"PUBLISHER'S NOTE: WORDS TO HEED: FROM OUR POST ON KEVIN COOPER'S APPLICATION FOR POST-CONVICTION DNA TESTING; CALIFORNIA: (Applicable wherever a state resists DNA testing): "Blogger/extraordinaire Jeff Gamso's blunt, unequivocal, unforgettable message to the powers that be in California: "JUST TEST THE FUCKING DNA." (Oh yes, Gamso raises, as he does in many of his posts, an important philosophical question: This post is headed: "What is truth, said jesting Pilate."...Says Gamso: "So what's the harm? What, exactly, are they scared of? Don't we want the truth?")
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QUOTE OF THE DAY: "Nolan has appealed the case to the United States Supreme Court and thinks it’s possible the justices will take it. Meanwhile, he continues to wonder why the state of Texas would go on sending its attorneys to oppose DNA testing if they’re confident Gutierrez’s verdict is correct. “There’s no question that if this case happened today, everything would be tested,” Nolan said. “So our position has always been, what are they so afraid of? It’s certainly not the cost – we’ve offered to pay for it.”
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GIST: "It looks very likely that the state of Texas will execute Ruben Gutierrez on July 16 without ever having DNA tested fingernail scrapings, bloodstains, and hair that he says will prove he is not a murderer.
Gutierrez was convicted in 1999 of conspiring with two other men to rob Escolastica Harrison, the operator of a Brownsville trailer park. The state’s evidence showed that two of the three men entered Harrison’s mobile home and killed her as they searched for hidden cash. Gutierrez has long asserted that he stayed outside the home and had no idea the others were planning to murder Harrison. His attorneys have argued there is no forensic evidence connecting him to the murder and that he was convicted on the strength of a false confession he offered when police threatened to jail his wife and have his kids placed in foster care.
For the last 13 years, Gutierrez has been trying to get some court, any court, to order the DNA testing to help prove he wasn’t in the room when Harrison was killed. The request was first denied in 2011 by the Texas Court of Criminal Appeals, the same court that recently approved Gov. Greg Abbott’s pardon of convicted murderer Daniel Perry. The CCA ruled that since Gutierrez had been convicted under Texas’ controversial “law of parties” statute – which specifies that anyone involved in a crime can be held accountable for other crimes committed during its commission – it didn’t really matter whether he’d entered the trailer.
In other words, he could still be executed even if he hadn’t harmed, or meant to harm, Harrison, so why allow the testing?Gutierrez continued fighting for the testing, however, and in 2019 he and his attorney, Shawn Nolan, challenged the constitutionality of the Texas laws governing when DNA from settled cases can be tested. Nolan describes these laws as one of the classic Catch-22’s of the death penalty.
“One statute says that you can file an appeal that you should not have received the death penalty,” Nolan said. “And then the other statute says you can only get DNA testing if you can prove you’re innocent. Well, how do you prove you’re innocent before you get the testing? It’s a Catch-22 that violates due process and the Constitution.”
“[One] statute says you can only get DNA testing if you can prove you’re innocent. Well, how do you prove you’re innocent before you get the testing? It’s a Catch-22.”
– Attorney Shawn Nolan
Nolan has appealed the case to the United States Supreme Court and thinks it’s possible the justices will take it. Meanwhile, he continues to wonder why the state of Texas would go on sending its attorneys to oppose DNA testing if they’re confident Gutierrez’s verdict is correct. “There’s no question that if this case happened today, everything would be tested,” Nolan said. “So our position has always been, what are they so afraid of? It’s certainly not the cost – we’ve offered to pay for it.”
Meanwhile, the Innocence Project is gearing up to save the life of Robert Roberson, now that Texas has set Roberson’s execution for Oct. 17. According to the Innocence Project, which is representing Roberson, if the execution goes forward he will be the first person in the country to be put to death on the basis of “shaken baby syndrome,” a concept that is now under scrutiny. Since 1992, at least 32 parents and caregivers in 18 states have been exonerated after being convicted under the shaken baby hypothesis, according to the National Registry of Exonerations.
Roberson was convicted of murdering his 2-year-old daughter Nikki in 2003. Nikki had battled a high fever and undiagnosed pneumonia in the week before her death. Roberson said she died after a fall from her crib.
Roberson’s case has echoes of those of Rosa Jimenez and Melissa Lucio, who are also represented by Innocence Project attorneys. Like Roberson, Jimenez and Lucio were convicted of murdering toddlers after scientists presented testimony at their trials that was later found to be misleading. Jimenez was exonerated and released last August after 20 years behind bars. A judge overseeing Lucio’s trial court recommended in April that her conviction be overturned. She is currently waiting for the CCA, the same court that has refused DNA testing to Gutierrez, to sign off on the request.
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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.
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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