Dan Epps

Six to say jurisdiction, six to say they got it wrong, and five to say they got it wrong and they can't possibly be right, so we'll just fix it.

Yeah. And Barrett also says she thinks the jurisdictional question is closer than the majority does, even though she still agrees with them.

Yeah. And Barrett also says she thinks the jurisdictional question is closer than the majority does, even though she still agrees with them.

I know. Yeah. Nothing they care about. Okay, so oral argument I felt like was mostly about the jurisdictional question, or at least that was a big part of argument. Because there are these various procedural bars, but the Oklahoma Court of Criminal Appeals opinion, not a model of clarity. And so what the majority says is,

I know. Yeah. Nothing they care about. Okay, so oral argument I felt like was mostly about the jurisdictional question, or at least that was a big part of argument. Because there are these various procedural bars, but the Oklahoma Court of Criminal Appeals opinion, not a model of clarity. And so what the majority says is,

Upfront, they say, well, the Attorney General has confessed error, but we're not going to accept the confession of error because the confession of error is not based in law. In fact. Based in law, in fact, which seems to involve some kind of merits determination.

Upfront, they say, well, the Attorney General has confessed error, but we're not going to accept the confession of error because the confession of error is not based in law. In fact. Based in law, in fact, which seems to involve some kind of merits determination.

They make a merits determination that they don't agree with the confession of error, and that's upfront before they get into anything else.

They make a merits determination that they don't agree with the confession of error, and that's upfront before they get into anything else.

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.