Less than a week after an NPR investigation revealed major problems with Texas’ previously secret supplier of execution drugs, the state is scheduling the execution Tuesday night of a man who has maintained his innocence for more than two decades.
Ruben Gutierrez was convicted under a Texas conspiracy charge for the murder of 85-year-old Escolastica Harrison in 1998. Harrison was killed during a robbery at the Brownsville home she shared with her nephew. Shortly thereafter, Pedro Gracia, Rene Garcia and Ruben Gutierrez, a friend of Harrison’s nephew, were arrested in connection to the crime.
Only Gutierrez received the death penalty. Gracia was never tried and has been missing since he was released on bail more than 20 years ago. He is serving a life sentence at Estelle Correctional Facility in Huntsville for his role in the crime.
The state’s original theory, and the charges presented against Gutierrez at his 1999 trial, was that he and Garcia murdered Harrison. But in Texas, the court did not have to find Gutierrez responsible for the murder in order to sentence him to death. Under Texas law, anyone who takes part in a crime that results in death can be guilty of murder, even if they did not injure the other person or touch a weapon.
The conspiracy law was enacted in Texas in 1973 to combat murder-for-hire and organized crime, but its application in modern times has been controversial. Jessica Dickerson, campaign director for the Texas Prison Community Advocates’ Conspiracy Law, said no one officially tracks how the law is used in Texas, so she documents individual cases. She’s found a surprising trend: The person who pulled the trigger usually gets the lightest sentence.
Dickerson says that’s because the person who actually committed the crime usually pleads guilty and settles for a lighter sentence, but other accomplices are more likely to fight murder charges at trial and are more likely to be convicted as accomplices by juries.
“If the state is going to continue to use the death penalty, it needs to be used in an ethical and morally responsible way. Executing someone who has never killed anyone does not seem like an ethical or morally responsible thing to do,” Dickerson told the Observer.
At his 1999 trial, state prosecutors argued that Gutierrez, who was close to Harrison’s nephew, knew about and planned to steal a large amount of money from Harrison’s home on the night of the murder. Gutierrez’s defense was, and still is, that he was not at Harrison’s home that night, did not take part in the violence, and “had no knowledge that anyone was planning to assault or kill her.”
But the jury was told that Gutierrez could still be found guilty of murder even if he was a “party” to the death. The jury found that to be the case and convicted him. An appeals court upheld his conviction in 2002, and several unsuccessful appeals were attempted over the next few decades.
In June, Gutierrez’s lawyers asked the Texas Board of Pardons and Paroles and Governor Greg Abbott to commute Gutierrez’s sentence to life in prison. Two original jurors who signed the clemency application supported the move, saying they no longer believed Gutierrez should be executed. The board denied the request last week.
The application notes that despite years of requests, none of the crime scene evidence, such as nail marks or hair from the victims, has been tested for DNA.
“Although the State has evidence to prove who actually murdered Mrs. Harrison, the Court has denied all claims of testing by Mr. Gutierrez,” his lawyers wrote in the pardon application.
Gutierrez has been trying to get state and federal courts to allow DNA testing for more than a decade. He filed a federal civil rights lawsuit in 2019, questioning the constitutionality of a Texas law that governs how convicted people can be DNA tested. A federal judge partially ruled in his favor in 2021, but the 5th U.S. Circuit Court of Appeals dismissed the case in February, saying Gutierrez lacked standing to bring the suit. His lawyers are asking the U.S. Supreme Court to grant a stay of execution and sentence.
“It’s a really interesting issue and one that I think the Supreme Court should be interested in because it has implications on access to the courts and standing to sue in these situations,” Gutierrez’s lawyer, Sean Nolan, told the Observer.
The state’s original case against Gutierrez relied on eyewitness testimony and contradictory statements he gave to police. Gutierrez has since argued that his statements were false and coerced. He and his co-defendants gave a total of nine statements to police shortly after the murders, none of which were entirely consistent with each other or with the crime scene evidence. His defense team also questioned the validity of the eyewitness testimony, stating in the pardon application that the lead detective on the case “gave false testimony about the time of death in order to make it appear as if the witnesses testified that Mr. Gutierrez was at the scene at the time of the murders.” Two of the witnesses have denied their testimony, according to the documents.
“Given these uncertainties, the state should not be permitted to execute Mr. Gutierrez prior to DNA testing being conducted,” the filing states.
This is the seventh time the state has issued an execution warrant for Gutierrez since 2018. Most of the execution dates were canceled due to clerical or procedural errors, including one in which the Cameron County District Attorney’s Office “misnamed the wrong person for execution” on the warrant. Since 2018, Gutierrez has spent more than 500 days in a death watch station, a high-security holding area reserved for those scheduled for execution.
