Legal Docket: Due process and workplace prejudice

NICK EICHER, HOST: It’s The World and Everything in It for this 10th day of March, 2025. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

Due-process rights are a fundamental part of the U.S. Constitution and our legal system. The Fifth and Fourteenth are the two Amendments that guarantee due process. They require that the government follow established rules and treat people fairly.

But an inmate on death row claims he’s not being treated fairly, and that the state of Texas is to blame.

CBS4 NEWS: We turn now to the story of convicted killer Ruben Gutierrez. The 47 year old is scheduled to be executed tomorrow night for the 1998 murder of Escolastica Harrison.

Audio from CBS4 News, Rio Grande Valley.

Gutierrez stands accused of capital murder in the case of that elderly woman robbed and fatally stabbed in her home.

CBS4 NEWS: Now tomorrow is the sixth execution date that has been set for Gutierrez, but a key legal question still hangs in the balance, meaning that there's a chance that the lethal injection won't happen as planned.

EICHER: And indeed, it did not. Gutierrez appealed and the Supreme Court took the case.

What it will answer is whether Gutierrez can sue Texas for denying DNA testing and whether it even matters as far as his execution is concerned.

REICHARD: Let’s review a few more facts.

Escolastica Harrison ran a trailer park … and because she didn’t trust banks … she kept huge sums of cash in her home to run her business. When she was robbed … she had nearly $600,000 on the premises.

EICHER: After she was fatally stabbed, prosecutors convicted Gutierrez under a legal doctrine known as the “law of parties.” That just means he could receive the death penalty even if he didn’t commit the crime by his own hand … but was a major participant. That’s key.

REICHARD: Gutierrez asked to test certain evidence collected at the scene—evidence that had never been tested … for example, a blood-stained shirt that belonged to the victim’s nephew, who lived with her. But Texas repeatedly denied his request, arguing that the testing wouldn’t make any difference. In other words, no matter what the DNA tests might show, it wouldn’t change his conviction.

EICHER: During oral arguments, Justice Clarence Thomas asked the lawyer for Gutierrez exactly what he hoped testing would prove:

JUSTICE THOMAS: What do you ultimately intend to show with the DNA?...

FISHER: That Mr. Gutierrez is death ineligible. We may not win that.

THOMAS: Because? He’s death ineligible because?

FISHER: Because he was not a major participant in the crime and did not actually kill, attempt to kill, or anticipate a life would be taken.

So what does that mean in practical terms? By making the argument his client was not a major participant … his strategy is to use crime-scene evidence to put as much distance as possible between Gutierrez and the killing.

REICHARD: But Texas says it’s followed the law exactly right. The state points out that post-conviction DNA tests aren’t mandatory, especially if they won’t affect the verdict. And here, Texas argues the other evidence against Gutierrez is strong enough to uphold the conviction—DNA testing or not. Texas Deputy Solicitor General William Cole.

COLE: ….here, there are several independent state law grounds that the prosecutor has relied on to deny access to the evidence, and those grounds are unaffected by the district court's narrow declaratory judgment here.

EICHER: Justice Sonia Sotomayor clarified the question presented in this exchange with Fisher, lawyer for Gutierrez.

JUSTICE SOTOMAYOR: So I thought this case was only about standing because the court before didn't get to the due process arguments, did it?

FISHER: I completely agree this case is here about standing.

REICHARD: Texas also argues there’s a second problem: even if Gutierrez wins on standing, his lawsuit would still fail. The reason? Because prosecutors might simply refuse to comply with a DNA testing order.

EICHER: And that would make the court’s order essentially meaningless … or to use the legal term of art, not “redressable.”

But Justice Brett Kavanaugh didn’t buy that idea:

JUSTICE KAVANAUGH: I don't see 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.”

REICHARD: Justice Sotomayor brought attention back to the evidence itself. She pointed out there’s untested evidence that might indicate other suspects—specifically, two other men in the victim’s home on the day of the crime:

SOTOMAYOR: There were, I think, scrapings under the fingernails of the victim.

FISHER: Yes.

SOTOMAYOR: There was a hair that was entwined in her finger or somewhere on ---on her body.

FISHER: Correct….

SOTOMAYOR: If the evidence were to show that the other two were present, then that would give some support to your client's claim or would support your client's claim that he wasn't the one who entered the apartment to do the killing?

FISHER: Yes, Your Honor.

REICHARD: If Gutierrez wins, Texas would have to rethink its DNA testing rules in death-penalty cases—and that would potentially affect other states as well. If Texas wins, then states could keep denying DNA testing so long as other procedures are strictly followed.

Now, on to our final case:

JUSTICE ROBERTS: We will hear argument this morning in Case Number 23-1039, Ames versus the Ohio Department of Youth Services.

EICHER: This one’s about discrimination in the workplace, but perhaps not the kind you typically hear about.

Here, the plaintiff is Marlean Ames. She says she faced discrimination at work because she’s heterosexual. Here she is, talking with CBS News:

MARLEAN AMES: It was humiliating, going to work every day. This is for everyone in the United States. Everyone should have a fair shake at their own battles.

REICHARD: Since 2004 … Ames had worked for the Ohio Department of Youth Services. She had strong performance reviews and received promotions consistently—until 2019. She applied for a Bureau Chief position but instead found herself demoted to secretary, with a substantial pay cut.

EICHER: And this happened right after she received recognition for her 30 years of service.

Her old job went to a homosexual male and the Bureau Chief job went to a lesbian who hadn’t even applied.

REICHARD: So Ames sued. She argued she’d been discriminated against because she’s a non-homosexual—a “straight woman,” according to the legal filings.

