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U.S. Supreme Court

Expected noncompliance with court orders shouldn’t defeat standing, Kavanaugh says in DNA-test arguments

By Debra Cassens Weiss

February 25, 2025, 11:08 am CST

The U.S. Supreme Court appeared divided Monday in arguments over a death row inmate’s quest for a DNA test to show that he wasn’t inside a trailer where robbery accomplices killed an 85-year-old woman.

Justice Brett Kavanaugh was among the justices appearing sympathetic to Texas inmate Ruben Gutierrez’s bid for testing to establish that he didn’t deserve the death penalty for the 1998 murder, report Courthouse News Service, Law.com, SCOTUSblog and the New York Times.

Kavanaugh wrote the 6-3 Supreme Court decision in 2023 that allowed Texas inmate Rodney Reed to pursue a DNA test.

The issue in the Reed case was whether the statute of limitations barred his request for a DNA test in his federal civil rights lawsuit. Before reaching the issue, however, the Supreme Court said Reed had sufficiently alleged an injury that would be redressed by a finding that state DNA testing procedures violate due process.

In Gutierrez’s case, the issue is whether Gutierrez had standing to challenge Texas statute that allows postconviction DNA testing only when it could lead to an overturned conviction. The law does not allow testing when it affects only the sentence, as in Gutierrez’s case.

Texas argues that Gutierrez doesn’t have standing to bring a due process challenge to the statute because he would still be eligible for the death penalty under Texas law and wouldn’t be entitled to the test.

Texas law permits a capital murder conviction in a robbery scheme even if other accomplices killed the victim and even if the defendant didn’t anticipate the murder.

Lawyers for Gutierrez, on the other hand, argue that jurors would not have sentenced Gutierrez to death if DNA showed that he was not in the home and that he wasn’t a “major participant” in the crime. They also argue that courts don’t have to determine whether state officials would redress Gutierrez’s injury if courts were to declare the statute unconstitutional.

Kavanaugh “appeared to take umbrage at the suggestion” that prosecutors might not allow DNA testing even if the Texas statute is found unconstitutional, according to Law.com.

SCOTUSblog reported on Kavanaugh’s comment.

“I just don’t see,” he said, “how we can say something’s not redressable just because the prosecutor is going to say I’m not going to comply with a court order. You know, if President Nixon said I’m not going to come turn over the tapes no matter what, you wouldn’t say, ‘Oh, I guess we don’t have standing to hear the executive privilege case.’”

Courthouse News Service points out that Kavanaugh’s comment comes following suggestions by Vice President JD Vance that presidents could ignore court orders that interfere with their lawful exercise of power.

The case is Gutierrez v. Saenz.

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Law Firms

Which law firms are expected to win influence in Trump administration?

By Debra Cassens Weiss

November 7, 2024, 9:22 am CST

Boutique and smaller law firms that have advised President-elect Donald Trump and his allies may be among the legal counsel who benefit when he takes office in January.

The firms backed conservative causes and “collected former Trump administration officials,” Law360 reports. Their connections are “perhaps lending them some influence with the new administration and giving their lawyers a leg up when Trump chooses political appointees for a second term.”

Law360 reports that these firms are in the mix:

  • The Dhillon Law Group. Led by Harmeet Dhillon, this firm has represented the Trump campaign in election lawsuits, the Republican National Committee in several cases and Trump in several legal matters, including his successful challenge to a ruling that would have kept him off the Colorado ballot.

  • Consovoy McCarthy. The firm handles some election matters for the RNC, including a successful suit to prevent Mississippi from counting ballots after Election Day. The firm also represented Trump in several cases, including a suit alleging that he violated the emoluments clause by accepting payments to his businesses by foreign governments.

  • Jones Day. The firm represented Trump’s first two presidential campaigns and currently represents the RNC in several cases. One partner, John Gore, was the acting head of the Department of Justice’s Civil Rights Division in the Trump administration. Another partner, Don McGahn, served as the White House counsel in the Trump administration, but their relationship “was tumultuous at best,” Law360 reports.

  • Michael Best & Friedrich. The firm is led by Reince Priebus, a former chief of staff during Trump’s presidency. The firm has also hired several other lawyers linked to Trump, although some of them are no longer working there.

Law360 also mentions Dickinson Wright and Nelson Mullins Riley & Scarborough, which have represented the RNC in election-related cases.

Fireworks are expected Tuesday at a status conference for Alex Murdaugh’s motion for a new trial as a new judge takes the bench and makes decisions about what evidence will be heard and which witnesses will testify at a three-day evidentiary hearing later this month.

