COVID-19 execution prosecutorial misconduct

TCADP June 2020 Newsletter: State of Texas scheduled to execute Ruben Gutierrez in two weeks

In this edition of our monthly newsletter, you’ll find information on the scheduled execution of Ruben Gutierrez and how you can support his application for clemency or a reprieve. You’ll also find updates on other Texas death penalty cases and the results of the 2020 Houston Area Survey, which measured record-low support for the death penalty.

In this edition:

Scheduled executions: State of Texas scheduled to execute Ruben Gutierrez while refusing to test DNA evidence; here’s how you can support his application for clemency or a reprieve

COVID-19 and Texas prisons: TDCJ conducts widespread testing; federal appeals court considers inmate lawsuit related to prison conditions during the pandemic

In case you missed it: 2020 Houston Area Survey finds record-low support for the death penalty; court upholds conviction in death penalty case that relied on hypnosis of sole eyewitness; federal judge grants relief to Ronald Jeffery Prible, Jr. due to evidence of egregious prosecutorial misconduct; new film tells the story of first Latina on death row in Texas

Upcoming events: Join TCADP’s new book group; watch proceedings of the Texas Court of Criminal Appeals

Quote of the month

“It’s hard to miss the irony that just as our nation is talking constantly about how to save lives, the state of Missouri went out of its way to take someone’s life.”

– Shane Claiborne, “Death in the middle of death: On the execution of Walter Barton,”Religious News Service, May 26, 2020.  On May 19, Missouri carried out the nation’s first execution during the pandemic, putting Walter “Arkie” Barton to death despite significant questions about the reliability of his conviction. 

Scheduled executions 

The State of Texas is scheduled to execute Ruben Gutierrez on June 16, 2020.  It’s the fourth execution date he has faced since 2018.  He was convicted and sentenced to death for the 1998 murder and robbery of Escolastica Harrison in Brownsville (Cameron County).  Over the two decades he has spent on death row, Gutierrez has consistently maintained that he did not kill Harrison.  He has sought DNA testing for years, which the state has opposed.

Attorneys for Gutierrez have filed a motion for a stay of execution with the Texas Court of Criminal Appeals based on conditions related to the COVID-19 pandemic. The motion argues that “at the most fundamental level, this pandemic makes it impossible for TDCJ to conduct the execution consistent with statutory law and its own protocol and rules,” and that his attorneys are “unable to represent Mr. Gutierrez adequately under pandemic conditions.” Read more.

Contact the Texas Board of Pardons and Paroles to urge them to recommend clemency or at least a temporary reprieve for Ruben Gutierrez (TDCJ #999308, DOB 06/10/1977).  Share your concerns with Governor Greg Abbott.  You’ll find talking points, a sample letter, and contact information for the Board and Governor here.  Please take action by June 11; check our website and follow us on social media for updates.

Since mid-March, the Texas Court of Criminal Appeals (CCA) has stayed four executions based on the pandemic.  It also stayed the execution of Randall Mays, who was scheduled to be put to death on May 13, 2020. The CCA sent his claim of intellectual disability back to the trial court for a review on the merits. 

To date in 2020, the State of Texas has executed two people.  Executions also have been carried out in Alabama, Georgia, Missouri, and Tennessee.  At this time, there are three additional executions scheduled in Texas – one in July and two in September.  

Texas juries have sentenced two people to death this year.  All jury trials are on hold for the time being due to the pandemic though they may resume in mid-July, according to some judges.

COVID-19 and Texas prisons

According to the Texas Department of Criminal Justice (TDCJ), as of June 1, nearly 6,500 inmates have tested positive at prisons throughout the state and there are active cases at more than half of all units.  More than 950 employees, staff, or contractors have tested positive for COVID-19.  At least 39 prisoners and 7 staff members have died, and dozens of units are on lockdown.  There are no active inmate cases at the Polunsky Unit, which houses the men on death row; three employees there have reportedly recovered from the virus and there is one employee with an active case.  At the Mountain View Unit, which houses the six women on death row, there have been no confirmed cases.  The Huntsville Unit (aka the Walls Unit), where executions in Texas take place, is on lockdown with 137 active inmate cases.

On May 28, 2020, the U.S. Court of Appeals for the Fifth Circuit heard arguments in a lawsuit from inmates at the Wallace Pack Unit against TDCJ, claiming health and safety concerns put them at risk of contracting COVID-19.  According to the Texas Tribune, “in their remote court hearing [the judges] questioned both whether state officials have done enough to protect high-risk inmates in a rapidly changing situation and whether the prisoners suing TDCJ followed the proper steps before heading to federal court.”  Several men on death row at the Polunsky Unit have sought to join the lawsuit.  

