WEBVTT - Justices Grapple With Unique Death Penalty Case 0:00:03.200 --> 0:00:13.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:14.240 --> 0:00:19.439 Attorney General Drummond did not confess error here lightly. Indeed, 0:00:19.480 --> 0:00:24.479 he continues to defend multiple capital convictions and opposed mister 0:00:24.560 --> 0:00:29.760 Glossop's penultimate sert petition, But after commissioning an independent review, 0:00:30.040 --> 0:00:34.240 he reluctantly reached the conclusion that Brady and Napu violations 0:00:34.520 --> 0:00:39.000 by the state's own prosecutors obligated him to confess error 0:00:39.120 --> 0:00:41.000 and waive procedural obstacles. 0:00:41.080 --> 0:00:44.800 It's a very unusual death penalty case where the State 0:00:44.840 --> 0:00:48.599 of Oklahoma is coming before the Supreme Court on the 0:00:48.640 --> 0:00:52.360 same side as a defendant on death row, arguing that 0:00:52.520 --> 0:00:57.600 Richard Glossop's murder conviction and capital sentence should be Undone 0:00:57.840 --> 0:01:03.400 former US Solicitor General Paul Clement argued for Oklahoma's attorney general, 0:01:03.640 --> 0:01:07.199 who'd issued what's known as a confession of error after 0:01:07.280 --> 0:01:11.240 finding out that the prosecutor in Glossop's case had suppressed 0:01:11.319 --> 0:01:16.000 evidence about the state's star witness and elicited his false testimony. 0:01:16.240 --> 0:01:19.480 They're looking at the testimony that their prosecutor elicited. They're 0:01:19.520 --> 0:01:22.440 looking at that in context of the notes and the 0:01:22.480 --> 0:01:27.959 medical information sheet, and General Drummond reached the conclusion regretfully, 0:01:28.040 --> 0:01:31.920 but reached the conclusion, our prosecutors elicited perjury here, and 0:01:31.959 --> 0:01:33.559 a man's going to go to his death. We can't 0:01:33.560 --> 0:01:34.440 allow that to happen. 0:01:35.240 --> 0:01:39.319 The prosecutor's handwritten notes, which were unearthed in twenty twenty 0:01:39.360 --> 0:01:42.480 two from a box of evidence not turned over to 0:01:42.520 --> 0:01:46.720 the defense, revealed that the star witness had been diagnosed 0:01:46.760 --> 0:01:50.800 with bipolar disorder and was being treated by a psychiatrist 0:01:50.920 --> 0:01:54.880 with lithium. Several of the justices seemed divided about the 0:01:54.920 --> 0:01:58.520 importance of the information that was withheld and how it 0:01:58.600 --> 0:02:03.040 might have impacted the jury's verdict. Here are Chief Justice 0:02:03.160 --> 0:02:07.240 John Roberts and Justice is Elena Kagan and Brett Kavanaugh. 0:02:08.400 --> 0:02:11.360 Because the jury knew about the lithium, and what they 0:02:11.400 --> 0:02:14.000 didn't know is that it was prescribed by a psychiatrist. 0:02:15.000 --> 0:02:17.120 Do you really think it would make that much of 0:02:17.160 --> 0:02:18.959 a difference to the jury. 0:02:19.880 --> 0:02:22.800 That seems pretty material to me. I mean, it's just 0:02:22.960 --> 0:02:25.799 your one witness has been exposed as a liar. 0:02:27.320 --> 0:02:29.720 Would have made the conviction more likely if the jury 0:02:29.760 --> 0:02:32.880 knows that, not only does he have an incentive to lie, 0:02:32.919 --> 0:02:36.480 that he's lied on the stand in that he's bipolar, 0:02:36.720 --> 0:02:42.200 therefore creating all sorts of avenues for questioning his credibility. 0:02:42.480 --> 0:02:45.720 Joining me is Cliff Sloan, a professor at Georgetown Law 0:02:45.840 --> 0:02:49.360 who's argued several cases at the Supreme Court, including a 0:02:49.440 --> 0:02:53.040 victory in a case involving the death penalty. Golossip has 0:02:53.040 --> 0:02:56.160 been on death row for more than twenty five years. 0:02:56.440 --> 0:03:00.400 He's faced nine execution dates in all, and eaten his 0:03:00.520 --> 0:03:04.440 last meal three times. Tell us about the evidence that's 0:03:04.480 --> 0:03:08.120 been discovered lately by the Oklahoma Attorney General. 