Even Oklahoma’s Republican attorney general says death row inmate Richard Glossip should get a new trial. You would think that would automatically mean that he will not be executed, but in this Supreme Court it is not that simple.
The court even appointed a third party to defend the state court ruling, which, if affirmed by the justices, would send Glossip to the execution chamber. That’s despite the state’s acknowledgment that prosecutorial misconduct tainted his trial.
All this led to a strange hearing Wednesday at the Supreme Court in Washington, where three lawyers presented arguments to the justices. One represented Glossip, another represented Oklahoma, and the third defended the Oklahoma Court of Criminal Appeals’ ruling against Glossip.
It is not unheard of for judges to appoint third parties to defend abandoned positions, but the practice made for an unusual appearance in this main case. Former U.S. attorneys general represented Glossip (Seth Waxman) and Oklahoma (top conservative lawyer Paul Clement). The appointed attorney, Christopher Michel, also previously worked in the attorney general’s office, and he clerked for both Chief Justice John Roberts and Justice Brett Kavanaugh when the latter was a federal appeals court judge.
But despite the state’s admission of wrongdoing, Justices Clarence Thomas and Samuel Alito in particular questioned the attorneys in ways that suggested those judges wanted Glossip’s execution to proceed. That’s not surprising, since she and Justice Neil Gorsuch even split from their Republican-appointed colleagues to vote against death row inmates.
What about Gorsuch? In another twist, he is rejected. He didn’t explain why, but that’s likely because he was previously involved in a Glossip-related lawsuit when he was a federal appellate judge in the court that covers Oklahoma.
But even in Gorsuch’s absence, there is no guarantee that Glossip and Oklahoma will succeed in obtaining a new trial. Because a 4-4 tie would affirm the state court’s ruling, they must convince a majority of this eight-court panel. Wednesday’s hearing showed that the court’s three Democratic appointees are (as expected) willing to side with Glossip, which maintains his innocence. That leaves open the question of Roberts and Justices Kavanaugh and Amy Coney Barrett, whose votes could be decisive on the court these days. This life or death appeal is no different.
How the court will ultimately rule, in a ruling expected at the end of June, is further complicated by the fact that there are several legal issues at play. There is a threshold issue (added by the court when it took up the case) about whether the justices have authority to review the Oklahoma state court ruling at all. It’s the kind of procedural hurdle the Supreme Court likes to use to avoid having to deal with potential injustices lurking in the actual merits of cases.
The merits of Glossip’s appeal centers on due process, including whether that constitutional mandate was violated when prosecutors suppressed their key witness’s confession that he was under the care of a psychiatrist and failed to testify the false testimony of the witness about that care and the associated diagnosis.
With the caveat that questions during oral arguments do not necessarily indicate how a judge will vote, Kavanaugh at one point asked the assigned attorney, Michel, a question that could be seen as hopeful for Glossip:
I think you said earlier… if you get past all the procedural hurdles and you get to the point where the prosecutors breached their obligations, it still wouldn’t have made any difference to the jury if they knew that Sneed [the key state witness] was bipolar and that he had lied on the witness stand. And I have some problems with that last part of the argument, when we get there, … when the whole thing hinged on his credibility.
Thomas, meanwhile, seemed to take umbrage at the idea that there was prosecutorial misconduct in this case. At least he thought the prosecutors couldn’t fully explain themselves. “[I]It seems that because not only their reputations are being called into question, but because they are at the center of this case, it seems that… an interview with these two accusers would be at the center,” Thomas said, in a theme that he maintained throughout the hearing.
Lawyers for Glossip and Oklahoma disputed that prosecutors had given short shrift. But as for the factual discrepancies in the case, some of the justices’ questions raised the prospect that the court would send the case back for a hearing to obtain more information. While that obviously could be better for Glossip (and Oklahoma) than the justices upholding the state court ruling against him at this point, his attorney said Wednesday that “[n]o An evidentiary hearing could change the conclusion that Mr. Glossip was denied a fair trial.”
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This article was originally published on MSNBC.com
