Glossip v. Oklahoma is a case stranger than fiction. I will not even try and rehash the entire particulars right here. Somewhat, I’ll opine on the potential path ahead.
Based mostly on oral argument, a number of Justices indicated that the Court docket ought to vacate the lowe court docket opinion, and remand the case for an evidentiary listening to. However there’s a threshold downside: the Court docket can solely vacate and remand the case if the Court docket finds that it has jurisdiction to even entertain the case. And the jurisdictional points are extraordinarily advanced. The Justices would have wade via the nuances of Oklahoma post-conviction legislation, parse a less-than-helpful choice from the Oklahoma Court docket of Prison Appeals, and make a discovering about whether or not there’s an ample and impartial state legislation floor. Keep in mind, any choice issued on this context would have an effect on the scope of evaluate in circumstances involving defendants not named Glossip. This isn’t a ticket good for one journey.
The Supreme Court docket doesn’t have a magic wand to order decrease courts to carry evidentiary hearings to pursue justice. The Court docket can solely do one thing if it has jurisdiction. And the Court docket at all times has the duty to find out its personal jurisdiction. The Court docket couldn’t challenge a brief per curiam order remanding the case for additional proceedings with out strolling via the jurisdictional mine subject. I think it might be laborious to depend to 5 for that opinion with an eight-member bench (Justice Gorsuch is recused).
Within the regular course, the place the Justices discover {that a} factual report is incomplete, the result’s a DIG: dismiss the writ as improvidently granted. The Supreme Court docket is just not a Court docket of error correction or report supplementing. I am unable to recall another case the place such an unclear report got here to the Court docket, and the treatment was to order extra reality discovering! The events made their report, and so they must stay (or die) with it.
However there’s nonetheless hope for Glossip. Footnote 5 of the Court docket Appointed Amicus temporary identified the apparent:
Petitioner stays free to say his Brady and Napue claims in a subsequent federal habeas petition, topic to relevant limitations.
If the Court docket had been to DIG this petition, Glossip might convey (one more) federal habeas petition, elevating the very same points. And I think a federal district court docket would maintain a full evidentiary listening to to interpret the notations about “Dr. Trumpet?” and “Lithium?” The 2 prosecutors possible would give fulsome testimony. That case will finally attain the Supreme Court docket, but once more. By that time, Oklahoma might undertake the Swiss dying pod as a way of execution. After all, the usual of evaluate on a habeas is extra stringent than on direct attraction. But when there are such clear Napue and Brady violations, the conviction might be nearly definitely be vacated–particularly if the Legal professional Basic doesn’t oppose Glossip’s federal habeas petition.
There’s an alternative choice, which the Court docket-appointed Amicus raised at oral argument: clemency.
This Court docket ought to accordingly dismiss the case for lack of jurisdiction, leaving Petitioner free to pursue state legislation clemency or different obtainable aid.
Beforehand, the clemency vote tied 2-2, with one recusal. (The fifth member was married to the prosecutor). Now, there are new members of the board, and the vote might come out in a different way. Certainly, it will not be tough for the clemency board to carry a listening to on these points. That may be a heckuva lot easier than going via AEDPA. And if, after the listening to, the board finds that clemency is suitable, politically-accountable actors, and never judges, could make that call.
Within the traditional Case of the Speluncean Explorers by Lon L. Fuller, the fictional Supreme Court docket of Newgarth considers whether or not to affirm the dying sentence of hikers who had been trapped in a cave, and resorted to cannibalism. Chief Justice Truepenny finds imposing the dying sentence was required by legislation, however requested the Government to commute the sentences. Paradoxically sufficient, Trupenny doesn’t suppose it applicable for the Government to carry hearings!
In a case like this the precept of government clemency appears admirably suited to mitigate the pains of the legislation, and I suggest to my colleagues that we comply with the instance of the jury and the trial choose by becoming a member of within the communications they’ve addressed to the Chief Government. There’s each motive to consider that these requests for clemency might be heeded, coming as they do from those that have studied the case and had a chance to turn out to be completely acquainted with all its circumstances. It’s extremely unbelievable that the Chief Government would deny these requests until he had been himself to carry hearings not less than as intensive as these concerned within the trial under, which lasted for 3 months. The holding of such hearings (which might nearly quantity to a retrial of the case) would scarcely be appropriate with the operate of the Government as it’s often conceived. I feel we might subsequently assume that some type of clemency might be prolonged to those defendants. If that is completed, then justice might be completed with out impairing both the letter or spirit of our statutes and with out providing any encouragement for the disregard of legislation.
Then once more, Justice Eager faults the Chief Justice for transcending the function of the courts:
The primary of those is whether or not government clemency needs to be prolonged to those defendants if the conviction is affirmed. Below our system of presidency, that may be a query for the Chief Government, not for us. I subsequently disapprove of that passage within the opinion of the Chief Justice by which he in impact provides directions to the Chief Government as to what he ought to do on this case and means that some impropriety will connect if these directions aren’t heeded. It is a confusion of governmental features—a confusion of which the judiciary needs to be the final to be responsible.
Truepenny’s strategy has by no means appealed to me personally, however each time I educate the case, some college students discover it higher than the opposite options of stretching the legislation to succeed in a simply end result.
If the Court docket does DIG the case, there could possibly be concurrence spelling out what might occur going ahead–each when it comes to whether or not a federal court docket ought to maintain an evidentiary listening to, or leaving the door open for clemency.
It takes 5 votes to DIG. There’s an alternate. A 4-4 cut up would affirm the decrease court docket by an equally divided margin. A 4-4 affirmance would have the identical sensible impact as a DIG. The decrease court docket affirms, and Glossip will get a number of extra bites of the apple. With both a DIG, or a 4-4, Glossip will get one other clemency vote, and have a shot at an evidentiary on post-conviction aid. I do not see any compelling motive for the Court docket to determine this case, and it can’t do a drive-by remand with out wading via the robust jurisdictional points.
