1
00:00:03,200 --> 00:00:13,960
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:14,240 --> 00:00:19,439
Speaker 2: Attorney General Drummond did not confess error here lightly. Indeed,

3
00:00:19,480 --> 00:00:24,479
Speaker 2: he continues to defend multiple capital convictions and opposed mister

4
00:00:24,560 --> 00:00:29,760
Speaker 2: Glossop's penultimate sert petition, But after commissioning an independent review,

5
00:00:30,040 --> 00:00:34,240
Speaker 2: he reluctantly reached the conclusion that Brady and Napu violations

6
00:00:34,520 --> 00:00:39,000
Speaker 2: by the state's own prosecutors obligated him to confess error

7
00:00:39,120 --> 00:00:41,000
Speaker 2: and waive procedural obstacles.

8
00:00:41,080 --> 00:00:44,800
Speaker 3: It's a very unusual death penalty case where the State

9
00:00:44,840 --> 00:00:48,599
Speaker 3: of Oklahoma is coming before the Supreme Court on the

10
00:00:48,640 --> 00:00:52,360
Speaker 3: same side as a defendant on death row, arguing that

11
00:00:52,520 --> 00:00:57,600
Speaker 3: Richard Glossop's murder conviction and capital sentence should be Undone

12
00:00:57,840 --> 00:01:03,400
Speaker 3: former US Solicitor General Paul Clement argued for Oklahoma's attorney general,

13
00:01:03,640 --> 00:01:07,199
Speaker 3: who'd issued what's known as a confession of error after

14
00:01:07,280 --> 00:01:11,240
Speaker 3: finding out that the prosecutor in Glossop's case had suppressed

15
00:01:11,319 --> 00:01:16,000
Speaker 3: evidence about the state's star witness and elicited his false testimony.

16
00:01:16,240 --> 00:01:19,480
Speaker 2: They're looking at the testimony that their prosecutor elicited. They're

17
00:01:19,520 --> 00:01:22,440
Speaker 2: looking at that in context of the notes and the

18
00:01:22,480 --> 00:01:27,959
Speaker 2: medical information sheet, and General Drummond reached the conclusion regretfully,

19
00:01:28,040 --> 00:01:31,920
Speaker 2: but reached the conclusion, our prosecutors elicited perjury here, and

20
00:01:31,959 --> 00:01:33,559
Speaker 2: a man's going to go to his death. We can't

21
00:01:33,560 --> 00:01:34,440
Speaker 2: allow that to happen.

22
00:01:35,240 --> 00:01:39,319
Speaker 3: The prosecutor's handwritten notes, which were unearthed in twenty twenty

23
00:01:39,360 --> 00:01:42,480
Speaker 3: two from a box of evidence not turned over to

24
00:01:42,520 --> 00:01:46,720
Speaker 3: the defense, revealed that the star witness had been diagnosed

25
00:01:46,760 --> 00:01:50,800
Speaker 3: with bipolar disorder and was being treated by a psychiatrist

26
00:01:50,920 --> 00:01:54,880
Speaker 3: with lithium. Several of the justices seemed divided about the

27
00:01:54,920 --> 00:01:58,520
Speaker 3: importance of the information that was withheld and how it

28
00:01:58,600 --> 00:02:03,040
Speaker 3: might have impacted the jury's verdict. Here are Chief Justice

29
00:02:03,160 --> 00:02:07,240
Speaker 3: John Roberts and Justice is Elena Kagan and Brett Kavanaugh.

30
00:02:08,400 --> 00:02:11,360
Speaker 4: Because the jury knew about the lithium, and what they

31
00:02:11,400 --> 00:02:14,000
Speaker 4: didn't know is that it was prescribed by a psychiatrist.

32
00:02:15,000 --> 00:02:17,120
Speaker 4: Do you really think it would make that much of

33
00:02:17,160 --> 00:02:18,959
Speaker 4: a difference to the jury.

34
00:02:19,880 --> 00:02:22,800
Speaker 5: That seems pretty material to me. I mean, it's just

35
00:02:22,960 --> 00:02:25,799
Speaker 5: your one witness has been exposed as a liar.

36
00:02:27,320 --> 00:02:29,720
Speaker 6: Would have made the conviction more likely if the jury

37
00:02:29,760 --> 00:02:32,880
Speaker 6: knows that, not only does he have an incentive to lie,

38
00:02:32,919 --> 00:02:36,480
Speaker 6: that he's lied on the stand in that he's bipolar,

39
00:02:36,720 --> 00:02:42,200
Speaker 6: therefore creating all sorts of avenues for questioning his credibility.

40
00:02:42,480 --> 00:02:45,720
Speaker 3: Joining me is Cliff Sloan, a professor at Georgetown Law

41
00:02:45,840 --> 00:02:49,360
Speaker 3: who's argued several cases at the Supreme Court, including a

42
00:02:49,440 --> 00:02:53,040
Speaker 3: victory in a case involving the death penalty. Golossip has

43
00:02:53,040 --> 00:02:56,160
Speaker 3: been on death row for more than twenty five years.

44
00:02:56,440 --> 00:03:00,400
Speaker 3: He's faced nine execution dates in all, and eaten his

45
00:03:00,520 --> 00:03:04,440
Speaker 3: last meal three times. Tell us about the evidence that's

46
00:03:04,480 --> 00:03:08,120
Speaker 3: been discovered lately by the Oklahoma Attorney General.