But the lower court dismissed her case, ruling that because Ames is heterosexual—that makes her a member of what’s considered a “majority group.” And because of that, she had a heavier burden of proof.

EICHER: To succeed, she had to demonstrate “background circumstances” showing that her employer was the rare kind of workplace that discriminates against a majority. And according to the lower courts, she hadn’t done that.

But Ames’ lawyer Michael Wang says that whole approach is wrongheaded:

MICHAEL WANG: …it’s not because this Court has said that Title VII aims to eradicate all discrimination in the workplace. But the background circumstances rule doesn't do that. It doesn't eradicate discrimination; it instructs courts to practice it by sorting individuals into majority and minority groups based on their race, their sex, or their protected characteristic, and applying a categorical evidentiary presumption not in favor of but against the non-moving party based solely on their being in a majority group, however you define it.

REICHARD: Chief Justice John Roberts tested that idea with a hypothetical involving ethnicity instead of sexual orientation:

ROBERTS: What if you have a situation where, say, 60 employees in the company, say, you know, a half dozen African Americans, an African American is --applies for a job, there's an opening, he doesn't get it, it remains open for, you know, a couple of months? Does that satisfy the prima facie case if he said it was because of discrimination?

WANG: Assuming that they are qualified and --

ROBERTS: Yeah, yeah. Yeah.

WANG: Yes.

ROBERTS: Okay.

EICHER: Then Roberts flipped the scenario around:

ROBERTS: Now let's say it's the same thing, but the applicant is white, exactly the same facts, and she says: …-I lost the job because of discrimination on the basis of race. Does that …state a prima facie case?

WANG: I think it states a prima facie case, but I think it goes in --perhaps, Your Honor, it goes to the idea of getting employers to come forward with an explanation and then providing sort of a legitimate non-discriminatory reason, which I don't think is a high burden at all.

REICHARD: Ohio Solicitor General Elliot Gaiser took a different tack. He argued that Ames’s lawsuit failed for a simpler reason: she didn’t present enough evidence.

GAISER: ….she could not establish that anybody was motivated by sexual orientation or even knew her sexual orientation… She didn't provide evidence that, to quote Furnco, "if otherwise unexplained, raises an inference of discrimination."

Justice Amy Coney Barrett pressed him on that point:

JUSTICE BARRETT: So, if we said someone like Ms. Ames, who is a member --it doesn't matter if she was gay or whether she was straight; she would have the exact same burden and be treated the exact same way under Title VII if she sued as someone who was gay and argued that they were discriminated against under Title VII? Same?

GAISER: I think that she should have the same burden and that the best reading of --of what the Sixth Circuit said --

BARRETT: Well, no, no, no. I'm just asking you what you think of the statute. So that is what you think of the statute. And same for someone who brings a race discrimination, someone who brings --you know, a woman or a man who brings a sex discrimination suit on the basis of --discrimination against the basis of sex, all of those, you agree that the courts should apply the exact same burden, treat them the exact same way?

GAISER: We --we agree with that --

BARRETT: Okay.

Justice Sotomayor highlighted troubling aspects of the state’s case:

SOTOMAYOR: Because Judge Kethledge basically said you have a situation here where she alleged she was a member of the majority group, she was a 20-year employee, great reviews, and then all of a sudden she's not hired, and someone's hired who's gay, doesn't have her level of college experience, and didn't even want the job. Something's suspicious about that. It certainly can give rise to an inference of discrimination.

EICHER: Justice Elena Kagan summed up the dilemma this way:

JUSTICE KAGAN: The question presented is whether a majority-group plaintiff has to show something more than a minority-group plaintiff, here, whether a straight person has to show more than a gay person. Everybody over here says no. You say no too. That was the question that we took the case to decide. ….Why shouldn't we approach the case in that way?

EICHER: Indeed, both sides ended up agreeing. That means the justices might finally remove this “background circumstances” standard altogether, treating all discrimination cases—as discrimination cases.

Justice Brett Kavanaugh suggested the simplest possible resolution in this exchange with lawyer Wang:

KAVANAUGH: So --so all you want for this case is a really short opinion that says discrimination on the basis of sexual orientation, whether it's because you're gay or because you're straight, is prohibited, and the rules are the same whichever way that goes?

WANG: That --that's right, Your Honor. And I --

KAVANAUGH: That's all we need to say, right?

Wang summed it all up with an appeal to the Court’s own promise chiseled into its marble façade, directly above the main entrance:

WANG: I think, what this case is all about, and those are the four words on the side of this building: equal justice under law… . Now I know that sometimes we don't fulfill that promise. I understand that. But, at the heart of this case, at bottom, all Ms. Ames is asking for is equal justice under law. Not more justice, not more justice, but certainly not less and certainly not less because of the color of her skin or because of her sex or because of her religion. We're simply asking for equal justice under law. That’s what Title VII says and I think that’s consistent with what this Court has held.

REICHARD: If Ames prevails—and it seems likely she will—her case will return to the lower courts. And the outcome there could shape how judges across the country approach workplace discrimination lawsuits, especially in the context of any remaining diversity, equity, and inclusion policies.

EICHER: Two opinions to report from last week: in Bufkin v. Collins, the Supreme Court ruled 7-2 in favor of the Veterans Administration in a dispute on how it assesses disability claims. Veterans Joshua Bufkin and Norman Thornton argued that courts should independently reevaluate evidence. But the majority said no—courts can only step in if the VA clearly made a mistake.

REICHARD: And a 6-3 decision in City and County of San Francisco v. EPA. The justices struck down what are called “end-result” permitting requirements from the EPA. They said the agency now has to set clearer and enforceable pollution limits under the Clean Water Act. The case returns to the lower courts for further proceedings.

And that’s this week’s Legal Docket!

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