Is SCOTUS Error Correction in Capital Cases Feasible?
Much of Wednesday's SCOTUS oral argument in Glossip v. Oklahoma focused on the question whether the decision of the Oklahoma Court of Criminal Appeals rested on an independent and adequate state law ground. If so, then, under longstanding precedent, it is not reviewable by the Supreme Court.
The reason is simple. Suppose the Court were to reverse the Oklahoma court's rejection of petitioner Richard Glossip's claims that the prosecution withheld exculpatory evidence (in violation of Brady v. Maryland) and knowingly presented false testimony (in violation of Napue v. Illinois). If the Oklahoma decision rested in addition on the fact that Glossip's effort to have his conviction overturned was untimely, then reversal on the federal grounds would not make a difference; Glossip would still lose the case. Because the Supreme Court reviews judgments, not opinions, an independent and adequate state law ground bars SCOTUS review.
Both Glossip and the state AG--who supports vacating Glossip's conviction based on his own and an outside review of the case--argue that the Oklahoma court ruling is neither independent nor adequate. It's not independent, they say, because the ruling intertwines merits considerations with questions about the time bar. It's not adequate, they say, because the Oklahoma court's own procedure calls for waiving a timeliness objection when, as here, the AG chooses not to present the time-bar as a defense. In departing from its own procedure, the argument goes, the Oklahoma court was not enforcing a state procedure but manipulating state procedure to disfavor federal rights. In addition, applying a time bar to these claims based on what was contained in the prosecutors' previously undisclosed files is either a separate due process violation or another reason to conclude that the invocation of the time bar is not an adequate basis for the judgment.
All of these arguments are persuasive, but even if the adequacy argument is not persuasive and the independence argument is a tossup, the Supreme Court should be capable of reaching the merits. That's because, under Michigan v. Long, when it's unclear whether a state court decision rests on federal grounds only or federal grounds plus an independent state law ground, SCOTUS presumes that it rests only on the federal grounds and is thus reviewable. Justice Kagan made this point forcefully in the oral argument. Whether she did so forcefully enough to persuade four of her colleagues is unclear.
What is clear is that at least some of the Supreme Court's conservative supermajority (reduced to five here because Justice Gorsuch is recused) regard capital cases as at best a nuisance. Early in the argument, Chief Justice Roberts snarkily cut off what he called Justice Sotomayor's "seriatim questions," and Justice Alito followed up by sarcastically stating "Justice Sotomayor has taken us through the whole case, so maybe there's not much left to discuss . . . ." One might attribute this display of rudeness to ill temper generally from some unknown cause or perhaps to a childish and sexist impatience with a female colleague talking for what the boys thought was too long, but it's also possible that Roberts and Alito were expressing a broader annoyance with the fact that they were hearing Glossip's case at all.
This, after all, is Glossip's second trip to the Supreme Court. The first time around he was challenging the method of execution. (He lost that case, but the state hasn't executed him yet, obviously.) Here is what Justice Alito had to say about that during the oral argument in 2015:
Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain?
Justice Alito and various of his conservative colleagues view people sentenced to death as tricksters simply using delaying tactics, wasting the courts' time hearing their cases and the states' resources keeping them alive. Thus, they do not view such people as, well, people--some of whom are innocent of the crimes for which they were convicted and sentenced to die. That's especially jarring in Glossip's case, because he is supported by the current Republican Attorney General of Oklahoma, who generally favors the death penalty.
There is, perhaps, an additional reason for the conservatives' pique.
The Supreme Court has virtually complete discretion over what cases to hear. It exercises that power by selecting those cases that present either important unresolved legal questions that will recur in other cases or cases that present very high stakes in and of themselves. (A case can fall into both categories.) Whether the state wrongly withheld exculpatory evidence or knowingly presented false testimony in Glossip's case is not of general importance. Neither is the question whether the judgment in Glossip's case rested on an independent and adequate state law ground. It is very unlikely that any result in the case will provide new law on the Brady doctrine, the Napue doctrine, or the independent and adequate state law ground.
The Court took the case because five Justices voted to stay Glossip's execution and at least four voted to grant review. (We don't know who voted for what but we can guess that the Democratic appointees voted to grant while Justices Thomas and Alito did not). Presumably they did so because they regard the question whether a state executes a possibly innocent man who did not receive a fair trial as important in and of itself. Justice Alito apparently does not.
If that sounds incredibly callous, that's because it is. There was a time when the states (and to a much lesser extent the federal government) executed so many people that the Court could not treat each case as important in itself. But that time has passed. Consider the following plot of executions per year since 2000 (via Statista).