47
00:03:08,600 --> 00:03:16,280
Speaker 7: So what was discovered was very important prosecutorial notes establishing

48
00:03:16,680 --> 00:03:21,240
Speaker 7: that the main witness, and really the only witness tying

49
00:03:21,440 --> 00:03:26,839
Speaker 7: Golossop to the murder, had a bipolar disorder and had

50
00:03:26,960 --> 00:03:30,920
Speaker 7: received lithium under a prescription from a psychiatrist. And this

51
00:03:31,120 --> 00:03:37,040
Speaker 7: was directly contrary to this witness's testimony at the trial

52
00:03:37,440 --> 00:03:40,960
Speaker 7: where he said he had received lithium for a cold,

53
00:03:41,000 --> 00:03:44,000
Speaker 7: and he flatly said he had never seen a psychiatrist,

54
00:03:44,320 --> 00:03:48,160
Speaker 7: And right there in the notes of the prosecutor or

55
00:03:48,240 --> 00:03:53,360
Speaker 7: notes establishing that it was from a psychiatrist. And also

56
00:03:53,680 --> 00:03:58,160
Speaker 7: there was separately a medical record establishing that the psychiatrist

57
00:03:58,240 --> 00:04:02,200
Speaker 7: had prescribed the lithium for the bipolar disorder. This would

58
00:04:02,200 --> 00:04:05,760
Speaker 7: have been extremely important to the jury both in its

59
00:04:05,800 --> 00:04:09,640
Speaker 7: consideration of guilt or innocence and in his consideration of

60
00:04:09,680 --> 00:04:14,120
Speaker 7: the death penalty. Because the witness was really the entire

61
00:04:14,280 --> 00:04:19,160
Speaker 7: case against mister Glossop. It's undisputed he had no role

62
00:04:19,600 --> 00:04:23,720
Speaker 7: in the actual killing of the victim himself. The theory

63
00:04:23,760 --> 00:04:27,159
Speaker 7: of the state was that he hired this other man's

64
00:04:27,320 --> 00:04:31,279
Speaker 7: Need to do the killing, and so Need's testimony was

65
00:04:31,320 --> 00:04:35,040
Speaker 7: the only thing that linked Glossop to the killing.

66
00:04:35,839 --> 00:04:40,240
Speaker 3: An unusual piece to this case is that Oklahoma's Republican

67
00:04:40,279 --> 00:04:46,120
Speaker 3: Attorney General, Gentner Drummond, is arguing alongside Glossop that his

68
00:04:46,279 --> 00:04:48,400
Speaker 3: murder conviction should be undone.

69
00:04:49,000 --> 00:04:53,160
Speaker 7: The Republican Attorney General of Oklahoma, who generally is very

70
00:04:53,279 --> 00:04:57,240
Speaker 7: much in favor of the death penalty, has really acted

71
00:04:57,400 --> 00:05:01,920
Speaker 7: in the finest traditions of justice here because he commissioned

72
00:05:01,960 --> 00:05:07,520
Speaker 7: an independent investigation which concluded that mister Glossop's conviction and

73
00:05:07,560 --> 00:05:12,520
Speaker 7: his death penalty cannot stand because of this false testimony

74
00:05:12,880 --> 00:05:18,599
Speaker 7: and because of the failure to turn over important evidence

75
00:05:18,680 --> 00:05:21,840
Speaker 7: to the defense, which is a constitutional violation, and so

76
00:05:21,920 --> 00:05:25,760
Speaker 7: he concluded, in good conscience he had to stand up

77
00:05:25,839 --> 00:05:29,120
Speaker 7: and say that the conviction should be set aside and

78
00:05:29,160 --> 00:05:31,880
Speaker 7: the death penalty should be set aside. And there also

79
00:05:32,040 --> 00:05:37,280
Speaker 7: was another independent investigation commissioned by the Republican state legislature

80
00:05:37,400 --> 00:05:40,920
Speaker 7: which reached the same conclusion. But what is really striking

81
00:05:41,000 --> 00:05:47,600
Speaker 7: here is that the Oklahoma court has rejected the prosecutor's

82
00:05:47,640 --> 00:05:51,080
Speaker 7: determination that there needs to be a new trial and

83
00:05:51,120 --> 00:05:54,240
Speaker 7: that the death suttons cannot stand. And you know, the

84
00:05:54,240 --> 00:06:00,000
Speaker 7: Glossop case really illustrates three of the most troubling characteristics

85
00:06:00,440 --> 00:06:03,840
Speaker 7: of the death penalty in the United States today. One

86
00:06:03,880 --> 00:06:08,359
Speaker 7: of them is the prevalence of cases of innocence and

87
00:06:08,480 --> 00:06:12,880
Speaker 7: exoneration of people on death row. There have been two

88
00:06:13,240 --> 00:06:17,200
Speaker 7: hundred people on death row who have been found to

89
00:06:17,279 --> 00:06:21,479
Speaker 7: be innocent and who have been exonerated, a truly shocking

90
00:06:21,920 --> 00:06:26,760
Speaker 7: and alarming fact. The second problem that it highlights is

91
00:06:26,800 --> 00:06:32,800
Speaker 7: the problem of misconduct by prosecutors. And in seventy percent

92
00:06:33,360 --> 00:06:36,560
Speaker 7: of the cases where there has been found to be

93
00:06:36,640 --> 00:06:40,279
Speaker 7: innocence of people on death row, there has been misconduct

94
00:06:40,560 --> 00:06:44,120
Speaker 7: by prosecutors, exactly this kind of thing, putting on false

95
00:06:44,160 --> 00:06:48,920
Speaker 7: testimony not correcting it not turning over very important evidence.

96
00:06:49,279 --> 00:06:54,240
Speaker 7: And the third, very disturbing problem is when courts don't

97
00:06:54,400 --> 00:07:00,520
Speaker 7: accept prosecutors' conclusions that a conviction and a death penalty

98
00:07:00,640 --> 00:07:06,039
Speaker 7: cannot stand. That happened recently in the execution of Marcellus Williams,

99
00:07:06,320 --> 00:07:08,599
Speaker 7: and we're seeing it in the Glossop case where the

100
00:07:08,600 --> 00:07:14,280
Speaker 7: Oklahoma Court just flatly rejected the very considered decisions of

101
00:07:14,320 --> 00:07:18,280
Speaker 7: the Oklahoma Attorney General as the prosecutors in the case

102
00:07:18,520 --> 00:07:21,320
Speaker 7: that the conviction and the death penalty cannot stand.

