Death row inmate right; test DNA

Ruben Gutierrez, who is facing execution, has asked for DNA testing of crime scene evidence for more than 10 years.

The reasonable position is to test the DNA. The prosecutor’s position — blocking testing — is the unreasonable one. There should be nothing controversial about wanting to learn the truth.

As a former elected Bexar County district attorney, I find the prosecution’s refusal to ensure accuracy in this case mystifying. The prosecutor has a moral, ethical and legal duty to see that justice is done. The prosecutor should be the one requesting DNA testing, not refusing it at every turn.

At trial, the prosecution argued Gutierrez, either alone or with others, stabbed Escolastica Harrison. Gutierrez maintains he did not kill Harrison and that he had no knowledge that others were going to assault or kill her.

The Brownsville police collected several pieces of evidence with biological material that are likely to contain the DNA of the person or people who killed Harrison. These items have never been tested for DNA. If the crime happened today, the DNA evidence would be tested as a matter of course.

Gutierrez was convicted under the law of the parties, which allows the jury to find a person guilty of capital murder based on the conduct of co-defendants. Gutierrez contends if the DNA evidence had been presented to the jury and it showed he was not the actual killer, the 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 the district attorney for Bexar County in the 1980s and a former member of the board of directors of the National District Attorneys Association. My prosecutors took thousands of criminals off the streets.

We prosecuted capital murder cases and compiled a perfect record. In every case we prosecuted, the defendant was convicted. The state of Texas executed each of those defendants. In 2005, the Houston Chronicle argued persuasively that one of my prosecutions, of a young man named Ruben Cantu, may have resulted in the execution of an innocent person.

Although I thought Cantu’s trial was perfect, in 2004, my star witness, the lone eyewitness, recanted his testimony. That recantation shook me to my core when I realized that a person I had prosecuted and who was subsequently executed may have been innocent.

Texas has executed other people, including Cameron Willingham, Carlos Deluna and Claude Jones, who almost certainly were innocent. I believe, more than ever, that prosecutors and courts must do everything in their power to make sure Texas never executes another innocent person. In Gutierrez’s case, the decision to test the DNA should be an easy call. Any time DNA evidence exists, it should be tested.

The case against Gutierrez was never airtight. Gutierrez maintained his innocence and finally confessed, in his third statement, only after the police threatened to arrest his wife and take away his children. Police-induced false confessions are one of the leading causes of wrongful convictions. In almost one-third of DNA exonerations, the person had falsely confessed, according to the Innocence Project.

No physical or forensic evidence connected Gutierrez to the crime scene. The single eyewitness was not able to make an in-court identification of Gutierrez, even though he was sitting at the defense table next to his defense counsel. Instead, the eyewitness picked 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 exonerations involve mistaken eyewitness identifications.

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

Sam Millsap served as Bexar County district attorney from 1982 to 1987 and practices law in San Antonio.