DIG Glossip And Leave Evidentiary Hearing For Clemency Proceedings or Federal Habeas Review
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:
Article from Reason.com
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