In Death Penalty Cases, a Texas Court Tests the Supreme Court’s Patience


After a Texas prosecutor’s extraordinary concession that his office had used false evidence to secure a death sentence, the Supreme Court told a Texas appeals court last year to have another look at the case.

It is not every day that a prosecutor “confesses error,” as lawyers say, and joins a defendant in asking that a conviction be thrown out, much less in a capital case in Texas. The Supreme Court, which is generally impatient with death penalty appeals, took notice.

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

But that court, in a 6-to-3 decision, had other ideas. “While the state’s confession of error in a criminal case is important and carries great weight, we are not bound by it,” Presiding Judge Sharon Keller wrote for five judges, quoting an earlier decision and clearing the way for Mr. Escobar’s execution.

This was not the first time that court, sometimes called the C.C.A., had seemed to defy the Supreme Court, said Jordan M. Steiker, a law professor at the University of Texas.

“The C.C.A. has a remarkable history of treating Supreme Court opinions as optional guideposts rather than the commands of a higher tribunal,” he said. “It often remains committed to reasoning that the Supreme Court has implicitly or even explicitly rejected. And the Supreme Court on more than one occasion has had to exercise jurisdiction multiple times in the same case, not merely to clarify a point of federal constitutional law, but to reaffirm the hierarchy of courts in our federal system.”

Mr. Escobar’s lawyers returned to the Supreme Court last month to ask it to intervene again in the face of the state court’s failure to give what they 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 matters — has tested the justices’ patience in earlier cases. In 2017, for instance, the Supreme Court ruled that the state court had used the wrong standard in determining that a death row inmate, Bobby J. Moore, was not intellectually disabled. That determination made Mr. Moore eligible to be executed.

As in Mr. Escobar’s case, the justices returned the case to the Court of Criminal Appeals for another look. As in Mr. Escobar’s case, the prosecutor changed positions and sided with the inmate, saying Mr. Moore was indeed intellectually disabled. And as in Mr. Escobar’s case, the appeals court reaffirmed its earlier ruling.

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

“We have found in its opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion,” the majority said in an unsigned opinion.

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

Mr. Moore was resentenced to life in prison. In 2020, he was granted parole.

The central question in Mr. Escobar’s case — of what weight to give prosecutors’ confessions of error — is already before the justices. In January, the court agreed to decide whether Richard Glossip, a death row inmate in Oklahoma, deserves a new trial after a confession of error from the state’s Republican attorney general.

The justices will hear arguments in Mr. Glossip’s case in the fall. There is reason to think they may decide to have Mr. Escobar’s case argued alongside it.

Justice Neil M. Gorsuch is recused from the Glossip case, having heard part of it as an appeals court judge. Granting review in Mr. Escobar’s case would ensure that the court will not end up evenly divided on the question.

The Texas case has other features that could interest the justices. They include the state court’s rejection of an 86-page decision from a judge who had concluded that Mr. Escobar’s conviction was based on junk science produced by a police DNA lab 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 tying him to the 2011 murder of Bianca Maldonado Hernandez, including cell tower records and a partial fingerprint. But the centerpiece of the case was evidence from the DNA lab.

At a court hearing on a challenge to Mr. Escobar’s conviction, a juror said that the DNA evidence had been crucial.

“I was sitting on the fence, if you will, as to whether he was guilty or not guilty all the way up to when the DNA evidence was submitted to the jury and, for me, that was the sealing factor,” the juror said.

José P. Garza, the district attorney whose office had obtained the conviction, said it took him some time to rethink his position.

“But as more evidence came to light about how flawed the evidence the jury relied upon was, we had to re-evaluate that position,” he said in a 2022 interview. “Although it is the instinct of every district attorney to defend convictions, our job is to see that justice is done.”

Daniel Woofter, a lawyer for Mr. Escobar, said the core issue in the case was a simple one.

“I don’t know how anyone could think that it is just to put this man to death,” he said, “based on a conviction that the prosecutor can’t support.”

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