In death penalty cases, a Texas court is testing the Supreme Court’s patience

Following a Texas prosecutor’s extraordinary concession that his office used false evidence to secure a death sentence, the Supreme Court last year ordered a Texas appeals court to reconsider the case.

It’s not every day that a prosecutor “admits fault,” as attorneys say, and joins a defendant in asking for a conviction to be overturned, let alone in a capital case in Texas. The Supreme Court, generally impatient with death penalty appeals, noticed.

It sent the case of a death row inmate named Areli Escobar back to the Texas Court of Criminal Appeals, the state’s highest criminal court, “for further consideration in light of Texas’ admission of error.”

But that court, in a 6 to 3 decision, had other ideas. “Although the admission of wrongdoing by the state in a criminal case is important and carries great weight, we are not bound by it.” Judge Sharon Keller wrote for five judges, citing an earlier ruling and paving the way for Mr. Escobar’s execution.

This was not the first time that this court, also known as the CCA, appeared to defy the Supreme Court, the court said Jordan M. Steikerprofessor of law at the University of Texas.

“The CCA has a notable history of treating Supreme Court opinions as optional guideposts rather than as orders from a higher tribunal,” he said. “People often continue to cling to reasoning that the Supreme Court has implicitly or even explicitly rejected. And the Supreme Court has, on more than one occasion, had to exercise jurisdiction multiple times in the same case, not just to clarify a point in federal constitutional law, but to reaffirm the hierarchy of courts in our federal system.”

Mr. Escobar’s lawyers sent back to the Supreme Court last month to ask to intervene again in light of the state court’s failure to show what it said was “any deference to the considered judgment of the law enforcement officers who secured the guilty verdict.”

The Texas Court of Criminal Appeals — not to be confused with the Texas Supreme Court, which hears civil cases — has tested the justices’ patience in past cases. For example, in 2017, the Supreme Court ruled that the state court had applied the wrong standard in determining that a death row inmate, Bobby J. Moore, was not intellectually disabled. That determination made Mr. Moore eligible for execution.

As in Mr Escobar’s case, the judges sent the case back to the Court of Criminal Appeals for rehearing. As in Mr. Escobar’s case, the prosecutor changed his position and the prisoner’s side, saying that Mr. Moore was indeed intellectually disabled. And as in the case of Mr. Escobar, the Court of Appeal reaffirmed his earlier statement.

When Mr. Moore’s case returned to the Supreme Court in 2019, it scolded the state court for reversed his ruling.

“We have found, in its opinion, too many cases where it repeats, with minor variations, the analysis we previously found inadequate, and these same parts are critical to the final conclusion,” the majority said in an unsigned opinion.

Chief Justice John G. Roberts Jr., who dissented from the 2017 decision, now joined the majority. He said in a unanimous opinion that the state court had “repeated the same errors that this court had previously condemned.”

Mr. Moore was sentenced to life in prison. He was granted parole in 2020.

The central question in Mr. Escobar’s case — what weight to give to prosecutors’ admissions of error — is already before the judges. In January, the court agreed to decide whether Richard Glossip, a death row inmate in Oklahoma, deserves a new trial following an admission of wrongdoing by the state’s Republican attorney general.

The judges will hear arguments in Mr Glossip’s case in the autumn. There is reason to believe that they might decide to have Mr. Escobar’s case argued on the side.

Judge Neil M. Gorsuch is disqualified from the Glossip case after hearing part of it as an appeals court judge. Allowing review in Mr. Escobar’s case would ensure that the court will not be evenly divided on the issue.

The Texas case has other features that could interest the justices. They include the state court’s dismissal a decision of 86 pages by a judge who concluded that Mr. Escobar’s conviction was based on junk science produced by a police DNA lab that was so riddled with problems that it had to be shut down.

In nevertheless upholding Mr. Escobar’s conviction, the state appeals court cited other evidence linking him to the 2011 murder of Bianca Maldonado Hernandez, including cell tower data and a partial fingerprint. But the centerpiece of the case was evidence from the DNA lab.

During a hearing on the challenge to Mr. Escobar’s conviction, a juror said the DNA evidence was crucial.

“I was on the fence, if you will, about whether he was guilty or not guilty, all the way up to the point when the DNA evidence was presented to the jury, and for me that was the deciding factor,” it said juror. .

Jose P. Garzathe prosecutor whose office obtained the conviction said it took him some time to reconsider his position.

“But as more evidence came to light about how flawed the evidence was that the jury relied on, we had to reevaluate that position,” he said in a 2022 interview. “While it is the instinct of every prosecutor to seek convictions to defend it, it is our job to ensure that justice is done.”

Daniel Wooftera lawyer for Mr. Escobar, said the gist of the case was simple.

“I don’t understand how anyone could think it’s just to put this man to death,” he said, “based on a conviction that the prosecution cannot support.”