0:03:08.600 --> 0:03:16.280 So what was discovered was very important prosecutorial notes establishing 0:03:16.680 --> 0:03:21.240 that the main witness, and really the only witness tying 0:03:21.440 --> 0:03:26.839 Golossop to the murder, had a bipolar disorder and had 0:03:26.960 --> 0:03:30.920 received lithium under a prescription from a psychiatrist. And this 0:03:31.120 --> 0:03:37.040 was directly contrary to this witness's testimony at the trial 0:03:37.440 --> 0:03:40.960 where he said he had received lithium for a cold, 0:03:41.000 --> 0:03:44.000 and he flatly said he had never seen a psychiatrist, 0:03:44.320 --> 0:03:48.160 And right there in the notes of the prosecutor or 0:03:48.240 --> 0:03:53.360 notes establishing that it was from a psychiatrist. And also 0:03:53.680 --> 0:03:58.160 there was separately a medical record establishing that the psychiatrist 0:03:58.240 --> 0:04:02.200 had prescribed the lithium for the bipolar disorder. This would 0:04:02.200 --> 0:04:05.760 have been extremely important to the jury both in its 0:04:05.800 --> 0:04:09.640 consideration of guilt or innocence and in his consideration of 0:04:09.680 --> 0:04:14.120 the death penalty. Because the witness was really the entire 0:04:14.280 --> 0:04:19.160 case against mister Glossop. It's undisputed he had no role 0:04:19.600 --> 0:04:23.720 in the actual killing of the victim himself. The theory 0:04:23.760 --> 0:04:27.159 of the state was that he hired this other man's 0:04:27.320 --> 0:04:31.279 Need to do the killing, and so Need's testimony was 0:04:31.320 --> 0:04:35.040 the only thing that linked Glossop to the killing. 0:04:35.839 --> 0:04:40.240 An unusual piece to this case is that Oklahoma's Republican 0:04:40.279 --> 0:04:46.120 Attorney General, Gentner Drummond, is arguing alongside Glossop that his 0:04:46.279 --> 0:04:48.400 murder conviction should be undone. 0:04:49.000 --> 0:04:53.160 The Republican Attorney General of Oklahoma, who generally is very 0:04:53.279 --> 0:04:57.240 much in favor of the death penalty, has really acted 0:04:57.400 --> 0:05:01.920 in the finest traditions of justice here because he commissioned 0:05:01.960 --> 0:05:07.520 an independent investigation which concluded that mister Glossop's conviction and 0:05:07.560 --> 0:05:12.520 his death penalty cannot stand because of this false testimony 0:05:12.880 --> 0:05:18.599 and because of the failure to turn over important evidence 0:05:18.680 --> 0:05:21.840 to the defense, which is a constitutional violation, and so 0:05:21.920 --> 0:05:25.760 he concluded, in good conscience he had to stand up 0:05:25.839 --> 0:05:29.120 and say that the conviction should be set aside and 0:05:29.160 --> 0:05:31.880 the death penalty should be set aside. And there also 0:05:32.040 --> 0:05:37.280 was another independent investigation commissioned by the Republican state legislature 0:05:37.400 --> 0:05:40.920 which reached the same conclusion. But what is really striking 0:05:41.000 --> 0:05:47.600 here is that the Oklahoma court has rejected the prosecutor's 0:05:47.640 --> 0:05:51.080 determination that there needs to be a new trial and 0:05:51.120 --> 0:05:54.240 that the death suttons cannot stand. And you know, the 0:05:54.240 --> 0:06:00.000 Glossop case really illustrates three of the most troubling characteristics 0:06:00.440 --> 0:06:03.840 of the death penalty in the United States today. One 0:06:03.880 --> 0:06:08.359 of them is the prevalence of cases of innocence and 0:06:08.480 --> 0:06:12.880 exoneration of people on death row. There have been two 0:06:13.240 --> 0:06:17.200 hundred people on death row who have been found to 0:06:17.279 --> 0:06:21.479 be innocent and who have been exonerated, a truly shocking 0:06:21.920 --> 0:06:26.760 and alarming fact. The second problem that it highlights is 0:06:26.800 --> 0:06:32.800 the problem of misconduct by prosecutors. And in seventy percent 0:06:33.360 --> 0:06:36.560 of the cases where there has been found to be 0:06:36.640 --> 0:06:40.279 innocence of people on death row, there has been misconduct 0:06:40.560 --> 0:06:44.120 by prosecutors, exactly this kind of thing, putting on false 0:06:44.160 --> 0:06:48.920 testimony not correcting it not turning over very important evidence. 