Glossip v. Oklahoma is a case stranger than fiction. I will not even try and rehash all the particulars right here. Somewhat, I’ll opine on the attainable path ahead.
Based mostly on oral argument, a number of Justices indicated that the Courtroom ought to vacate the lowe courtroom opinion, and remand the case for an evidentiary listening to. However there’s a threshold downside: the Courtroom can solely vacate and remand the case if the Courtroom finds that it has jurisdiction to even entertain the case. And the jurisdictional points are extraordinarily complicated. The Justices would have wade by means of the nuances of Oklahoma post-conviction regulation, parse a less-than-helpful determination from the Oklahoma Courtroom of Prison Appeals, and make a discovering about whether or not there may be an ample and impartial state regulation floor. Keep in mind, any determination issued on this context would have an effect on the scope of evaluation in circumstances involving defendants not named Glossip. This isn’t a ticket good for one trip.
The Supreme Courtroom doesn’t have a magic wand to order decrease courts to carry evidentiary hearings to pursue justice. The Courtroom can solely do one thing if it has jurisdiction. And the Courtroom all the time has the duty to find out its personal jurisdiction. The Courtroom couldn’t difficulty a brief per curiam order remanding the case for additional proceedings with out strolling by means of the jurisdictional mine area. I believe it could be onerous 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 file is incomplete, the result’s a DIG: dismiss the writ as improvidently granted. The Supreme Courtroom isn’t a Courtroom of error correction or file supplementing. I am unable to recall every other case the place such an unclear file got here to the Courtroom, and the treatment was to order extra truth discovering! The events made their file, they usually should reside (or die) with it.
However there may be nonetheless hope for Glossip. Footnote 5 of the Courtroom Appointed Amicus brief identified the apparent:
Petitioner stays free to claim his Brady and Napue claims in a subsequent federal habeas petition, topic to relevant limitations.
If the Courtroom have been to DIG this petition, Glossip might convey (one more) federal habeas petition, elevating the very same points. And I believe a federal district courtroom would maintain a full evidentiary listening to to interpret the notations about “Dr. Trumpet?” and “Lithium?” The 2 prosecutors probably would give fulsome testimony. That case will ultimately attain the Supreme Courtroom, but once more. By that time, Oklahoma might undertake the Swiss death pod as a technique of execution. After all, the usual of evaluation on a habeas is extra stringent than on direct attraction. But when there are such clear Napue and Brady violations, the conviction can be virtually actually be vacated–particularly if the Lawyer Basic doesn’t oppose Glossip’s federal habeas petition.
There may be an alternative choice, which the Courtroom-appointed Amicus raised at oral argument: clemency.
This Courtroom ought to accordingly dismiss the case for lack of jurisdiction, leaving Petitioner free to pursue state regulation clemency or different obtainable reduction.
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 might not be troublesome for the clemency board to carry a listening to on these points. That may be a heckuva lot easier than going by means of AEDPA. And if, after the listening to, the board finds that clemency is acceptable, politically-accountable actors, and never judges, could make that call.
Within the basic Case of the Speluncean Explorers by Lon L. Fuller, the fictional Supreme Courtroom of Newgarth considers whether or not to affirm the demise sentence of hikers who have been trapped in a cave, and resorted to cannibalism. Chief Justice Truepenny finds imposing the demise sentence was required by regulation, however requested the Govt to commute the sentences. Mockingly sufficient, Trupenny doesn’t assume it acceptable for the Govt to carry hearings!
In a case like this the precept of government clemency appears admirably suited to mitigate the trials of the regulation, 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 Govt. There may be each motive to imagine that these requests for clemency can be heeded, coming as they do from those that have studied the case and had a possibility to change into completely acquainted with all its circumstances. It’s extremely inconceivable that the Chief Govt would deny these requests until he have been himself to carry hearings not less than as in depth as these concerned within the trial beneath, which lasted for 3 months. The holding of such hearings (which might nearly quantity to a retrial of the case) would scarcely be suitable with the operate of the Govt as it’s normally conceived. I feel we might due to this fact assume that some type of clemency can be prolonged to those defendants. If that is accomplished, then justice can be achieved with out impairing both the letter or spirit of our statutes and with out providing any encouragement for the disregard of regulation.
Then once more, Justice Eager faults the Chief Justice for transcending the position of the courts:
The primary of those is whether or not government clemency must be prolonged to those defendants if the conviction is affirmed. Underneath our system of presidency, that may be a query for the Chief Govt, not for us. I due to this fact disapprove of that passage within the opinion of the Chief Justice by which he in impact provides directions to the Chief Govt as to what he ought to do on this case and means that some impropriety will connect if these directions should not heeded. It is a confusion of governmental capabilities—a confusion of which the judiciary must be the final to be responsible.
Truepenny’s strategy has by no means appealed to me personally, however each time I train the case, some college students discover it higher than the opposite options of stretching the regulation to achieve a simply consequence.
If the Courtroom does DIG the case, there could possibly be concurrence spelling out what might occur going ahead–each by way of whether or not a federal courtroom ought to maintain an evidentiary listening to, or leaving the door open for clemency.
It takes 5 votes to DIG. There may be an alternate. A 4-4 cut up would affirm the decrease courtroom by an equally divided margin. A 4-4 affirmance would have the identical sensible impact as a DIG. The decrease courtroom 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 reduction. I do not see any compelling motive for the Courtroom to determine this case, and it can not do a drive-by remand with out wading by means of the robust jurisdictional points.