103
00:07:21,960 --> 00:07:26,040
Speaker 3: What exactly is the Supreme Court reviewing what aspects of

104
00:07:26,080 --> 00:07:26,600
Speaker 3: the case.

105
00:07:27,320 --> 00:07:32,200
Speaker 7: Well, it's reviewing two points. One is on the substance

106
00:07:32,440 --> 00:07:36,960
Speaker 7: of the claims. Has there been established a constitutional violation

107
00:07:37,440 --> 00:07:42,560
Speaker 7: in terms of both the perjured testimony that the prosecutors

108
00:07:42,600 --> 00:07:46,000
Speaker 7: did not correct and in terms of the very important

109
00:07:46,000 --> 00:07:48,760
Speaker 7: evidence that was not turned over to the defense. And

110
00:07:48,800 --> 00:07:51,640
Speaker 7: so that's on the merits. And again you have both

111
00:07:51,720 --> 00:07:55,680
Speaker 7: Glossop and the Oklahoma Attorney General saying these are very

112
00:07:55,800 --> 00:08:00,600
Speaker 7: very strong grounds for concluding that there were fundamental institutional

113
00:08:00,680 --> 00:08:04,800
Speaker 7: violations here. Now there's also a procedural question because in

114
00:08:04,880 --> 00:08:09,560
Speaker 7: the Oklahoma Court opinion it made some reference to state

115
00:08:10,240 --> 00:08:14,920
Speaker 7: rules about the preservation of certain kinds of issues, and

116
00:08:14,960 --> 00:08:17,880
Speaker 7: it's a kind of technical procedural issue. But there's a

117
00:08:17,960 --> 00:08:20,920
Speaker 7: question that the Supreme Court will be considering, which is

118
00:08:21,320 --> 00:08:28,040
Speaker 7: whether Oklahoma's rejection of the attorney General's position is based

119
00:08:28,040 --> 00:08:32,160
Speaker 7: on a state rule that is sufficient without getting into

120
00:08:32,200 --> 00:08:37,000
Speaker 7: the federal constitutional issues. Now, the argument by mister Glossop

121
00:08:37,200 --> 00:08:40,880
Speaker 7: and by the Oklahoma Attorney General is that no, there's

122
00:08:40,960 --> 00:08:44,839
Speaker 7: not an independent state ground, that that reference is completely

123
00:08:45,000 --> 00:08:51,040
Speaker 7: interwoven with the Oklahoma court rejections, erroneous rejections in their

124
00:08:51,120 --> 00:08:54,600
Speaker 7: view of the constitutional claim. So that's a kind of

125
00:08:54,640 --> 00:08:58,040
Speaker 7: threshold procedural question that the Supreme Court also will have

126
00:08:58,080 --> 00:08:58,880
Speaker 7: to decide.

127
00:08:59,160 --> 00:09:03,080
Speaker 3: And at the arguments, a lot of time was spent

128
00:09:03,480 --> 00:09:07,640
Speaker 3: on the procedural issue. Justice Samuel Alito, in my mind,

129
00:09:07,640 --> 00:09:11,320
Speaker 3: seemed to be taking on the role of attacking Glossop's case.

130
00:09:11,679 --> 00:09:15,480
Speaker 7: Well, you know, that's the issue that's presented about whether

131
00:09:15,640 --> 00:09:20,680
Speaker 7: there's a threshold procedural problem that is based in state

132
00:09:20,800 --> 00:09:24,679
Speaker 7: law and that would prevent the Supreme Court from reaching

133
00:09:25,000 --> 00:09:29,600
Speaker 7: the federal constitutional issues. So it's an important threshold issue.

134
00:09:29,600 --> 00:09:34,079
Speaker 7: But you had other justices very much emphasizing that they

135
00:09:34,080 --> 00:09:36,760
Speaker 7: don't think that is a serious problem that they think

136
00:09:36,840 --> 00:09:41,480
Speaker 7: it's clear that the Oklahoma Court rested its decision on

137
00:09:41,640 --> 00:09:46,640
Speaker 7: an erroneous analysis of the federal constitutional claims, that the

138
00:09:46,679 --> 00:09:49,840
Speaker 7: state procedural reference was wrapped up in that. And you

139
00:09:49,920 --> 00:09:53,440
Speaker 7: even had Justice Kagan asking a question where she suggested

140
00:09:53,480 --> 00:09:57,920
Speaker 7: that the reference to the state procedural issue was simply

141
00:09:58,000 --> 00:10:01,960
Speaker 7: because the Oklahoma Court was growing in the entire kitchen sink,

142
00:10:02,320 --> 00:10:04,200
Speaker 7: and so it was just mixed up with a lot

143
00:10:04,200 --> 00:10:07,440
Speaker 7: of other things. It had no independent basis. And you

144
00:10:07,520 --> 00:10:11,360
Speaker 7: also had a number of the justices, including Justices Kagan,

145
00:10:11,480 --> 00:10:16,880
Speaker 7: so the mayor and Jackson emphasizing that this supposed independent

146
00:10:17,080 --> 00:10:22,080
Speaker 7: rule that the Oklahoma Court was enforcing had never been

147
00:10:22,200 --> 00:10:25,880
Speaker 7: enforced in this kind of context in any case other

148
00:10:26,000 --> 00:10:30,760
Speaker 7: than one involving Richard Colossa, which added to their view.

149
00:10:31,120 --> 00:10:34,400
Speaker 7: But this is something that was a makewight that Oklahoma

150
00:10:34,880 --> 00:10:37,800
Speaker 7: was just throwing in and is not a bar to

151
00:10:38,080 --> 00:10:39,160
Speaker 7: Supreme Court review.