0:06:49.279 --> 0:06:54.240 And the third, very disturbing problem is when courts don't 0:06:54.400 --> 0:07:00.520 accept prosecutors' conclusions that a conviction and a death penalty 0:07:00.640 --> 0:07:06.039 cannot stand. That happened recently in the execution of Marcellus Williams, 0:07:06.320 --> 0:07:08.599 and we're seeing it in the Glossop case where the 0:07:08.600 --> 0:07:14.280 Oklahoma Court just flatly rejected the very considered decisions of 0:07:14.320 --> 0:07:18.280 the Oklahoma Attorney General as the prosecutors in the case 0:07:18.520 --> 0:07:21.320 that the conviction and the death penalty cannot stand. 0:07:21.960 --> 0:07:26.040 What exactly is the Supreme Court reviewing what aspects of 0:07:26.080 --> 0:07:26.600 the case. 0:07:27.320 --> 0:07:32.200 Well, it's reviewing two points. One is on the substance 0:07:32.440 --> 0:07:36.960 of the claims. Has there been established a constitutional violation 0:07:37.440 --> 0:07:42.560 in terms of both the perjured testimony that the prosecutors 0:07:42.600 --> 0:07:46.000 did not correct and in terms of the very important 0:07:46.000 --> 0:07:48.760 evidence that was not turned over to the defense. And 0:07:48.800 --> 0:07:51.640 so that's on the merits. And again you have both 0:07:51.720 --> 0:07:55.680 Glossop and the Oklahoma Attorney General saying these are very 0:07:55.800 --> 0:08:00.600 very strong grounds for concluding that there were fundamental institutional 0:08:00.680 --> 0:08:04.800 violations here. Now there's also a procedural question because in 0:08:04.880 --> 0:08:09.560 the Oklahoma Court opinion it made some reference to state 0:08:10.240 --> 0:08:14.920 rules about the preservation of certain kinds of issues, and 0:08:14.960 --> 0:08:17.880 it's a kind of technical procedural issue. But there's a 0:08:17.960 --> 0:08:20.920 question that the Supreme Court will be considering, which is 0:08:21.320 --> 0:08:28.040 whether Oklahoma's rejection of the attorney General's position is based 0:08:28.040 --> 0:08:32.160 on a state rule that is sufficient without getting into 0:08:32.200 --> 0:08:37.000 the federal constitutional issues. Now, the argument by mister Glossop 0:08:37.200 --> 0:08:40.880 and by the Oklahoma Attorney General is that no, there's 0:08:40.960 --> 0:08:44.839 not an independent state ground, that that reference is completely 0:08:45.000 --> 0:08:51.040 interwoven with the Oklahoma court rejections, erroneous rejections in their 0:08:51.120 --> 0:08:54.600 view of the constitutional claim. So that's a kind of 0:08:54.640 --> 0:08:58.040 threshold procedural question that the Supreme Court also will have 0:08:58.080 --> 0:08:58.880 to decide. 0:08:59.160 --> 0:09:03.080 And at the arguments, a lot of time was spent 0:09:03.480 --> 0:09:07.640 on the procedural issue. Justice Samuel Alito, in my mind, 0:09:07.640 --> 0:09:11.320 seemed to be taking on the role of attacking Glossop's case. 0:09:11.679 --> 0:09:15.480 Well, you know, that's the issue that's presented about whether 0:09:15.640 --> 0:09:20.680 there's a threshold procedural problem that is based in state 0:09:20.800 --> 0:09:24.679 law and that would prevent the Supreme Court from reaching 0:09:25.000 --> 0:09:29.600 the federal constitutional issues. So it's an important threshold issue. 