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.”