152
00:10:39,800 --> 00:10:43,360
Speaker 3: So Glossop has a claim of a Brady violation where

153
00:10:43,360 --> 00:10:47,400
Speaker 3: the prosecutor didn't turn over evidence, and also what's known

154
00:10:47,520 --> 00:10:52,600
Speaker 3: as a Napou violation where the prosecutor presented false testimony.

155
00:10:53,040 --> 00:10:54,719
Speaker 3: Here's Justice Elena Kagan on.

156
00:10:54,679 --> 00:10:58,040
Speaker 5: That a NAPOO violation is a pretty dramatic thing when

157
00:10:58,040 --> 00:11:02,560
Speaker 5: a prosecutor says, leg, well, stop there, that was a lie.

158
00:11:02,760 --> 00:11:07,120
Speaker 7: Under NAPU, a prosecutor, of course cannot put on perjured testimony.

159
00:11:07,160 --> 00:11:11,120
Speaker 7: And if the prosecutor learns that the testimony has been perjured,

160
00:11:11,160 --> 00:11:14,440
Speaker 7: the prosecutor has to correct it or notify the defense

161
00:11:14,880 --> 00:11:19,240
Speaker 7: about it. And here what the independent investigations have found

162
00:11:19,679 --> 00:11:24,479
Speaker 7: is that the prosecutor put on perjured testimony, never corrected

163
00:11:24,520 --> 00:11:28,679
Speaker 7: it to the contrary, took efforts to protect it. It's

164
00:11:28,720 --> 00:11:33,280
Speaker 7: a very very serious constitutional violation. It goes to the

165
00:11:33,320 --> 00:11:36,559
Speaker 7: heart of what the criminal justice system should be about.

166
00:11:36,880 --> 00:11:40,400
Speaker 7: And you know, some of the justices were very much

167
00:11:40,679 --> 00:11:44,320
Speaker 7: bothered by this violation and seemed to think that it

168
00:11:44,320 --> 00:11:49,679
Speaker 7: has opened and shut. Other justices seemed more skeptical about

169
00:11:49,760 --> 00:11:55,280
Speaker 7: whether it was as clear a violation and also how

170
00:11:55,360 --> 00:11:59,160
Speaker 7: significant it would have been, you know, in terms of materiality,

171
00:11:59,160 --> 00:12:01,880
Speaker 7: which is important for NAPO, and whether it would have

172
00:12:02,040 --> 00:12:04,560
Speaker 7: made a difference or not. So, you know, I think

173
00:12:04,559 --> 00:12:08,920
Speaker 7: there's clearly a split among the justices both about the

174
00:12:08,960 --> 00:12:11,720
Speaker 7: procedure and the substance in terms of how they're viewing it.

175
00:12:11,880 --> 00:12:14,880
Speaker 7: You should also mention there's one other possibility that came

176
00:12:15,000 --> 00:12:18,240
Speaker 7: up in the argument, which would be to send it

177
00:12:18,280 --> 00:12:21,240
Speaker 7: back for additional fact finding. You know, the position of

178
00:12:21,640 --> 00:12:25,000
Speaker 7: Glossop and the Oklahoma Attorney General is that it's so

179
00:12:25,160 --> 00:12:28,280
Speaker 7: clear that there's a NAPU violation and a Brady violation

180
00:12:28,400 --> 00:12:31,439
Speaker 7: from not turning over, you know, very important evidence bearing

181
00:12:31,480 --> 00:12:36,000
Speaker 7: on guilt or innocence, that there's no additional fact finding

182
00:12:36,280 --> 00:12:41,200
Speaker 7: that's necessary. And the position of the Oklahoma Court was

183
00:12:41,240 --> 00:12:43,680
Speaker 7: simply that his conviction should be affirmed and the death

184
00:12:43,720 --> 00:12:46,400
Speaker 7: penalty should go forward. But a couple of the justices

185
00:12:46,440 --> 00:12:50,000
Speaker 7: were suggesting that perhaps what should happen is that it

186
00:12:50,000 --> 00:12:55,200
Speaker 7: should be sent back for additional fact finding about exactly

187
00:12:55,400 --> 00:12:58,000
Speaker 7: what happened and how important it was. And again some

188
00:12:58,040 --> 00:13:01,120
Speaker 7: of the justices were very explicit things that they didn't

189
00:13:01,120 --> 00:13:03,840
Speaker 7: think that was necessary in light of the record and

190
00:13:03,880 --> 00:13:05,440
Speaker 7: how clear the violations were.

191
00:13:07,960 --> 00:13:11,320
Speaker 3: Richard Glossop has been on death row in Oklahoma for

192
00:13:11,360 --> 00:13:14,640
Speaker 3: more than twenty five years. His case has reached the

193
00:13:14,679 --> 00:13:19,200
Speaker 3: Supreme Court twice. Today's oral argument showed how difficult it

194
00:13:19,360 --> 00:13:22,760
Speaker 3: is for capital defendants to win with the current six

195
00:13:22,800 --> 00:13:26,839
Speaker 3: to three conservative majority, even in a case like Glossops,

196
00:13:27,000 --> 00:13:30,680
Speaker 3: where Oklahoma's Attorney General agrees that his conviction and death

197
00:13:30,760 --> 00:13:34,600
Speaker 3: sentence should be undone, and in fact is arguing at

198
00:13:34,600 --> 00:13:38,880
Speaker 3: the Supreme Court alongside Glossop's attorney. I've been talking to

199
00:13:38,880 --> 00:13:42,920
Speaker 3: Professor Cliff Stone of Georgetown Law. What seemed odd to

200
00:13:42,960 --> 00:13:47,600
Speaker 3: me about Justice Clarence Thomas's questions is that in this

201
00:13:47,720 --> 00:13:52,800
Speaker 3: case where a man is facing execution, his only questions

202
00:13:52,840 --> 00:13:57,360
Speaker 3: to the three attorneys were about the prosecutors accused of

203
00:13:57,400 --> 00:14:00,839
Speaker 3: these ethical violations and whether this was going to harm

204
00:14:00,920 --> 00:14:02,040
Speaker 3: their reputations.

