The Relist Watch column closely monitors petitions that the Supreme Court has chosen to relist for consideration in upcoming conferences. Recently, the court has made significant strides in addressing these relisted cases.

Recent Developments

At its latest conference, the Supreme Court agreed to review two notable cases:

• The validity of requiring expert affidavits for medical malpractice claims per state law.
• A constitutional challenge against Colorado’s ban on conversion therapy, which may have wider implications for state regulations on professional speech.

However, in an intriguing turn, the court denied a review in a case questioning the long-standing burden-shifting framework in employment discrimination cases. Justice Clarence Thomas, joined by Justice Neil Gorsuch, expressed dissent, highlighting “widespread misunderstandings” regarding this framework and its implications in lower court rulings.

State vs. State Legal Battles

In another significant denial, the court rejected a motion from Alabama and eighteen other states aiming to bring a suit against California and others regarding tort actions against fossil fuel producers. Thomas, alongside Justice Samuel Alito, again disagreed with the court’s discretion to decline a review in interstate disputes.

Focus on Areli Escobar’s Case

This week’s highlighted relist, Areli Escobar v. Texas, marks its third appearance before the court and stands out due to its unique circumstances. Following a conviction for the murder and sexual assault of Biana Maldonado Hernandez, new evidence uncovered forensic misconduct related to DNA evidence used at trial.

After a state audit led to the shutdown of the Austin Police Department’s lab, Escobar filed a second habeas petition, claiming that unreliable DNA evidence violated his rights under Napue v. Illinois. The trial court suggested that there was a “reasonable likelihood” the flawed evidence influenced the jury’s verdict.

Despite this, the Texas Court of Criminal Appeals reaffirmed their initial denial, asserting that the remaining evidence still indicated Escobar’s guilt. Interestingly, the newly elected Travis County District Attorney, having campaigned against the death penalty, sided with Escobar, admitting error and requesting a retrial.

The Supreme Court had previously vacated and remanded the case for reconsideration regarding the state’s confession of error. However, upon re-evaluation, the higher Texas court again denied relief, citing the lack of a due process violation.

Escobar’s current petition emphasizes that the Texas court did not adhere properly to the Supreme Court’s remand instructions, claiming that the use of false DNA evidence materially affected the outcome of the trial. Escobar is backed by several notable organizations, including the American Bar Association, but opposed by Texas Attorney General Ken Paxton, who argues the case is flawed.

Identifying parallels with Glossip v. Oklahoma, where the court acknowledged a failure to correct false testimony, Escobar still awaits resolution, as the Supreme Court has held his case while addressing Glossip.

Current Relists

Key Cases Under Review

• Escobar v. Texas, 23-934
  Issues: (1) Does due process necessitate a reversal of a capital conviction when the state no longer defends it? (2) Did the Texas Court of Criminal Appeals err in dismissing claims of due process violations relating to false DNA evidence?
• Apache Stronghold v. United States, 24-291
  Issue: Does the government burden religious exercise under the Religious Freedom Restoration Act when designating a sacred site for destruction?
• Ocean State Tactical, LLC v. Rhode Island, 24-131
  Issues: (1) Does a ban on commonly used ammunition-feeding devices violate the Second Amendment? (2) Does the law dispossess citizens’ property unlawfully?
• Snope v. Brown, 24-203
  Issue: Can Maryland constitutionally ban semiautomatic rifles commonly used for lawful purposes?
• Franklin v. New York, 24-330
  Issues: (1) Is the Sixth Amendment’s confrontation clause applicable to out-of-court statements? (2) Can agents’ reports be admitted without cross-examination rights?
• L.M. v. Town of Middleborough, Massachusetts, 24-410
  Issue: Can officials presume disruption from silent, ideological speech related to personal identity?
• Neilly v. Michigan, 24-395
  Issue: Is ordered restitution considered punishment regarding the Constitution’s ex post facto clause?
• Ellingburg v. United States, 24-482
  Issue: Is criminal restitution under the Mandatory Victim Restitution Act considered penal under the Constitution’s ex post facto clause?
• Shockley v. Vandergriff, 24-517
  Issue: Did the Eighth Circuit err in denying a petitioner’s application regarding ineffective assistance of counsel claims?