In case you missed it

Survey finds low support for death penalty among Houstonians
Last month, the Kinder Institute for Urban Research at Rice University released the results of its Houston Area Survey for 2020.  Now in its 39th year, the survey measures Houstonians’ views on a wide range of issues facing the region, including the death penalty.  According to the 2020 survey, when asked to choose among three alternative forms of punishment for persons convicted of first-degree murder, only 20% of Houstonians support the death penalty for such crimes.  This compares with 27% in 2016, 37% in 2010, and 41% who supported the death penalty in 2000, when the survey first asked respondents to choose among several options for the punishment for murder.  Read more.

Court upholds conviction in case that relied on hypnosis of sole eyewitness
On May 6, 2020, the Texas Court of Criminal Appeals denied relief to Charles Flores, agreeing with the trial judge’s findings that Flores had failed to prove by a preponderance of the evidence that he was entitled to relief under Article 11.073.  Four years ago, the court stayed his execution and sent his case back to the trial court to permit him to develop evidence showing how the use of forensic hypnosis to obtain his conviction for the 1998 murder of Elizabeth Black in Dallas County was junk science.

No direct evidence linked Flores to the crime scene.  His conviction hinged largely on an eyewitness who put him outside the crime scene only after the police had conducted a hypnosis session on her and suggested that she would “remember more later.”  This neighbor made the identification only after she was shown pictures of Flores by the police following the hypnosis session, after she then saw some of the same pictures in the newspaper, and only after she then saw him sitting in the courtroom during his trial a year later.  According to the Dallas Morning News, “while investigative hypnosis has come under increasing scrutiny nationally as states crack down on perceived junk sciences, no regulatory body in Texas oversees the practice.” 

Federal judge finds egregious prosecutorial misconduct in Harris County death penalty case 
On May 20, 2020, U.S. District Judge Keith Ellison granted federal habeas relief to Ronald Jeffery Prible, Jr., in a case involving egregious prosecutorial misconduct.  Judge Ellison found that prosecutor Kelly Siegler “intentionally and knowingly withheld information [from] the defense, was deceptive about her efforts to do so, and was far from credible in her federal court testimony.”  Prible was sentenced to death by a Harris County jury in 2002 after he was convicted of causing the deaths of five members of a family in Houston, a crime for which he has vociferously maintained his innocence.  His conviction was based largely on informant testimony. Read a statement by Prible’s attorneys in response to the ruling. 

Judge Ellison’s ruling represents an exceptionally rare grant of relief at the federal level, as documented by a recent study, “Reversal Rates in Capital Cases in Texas, 2000–2020,”conducted by David R. Dow and Jeff Newberry.  Published in the UCLA Law Review, their research examined the success rate of death row inmates in their appeals and found that of the 151 completed federal habeas proceedings, only one person ultimately prevailed in securing relief.

New film tells the story of first Latina on death row in Texas
“The State of Texas vs. Melissa” recently premiered as part of the Tribeca Film Festival. It tells the story of Melissa Lucio, who was convicted and sentenced to death in Cameron County in 2008. She is one of six women on death row in Texas. Last summer, the U.S. Court of Appeals for the Fifth Circuit granted Lucio a new trial, finding she was denied the right to present expert testimony to the jury. The State of Texas appealed that decision and now the full court will reconsider her case. Watch the trailer:

Upcoming events

Are you looking for something to read this summer?
TCADP is excited to announce the launch of our first book group.  It’s open to all supporters and will involve a mix of memoirs, fiction, and non-fiction with criminal justice themes.  We will gather by Zoom every six weeks to discuss the book selection and may include special guests as relevant.  If you’re interested in participating, fill out this short RSVP form, which will help us determine the date and time of our first meeting in mid-July.  The first book selection is The Guardians by John Grisham, which focuses on wrongful convictions.  It will be available in paperback on June 16.

Have you ever wanted to watch the proceedings of Texas’s highest criminal court?
The Texas Court of Criminal Appeals will conduct oral arguments on June 3, 2020 via Zoom.  One of the cases on the schedule involves John Falk, Jr., who was sentenced to death in 2017. The arguments will be live-streamed on the Court’s YouTube Channel starting at 9:00 AM.

Thank you for standing with us as we pursue our vision for justice in these uncertain and painful times.  We greatly appreciate any contribution you are able to make towards our efforts to urge public officials to prioritize measures for saving lives, not ending them. This month, we would like to share with you a poem written by Jesse Doiron, a longtime TCADP member in Beaumont, Texas.


The crime he made was of such shade –
deep red and wrapped in black.
He tried to lie, but guilt was good
for him and us, and
everyone knew well what then to do,
once all lined up to see
the truth strung out – the red part his;
the black was ours.
A rope tied up the day with talk.
And town folk on his side cried
some but felt it best be done right
here, with friends. So they, too,
wrapped the black round what had been
the red and led the man
to what no one of us could know
for sure – the rest of truth
that lies quietly in the shade.