205
00:14:02,240 --> 00:14:05,840
Speaker 8: Well, shouldn't these two prosecutors. It seems as though their

206
00:14:05,920 --> 00:14:11,600
Speaker 8: reputations are being impugned, and according to them, they did

207
00:14:11,640 --> 00:14:16,559
Speaker 8: not receive an opportunity to explain in depth.

208
00:14:17,440 --> 00:14:19,720
Speaker 2: Justice Thomas. That's hard to square with the record here.

209
00:14:19,760 --> 00:14:22,000
Speaker 2: There were two independent investigations.

210
00:14:23,120 --> 00:14:26,760
Speaker 7: Well, I do think that the emphasis that Justice Thomas

211
00:14:26,880 --> 00:14:31,760
Speaker 7: was giving on his concern about the prosecutor's reputation was

212
00:14:31,960 --> 00:14:35,080
Speaker 7: very odd and misplaced. Here. You know, as the lawyer

213
00:14:35,560 --> 00:14:39,720
Speaker 7: for the Oklahoma Attorney General, Paul Clement, said the proceeding

214
00:14:39,760 --> 00:14:42,960
Speaker 7: that we have to be worried about is the fairness

215
00:14:42,960 --> 00:14:46,960
Speaker 7: of the proceeding in the trial and death sentence of

216
00:14:47,040 --> 00:14:50,480
Speaker 7: mister Glossop, and whether that stands or not, and the

217
00:14:50,520 --> 00:14:54,920
Speaker 7: constitutional issues there. And you know, as you say, Justice

218
00:14:54,920 --> 00:14:58,080
Speaker 7: Thomas seemed extremely concerned about the reputation of the prosecutors.

219
00:14:58,080 --> 00:15:03,080
Speaker 7: The other odd point about Justice Thomas's questions one he

220
00:15:03,240 --> 00:15:07,320
Speaker 7: kept emphasizing whether they had been interviewed, how much they

221
00:15:07,400 --> 00:15:11,160
Speaker 7: had been interviewed, And in fact, as the lawyers pointed out,

222
00:15:11,640 --> 00:15:15,240
Speaker 7: the prosecutors had been talked to in the course of

223
00:15:15,360 --> 00:15:18,320
Speaker 7: the independent investigations, and in fact one of them had

224
00:15:18,360 --> 00:15:21,720
Speaker 7: put in an affidavit. But the other point is that

225
00:15:22,040 --> 00:15:28,040
Speaker 7: just as Thomas kept talking about what the prosecutors alone knew,

226
00:15:28,120 --> 00:15:32,560
Speaker 7: and even if there was other information in government files

227
00:15:32,600 --> 00:15:36,840
Speaker 7: that would have been very important to mister Glossop and

228
00:15:36,920 --> 00:15:41,600
Speaker 7: his defense, well, how could they show the prosecutors actually

229
00:15:41,720 --> 00:15:44,120
Speaker 7: knew about it. And as some of the other justices

230
00:15:44,200 --> 00:15:47,560
Speaker 7: were pointing out in response to Justice Thomas, you know,

231
00:15:47,600 --> 00:15:51,760
Speaker 7: the prosecutors are imputed to have knowledge of all of

232
00:15:51,800 --> 00:15:55,920
Speaker 7: the information that is available within the government bearing on

233
00:15:55,960 --> 00:15:59,800
Speaker 7: the defendant skills or innocence. It is absolutely not of

234
00:15:59,840 --> 00:16:04,840
Speaker 7: that position for prosecutor to say, essentially, well, oh, that

235
00:16:05,040 --> 00:16:07,640
Speaker 7: was in the file cabinet down the hall. I hadn't

236
00:16:07,640 --> 00:16:10,400
Speaker 7: looked in that file cabinet. And yet that's what Justine

237
00:16:10,480 --> 00:16:13,960
Speaker 7: Thomas seemed to be really talking a lot about. How

238
00:16:13,960 --> 00:16:18,880
Speaker 7: could you show that this particular prosecutor had read this

239
00:16:18,920 --> 00:16:22,480
Speaker 7: particular document even though there was no dispute that it

240
00:16:22,560 --> 00:16:24,640
Speaker 7: was within the government files.

241
00:16:24,760 --> 00:16:28,080
Speaker 3: In this case, since the State of Oklahoma was arguing

242
00:16:28,120 --> 00:16:32,240
Speaker 3: on the side of the defendant, Richard Glossop, the court

243
00:16:32,400 --> 00:16:37,560
Speaker 3: appointed an attorney to argue in defense of the Oklahoma

244
00:16:37,640 --> 00:16:42,760
Speaker 3: Criminal Court's decision, Christopher Michelle, and he basically argued that

245
00:16:43,040 --> 00:16:47,240
Speaker 3: the withheld information wouldn't have made any difference in the

246
00:16:47,320 --> 00:16:51,480
Speaker 3: jury's determination of the credibility of the state's star witness

247
00:16:51,560 --> 00:16:54,320
Speaker 3: and wouldn't have made a difference in the verdict, and

248
00:16:54,560 --> 00:16:57,640
Speaker 3: Justice Elena Kaigan vehemently disagreed with him.

249
00:16:58,040 --> 00:17:01,360
Speaker 5: The critical question that the jury is asking is do

250
00:17:01,400 --> 00:17:04,680
Speaker 5: I believe this guy in everything he says? And particularly

251
00:17:04,720 --> 00:17:07,640
Speaker 5: do I believe him when he points the finger at

252
00:17:07,640 --> 00:17:10,119
Speaker 5: the accuse? And if I know that he has gotten

253
00:17:10,200 --> 00:17:13,440
Speaker 5: up to the stand and lied about anything, whether it's

254
00:17:13,480 --> 00:17:16,240
Speaker 5: important or not, it might have been important, It might

255
00:17:16,280 --> 00:17:19,719
Speaker 5: not have been important if he's lying, if he's trying

256
00:17:19,760 --> 00:17:23,040
Speaker 5: to cover up something about his own behavior. I'm going

257
00:17:23,080 --> 00:17:25,719
Speaker 5: to take that into account and deciding whether when he

258
00:17:25,760 --> 00:17:28,359
Speaker 5: accuses the defendant he's telling the truth.

