Supreme Court Allows OK AG to Take a Dive

A short-handed and divided U.S. Supreme Court today decided the case of Glossip v. Oklahoma, taking the side of convicted murderer Richard Glossip. The Oklahoma Attorney General had taken his side as well. CJLF filed a friend-of-the-court brief in support of upholding the state court decision. The Court also appointed an amicus to make the argument the state AG should have made.

A bare majority of the Court held that the Oklahoma Court of Criminal Appeals’ decision did not rest on adequate and independent state courts and further found that Glossip had established his claim that the state had used and failed to correct perjured testimony, despite serious factual questions on the latter point. Rather than simply send the case back to state court for an evidentiary hearing, the Court ordered a new trial.

Justice Barrett concurred on the first point, partly concurred on the second, and dissented on the third. Justices Thomas and Alito dissented from the entirety. Justice Gorsuch was recused, having participated in the case during his time on the Tenth Circuit.

CJLF’s brief on the merits concerned the jurisdictional point. The OCCA opinion was poorly written, and it did not distinguish the merits and the state procedural law with the clarity that this important point deserved. If one reads the opinion carefully, I believe it is clear enough. Justice Barrett concluded that there was enough ambiguity to invoke the presumption of Michigan v. Long. That is, if an opinion is unclear whether it is based on independent state grounds, the U.S. Supreme Court assumes it is not and moves on to the merits. Although I disagree, her opinion is not clearly wrong.

On the merits, the Court is quite wrong to go all the way to ordering a new trial on the ambiguous evidence that has been presented. The Attorney General leaped to the conclusion that some ambiguous notes scribbled long ago by the trial prosecutor established Glossip’s claim without even speaking to the prosecutor who made them. See Paul Cassell’s brief for the victim’s family for details, much of which is also in Justice Thomas’s dissent. It was inexcusable for him to take a dive like this and for the Supreme Court to let him get away with it.

The Attorney General has a lot to answer for in this case. He is up for reelection next year. Let’s hope the voters hold him to account for this.

The OCCA also needs to learn from its error in this case. Write your opinions better, folks. When a case involves both federal constitutional claims and state procedural default rules, decided them very cleanly and clearly separately. This is too important to be so sloppy.