point for Gutierrez's plea because of Chapter 64's requirement that prospective DNA evidence must result in the overturning of a conviction. Citing this provision, the Texas Court of Criminal Appeals denied Gutierrez's petitions to test the evidence in both 2011 and 2020.

In both its rulings, the state appeals court concluded that even if DNA testing proved Gutierrez was not in the house when Harrison was murdered, it "would not overcome the overwhelming evidence of his direct involvement in the multi-assailant murder" and thus not change his overall capital murder conviction.

"The DNA statute is only applicable for challenges to convictions, not death sentences," Maher said. "You have to show, by the highest possible standard, that you would not be convicted by a jury that would look at this new evidence, and this is just an extraordinarily high hurdle for anybody."

In 2019, with the help of Shawn Nolan, who leads the capital habeas unit for the Federal Community Defender Office in Philadelphia, Gutierrez filed a civil rights suit in Texas federal court arguing the state was denying him due process by not allowing him to test the evidence.

The federal court granted a partial judgment in his favor, finding in March 2021 that Chapter 64 was fundamentally unfair to those sentenced to death.

In her ruling, U.S. District Judge Hilda Tagle pointed to Chapter 11 of the Texas criminal code, which says a death sentence can be appealed consecutively if new evidence becomes available that would either reverse a conviction or would potentially change a jury's sentencing decision.

If Chapter 64 says death row prisoners can't access DNA testing unless it would fully exonerate them, Chapter 11's provision that those petitioning a death sentence can rely on evidence that would influence only their sentence is rendered a "meaningless ritual," Judge Tagle said.

"Texas procedure creates a process which gives a person sentenced to death the substantive right to bring a subsequent habeas action ... but then barricades the primary avenue for him to make use of that right," she said.

The Fifth Circuit overturned that ruling on appeal in June 2024, concluding Gutierrez did not have standing to sue Texas because there was a high likelihood state officials would not permit Gutierrez's DNA testing even when confronted with a federal court ruling.

"Because there is not a substantial likelihood that a favorable ruling by a federal court on Gutierrez's claims would cause the prosecutor to order DNA testing, Gutierrez's claims are not redressable," the panel held.

The Reed Case

Gutierrez's appeal to the U.S. Supreme Court challenging the Fifth Circuit's ruling focused largely on precedent set by the justices last year in the case of another inmate in Texas on death row: Rodney Reed.

Similar to Gutierrez, Reed wanted to test DNA evidence he said would help overturn his conviction and identify a different suspect in the 1996 murder he was found guilty of committing. While two lower courts shot down his claims, the U.S. Supreme Court ruled in April 2023 that Reed should have standing to sue the state for DNA testing, in part because "Reed sufficiently alleged an injury in fact; denial of access to the requested evidence by the state prosecutor."

"And if a federal court concludes that Texas's post-conviction DNA testing procedures violate due process, that court order would eliminate the state prosecutor's justification for denying DNA testing," the high court said. "It is 'substantially likely' that the state prosecutor would abide by such a court order."

Although this seemingly contradicts the Fifth Circuit's conclusion that state prosecutors would not heed such an order in Gutierrez's case, the justices said Gutierrez's situation was different.

In his case, the Fifth Circuit found, the state appeals court had already ruled twice that even if DNA evidence worked in his favor, Gutierrez would likely still be eligible for the death penalty, rendering the testing "meaningless."

"The Texas Court of Criminal Appeals effectively anticipated an unfavorable federal court ruling," the Fifth Circuit said. "That court held, should the limitation on DNA testing for evidence relevant only to conviction be invalid, the facts in the trial record would prevent Gutierrez from receiving the DNA testing because such evidence could not change the fact that he was death-eligible."

But in his petition to the high court, Gutierrez argued that just because Texas law permits it, that does not mean someone involved in a multidefendant murder case is guaranteed to be found guilty of capital murder, let alone sentenced to death. The court, he argued, should not base its decision on predictions about what will happen in the future, particularly when it is flouting precedent in the process.

"The Fifth Circuit has ignored this court's clear precedent and gone out of its way to create an impractical, burdensome standing test requiring federal courts to probe the parties' dispute and litigation history with a fine-tooth comb in order to foretell the future, contingent actions of state officials," Gutierrez's attorneys said in the petition.

The Fifth Circuit ruling, Maher said, "is just a complete departure from what Reed requires and, really, common sense."

"Texas does not want to give him access to DNA testing, full stop," she said. "Which, why is that an issue? If the state of Texas is so very convinced about Mr. Gutierrez's guilt, what is the harm in providing him with access to the DNA so that it can be tested? Presumably it would only confirm his guilt if that's what the state of Texas believes is true."

But Stimson of the Heritage Foundation views the Fifth Circuit's ruling as "a reflection of reality." As a former prosecutor in both Maryland and San Diego, Stimson said district attorney's offices do have a tendency to "dig in" when they are stuck defending a capital conviction they secured decades ago.

