Prisoner sentenced to death on the right; test DNA

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Ruben Gutiérrez, who risks execution, has been requesting DNA testing on crime scene evidence for more than 10 years.

The reasonable position is to test DNA. The prosecutor’s position – blocking the tests – is unreasonable. There shouldn’t be anything controversial about wanting to learn the truth.

As the former elected district attorney of Bexar County, I find the prosecution’s refusal to ensure the accuracy of this case puzzling. The prosecutor has a moral, ethical and legal duty to ensure that justice is done. The prosecutor should be the one requesting DNA tests, not denying them every time.

At trial, the prosecution argued that Gutierrez, alone or with others, stabbed Escolastica Harrison. Gutierrez maintains that he didn’t kill Harrison and that he didn’t know others were going to assault or kill her.

Brownsville Police have collected several pieces of evidence with biological material that may contain DNA from the person (s) who killed Harrison. These articles have never been tested for DNA. If the crime happened today, DNA evidence would naturally be tested.

Gutierrez was convicted under Parties’ Law, which allows the jury to find someone guilty of capital murder based on the conduct of the co-defendants. Gutierrez argues that if DNA evidence had been presented to the jury and it showed he was not the real killer, jurors would not have sentenced him to death.

Support for DNA testing does not make me or anyone else a bleeding heart liberal. I was a Bexar County District Attorney in the 1980s and a former board member of the National District Attorneys Association. My prosecutors have pulled thousands of criminals off the streets.

We have pursued capital murder cases and put together a perfect case file. In all of the cases we have prosecuted, the accused has been convicted. The State of Texas executed each of these accused. In 2005, the Houston Chronicle convincingly argued that one of my lawsuits, against a young man named Ruben Cantu, may have resulted in the execution of an innocent person.

Even though I thought Cantu’s trial was perfect, in 2004 my star witness, the lone eyewitness, retracted his testimony. This abjuration shook me deep within myself when I realized that a person I had pursued and who was subsequently executed could be innocent.

Texas executed others, including Cameron Willingham, Carlos DeLuna and Claude Jones, who were almost certainly innocent. I believe, more than ever, that prosecutors and the courts should do everything in their power to ensure that Texas never executes another innocent person. In Gutierrez’s case, the decision to test DNA should be an easy one. Whenever DNA evidence exists, it should be tested.

The case against Gutierrez has never been waterproof. Gutierrez maintained his innocence and did not finally confess, in his third statement, until after police threatened to arrest his wife and take his children away. One of the main causes of wrongful convictions is police-induced false confessions. In nearly a third of DNA exemptions, the person had confessed falsely, according to Project Innocence.

No physical or forensic evidence linked Gutierrez to the crime scene. The single eyewitness was unable to identify Gutierrez in court, although he was seated at the defense table next to his lawyer. Instead, the eyewitness chose someone from the gallery and a juror when asked to identify who he saw on the day of the crime. More than 70 percent of DNA exemptions involve mistaken eyewitness identifications.

I don’t know if Gutierrez is telling the truth. But there is an easy way to find out. Test the DNA.

Sam Millsap was a Bexar County District Attorney from 1982 to 1987 and practices law in San Antonio.


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