0:09:29.600 --> 0:09:34.079 But you had other justices very much emphasizing that they 0:09:34.080 --> 0:09:36.760 don't think that is a serious problem that they think 0:09:36.840 --> 0:09:41.480 it's clear that the Oklahoma Court rested its decision on 0:09:41.640 --> 0:09:46.640 an erroneous analysis of the federal constitutional claims, that the 0:09:46.679 --> 0:09:49.840 state procedural reference was wrapped up in that. And you 0:09:49.920 --> 0:09:53.440 even had Justice Kagan asking a question where she suggested 0:09:53.480 --> 0:09:57.920 that the reference to the state procedural issue was simply 0:09:58.000 --> 0:10:01.960 because the Oklahoma Court was growing in the entire kitchen sink, 0:10:02.320 --> 0:10:04.200 and so it was just mixed up with a lot 0:10:04.200 --> 0:10:07.440 of other things. It had no independent basis. And you 0:10:07.520 --> 0:10:11.360 also had a number of the justices, including Justices Kagan, 0:10:11.480 --> 0:10:16.880 so the mayor and Jackson emphasizing that this supposed independent 0:10:17.080 --> 0:10:22.080 rule that the Oklahoma Court was enforcing had never been 0:10:22.200 --> 0:10:25.880 enforced in this kind of context in any case other 0:10:26.000 --> 0:10:30.760 than one involving Richard Colossa, which added to their view. 0:10:31.120 --> 0:10:34.400 But this is something that was a makewight that Oklahoma 0:10:34.880 --> 0:10:37.800 was just throwing in and is not a bar to 0:10:38.080 --> 0:10:39.160 Supreme Court review. 0:10:39.800 --> 0:10:43.360 So Glossop has a claim of a Brady violation where 0:10:43.360 --> 0:10:47.400 the prosecutor didn't turn over evidence, and also what's known 0:10:47.520 --> 0:10:52.600 as a Napou violation where the prosecutor presented false testimony. 0:10:53.040 --> 0:10:54.719 Here's Justice Elena Kagan on. 0:10:54.679 --> 0:10:58.040 That a NAPOO violation is a pretty dramatic thing when 0:10:58.040 --> 0:11:02.560 a prosecutor says, leg, well, stop there, that was a lie. 0:11:02.760 --> 0:11:07.120 Under NAPU, a prosecutor, of course cannot put on perjured testimony. 0:11:07.160 --> 0:11:11.120 And if the prosecutor learns that the testimony has been perjured, 0:11:11.160 --> 0:11:14.440 the prosecutor has to correct it or notify the defense 0:11:14.880 --> 0:11:19.240 about it. And here what the independent investigations have found 0:11:19.679 --> 0:11:24.479 is that the prosecutor put on perjured testimony, never corrected 0:11:24.520 --> 0:11:28.679 it to the contrary, took efforts to protect it. It's 0:11:28.720 --> 0:11:33.280 a very very serious constitutional violation. It goes to the 0:11:33.320 --> 0:11:36.559 heart of what the criminal justice system should be about. 0:11:36.880 --> 0:11:40.400 And you know, some of the justices were very much 0:11:40.679 --> 0:11:44.320 bothered by this violation and seemed to think that it 0:11:44.320 --> 0:11:49.679 has opened and shut. Other justices seemed more skeptical about 0:11:49.760 --> 0:11:55.280 whether it was as clear a violation and also how 0:11:55.360 --> 0:11:59.160 significant it would have been, you know, in terms of materiality, 0:11:59.160 --> 0:12:01.880 which is important for NAPO, and whether it would have 0:12:02.040 --> 0:12:04.560 made a difference or not. So, you know, I think 0:12:04.559 --> 0:12:08.920 there's clearly a split among the justices both about the 0:12:08.960 --> 0:12:11.720 procedure and the substance in terms of how they're viewing it. 0:12:11.880 --> 0:12:14.880 You should also mention there's one other possibility that came 0:12:15.000 --> 0:12:18.240 up in the argument, which would be to send it 0:12:18.280 --> 0:12:21.240 back for additional fact finding. You know, the position of 0:12:21.640 --> 0:12:25.000 Glossop and the Oklahoma Attorney General is that it's so 0:12:25.160 --> 0:12:28.280 clear that there's a NAPU violation and a Brady violation 0:12:28.400 --> 0:12:31.439 from not turning over, you know, very important evidence bearing 0:12:31.480 --> 0:12:36.000 on guilt or innocence, that there's no additional fact finding 0:12:36.280 --> 0:12:41.200 that's necessary. And the position of the Oklahoma Court was 0:12:41.240 --> 0:12:43.680 simply that his conviction should be affirmed and the death 0:12:43.720 --> 0:12:46.400 penalty should go forward. But a couple of the justices 0:12:46.440 --> 0:12:50.000 were suggesting that perhaps what should happen is that it 