259
00:17:28,840 --> 00:17:31,359
Speaker 9: Justice Kagan, I think in many cases where we were

260
00:17:31,400 --> 00:17:34,080
Speaker 9: starting from the blank slate, that the witness is presumed

261
00:17:34,080 --> 00:17:37,480
Speaker 9: to be credible, one lie would be important. In this case,

262
00:17:37,520 --> 00:17:39,440
Speaker 9: the witness admitted that he beat a man to death

263
00:17:39,480 --> 00:17:41,840
Speaker 9: with a baseball bat. The witness admitted that he was

264
00:17:41,880 --> 00:17:45,119
Speaker 9: testifying in exchanged for avoiding the death penalty. The jury

265
00:17:45,160 --> 00:17:48,439
Speaker 9: already had significant credibility questions about justin sneak.

266
00:17:49,000 --> 00:17:51,159
Speaker 3: So how important does it have to be for a

267
00:17:51,200 --> 00:17:53,760
Speaker 3: NAPU violation. What's the standard?

268
00:17:53,960 --> 00:17:57,679
Speaker 7: Well, you know there is a standard of materiality. You know,

269
00:17:57,840 --> 00:18:00,920
Speaker 7: eventually whether it would be relevant to the issues the

270
00:18:01,040 --> 00:18:05,560
Speaker 7: juries making a decision about, and whether it would make

271
00:18:05,600 --> 00:18:08,520
Speaker 7: a difference or could make a difference. But here it

272
00:18:08,600 --> 00:18:12,840
Speaker 7: seems that the case for materiality is so strong because

273
00:18:13,280 --> 00:18:20,680
Speaker 7: again the withheld evidence established that the main witness, who

274
00:18:20,760 --> 00:18:24,479
Speaker 7: was the entire case against Glossop was lying about an

275
00:18:24,560 --> 00:18:28,399
Speaker 7: important point. Now, the lawyer who was defending what the

276
00:18:28,440 --> 00:18:31,639
Speaker 7: Oklahoma Court was saying. He was saying, well, the jury

277
00:18:31,680 --> 00:18:35,440
Speaker 7: knew that he was taking lithium. But that's the whole point.

278
00:18:35,640 --> 00:18:40,480
Speaker 7: He explicitly testifies he had taken lithium for a cold,

279
00:18:40,680 --> 00:18:43,520
Speaker 7: and he denied that he had ever seen a psychiatrist

280
00:18:43,680 --> 00:18:45,960
Speaker 7: or it was because of a mental condition. That was

281
00:18:46,240 --> 00:18:51,440
Speaker 7: totally false. And when he's really the only witness against Glossop,

282
00:18:51,960 --> 00:18:55,879
Speaker 7: for the jury to know first of all that actually

283
00:18:56,000 --> 00:18:59,840
Speaker 7: he had at the time of the offense untreated bipolar

284
00:19:00,200 --> 00:19:03,439
Speaker 7: disorder when he killed the victim, that would have been

285
00:19:03,520 --> 00:19:05,760
Speaker 7: very important for the jury to know. But it also

286
00:19:05,800 --> 00:19:07,639
Speaker 7: would have been very important for the jury to know

287
00:19:08,040 --> 00:19:12,000
Speaker 7: that he was blatantly lying, because the jury had a

288
00:19:12,119 --> 00:19:17,920
Speaker 7: very important credibility determination to make about this individual whose

289
00:19:17,960 --> 00:19:20,840
Speaker 7: testimony was so important. And again to know that he

290
00:19:21,000 --> 00:19:25,679
Speaker 7: was flat outline, that's the classic kind of Napoo violation

291
00:19:26,240 --> 00:19:31,200
Speaker 7: of perjured testimony, is the classic of Brady violation. But

292
00:19:31,440 --> 00:19:35,879
Speaker 7: important information that should be given to the defense, and

293
00:19:36,000 --> 00:19:40,119
Speaker 7: so the idea that well they knew he was taking lithium,

294
00:19:40,160 --> 00:19:41,680
Speaker 7: and the fact that he said it was for a

295
00:19:41,840 --> 00:19:45,560
Speaker 7: cold rather than because it had been prescribed by a psychiatrist,

296
00:19:45,680 --> 00:19:48,440
Speaker 7: and even though he had denied ever seeing a psychiatrist.

297
00:19:48,720 --> 00:19:53,720
Speaker 7: To me, that's completely unpersuasive in the context of this case.

298
00:19:53,800 --> 00:19:56,560
Speaker 7: It just is of sort of ignoring what was really

299
00:19:56,720 --> 00:19:58,160
Speaker 7: the main focus at the time.

300
00:19:58,680 --> 00:20:02,280
Speaker 3: So, I mean, it's hard to read through oral arguments

301
00:20:02,359 --> 00:20:05,560
Speaker 3: what's going to happen, and particularly in this case where

302
00:20:06,280 --> 00:20:09,360
Speaker 3: a lot of the justices said very little. I mean,

303
00:20:09,440 --> 00:20:13,720
Speaker 3: it seems obvious that Alito and Thomas are not going

304
00:20:13,800 --> 00:20:17,440
Speaker 3: to vote in Glossop's favor. In fact, last time this

305
00:20:17,560 --> 00:20:21,520
Speaker 3: case was before the Supreme Court regarding the method of

306
00:20:21,560 --> 00:20:25,840
Speaker 3: execution in twenty fifteen, Alita wrote, is it appropriate for

307
00:20:25,920 --> 00:20:29,280
Speaker 3: the judiciary to countenance what amounts to a guerrilla war

308
00:20:29,359 --> 00:20:31,720
Speaker 3: against the death penalty? How do you see it? Do

309
00:20:31,800 --> 00:20:33,920
Speaker 3: you have any idea of what the lineup might be

310
00:20:33,960 --> 00:20:35,520
Speaker 3: from these arguments?

