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.
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