Murdaugh claims Colleton County Clerk of Court Becky Hill tampered with the jury in his double murder trial last year. The jury found Murdaugh guilty of murdering his wife, Maggie Murdaugh, and son, Paul Murdaugh, after six weeks of testimony and roughly three hours of deliberation in March 2023.

Prosecutors from South Carolina’s Office of the Attorney General have argued an evidentiary hearing on the defense claims isn’t necessary. However, Justice Jean Toal, who has been appointed by the state’s high court to preside over the motion, has already decided a hearing is necessary. Toal was the first woman to serve as chief justice of South Carolina’s Supreme Court.

Late Friday, Murdaugh’s attorneys filed a new brief adding the names of witnesses they may call at the hearing. Those included Creighton Waters, the assistant attorney general who led the prosecution of Murdaugh, his paralegal, Carly Jewell, Becky Hill’s daughter, Aubrey Hill, and SLED agents David Owen and Rachel Joseph. Calling Waters to testify at the hearing could become a point of contention at Tuesday’s status conference.

Documents recently came to light that showed Becky Hill passed along emails from members of the public who offered opinions about defense witnesses to Waters and Jewell. However, Hill did not send the emails to the defense team.

The defense also plans to call several jurors to testify including Juror 785, also known as “Egg Lady.” She was dismissed during closing arguments and drew laughs in the courtroom when she asked to retrieve a dozen eggs from the jury room before leaving the courthouse. The circumstances surrounding the dismissal of “Egg Lady” have become a point of contention between the defense and prosecution.

The defense contends Hill fabricated a Facebook post about Juror 785 discussing the case with her ex-husband to get the juror removed. The defense claims Hill asked Juror 785 about her feelings on the case on several occasions. Judge Clifton Newman excused her after interviewing two of her tenants who he said “waffled” about discussing the case with Juror 785.

The defense also plans to call Juror 254, who replaced Juror 785, along with two other jurors — one who was also a tenant of Juror 785 but was not one of the tenants interviewed by SLED. Murdaugh’s lawyers also plan to call Barnwell County Clerk of Court Rhonda McElveen to testify. The defense says McElveen told SLED agents she received complaints from court staff about Hill’s “excessive” contact with jurors during the trial. McElveen was in Colleton County assisting Hill with the trial.

Meanwhile, Murdaugh’s lawyers have asked Toal to bar attorney Eric Bland from participating in the hearing. Bland and his law partner, Ronnie Richter, represent four jurors in Murdaugh’s trial. Richter told Law&Crime last month that he expected the jurors he represents to tell a different story than those who have reported hearing Becky Hill make comments about Murdaugh during the trial.

However, Bland seemed miffed on his podcast that he was not invited to participate in the status conference. In court documents, Murdaugh’s lawyers detailed comments Bland made about Toal in an episode of the podcast, “Cup of Justice” on Dec. 26.

“She has friends sometimes to reward and enemies to punish or she has friends to punish and enemies to reward,” Bland said on the podcast. The quote was mentioned in one of Murdaugh’s briefs.

Bland said he “didn’t like it” when he heard Toal had been appointed to handle Murdaugh’s motion for a new trial. He described her as smart and prepped but also as a strong presence.

“She pees on every corner in that courtroom. It’s hers,” Bland said on the podcast.

The comment mirrored one made by Murdaugh attorney Dick Harpootlian to a website about his strategies for trial in which he discussed “owning the courtroom” and invading the opposing party’s space to create anxiety.

Bland conceded he might have a bias due to a 2008 decision in which Toal found Bland and Richter violated a court order related to a settlement agreement. The decision reversed a lower court decision. Bland credited Toal with being prepared and “lively” during the proceedings. 

However, Bland went on to say that he was concerned that he had not been notified about Tuesday’s status conference since he represents four jurors.

Law&Crime obtained a copy of an email that Toal’s law clerk sent to Bland and attorneys for the state and the defense on Dec. 27. In it, the clerk explains that only the parties in the case would be allowed to participate in the status conference and evidentiary hearing.

“The jurors who rendered their verdicts in the murder trial are at most mere witnesses to the current issue of whether the Defendant is entitled to a new trial,” the law clerk wrote.

Toal’s clerk told the attorneys that the participation of attorneys for witnesses seemed premature but welcomed Bland to brief the court on why he believed his participation should be allowed. The clerk went on to say that Toal was weighing what testimony would be necessary from which witnesses.

Bland did not file a brief with the court. He did not return a text message requesting comment for this story on Monday.

Law&Crime will cover Tuesday’s status conference which begins at 9:30 a.m. at the Richland County Courthouse in Columbia, South Carolina. 

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