Friday, May 2, 2014

Did the Oklahoma Supreme Court Really Cave to Political Pressure?

I've been following the aftermath of the botched execution on MSNBC and I was pretty appalled when Rachel Maddow said that those two guys got a stay of execution from the Oklahoma Supreme Court, and then when Governor Mary Fallin refused to recognize the legality of that stay, and the state legislature threatened to impeach the judges who voted for it, the Court backed down and lifted the stay. How could something like that happen in the USA?

It's hard to put together the whole story, but I think it happened a little differently than Rachel Maddow led me to believe.  (EDIT: But note that the usually-reliable-and-informative Slate Magazine correspondent Dahlia Lithwick gives an account that hones pretty close to the MSNBC it here.) I think they've got it wrong, and this is what happened as near as I can tell.

The state Criminal Court set a date of April 21st for the execution. The condemned men had exhausted all their appeals, but not in civil court. That's where they went to argue "cruel and unusual punishment" based on the business of the untested drug cocktail. And the civil court judge agreed with them! He said it was a violation of their rights.

Now here it gets interesting. I don't believe the lower court judge ordered a stay...that would be up to the criminal court. I don't know if he expected the criminal court to order the stay, or if it was then up to the condemned men to go back to the criminal court armed with this declaration from the civil court, or what. Either way, the criminal court was not about to grant a stay. As far as they were concerned, the civil case was irrelevant to the fact of the execution.

In the meantime, the State had evidently appealed the decision of the lower court judge. I don't know when that appeal was scheduled to be heard, but it was evidently after the April 21st execution date. So the lawyers for the condemned men applied to the State Supreme Court for a stay of execution pending the hearing of the appeal. And that they got!

That's when the Governor declared that the granting of the stay was outside of the civil court's jurisdiction, and she would be violating her oath of office if she abided by it! That's the basis of Rachel Maddow saying she refused to recognize the stay.

But that's not exactly what she said. Because wouldn't that be contempt of court, and couldn't she go to jail for that? No, the Governor was playing a very dangerous game, but she wasn't that stupid. You can read her complete statement here. What she actually said, after that stuff about her oath of office, was that out of deference to the Supreme Court, she would grant a one-week stay (til the 28th of April) to give her time to seek direction from the state Criminal Court as to whether the Civil Court's order was determinative.

Now that could have been a very sticky situation if the two courts had come into direct conflict, but it never happened. Because in the meantime, the Supreme Court heard the appeal of the lower court order, and overturned it. Now, I'm suspecting that they actually moved the date up so that they could deal with it themselves before the criminal court weighed in. But I don't have a paper trail on that. I just think that's what they did.

And yes, there was that threat to impeach them, but I think that was just something a rogue legislator pulled out of his ass, and I don't think anyone was taking it that seriously. I don't think the Supreme Court backed down because of that.

But I do think they did what they had to do to avoid that conflict, regardless of what they might have believed about the rights of the condemned men. They quickly overturned the lower court decision, declaring that the State could basically kill them with whatever drugs they wanted. Actually, it was the source of the drugs that was the issue...the Court said it didn't matter where the State got them, and they didn't have to tell anyone.

With that out of the way, the whole reason for their original stay became moot, so the stay was lifted and the "execution" went ahead. There was a lot of dirty politics and opportunistic maneuvering going on at the highest level, but it's not quite the case that the court simply caved under political pressure and reversed its original decision.

At least on paper, it was all strictly kosher. On paper.

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