0:12:50.000 --> 0:12:55.200 should be sent back for additional fact finding about exactly 0:12:55.400 --> 0:12:58.000 what happened and how important it was. And again some 0:12:58.040 --> 0:13:01.120 of the justices were very explicit things that they didn't 0:13:01.120 --> 0:13:03.840 think that was necessary in light of the record and 0:13:03.880 --> 0:13:05.440 how clear the violations were. 0:13:07.960 --> 0:13:11.320 Richard Glossop has been on death row in Oklahoma for 0:13:11.360 --> 0:13:14.640 more than twenty five years. His case has reached the 0:13:14.679 --> 0:13:19.200 Supreme Court twice. Today's oral argument showed how difficult it 0:13:19.360 --> 0:13:22.760 is for capital defendants to win with the current six 0:13:22.800 --> 0:13:26.839 to three conservative majority, even in a case like Glossops, 0:13:27.000 --> 0:13:30.680 where Oklahoma's Attorney General agrees that his conviction and death 0:13:30.760 --> 0:13:34.600 sentence should be undone, and in fact is arguing at 0:13:34.600 --> 0:13:38.880 the Supreme Court alongside Glossop's attorney. I've been talking to 0:13:38.880 --> 0:13:42.920 Professor Cliff Stone of Georgetown Law. What seemed odd to 0:13:42.960 --> 0:13:47.600 me about Justice Clarence Thomas's questions is that in this 0:13:47.720 --> 0:13:52.800 case where a man is facing execution, his only questions 0:13:52.840 --> 0:13:57.360 to the three attorneys were about the prosecutors accused of 0:13:57.400 --> 0:14:00.839 these ethical violations and whether this was going to harm 0:14:00.920 --> 0:14:02.040 their reputations. 0:14:02.240 --> 0:14:05.840 Well, shouldn't these two prosecutors. It seems as though their 0:14:05.920 --> 0:14:11.600 reputations are being impugned, and according to them, they did 0:14:11.640 --> 0:14:16.559 not receive an opportunity to explain in depth. 0:14:17.440 --> 0:14:19.720 Justice Thomas. That's hard to square with the record here. 0:14:19.760 --> 0:14:22.000 There were two independent investigations. 0:14:23.120 --> 0:14:26.760 Well, I do think that the emphasis that Justice Thomas 0:14:26.880 --> 0:14:31.760 was giving on his concern about the prosecutor's reputation was 0:14:31.960 --> 0:14:35.080 very odd and misplaced. Here. You know, as the lawyer 0:14:35.560 --> 0:14:39.720 for the Oklahoma Attorney General, Paul Clement, said the proceeding 0:14:39.760 --> 0:14:42.960 that we have to be worried about is the fairness 0:14:42.960 --> 0:14:46.960 of the proceeding in the trial and death sentence of 0:14:47.040 --> 0:14:50.480 mister Glossop, and whether that stands or not, and the 0:14:50.520 --> 0:14:54.920 constitutional issues there. And you know, as you say, Justice 0:14:54.920 --> 0:14:58.080 Thomas seemed extremely concerned about the reputation of the prosecutors. 0:14:58.080 --> 0:15:03.080 The other odd point about Justice Thomas's questions one he 0:15:03.240 --> 0:15:07.320 kept emphasizing whether they had been interviewed, how much they 0:15:07.400 --> 0:15:11.160 had been interviewed, And in fact, as the lawyers pointed out, 0:15:11.640 --> 0:15:15.240 the prosecutors had been talked to in the course of 0:15:15.360 --> 0:15:18.320 the independent investigations, and in fact one of them had 0:15:18.360 --> 0:15:21.720 put in an affidavit. But the other point is that 0:15:22.040 --> 0:15:28.040 just as Thomas kept talking about what the prosecutors alone knew, 0:15:28.120 --> 0:15:32.560 and even if there was other information in government files 0:15:32.600 --> 0:15:36.840 that would have been very important to mister Glossop and 0:15:36.920 --> 0:15:41.600 his defense, well, how could they show the prosecutors actually 0:15:41.720 --> 0:15:44.120 knew about it. And as some of the other justices 0:15:44.200 --> 0:15:47.560 were pointing out in response to Justice Thomas, you know, 0:15:47.600 --> 0:15:51.760 the prosecutors are imputed to have knowledge of all of 0:15:51.800 --> 0:15:55.920 the information that is available within the government bearing on 