311
00:20:35,680 --> 00:20:40,159
Speaker 7: Well, you know, with the usual important caveat, that is

312
00:20:40,280 --> 00:20:45,040
Speaker 7: very difficult to predict. Here's what I took away from

313
00:20:45,200 --> 00:20:47,200
Speaker 7: the argument. And by the way, just as course it

314
00:20:47,359 --> 00:20:50,720
Speaker 7: was not participating, but it aems from the argument that

315
00:20:51,520 --> 00:20:57,879
Speaker 7: Alito and Justice Thomas were very hostile to claims and

316
00:20:57,920 --> 00:21:00,760
Speaker 7: to the position of the Oklahoma Attorney General and very

317
00:21:00,760 --> 00:21:05,200
Speaker 7: skeptical of it. It seems that Justices Soda, Mayor, Kagan,

318
00:21:05,320 --> 00:21:10,800
Speaker 7: and Jackson were very sympathetic to the positions of Glossop

319
00:21:11,160 --> 00:21:15,080
Speaker 7: and the Oklahoma Attorney General, And so that leaves Chief

320
00:21:15,200 --> 00:21:18,920
Speaker 7: Justice Roberts, Justice Kavanaugh, and Justice Barrett. And I think

321
00:21:18,920 --> 00:21:23,040
Speaker 7: it was difficult to tell from the questions exactly where

322
00:21:23,040 --> 00:21:26,159
Speaker 7: those three are. And I think that you know that's

323
00:21:26,320 --> 00:21:29,320
Speaker 7: going to be the ballgame where those three justices are.

324
00:21:30,200 --> 00:21:34,800
Speaker 3: And since Justice Gorsuch recused himself, most likely because he

325
00:21:34,920 --> 00:21:38,400
Speaker 3: was involved in an earlier version of the case while

326
00:21:38,440 --> 00:21:41,440
Speaker 3: he was a judge on the Tenth Circuit, that means

327
00:21:41,440 --> 00:21:45,560
Speaker 3: with eight justices deciding the case, Glossup can only afford

328
00:21:45,600 --> 00:21:51,040
Speaker 3: to lose three votes because an evenly divided court four

329
00:21:51,080 --> 00:21:54,520
Speaker 3: to four would mean an affirmance of the Oklahoma Court's

330
00:21:54,960 --> 00:21:57,399
Speaker 3: ruling against him. And this doesn't have to be just

331
00:21:57,440 --> 00:22:01,120
Speaker 3: an upwor down decision by the courts whether his conviction

332
00:22:01,240 --> 00:22:02,640
Speaker 3: should be overturned.

333
00:22:02,800 --> 00:22:06,480
Speaker 7: There's one other possibility that came up in the argument,

334
00:22:06,560 --> 00:22:10,240
Speaker 7: which would be to send it back for additional fact finding.

335
00:22:10,280 --> 00:22:13,920
Speaker 7: You know, the position of Glossop and the Oklahoma Attorney

336
00:22:13,960 --> 00:22:16,520
Speaker 7: General is that it's so clear that there's a NAPU

337
00:22:16,600 --> 00:22:20,000
Speaker 7: violation and a Brady violation from not turning over you know,

338
00:22:20,119 --> 00:22:24,520
Speaker 7: very important evidence bearing on guilt or innocence that there's

339
00:22:24,680 --> 00:22:30,080
Speaker 7: no additional fact finding that's necessary. And the position of

340
00:22:30,119 --> 00:22:32,920
Speaker 7: the Oklahoma Court was simply that his conviction should be

341
00:22:32,960 --> 00:22:35,440
Speaker 7: affirmed and the death penalty should go forward. But a

342
00:22:35,480 --> 00:22:39,320
Speaker 7: couple of the justices were suggesting that perhaps what should

343
00:22:39,359 --> 00:22:42,920
Speaker 7: happen is that it should be sent back for additional

344
00:22:43,119 --> 00:22:47,560
Speaker 7: fact finding about exactly what happened and how important it was.

345
00:22:47,640 --> 00:22:50,520
Speaker 7: And again some of the justices were very explicitly saying

346
00:22:50,640 --> 00:22:53,080
Speaker 7: that they didn't think that was necessary in light of

347
00:22:53,119 --> 00:22:55,560
Speaker 7: the record and how clear the violations were.

348
00:22:56,040 --> 00:22:58,879
Speaker 3: And here's how Justice Katanji Brown Jackson explained it.

349
00:23:00,080 --> 00:23:04,160
Speaker 10: Jackson, there seems like there's some pretty significant factual questions

350
00:23:04,400 --> 00:23:08,119
Speaker 10: that have been debated. You know, what did council know?

351
00:23:08,600 --> 00:23:15,080
Speaker 10: What did these notes' markings mean? Was Sneed's statement that

352
00:23:15,200 --> 00:23:19,520
Speaker 10: he never saw a psychiatrist? True or false? Would you

353
00:23:19,600 --> 00:23:22,919
Speaker 10: object to an evidentary hearing? As I understood it, no

354
00:23:23,119 --> 00:23:26,520
Speaker 10: court has ever actually made findings on those things.

