Glossip v. Oklahoma is a case stranger than fiction. I won’t even attempt to rehash all of the details here. Rather, I will opine on the possible path forward.
Based on oral argument, several Justices indicated that the Court should vacate the lowe court opinion, and remand the case for an evidentiary hearing. But there is a threshold problem: the Court can only vacate and remand the case if the Court finds that it has jurisdiction to even entertain the case. And the jurisdictional issues are extremely complex. The Justices would have wade through the nuances of Oklahoma post-conviction law, parse a less-than-helpful decision from the Oklahoma Court of Criminal Appeals, and make a finding about whether there is an adequate and independent state law ground. Remember, any decision issued in this context would affect the scope of review in cases involving defendants not named Glossip. This is not a ticket good for one ride.
The Supreme Court does not have a magic wand to order lower courts to hold evidentiary hearings to pursue justice. The Court can only do something if it has jurisdiction. And the Court always has the obligation to determine its own jurisdiction. The Court could not issue a short per curiam order remanding the case for further proceedings without walking through the jurisdictional mine field. I suspect it may be hard to count to five for that opinion with an eight-member bench (Justice Gorsuch is recused).
In the normal course, where the Justices find that a factual record is incomplete, the result is a DIG: dismiss the writ as improvidently granted. The Supreme Court is not a Court of error correction or record supplementing. I can’t recall any other case where such an unclear record came to the Court, and the remedy was to order more fact finding! The parties made their record, and they have to live (or die) with it.
But there is still hope for Glossip. Footnote five of the Court Appointed Amicus brief pointed out the obvious:
Petitioner remains free to assert his Brady and Napue claims in a subsequent federal habeas petition, subject to applicable limitations.
If the Court were to DIG this petition, Glossip could bring (yet another) federal habeas petition, raising the exact same issues. And I suspect a federal district court would hold a full evidentiary hearing to interpret the notations about “Dr. Trumpet?” and “Lithium?” The two prosecutors likely would give fulsome testimony. That case will eventually reach the Supreme Court, yet again. By that point, Oklahoma may adopt the Swiss death pod as a method of execution. Of course, the standard of review on a habeas is more stringent than on direct appeal. But if there are such clear Napue and Brady violations, the conviction will be almost certainly be vacated–especially if the Attorney General does not oppose Glossip’s federal habeas petition.
There is another option, which the Court-appointed Amicus raised at oral argument: clemency.
This Court should accordingly dismiss the case for lack of jurisdiction, leaving Petitioner free to pursue state law clemency or other available relief.
Previously, 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 may come out differently. Indeed, it would not be difficult for the clemency board to hold a hearing on these issues. That would be a heckuva lot simpler than going through AEDPA. And if, after the hearing, the board finds that clemency is appropriate, politically-accountable actors, and not judges, can make that decision.
In the classic Case of the Speluncean Explorers by Lon L. Fuller, the fictional Supreme Court of Newgarth considers whether to affirm the death sentence of hikers who were trapped in a cave, and resorted to cannibalism. Chief Justice Truepenny finds imposing the death sentence was required by law, but asked the Executive to commute the sentences. Ironically enough, Trupenny does not think it appropriate for the Executive to hold hearings!
In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.
Then again, Justice Keen faults the Chief Justice for transcending the role of the courts:
The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is a confusion of governmental functions—a confusion of which the judiciary should be the last to be guilty.
Truepenny’s approach has never appealed to me personally, but whenever I teach the case, some students find it better than the other alternatives of stretching the law to reach a just result.
If the Court does DIG the case, there could be concurrence spelling out what could happen going forward–both in terms of whether a federal court should hold an evidentiary hearing, or leaving the door open for clemency.
It takes five votes to DIG. There is an alternative. A 4-4 split would affirm the lower court by an equally divided margin. A 4-4 affirmance would have the same practical effect as a DIG. The lower court affirms, and Glossip gets a few more bites of the apple. With either a DIG, or a 4-4, Glossip will get another clemency vote, and have a shot at an evidentiary on post-conviction relief. I don’t see any compelling reason for the Court to decide this case, and it cannot do a drive-by remand without wading through the tough jurisdictional issues.