0:15:55.960 --> 0:15:59.800 the defendant skills or innocence. It is absolutely not of 0:15:59.840 --> 0:16:04.840 that position for prosecutor to say, essentially, well, oh, that 0:16:05.040 --> 0:16:07.640 was in the file cabinet down the hall. I hadn't 0:16:07.640 --> 0:16:10.400 looked in that file cabinet. And yet that's what Justine 0:16:10.480 --> 0:16:13.960 Thomas seemed to be really talking a lot about. How 0:16:13.960 --> 0:16:18.880 could you show that this particular prosecutor had read this 0:16:18.920 --> 0:16:22.480 particular document even though there was no dispute that it 0:16:22.560 --> 0:16:24.640 was within the government files. 0:16:24.760 --> 0:16:28.080 In this case, since the State of Oklahoma was arguing 0:16:28.120 --> 0:16:32.240 on the side of the defendant, Richard Glossop, the court 0:16:32.400 --> 0:16:37.560 appointed an attorney to argue in defense of the Oklahoma 0:16:37.640 --> 0:16:42.760 Criminal Court's decision, Christopher Michelle, and he basically argued that 0:16:43.040 --> 0:16:47.240 the withheld information wouldn't have made any difference in the 0:16:47.320 --> 0:16:51.480 jury's determination of the credibility of the state's star witness 0:16:51.560 --> 0:16:54.320 and wouldn't have made a difference in the verdict, and 0:16:54.560 --> 0:16:57.640 Justice Elena Kaigan vehemently disagreed with him. 0:16:58.040 --> 0:17:01.360 The critical question that the jury is asking is do 0:17:01.400 --> 0:17:04.680 I believe this guy in everything he says? And particularly 0:17:04.720 --> 0:17:07.640 do I believe him when he points the finger at 0:17:07.640 --> 0:17:10.119 the accuse? And if I know that he has gotten 0:17:10.200 --> 0:17:13.440 up to the stand and lied about anything, whether it's 0:17:13.480 --> 0:17:16.240 important or not, it might have been important, It might 0:17:16.280 --> 0:17:19.719 not have been important if he's lying, if he's trying 0:17:19.760 --> 0:17:23.040 to cover up something about his own behavior. I'm going 0:17:23.080 --> 0:17:25.719 to take that into account and deciding whether when he 0:17:25.760 --> 0:17:28.359 accuses the defendant he's telling the truth. 0:17:28.840 --> 0:17:31.359 Justice Kagan, I think in many cases where we were 0:17:31.400 --> 0:17:34.080 starting from the blank slate, that the witness is presumed 0:17:34.080 --> 0:17:37.480 to be credible, one lie would be important. In this case, 0:17:37.520 --> 0:17:39.440 the witness admitted that he beat a man to death 0:17:39.480 --> 0:17:41.840 with a baseball bat. The witness admitted that he was 0:17:41.880 --> 0:17:45.119 testifying in exchanged for avoiding the death penalty. The jury 0:17:45.160 --> 0:17:48.439 already had significant credibility questions about justin sneak. 0:17:49.000 --> 0:17:51.159 So how important does it have to be for a 0:17:51.200 --> 0:17:53.760 NAPU violation. What's the standard? 0:17:53.960 --> 0:17:57.679 Well, you know there is a standard of materiality. You know, 0:17:57.840 --> 0:18:00.920 eventually whether it would be relevant to the issues the 0:18:01.040 --> 0:18:05.560 juries making a decision about, and whether it would make 0:18:05.600 --> 0:18:08.520 a difference or could make a difference. But here it 0:18:08.600 --> 0:18:12.840 seems that the case for materiality is so strong because 0:18:13.280 --> 0:18:20.680 again the withheld evidence established that the main witness, who 0:18:20.760 --> 0:18:24.479 was the entire case against Glossop was lying about an 0:18:24.560 --> 0:18:28.399 important point. Now, the lawyer who was defending what the 0:18:28.440 --> 0:18:31.639 Oklahoma Court was saying. He was saying, well, the jury 0:18:31.680 --> 0:18:35.440 knew that he was taking lithium. But that's the whole point. 