---------------------------------------------------------------------------------
EDITORIAL: "The Catch-27 that could cost Ruben Gutierrez his life," published by The Dallas Morning News on April 6, 2021."
SUB-HEADING: "Yet, from the start, this case has been about more than whether Gutierrez should have clergy present at the time of his execution. It has also been about whether physical evidence collected at the crime scene should — after more than 20 years — finally be given a DNA test. Gutierrez’s attorney, Shawn Nolan, says a simple DNA test of that evidence — fingernail scrapings and a human hair — will prove that his client was not the person who stabbed Escolastica Harrison in her Brownsville home more than a dozen times during a robbery, which prosecutors argued was carried out by Gutierrez and two other men. Nolan told us he’s seen the evidence but his repeated requests to conduct a DNA test continue to be denied. “I don’t know what they’re so afraid of,” Nolan said. “I just don’t understand it.”
-----------------------------------------------------------
GIST: "On June 16, 2020, just one hour and 10 minutes before the State of Texas was scheduled to execute 43-year-old Ruben Gutierrez for the 1998 murder of an 85-year-old Brownsville woman, the U.S. Supreme Court stepped in and granted Gutierrez, a Catholic, a reprieve so that a lower court could consider his request to allow a chaplain in the execution chamber.
This newspaper, along with the Texas Catholic Conference of Bishops and others, had called on the Supreme Court to stay Gutierrez’s execution on the grounds that denying his request for clergy present in the execution chamber was a violation of his First Amendment right to religious liberty and an affront to human dignity.
“Whatever Gutierrez’s fate,” we wrote in an editorial published just hours before his scheduled execution by lethal injection, “we believe that to deny the condemned the right to have a religious leader present is to deny their humanity.” We stand by that editorial, and see no reason why anyone should be denied the presence of a spiritual adviser at the time of death.
Up until April 2, 2019, when the Texas Department of Criminal Justice changed its longstanding policy of allowing clergy into the execution chamber, Gutierrez’s request would have been routinely granted. But on that date the TDCJ announced a new policy saying that consulting with a chaplain before entering the chamber is sufficient to honor a death-row inmate’s religious rights. We disagree. And continue to call on the TDCJ to reverse this cruel policy.
Yet, from the start, this case has been about more than whether Gutierrez should have clergy present at the time of his execution. It has also been about whether physical evidence collected at the crime scene should — after more than 20 years — finally be given a DNA test.
Gutierrez’s attorney, Shawn Nolan, says a simple DNA test of that evidence — fingernail scrapings and a human hair — will prove that his client was not the person who stabbed Escolastica Harrison in her Brownsville home more than a dozen times during a robbery, which prosecutors argued was carried out by Gutierrez and two other men. Nolan told us he’s seen the evidence but his repeated requests to conduct a DNA test continue to be denied. “I don’t know what they’re so afraid of,” Nolan said. “I just don’t understand it.”
On March 23, a federal district judge in Brownsville granted Gutierrez a declarative judgment concluding that “giving a defendant the right to a successive habeas petition for innocence of the death penalty” under one article of the Texas Code of Criminal Procedure “but then denying him DNA testing” under another article of the same code “unless he can demonstrate innocence of the crime is fundamentally unfair and offends procedural due process.”
In other words, under current Texas law, Gutierrez has a right to DNA testing but he must first “demonstrate innocence of the crime” in order to exercise that right. That, as the federal district judge said, is “fundamentally unfair.” But it is also a classic — and in this case, potentially tragic — Catch-22. The DNA testing that Gutierrez says will prove he is innocent of capital murder will not be conducted unless he can “demonstrate innocence of the crime.”
One doesn’t have to be a legal expert to agree with the federal district judge and see this as “fundamentally unfair.” If true justice is to be served, both for the murder victim and Gutierrez, there’s no good reason to deny DNA testing of the physical evidence taken from the crime scene. In this case and others, we see no reason why the state should sit on potentially exonerating DNA evidence, especially in a capital murder case when a man’s life hangs in the balance."
The entire editorial can be read at:
the-catch-22-that-could-cost-ruben-gutierrez-his-life
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
