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January 22, 2019

Anyone eager to speculate about Oklahoma capital cases with cert finally denied after so many relists?

I often like to make much of legal dogs that fail to bark (hat tip, Sherlock), and the Supreme Court's order list this morning had a couple of notably silent capital case canines in the form of Wood v. Oklahoma, No. 17-6891, and Jones v. Oklahoma, No. 17-6943 at the very top of the SCOTUS order list entries of cert denied.  Of course, silent and unexplained denials of even capital cert petitions without any comment are not usually noteworthy, but Kent Scheidegger over at Crime & Consequences has this new post sking "Why Did SCOTUS Sit on 2 Capital Cases for a Year?."  Here is part of Kent's lament, with emphasis in the original:

Wood v. Oklahoma, No. 17-6891, and Jones v. Oklahoma, No. 17-6943, involve the same issue the Supreme Court appropriately put to rest over 30 years ago in McCleskey v. Kemp....  Now they want to dredge it back up with yet another study conducted by notorious anti-death-penalty advocates. Note that this is a claim that has nothing whatever to do with whether they committed the crimes and only a very remote relation to whether death is a just and proportionate penalty for their conduct.  The Oklahoma courts said, correctly, that such a claim could not be raised for the first time in a successive post-conviction petition -- Wood's third and Jones's second.  Such petitions should be reserved for true miscarriages of justice.

The State filed its brief in opposition in Wood on January 29, 2018.  The case was distributed for conference twenty-six times.  This extraordinary number of relists has been the subject of considerable speculation.  What on earth could possibly be taking so long?  It does not take a year to say "Yes, we will hear it" or "No, we will not."  It couldn't be that the Court was going to summarily reverse and was writing a per curiam opinion.  The Court does not summarily reverse a decision when it rests on a valid state procedural ground and especially when deciding the merits in the petitioner's favor would require overruling a landmark precedent.

So the only possibility that seemed to be left was that one or more Justices were writing opinions concurring or dissenting from denial of certiorari.  But for nearly a year?

Today, the Court denied certiorari without comment and with no separate opinions. What?!  They held up long-overdue justice for a year for nothing?

Notably, Kent finishes his post with this expression of his frustration with these non-barking capital case canines: "This is conduct unbecoming the high court, or any court for that matter. Victims deserve more respect, even if the statute does not specifically apply to this proceeding."   I welcome reader reaction to what SCOTUS has done here or what Kent has to say about it, and I am especially interested in just thoughts about what might have been going on behind closed SCOTUS doors through 2018 here.

January 22, 2019 at 03:31 PM | Permalink



Posted by: ANON | Jan 22, 2019 7:00:10 PM

Moreso than most things criminal, the death penalty is not for and should not be influenced by victims. It is the ultimate societal sanction and in carrying it out, society must act in propria persona.

Very curious though. Possibly related to the Kennedy vacancy in some way? Can't imagine how.

Posted by: Fat Bastard | Jan 22, 2019 11:41:21 PM

Not sure your impolite comment, ANON, is likely to change any hearts or minds the way you might hope. Indeed, I suspect it is quite counterproductive.

Posted by: Doug B | Jan 23, 2019 12:53:47 AM

If victims were important America should have 5.000 executions per year.

Posted by: Claudio Giusti | Jan 23, 2019 8:17:16 AM

I can see two possible explanations that sort of justify the delay.

Possibility Number 1 is that the justices were on notice that Justice Kennedy was considering retirement and these two cases fell into a "hold for Justice X" pile. This type of delay has happened before in cases in which three of the continuing justices want to grant cert. Everybody would rather a quicker decision, but there is something distasteful about a case being decided because of a vacancy on the court rather than on the merits.

Possibility Number 2 is that several justices were working on opinions but that, after several drafts of dissents and concurrences floated around, everybody "came to their senses" and decided that these opinions would not be productive and pulled them.

If there was nothing going on behind the scene that necessitated the delay, then the critique has some value.

Posted by: tmm | Jan 23, 2019 1:21:52 PM

Claudio & Bastard:

Claudio: Victims are very important. However, sadly, there are many who don't take them into account.

Bastard - Kent was speaking, specifically, on the length of time, not the actual consideration for the legal points of the case. meaning there was no need to spent this much time on this issue, that it could have been settled, legally, some time ago, knowing that extraordinary delays do affect both victims and survivors in these cases.

They can be mutually separate, but not mutually exclusive. There is no reason not to consider that legal efficiency may be beneficial to all parties.

Posted by: Dudley Sharp | Jan 23, 2019 3:48:33 PM

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