Supreme Court justices appear narrowly divided over death row prisoner plea for dna testing

WASHINGTON — Ruben Gutierrez, a Texas death row inmate, says that newly uncovered DNA evidence proves that he did not stab an 85-year-old woman to death inside her mobile home more two decades ago.

Texas prosecutors argue the testing, whatever it reveals, will not make a difference in his case. On Monday, the Supreme Court heard arguments over whether Gutierrez could request the testing, appearing narrowly divided on the question.

In July, the court took the extraordinary step of delaying Gutierrez’s execution just 20 minutes before he was to be put to death. It was the second time the court had halted his execution over legal disputes in the case.

Gutierrez was convicted and sentenced to death in 1999 for the robbery and murder of 85-year-old Escolastica Harrison. Prosecutors accused him and two other men of planning to rob Harrison by luring her from her mobile home and of stealing cash that she kept inside it. Evidence at the trial showed that Harrison had been stabbed to death in her home.

Gutierrez maintains that he did not go inside Harrison’s home and was not aware of any plan to harm her. For more than a dozen years, Gutierrez has sought to have evidence from the crime scene, including a bloodstained shirt, hair and nail scrapings, tested under the Texas Code of Criminal Procedure, arguing that none of these items would show his DNA.

The argument before the court was not about innocence — Gutierrez does not contend he played no role in the events that led to the killing — but rather about whether he should face the death penalty.

Under the Texas doctrine known as the “law of parties,” even people who do not actually kill, intend to kill or anticipate that someone will be killed during a crime can be found guilty of capital murder. That means that Gutierrez could be found guilty if he participated in the robbery, even if he didn’t take part in the killing.

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