ARGUMENT ANALYSIS
on Oct 9, 2024
at 5:16 pm
Seth Waxman argues for Richard Glossip. (William Hennessy)
Final yr’s order placing Richard Glossip’s execution on maintain to present the Supreme Court docket extra time to contemplate his appeals would have required the votes of not less than 5 justices, although which justices voted to take up the case was not made public. Glossip will want 5 votes once more to prevail on his request to put aside his conviction and demise sentence. That bid for a brand new trial is supported on the Supreme Court docket by Oklahoma’s Republican lawyer common, Gentner Drummond. However after almost two hours of oral arguments on Tuesday, it wasn’t clear the place these 5 votes in favor of Glossip’s place may come from.
Richard Glossip was convicted and sentenced to demise for his function within the 1997 homicide of Barry Van Treese, who owned the Oklahoma Metropolis the place he labored. One other man, occasional handyman on the motel Justin Sneed, confessed that he beat Barry Van Treese to demise whereas on meth. Sneed testified that Glossip paid him to kill Van Treese. In alternate for his testimony, prosecutors promised Sneed that he himself wouldn’t face the demise penalty.
Glossip has maintained his innocence for the almost three a long time he has been on Oklahoma’s demise row. Final yr he sought once more to have his conviction and sentence put aside. He argued that in 2023, the state had for the primary time given him recordsdata indicating that prosecutors knew, however did not confide in Glossip or his legal professionals, that Sneed had been prescribed lithium for bipolar dysfunction after his arrest and had lied about it. Sneed had indicated that he had unintentionally been prescribed the drug for a chilly. Prosecutors additionally didn’t right Sneed’s false testimony that he had by no means been handled by a psychiatrist.
Two completely different impartial experiences questioned the validity of Glossip’s conviction and demise sentence. In June 2022, a 259-page report by a legislation agency employed by state legislators discovered “grave doubt as to the integrity of Glossip’s homicide conviction and demise sentence.” And after 600 hours of labor Rex Duncan, a former district lawyer and Republican legislator employed by Drummond, reported that he believed a brand new trial was essential as a result of Glossip had been disadvantaged of a good trial.
Duncan’s report prompted Drummond to affix Glossip’s request for the Oklahoma Court docket of Legal Appeals, the state’s highest courtroom for legal instances, to put aside his conviction, in addition to his plea for clemency from the state’s Pardon and Parole Board.
The courtroom and the board each rejected Glossip’s requests for reduction. However the Supreme Court docket agreed to place his execution on maintain and, earlier this yr, to take up his case.
The justices spent a major period of time on Wednesday grappling with a thorny however essential procedural concern that they added to the case once they took up Glossip’s petition – whether or not they can overview the state courtroom’s resolution in any respect, or as an alternative are prohibited from doing so as a result of that call rests on an “sufficient and impartial state floor.” The Van Treese household, who help Glossip’s execution, have inspired the justices to take the latter place and dismiss the enchantment.
The Oklahoma Court docket of Legal Appeals held that Glossip’s claims had been barred by a state legislation that prohibits courts in capital instances from reviewing points {that a} prisoner may have raised earlier within the case.
However so far as Justice Sonia Sotomayor was involved, this procedural bar was a non-issue (and the legislation couldn’t function an sufficient and impartial state floor that may preclude the Supreme Court docket from weighing in) as a result of the state had waived its proper to depend on the legislation. (Beneath state legislation, the lawyer common may give up its proper to argue that the legislation on which the state courtroom relied applies to make sure that justice is finished.)
Representing Drummond, former U.S. solicitor common Paul Clement agreed. He pointed to a “hundred years of unbroken observe” of states waiving the precise to depend on procedural bars that may in any other case stop a case from going ahead.
Christopher Michel, a former assistant to the U.S. solicitor common and a former legislation clerk to Chief Justice John Roberts, who was appointed by the courtroom to defend the state courtroom’s ruling after Oklahoma declined to take action, disputed whether or not the state had actually waived its proper to depend on the legislation. However Michel rejected any suggestion that Oklahoma courts have a longstanding observe of accepting waivers of procedural bars. Clement, he mentioned, had supplied just one case for instance of that observe, from 2005.
Justice Ketanji Brown Jackson pushed again, asking Michel why he was wanting solely at instances involving “an lawyer common who expressly waives a procedural bar.” Why not look extra broadly, she queried, at what Oklahoma courts do at any time when a celebration waives a procedural bar that isn’t jurisdictional – that’s, doesn’t concern the courtroom’s authority to listen to the case?
Justice Amy Coney Barrett, nevertheless, questioned that strategy, countering that she was “questioning what the precise pattern dimension is.” Ought to the courts have a look at all waivers, she mentioned, or simply these involving the legislation at concern on this case?
Justice Elena Kagan appeared unconvinced that the state courtroom’s resolution rested on “impartial” state grounds. She informed Michel that the state courtroom’s evaluation of the underlying deserves of Glossip’s claims had been “intertwined” with its dialogue of whether or not his claims ought to have been raised earlier and due to this fact had been procedurally barred.
