DNA evidence — including scrapings underneath Harrison’s fingernails and a loose hair wrapped around one of her fingers — was recovered but has never been tested.
A Texas statute permits DNA testing only where favorable results would prove innocence, not ineligibility for a death sentence. On Monday, justices heard arguments over whether Gutierrez has the legal right, or standing, to request the post-conviction DNA testing.
The focus of the question was not whether Gutierrez was innocent, but whether he should face the death penalty. His execution was put on hold in 2024 — the second time the Supreme Court halted his execution — after the Court ruled in the similar case Reed v. Goertz that Rodney Reed had the legal right to sue Texas over its refusal to grant him access to post-conviction DNA testing.
For the last 14 years, Texas courts have denied Gutierrez’s requests to seek postconviction DNA testing of the crime scene and autopsy evidence to prove that his limited culpability in the murder would render him ineligible for the death penalty. They did so on the basis that Gutierrez did not have the legal right, or standing, to challenge the constitutionality of a provision of Texas’s postconviction DNA testing statute, which permits testing affecting an inmate’s conviction but not his punishment.
Anne E. Fisher, representing the petitioner, argued that certain procedures in the Texas post-conviction statute known as Chapter 64 that blocked post-conviction DNA testing were unconstitutional and that Gutierrez should not have been denied DNA testing.
“It’s not Mr. Gutierrez who keeps switching his position,” Fisher said. “We are simply reacting to the brand new arguments that respondents have come up with late in the process as to why we don’t have standing.”
To show that Gutierrez is ineligible for the death penalty, Fisher said she would need to show that he was not in the house and that he was not a “major participant” in the death of Harrison. Obtaining DNA testing would be one component of doing so.
Chief Justice of the United States John Roberts questioned whether a “tiny thimbleful of additional evidence” would help Gutierrez and Justice Samuel Alito pointed out that “at most, it could show that other people were there.” But Justice Brett Kavanaugh seemed among several justices sympathetic to Gutierrez. He observed that even if the district attorney refused to grant Gutierrez access to post-conviction DNA testing, he would still have the legal right to sue.
“I don’t see 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,’” Kavanaugh said. “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.’”
However, William F. Cole, representing the respondents, argued that Reed v. Goertz was applied correctly and Gutierrez did not have standing to challenge the constitutionality of the DNA testing statute that permits testing affecting an inmate’s conviction but not his punishment. He also argued that Gutierrez had not challenged all the procedures needed to get the remedy for his injury — the denial of access to DNA testing evidence.
“That’s binary,” Cole said about Gutierrez’s assertion of his injury. “Either you get it or you don’t.”
Justice Ketanji Brown Jackson seemed particularly interested in clarifying the theory of redressability in the case, while Justice Sonia Sotomayor seemed to lean in favor of Gutierrez, pushing back on Cole’s argument.
“Don’t you want to know you’re convicting the right person for the right thing? I mean, he’s going to spend time in jail no matter what because he admits to being at least an accessory to the robbery or a part of the robbery,” Sotomayor asked. “But at what point does this legal maneuvering become counterproductive to the state? If you are sure of your conviction and your theory, why not do the testing?”
Cole responded that Gutierrez previously made a “strategic choice” not to undergo DNA testing when it was available to him and that even if the evidence were exculpatory, it would not change Gutierrez’s sentence because he is still eligible for the death penalty.
The justices appeared to be divided. The Supreme Court challenged both lawyers by posing hypothetical situations and clarifying questions over issues of redressability and standing.
But to Miriam Becker-Cohen, the case appeared straightforward. Becker-Cohen is the lead author of an amicus brief in Gutierrez v. Saenz from the Constitutional Accountability Center, an organization focused on examining the whole Constitution’s history to uphold progressive values at its core.
Becker-Cohen emphasized that the case boils down to the simple question of whether a death-row inmate has the right to go to court and say that the DNA testing statute violates their right to a fundamentally fair process under the Constitution under the due process clause.
“This case isn’t going to decide whether or not he gets the death penalty. It’s not going to decide whether or not he’s exonerated or something,” Becker-Cohen said. “It’s really just a narrow issue: it’s whether he gets into court in the first place, which seems like such a fundamental thing that he should be entitled to under our concept of federal standing law and jurisdiction.”
