Dan Epps

Right. But the procedural limits are not jurisdictional. So maybe they could be waived. So maybe a confession of error would normally... So there's a state law procedural limit. Yeah.

Right. But the procedural limits are not jurisdictional. So maybe they could be waived. So maybe a confession of error would normally... So there's a state law procedural limit. Yeah.

a state law confession of error, I guess, but then the Oklahoma Court of Appeals maybe evaluates the state law confession of error, which is a state law exception to the state law procedural requirement, with a merits test. It says we won't accept your confession of error because on the merits, we don't think it's correct.

a state law confession of error, I guess, but then the Oklahoma Court of Appeals maybe evaluates the state law confession of error, which is a state law exception to the state law procedural requirement, with a merits test. It says we won't accept your confession of error because on the merits, we don't think it's correct.

Well, it's not based in state fact. Doesn't that, doesn't it? No, no.

Well, it's not based in state fact. Doesn't that, doesn't it? No, no.

Fact is fact. Right. Surely they don't have a rule that if you confess error and you have a valid federal constitutional reason for confessing error, but not a valid state constitutional reason for confessing error, we won't respect your confession of error.

Fact is fact. Right. Surely they don't have a rule that if you confess error and you have a valid federal constitutional reason for confessing error, but not a valid state constitutional reason for confessing error, we won't respect your confession of error.

Right. Although the whole point of a confession of error, the whole point of a confession of error is to waive some set of legal arguments. But maybe they're saying he can't waive them. I mean, it's just genuinely unclear. If what you mean is confessions of error are not possible in the Oklahoma Court of Criminal Appeals, saying the confession of error is not based in law and fact is a –

Right. Although the whole point of a confession of error, the whole point of a confession of error is to waive some set of legal arguments. But maybe they're saying he can't waive them. I mean, it's just genuinely unclear. If what you mean is confessions of error are not possible in the Oklahoma Court of Criminal Appeals, saying the confession of error is not based in law and fact is a –

Bad way to say it. But you're right. That makes what they mean. So then the majority, and especially Justice Barrett, are helped by this old precedent, Michigan versus Long, which says when it's confusing what the state court is doing, we will assume that they are using some federal law.

Bad way to say it. But you're right. That makes what they mean. So then the majority, and especially Justice Barrett, are helped by this old precedent, Michigan versus Long, which says when it's confusing what the state court is doing, we will assume that they are using some federal law.

There's a sort of presumption in favor of jurisdiction and a presumption against an adequate and independent state ground when they're kind of blurred together and mixed.

There's a sort of presumption in favor of jurisdiction and a presumption against an adequate and independent state ground when they're kind of blurred together and mixed.

Yes. And often in those cases, they will clearly state, we find this to violate both the federal constitution and the state constitution. But they are not clear on whether the state constitution is what we say interpreted in lockstep with the federal constitution or whether it has independent force.

Yes. And often in those cases, they will clearly state, we find this to violate both the federal constitution and the state constitution. But they are not clear on whether the state constitution is what we say interpreted in lockstep with the federal constitution or whether it has independent force.

So would the state constitutional violation finding still be true if our federal constitutional finding were not true? In some ways, the Michigan versus Long itself is less confusing than this opinion, which is just very confusing.

So would the state constitutional violation finding still be true if our federal constitutional finding were not true? In some ways, the Michigan versus Long itself is less confusing than this opinion, which is just very confusing.

And so I think then that lets the majority of the spirit kind of at that point bail out and say, look, at a minimum, it's confusing. And therefore, it's at least plausible that the lower court ruled that this claim was incorrect as a matter of federal law, and therefore we can review it. Do you agree with that? I basically come out, I mean, I think it's going to surprise nobody.

And so I think then that lets the majority of the spirit kind of at that point bail out and say, look, at a minimum, it's confusing. And therefore, it's at least plausible that the lower court ruled that this claim was incorrect as a matter of federal law, and therefore we can review it. Do you agree with that? I basically come out, I mean, I think it's going to surprise nobody.