When the U.S. Supreme Court on Friday takes up a Texas death row appeal, it will confront a question about prosecutorial discretion — a question that arises because of an extraordinary refusal by Texas' highest criminal appeals court to overturn a verdict that even the prosecutor has repudiated. The New York Times reports on how the district attorney of Texas' Travis County, José P. Garza, concluded that he should join lawyers for Areli Escobar in calling for a new trial, based on "how flawed the evidence the jury relied upon was." "Although it is the instinct of every district attorney to defend convictions, our job is to see that justice is done, and we take that very seriously," Garza said. But, when he put that argument to the Texas Court of Criminal Appeals, that court upheld Escobar's conviction and even spurned a request by Garza to rethink its ruling in light of his office's stance.
The centerpiece of the state's case against Escobar was evidence from the Austin Police Department's DNA lab. Based on an audit of the lab's shoddy work, the trial judge found the DNA evidence in Escobar's case to be "false, misleading and unreliable." Ultimately, Garza reached the same conclusion and said so in his state and federal briefs. In his Supreme Court brief in the case, Escobar v. Texas, No. 21-1601, Garza said the prosecution’s views should count. “In refusing to acknowledge the state’s admission of error,” he wrote, the state appeals court “undermined the district attorney’s historical role in the criminal justice system and failed to remedy the federal due process violation that both parties and the district court have agreed occurred.” Ben Wolff, the director of the state’s Office of Capital and Forensic Writs, a public defender’s office that represents Mr. Escobar, said Mr. Garza deserved praise for his willingness to keep an open mind. “Many other prosecutors would have just continued to robotically defend the conviction,” Mr. Wolff said. “But to their credit, the Travis County D.A.’s office carefully reviewed the trial court opinion and decided that their office had been wrong.”