"When you earn a capital conviction, it's hard," he said. "It takes a lot of resources and a lot of money to defend the case on appeal. When you keep hearing from the same person you convicted over the decades, it becomes something where you just dig in your heels, and you're finally like, 'I'm sick of hearing from this guy.'"

The Bigger Picture

If it's true that the U.S. Supreme Court is taking up Gutierrez's case to correct the Lone Star State's interpretation of the law and legal precedent around the death penalty, it would not be the first time.

The high court has butted heads with the Texas Court of Criminal Appeals not once but twice over the last 10 years in the case of Bobby Moore and whether he should have been considered to have intellectual disabilities.

After ruling in 2002 that executing people with intellectual disabilities violated the Eighth Amendment's ban on cruel and unusual punishment, the justices took issue in an appeal from Moore about how the Texas courts identified such disabilities. It remanded Moore's case to Texas for reconsideration, but despite the prosecutor agreeing Moore should not be executed, a state appellate court ruled again that Moore was not intellectually disabled.

The case reached the high court again in 2019, where the justices determined Moore had "shown he is a person of intellectual disability" and reversed his death sentence.

"They said, 'Texas, you got it wrong. Take another look,'" Maher said. "It went back down to Texas. Texas took another look and said, 'Nope. We think we got it right.' And the second time it went up to the court, the Supreme Court said, 'All right, we're not going to give you the opportunity to get it wrong again. We're just going to give this guy relief.'"

Stimson agreed that states like Texas, where capital punishment is not only legal but also relatively popular, do have a greater tendency to adamantly block challenges to capital cases, but largely to "reflect the will of the people."

"Places like Texas and other states that still use the ultimate punishment, they're keenly aware that the legislature has authorized the ultimate punishment in appropriate cases, and they're going to dig their heels in on these cases and not give ground," he said.

But when the U.S. Supreme Court pushes back on this obstinacy, it sends a clear message to the lower courts, Maher said.

"This whole situation reinforces the importance of the U.S. Supreme Court because, absent their involvement here, the Fifth Circuit and the state of Texas can do whatever they want to do, including thwart the intention of the law or even the plain meaning of the law in order to achieve a predetermined result," she said. "And unless the Supreme Court steps in, those injustices will be unaddressed."

But Stimson said the courts, when they are restrictive in their judgments on capital appeals, are oftentimes interpreting the law as it was intended.

"Over the decades, in an effort to limit the number of endless appeals of death row inmates, Congress at the federal level and the states at the state level have passed laws that say, 'Look, there needs to be closure in these cases, and we get to a point where enough is enough.'"

Whatever the state and federal courts are doing, it's clear the high court is largely stepping out of the way, Maher said.

"The Supreme Court is less involved in enforcing its own precedent and enforcing guardrails that it has previously established in death penalty cases when they involve state cases," Maher said. "In general, I think the attitude is that these are matters for the states to decide, not the Supreme Court."

Stimson said this isn't a particularly new development for the high court.

"In these death penalty cases, it pulls at the heartstrings," he said. "But the Supreme Court can't play that game. The pure application of the law is what we expect from this court. At the end of the day, their role is somewhat limited, which is the way the court was designed."

By the time a capital case gets to the high court, it has often been "litigated six ways to Sunday," Stimson said, so much so that often the major issues have been resolved, and they involve only very discrete issues. So while it may look like they are heartlessly denying a slew of life-or-death pleas for forgiveness, it's often out of their hands, he said.

"You don't want to have the Supreme Court be the final arbiter in every death penalty case and weigh in on every one, because that would send a signal that the lower courts don't know what the hell they're doing," he added.

On Oct. 22, the high court set a Dec. 3 deadline for Gutierrez's attorneys to file a brief and a Jan. 17 deadline for the prosecution.

Both Stimson and Maher said they could see the court siding with Gutierrez, although neither are confident it will result in any sweeping change.

Stimson pointed out that if the high court wanted to make a splashy statement on capital punishment, it had ample opportunity with Roberson and Williams' petitions, but the fact that it chose Gutierrez's case, which has gotten less attention and is focused on a very narrow question, points to a different motivation.

Either way, the decision shouldn't be a difficult one, Maher said.

"I'm not predicting anything here, but it's possible this court could just issue a decision and send it back down to Texas without even scheduling oral arguments," Maher said. "It seems to me this would be a fairly straightforward decision by the court if [the lower court ruling] does not comply with its precedent."

The case is Ruben Gutierrez, Petitioner v. Luis Saenz et al., case number is 23-7809, in the Supreme Court of the United States.

The appellate case is Gutierrez v. Saenz et al., case number 20-70009, in the U.S. Court of Appeals for the Fifth Circuit.

--Editing by Lakshna Mehta. Graphics by Ben Jay.

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