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 provide the Supreme Courtroom extra time to think about his appeals would have required the votes of a minimum of 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 dying sentence. That bid for a brand new trial is supported on the Supreme Courtroom by Oklahoma’s Republican lawyer basic, 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 would possibly come from.
Richard Glossip was convicted and sentenced to dying for his position 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 dying whereas on meth. Sneed testified that Glossip paid him to kill Van Treese. In change for his testimony, prosecutors promised Sneed that he himself wouldn’t face the dying penalty.
Glossip has maintained his innocence for the almost three many years he has been on Oklahoma’s dying 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 information indicating that prosecutors knew, however didn’t open up to 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 appropriate Sneed’s false testimony that he had by no means been handled by a psychiatrist.
Two completely different unbiased studies questioned the validity of Glossip’s conviction and dying sentence. In June 2022, a 259-page report by a regulation agency employed by state legislators discovered “grave doubt as to the integrity of Glossip’s homicide conviction and dying 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 obligatory as a result of Glossip had been disadvantaged of a good trial.
Duncan’s report prompted Drummond to hitch Glossip’s request for the Oklahoma Courtroom of Legal Appeals, the state’s highest court docket for prison circumstances, to put aside his conviction, in addition to his plea for clemency from the state’s Pardon and Parole Board.
The court docket and the board each rejected Glossip’s requests for reduction. However the Supreme Courtroom agreed to place his execution on maintain and, earlier this yr, to take up his case.
The justices spent a big period of time on Wednesday grappling with a thorny however necessary procedural difficulty that they added to the case after they took up Glossip’s petition – whether or not they can assessment the state court docket’s determination in any respect, or as a substitute are prohibited from doing so as a result of that call rests on an “sufficient and unbiased state floor.” The Van Treese household, who assist Glossip’s execution, have inspired the justices to take the latter place and dismiss the attraction.
The Oklahoma Courtroom of Legal Appeals held that Glossip’s claims had been barred by a state regulation that prohibits courts in capital circumstances 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 regulation couldn’t function an sufficient and unbiased state floor that might preclude the Supreme Courtroom from weighing in) as a result of the state had waived its proper to depend on the regulation. (Below state regulation, the lawyer basic may give up its proper to argue that the regulation on which the state court docket relied applies to make sure that justice is completed.)
Representing Drummond, former U.S. solicitor basic Paul Clement agreed. He pointed to a “hundred years of unbroken observe” of states waiving the suitable to depend on procedural bars which may in any other case forestall a case from going ahead.
Christopher Michel, a former assistant to the U.S. solicitor basic and a former regulation clerk to Chief Justice John Roberts, who was appointed by the court docket to defend the state court docket’s ruling after Oklahoma declined to take action, disputed whether or not the state had in actual fact waived its proper to depend on the regulation. 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 trying solely at circumstances involving “an lawyer basic who expressly waives a procedural bar.” Why not look extra broadly, she queried, at what Oklahoma courts do each time a celebration waives a procedural bar that isn’t jurisdictional – that’s, doesn’t concern the court docket’s authority to listen to the case?
Justice Amy Coney Barrett, nevertheless, questioned that method, countering that she was “questioning what the suitable pattern dimension is.” Ought to the courts take a look at all waivers, she mentioned, or simply these involving the regulation at difficulty on this case?
Justice Elena Kagan appeared unconvinced that the state court docket’s determination rested on “unbiased” state grounds. She advised Michel that the state court docket’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 court docket’s opinion, Kagan noticed, “begins with the substantive commonplace. Then it tells you that the State’s concession is mistaken as a matter of regulation. Then, by the way in which, it tells you some stuff in regards to the procedural bar commonplace. Then it goes again to the deserves once more.” And “it’s a excessive bar,” she emphasised, “to say that one thing is unbiased.” “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 court docket 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 court docket’s ruling rested on sufficient and unbiased state grounds?
Glossip’s lawyer, former U.S. solicitor basic Seth Waxman, responded that the identical determination then mentioned the deserves of Glossip’s declare that prosecutors had violated the Supreme Courtroom’s 1963 determination 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 additionally the court docket’s 1959 determination in Napue v. Illinois, holding that if prosecutors acquire a conviction utilizing what they know is fake testimony, the conviction have to be put aside if there’s “any cheap chance” that the false testimony may have affected the jury’s determination.
Chief Justice John Roberts, nevertheless, appeared skeptical. He requested Waxman whether or not it might have truly made a distinction if the jury had identified that Sneed had obtained lithium from a psychiatrist, quite than from another doctor.
Waxman pressured that there have been different issues as effectively, together with that Sneed “lied and was allowed to lie when he mentioned that he by no means noticed a psychiatrist,” that “very effectively may have made a big distinction within the final result of the case.” Sotomayor minimize him off, directing him to his aspect’s personal level – that what mattered was not the drug however the bipolar prognosis that the jury didn’t find out 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 hassle” with Michel’s argument that it wouldn’t have mattered to the jury if it had identified 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 determination to not increase arguments about Sneed’s psychological well being. And in any occasion, with “a lot of different proof” implicating Glossip that didn’t contain Sneed, Michel mentioned, “it’s tough 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 “cheap chance” of a distinct consequence, together with as a result of it undermines that witness’s credibility. Psychiatric specialists 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 didn’t disclose that Sneed had been prescribed lithium by a psychiatrist for bipolar dysfunction after his arrest.
Each justices characterised the notes – which include the phrase “on Lithium?” and a reference to a “Dr. Trumpet” (when the psychiatrist’s title was Dr. Trompka) – as “cryptic.” Alito advised Waxman {that a} “good friend of the court docket” transient filed by Van Treese’s household supplies a “fairly compelling” counternarrative to elucidate the notes, whereas Thomas advised Clement that he “couldn’t make heads or tails” of the handwritten notes.
And Thomas expressed broader issues 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 provide 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 unbiased investigations, carried out by Duncan and the regulation agency Reed Smith. Nevertheless, noting the “fairly vital factual questions” remaining within the dispute, Jackson questioned aloud whether or not an evidentiary listening to may be an applicable 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 court docket on Wednesday advised the justices that such a listening to was not obligatory. However with Justice Neil Gorsuch recused from the case, it’d give the eight-member court docket a technique to keep away from deadlocking. A 4-4 determination from the Supreme Courtroom would depart the state court docket’s ruling in opposition to Glossip in place.
This text was originally published at Howe on the Court.