0:18:35.640 --> 0:18:40.480 He explicitly testifies he had taken lithium for a cold, 0:18:40.680 --> 0:18:43.520 and he denied that he had ever seen a psychiatrist 0:18:43.680 --> 0:18:45.960 or it was because of a mental condition. That was 0:18:46.240 --> 0:18:51.440 totally false. And when he's really the only witness against Glossop, 0:18:51.960 --> 0:18:55.879 for the jury to know first of all that actually 0:18:56.000 --> 0:18:59.840 he had at the time of the offense untreated bipolar 0:19:00.200 --> 0:19:03.439 disorder when he killed the victim, that would have been 0:19:03.520 --> 0:19:05.760 very important for the jury to know. But it also 0:19:05.800 --> 0:19:07.639 would have been very important for the jury to know 0:19:08.040 --> 0:19:12.000 that he was blatantly lying, because the jury had a 0:19:12.119 --> 0:19:17.920 very important credibility determination to make about this individual whose 0:19:17.960 --> 0:19:20.840 testimony was so important. And again to know that he 0:19:21.000 --> 0:19:25.679 was flat outline, that's the classic kind of Napoo violation 0:19:26.240 --> 0:19:31.200 of perjured testimony, is the classic of Brady violation. But 0:19:31.440 --> 0:19:35.879 important information that should be given to the defense, and 0:19:36.000 --> 0:19:40.119 so the idea that well they knew he was taking lithium, 0:19:40.160 --> 0:19:41.680 and the fact that he said it was for a 0:19:41.840 --> 0:19:45.560 cold rather than because it had been prescribed by a psychiatrist, 0:19:45.680 --> 0:19:48.440 and even though he had denied ever seeing a psychiatrist. 0:19:48.720 --> 0:19:53.720 To me, that's completely unpersuasive in the context of this case. 0:19:53.800 --> 0:19:56.560 It just is of sort of ignoring what was really 0:19:56.720 --> 0:19:58.160 the main focus at the time. 0:19:58.680 --> 0:20:02.280 So, I mean, it's hard to read through oral arguments 0:20:02.359 --> 0:20:05.560 what's going to happen, and particularly in this case where 0:20:06.280 --> 0:20:09.360 a lot of the justices said very little. I mean, 0:20:09.440 --> 0:20:13.720 it seems obvious that Alito and Thomas are not going 0:20:13.800 --> 0:20:17.440 to vote in Glossop's favor. In fact, last time this 0:20:17.560 --> 0:20:21.520 case was before the Supreme Court regarding the method of 0:20:21.560 --> 0:20:25.840 execution in twenty fifteen, Alita wrote, is it appropriate for 0:20:25.920 --> 0:20:29.280 the judiciary to countenance what amounts to a guerrilla war 0:20:29.359 --> 0:20:31.720 against the death penalty? How do you see it? Do 0:20:31.800 --> 0:20:33.920 you have any idea of what the lineup might be 0:20:33.960 --> 0:20:35.520 from these arguments? 0:20:35.680 --> 0:20:40.159 Well, you know, with the usual important caveat, that is 0:20:40.280 --> 0:20:45.040 very difficult to predict. Here's what I took away from 0:20:45.200 --> 0:20:47.200 the argument. And by the way, just as course it 0:20:47.359 --> 0:20:50.720 was not participating, but it aems from the argument that 0:20:51.520 --> 0:20:57.879 Alito and Justice Thomas were very hostile to claims and 0:20:57.920 --> 0:21:00.760 to the position of the Oklahoma Attorney General and very 0:21:00.760 --> 0:21:05.200 skeptical of it. It seems that Justices Soda, Mayor, Kagan, 0:21:05.320 --> 0:21:10.800 and Jackson were very sympathetic to the positions of Glossop 0:21:11.160 --> 0:21:15.080 and the Oklahoma Attorney General, And so that leaves Chief 0:21:15.200 --> 0:21:18.920 Justice Roberts, Justice Kavanaugh, and Justice Barrett. And I think 0:21:18.920 --> 0:21:23.040 it was difficult to tell from the questions exactly where 0:21:23.040 --> 0:21:26.159 those three are. And I think that you know that's 0:21:26.320 --> 0:21:29.320 going to be the ballgame where those three justices are. 0:21:30.200 --> 0:21:34.800 And since Justice Gorsuch recused himself, most likely because he 0:21:34.920 --> 0:21:38.400 was involved in an earlier version of the case while 0:21:38.440 --> 0:21:41.440 he was a judge on the Tenth Circuit, that means 0:21:41.440 --> 0:21:45.560 with eight justices deciding the case, Glossup can only afford 0:21:45.600 --> 0:21:51.040 to lose three votes because an evenly divided court four 0:21:51.080 --> 0:21:54.520 to four would mean an affirmance of the Oklahoma Court's 0:21:54.960 --> 0:21:57.399 ruling against him. And this doesn't have to be just 0:21:57.440 --> 0:22:01.120 an upwor down decision by the courts whether his conviction 0:22:01.240 --> 0:22:02.640 should be overturned. 