Dan Epps

So the court now does this thing that I think you and I both disapprove of, where sometimes we'll decide a claim is harmless because there was a bunch of overwhelming evidence, like other evidence. Yes, we shouldn't have admitted this evidence against you, but 12 other people said you did it, so harmless. And I guess if you're going to do that, this is kind of the flip side. It's like...

Well, a bunch of other shady stuff happened that further undermines our confidence in the verdict. So it's not an overwhelming evidence case.

Well, a bunch of other shady stuff happened that further undermines our confidence in the verdict. So it's not an overwhelming evidence case.

And then the remedy is interesting, right? So Justice Barrett and the dissent say, well, normally we should just correct their mistake. Say, you know... If there was no independent violation, you're wrong about that. And send it back to them. I take it, it goes back down to them. They could, among other things, hold an evidentiary hearing on all this stuff Paul Cassell wants to bring in.

And then the remedy is interesting, right? So Justice Barrett and the dissent say, well, normally we should just correct their mistake. Say, you know... If there was no independent violation, you're wrong about that. And send it back to them. I take it, it goes back down to them. They could, among other things, hold an evidentiary hearing on all this stuff Paul Cassell wants to bring in.

And who knows what else, right?

And who knows what else, right?

Yeah. Could they at that point resurrect a state law AISG? Could they at that point say, if we gave them a remand, ah, we see we were unclear the first time about whether our procedural violation was intertwined with federal law. Now that we got the case back, we'd like to be clear that despite the violation of federal law, we still find it procedurally barred. That would be on the table, right?

Yeah. Could they at that point resurrect a state law AISG? Could they at that point say, if we gave them a remand, ah, we see we were unclear the first time about whether our procedural violation was intertwined with federal law. Now that we got the case back, we'd like to be clear that despite the violation of federal law, we still find it procedurally barred. That would be on the table, right?

What do you think about that? I agree with you about the feel. And there's a sense in which it feels like the majority says, we just don't have confidence in this verdict anymore. Our confidence is sufficiently undermined that at this point we need a new trial.

What do you think about that? I agree with you about the feel. And there's a sense in which it feels like the majority says, we just don't have confidence in this verdict anymore. Our confidence is sufficiently undermined that at this point we need a new trial.

And even if it goes back and the Olympic Court of Criminal Appeals finds some new evidence or finds some new state law argument, we're not going to have confidence anymore. We just feel like... That's not an unreasonable attitude. There's just a question of whether it's something the court is allowed to do. Apparently, they are.

And even if it goes back and the Olympic Court of Criminal Appeals finds some new evidence or finds some new state law argument, we're not going to have confidence anymore. We just feel like... That's not an unreasonable attitude. There's just a question of whether it's something the court is allowed to do. Apparently, they are.

Also, Justice Thomas makes this sort of jurisdictional point, citing the newest edition of Hart and Wexler's Federal Courts. The first judicial citation to that? The first Supreme Court citation. I mean, it's just been in print for like a few weeks, right? Yeah, a month. I think it came out basically July 1st. I haven't looked to see if the lower courts have said it yet, but maybe not.

Also, Justice Thomas makes this sort of jurisdictional point, citing the newest edition of Hart and Wexler's Federal Courts. The first judicial citation to that? The first Supreme Court citation. I mean, it's just been in print for like a few weeks, right? Yeah, a month. I think it came out basically July 1st. I haven't looked to see if the lower courts have said it yet, but maybe not.

January 1st. Yeah, that's right. The other month. That says for state courts in particular, you know, the court has this norm. I think we've talked about this before in the show of when it reverses a state court, it says remand for proceedings not inconsistent with our opinion. Whereas when it rebands to a federal court, it's as consistent with our opinion.

January 1st. Yeah, that's right. The other month. That says for state courts in particular, you know, the court has this norm. I think we've talked about this before in the show of when it reverses a state court, it says remand for proceedings not inconsistent with our opinion. Whereas when it rebands to a federal court, it's as consistent with our opinion.

And that is supposed to maybe even convey that state courts have more freedom on rebands to do other stuff, to interject new issues of state law that there's no jurisdiction over and so on. So if you think that's an important principle of federalism, then the court seems to be violating it here or making an exception to it. I think that's right. Now, I was trying to chase this down.

And that is supposed to maybe even convey that state courts have more freedom on rebands to do other stuff, to interject new issues of state law that there's no jurisdiction over and so on. So if you think that's an important principle of federalism, then the court seems to be violating it here or making an exception to it. I think that's right. Now, I was trying to chase this down.

I couldn't totally chase it down. In 1867, when Congress amended Section 25 of the Judiciary Act, which is the statute that provides Supreme Court jurisdiction, appellate jurisdiction from state courts to the Supreme Court. and the amendment comes to the Supreme Court in a case called Murdoch v. Memphis.