355
00:23:27,040 --> 00:23:30,840
Speaker 3: So after twenty five years and so many appeals, there

356
00:23:30,880 --> 00:23:34,040
Speaker 3: could be a hearing about the new Evidence. Coming up

357
00:23:34,040 --> 00:23:36,840
Speaker 3: next on the Bloomberg Law Show, I'll continue this conversation

358
00:23:37,080 --> 00:23:40,159
Speaker 3: with Georgetown Law's Cliff Sloan to look at how the

359
00:23:40,240 --> 00:23:46,840
Speaker 3: Roberts Court has handled death penalty cases. The Supreme Court

360
00:23:47,000 --> 00:23:51,119
Speaker 3: rarely grants relief in death row cases. Indeed, it allowed

361
00:23:51,119 --> 00:23:54,760
Speaker 3: a Missouri man, Marcellus Williams to be put to death

362
00:23:55,160 --> 00:23:59,040
Speaker 3: despite questions his attorneys raised over jury selection at his

363
00:23:59,240 --> 00:24:03,400
Speaker 3: trial of evidence in the case, and despite the victim's

364
00:24:03,480 --> 00:24:07,840
Speaker 3: family wanting william sentence commuted to life without the possibility

365
00:24:07,840 --> 00:24:11,160
Speaker 3: of a parole. I've been talking to Georgetown Law professor

366
00:24:11,280 --> 00:24:15,399
Speaker 3: Cliff Sloane, who argued and won a death penalty case

367
00:24:15,440 --> 00:24:18,960
Speaker 3: before the Supreme Court. Cliff tell us about the history

368
00:24:19,359 --> 00:24:21,840
Speaker 3: of the Roberts Court and the death penalty.

369
00:24:22,440 --> 00:24:26,160
Speaker 7: Well, I think that the way in general that the

370
00:24:26,520 --> 00:24:30,640
Speaker 7: current Supreme Court is approaching death penalty cases is very,

371
00:24:30,760 --> 00:24:36,840
Speaker 7: very troubling. It's very very difficult for capital defendants. The

372
00:24:36,840 --> 00:24:41,439
Speaker 7: court is creating all sorts of new procedural obstacles, and

373
00:24:41,480 --> 00:24:47,159
Speaker 7: it's also as a general matter, being very unsympathetic to

374
00:24:48,119 --> 00:24:51,919
Speaker 7: claims of capital defendants. Now that's not you know, one

375
00:24:52,000 --> 00:24:54,640
Speaker 7: hundred percent of the time. There have been a few

376
00:24:54,720 --> 00:24:57,040
Speaker 7: cases in recent years where the Court has rules for

377
00:24:57,080 --> 00:25:02,280
Speaker 7: a capital defendants, but overwhelmingly the Court is dramatically tilting

378
00:25:02,680 --> 00:25:05,679
Speaker 7: the playing field in favor of the death penalty. And

379
00:25:05,720 --> 00:25:09,640
Speaker 7: this was nowhere more evidence than in the last six

380
00:25:09,720 --> 00:25:13,439
Speaker 7: months of the Trump administration, when there was a spree

381
00:25:13,480 --> 00:25:17,560
Speaker 7: of executions, you know, thirteen federal executions, even though there

382
00:25:17,600 --> 00:25:21,399
Speaker 7: hadn't been any exec federal executions in a long time,

383
00:25:21,800 --> 00:25:25,520
Speaker 7: and the Supreme Court did everything it could to speed

384
00:25:25,600 --> 00:25:29,919
Speaker 7: up those executions. Even when lower court had said what

385
00:25:30,080 --> 00:25:35,560
Speaker 7: I think of as reasonable timetables and schedules to consider

386
00:25:36,000 --> 00:25:39,399
Speaker 7: the arguments in the thoughtful way, the Supreme Court just

387
00:25:39,760 --> 00:25:44,280
Speaker 7: bulldozer through those to ensure very speedy executions. So I

388
00:25:44,320 --> 00:25:47,960
Speaker 7: think it's very troubling the way that the Supreme Court

389
00:25:48,119 --> 00:25:51,640
Speaker 7: is dealing with death penalty cases these days.

390
00:25:51,840 --> 00:25:52,080
Speaker 3: Now.

391
00:25:52,160 --> 00:25:55,920
Speaker 7: At the same time, public support for the death penalty

392
00:25:56,520 --> 00:26:01,000
Speaker 7: has been considerably declining in recent years, been far fewer

393
00:26:01,400 --> 00:26:04,800
Speaker 7: executions and far fewer death sentences impost and I think,

394
00:26:05,160 --> 00:26:08,040
Speaker 7: you know, one of the reasons for that is the

395
00:26:08,240 --> 00:26:12,919
Speaker 7: kind of problems that the Glossop case shows, the problems

396
00:26:12,960 --> 00:26:17,640
Speaker 7: about issues of innocence and exoneration of people on death row,

397
00:26:17,720 --> 00:26:22,840
Speaker 7: the problem of prosecutorial misconduct, but certainly in terms of

398
00:26:22,880 --> 00:26:25,040
Speaker 7: the Supreme Court, it's very troubling the way the Court

399
00:26:25,200 --> 00:26:27,639
Speaker 7: generally is dealing with capital cases or.

400
00:26:27,680 --> 00:26:29,960
Speaker 3: Not dealing with them. We'll see what happens in the

401
00:26:29,960 --> 00:26:32,560
Speaker 3: Glossup case. Thanks so much for being on the show

402
00:26:32,600 --> 00:26:36,960
Speaker 3: and sharing your insights. That's Georgetown Law professor Cliff Sloane

403
00:26:37,520 --> 00:26:40,159
Speaker 3: and that's it for this edition of the Bloomberg Law Podcast.

404
00:26:40,520 --> 00:26:42,880
Speaker 3: Remember you've can always get the latest legal news by

405
00:26:42,920 --> 00:26:46,760
Speaker 3: subscribing and listening to the show on Apple Podcasts, Spotify,

406
00:26:47,040 --> 00:26:50,880
Speaker 3: and at Bloomberg dot com, Slash podcast, Slash Law. I'm

407
00:26:50,960 --> 00:26:53,399
Speaker 3: June Grosso, and this is Bloomberg