The state courtroom’s opinion, Kagan noticed, “begins with the substantive normal. Then it tells you that the State’s concession is flawed as a matter of legislation. Then, by the best way, it tells you some stuff in regards to the procedural bar normal. Then it goes again to the deserves once more.” And “it’s a excessive bar,” she emphasised, “to say that one thing is impartial.” “We don’t give that advantage of the doubt to the state,” she concluded.
However Justice Samuel Alito was extra sympathetic to Michel’s argument. He famous that the state courtroom had indicated that even when Glossip’s declare “overcomes the procedural bar, then” he nonetheless loses. Why, Alito requested, wouldn’t that be a transparent assertion that the state courtroom’s ruling rested on sufficient and impartial state grounds?
Glossip’s lawyer, former U.S. solicitor common Seth Waxman, responded that the identical resolution then mentioned the deserves of Glossip’s declare that prosecutors had violated the Supreme Court docket’s 1963 resolution in Brady v. Maryland, which requires them to show over any proof that’s favorable to the defendant and will have an effect on the choice about guilt or punishment. Alito appeared unmoved.
Glossip contends that prosecutors violated not solely Brady but in addition the courtroom’s 1959 resolution in Napue v. Illinois, holding that if prosecutors get hold of a conviction utilizing what they know is fake testimony, the conviction have to be put aside if there’s “any affordable probability” that the false testimony may have affected the jury’s resolution.
Chief Justice John Roberts, nevertheless, appeared skeptical. He requested Waxman whether or not it could have truly made a distinction if the jury had recognized that Sneed had obtained lithium from a psychiatrist, fairly than from another doctor.
Waxman harassed that there have been different issues as nicely, together with that Sneed “lied and was allowed to lie when he mentioned that he by no means noticed a psychiatrist,” that “very nicely may have made a major distinction within the end result of the case.” Sotomayor reduce him off, directing him to his facet’s personal level – that what mattered was not the drug however the bipolar prognosis that the jury didn’t learn about, which the drug was meant to deal with. The bipolar dysfunction and the potential of associated violent habits, Sotomayor emphasised, was proof that “would have defined the homicide.”
Justice Brett Kavanaugh appeared considerably open to Glossip’s argument, telling Michel that he was “having some bother” with Michel’s argument that it wouldn’t have mattered to the jury if it had recognized that Sneed was bipolar and had testified falsely, “when the entire case depended” on Sneed’s credibility. Wouldn’t it make a conviction extra possible, Kavanaugh requested, if the jury knew that Sneed lied on the stand and suffered from bipolar dysfunction, “creating all types of avenues for questioning his credibility”?
Michel answered that Glossip had made a strategic resolution to not increase arguments about Sneed’s psychological well being. And in any occasion, with “numerous different proof” implicating Glossip that didn’t contain Sneed, Michel mentioned, “it’s troublesome to say the jury would have rejected” Glossip’s “central protection” that he was not concerned within the homicide itself “and but rotated and accepted it if solely it knew that Justin Sneed allegedly noticed a psychiatrist.”
Clement countered that if a key witness lies on the stand, there’s a “affordable likelihood” of a unique outcome, together with as a result of it undermines that witness’s credibility. Psychiatric consultants may have testified about Sneed’s propensity to behave violently and impulsively, Clement prompt.
Alito and Justice Clarence Thomas each questioned whether or not Glossip and the state had been studying an excessive amount of into the prosecutors’ notes that, they are saying, helps their allegations that prosecutors knew however did not disclose that Sneed had been prescribed lithium by a psychiatrist for bipolar dysfunction after his arrest.
Each justices characterised the notes – which comprise the phrase “on Lithium?” and a reference to a “Dr. Trumpet” (when the psychiatrist’s title was Dr. Trompka) – as “cryptic.” Alito informed Waxman {that a} “pal of the courtroom” transient filed by Van Treese’s household supplies a “fairly compelling” counternarrative to clarify the notes, whereas Thomas informed Clement that he “couldn’t make heads or tails” of the handwritten notes.
And Thomas expressed broader considerations that the prosecutors initially concerned in Glossip’s case imagine that they’ve been “frozen out” of the method, with out being offered an “alternative to present detailed accounts of what these notes meant and what they did in the course of the trial.” “It appears,” he added, “as if their reputations are being impugned.”
Clement pointed to the 2 impartial investigations, carried out by Duncan and the legislation agency Reed Smith. Nevertheless, noting the “fairly important factual questions” remaining within the dispute, Jackson questioned aloud whether or not an evidentiary listening to is likely to be an acceptable subsequent step within the case – to find out, for instance, what prosecutors knew and what their notes meant.
All three legal professionals showing earlier than the courtroom on Wednesday informed the justices that such a listening to was not essential. However with Justice Neil Gorsuch recused from the case, it would give the eight-member courtroom a solution to keep away from deadlocking. A 4-4 resolution from the Supreme Court docket would depart the state courtroom’s ruling in opposition to Glossip in place.
This text was initially revealed at Howe on the Court docket.