0:22:02.800 --> 0:22:06.480 There's one other possibility that came up in the argument, 0:22:06.560 --> 0:22:10.240 which would be to send it back for additional fact finding. 0:22:10.280 --> 0:22:13.920 You know, the position of Glossop and the Oklahoma Attorney 0:22:13.960 --> 0:22:16.520 General is that it's so clear that there's a NAPU 0:22:16.600 --> 0:22:20.000 violation and a Brady violation from not turning over you know, 0:22:20.119 --> 0:22:24.520 very important evidence bearing on guilt or innocence that there's 0:22:24.680 --> 0:22:30.080 no additional fact finding that's necessary. And the position of 0:22:30.119 --> 0:22:32.920 the Oklahoma Court was simply that his conviction should be 0:22:32.960 --> 0:22:35.440 affirmed and the death penalty should go forward. But a 0:22:35.480 --> 0:22:39.320 couple of the justices were suggesting that perhaps what should 0:22:39.359 --> 0:22:42.920 happen is that it should be sent back for additional 0:22:43.119 --> 0:22:47.560 fact finding about exactly what happened and how important it was. 0:22:47.640 --> 0:22:50.520 And again some of the justices were very explicitly saying 0:22:50.640 --> 0:22:53.080 that they didn't think that was necessary in light of 0:22:53.119 --> 0:22:55.560 the record and how clear the violations were. 0:22:56.040 --> 0:22:58.879 And here's how Justice Katanji Brown Jackson explained it. 0:23:00.080 --> 0:23:04.160 Jackson, there seems like there's some pretty significant factual questions 0:23:04.400 --> 0:23:08.119 that have been debated. You know, what did council know? 0:23:08.600 --> 0:23:15.080 What did these notes' markings mean? Was Sneed's statement that 0:23:15.200 --> 0:23:19.520 he never saw a psychiatrist? True or false? Would you 0:23:19.600 --> 0:23:22.919 object to an evidentary hearing? As I understood it, no 0:23:23.119 --> 0:23:26.520 court has ever actually made findings on those things. 0:23:27.040 --> 0:23:30.840 So after twenty five years and so many appeals, there 0:23:30.880 --> 0:23:34.040 could be a hearing about the new Evidence. Coming up 0:23:34.040 --> 0:23:36.840 next on the Bloomberg Law Show, I'll continue this conversation 0:23:37.080 --> 0:23:40.159 with Georgetown Law's Cliff Sloan to look at how the 0:23:40.240 --> 0:23:46.840 Roberts Court has handled death penalty cases. The Supreme Court 0:23:47.000 --> 0:23:51.119 rarely grants relief in death row cases. Indeed, it allowed 0:23:51.119 --> 0:23:54.760 a Missouri man, Marcellus Williams to be put to death 0:23:55.160 --> 0:23:59.040 despite questions his attorneys raised over jury selection at his 0:23:59.240 --> 0:24:03.400 trial of evidence in the case, and despite the victim's 0:24:03.480 --> 0:24:07.840 family wanting william sentence commuted to life without the possibility 0:24:07.840 --> 0:24:11.160 of a parole. I've been talking to Georgetown Law professor 0:24:11.280 --> 0:24:15.399 Cliff Sloane, who argued and won a death penalty case 0:24:15.440 --> 0:24:18.960 before the Supreme Court. Cliff tell us about the history 0:24:19.359 --> 0:24:21.840 of the Roberts Court and the death penalty. 0:24:22.440 --> 0:24:26.160 Well, I think that the way in general that the 0:24:26.520 --> 0:24:30.640 current Supreme Court is approaching death penalty cases is very, 0:24:30.760 --> 0:24:36.840 very troubling. It's very very difficult for capital defendants. The 0:24:36.840 --> 0:24:41.439 court is creating all sorts of new procedural obstacles, and 0:24:41.480 --> 0:24:47.159 it's also as a general matter, being very unsympathetic to 0:24:48.119 --> 0:24:51.919 claims of capital defendants. Now that's not you know, one 0:24:52.000 --> 0:24:54.640 hundred percent of the time. There have been a few 0:24:54.720 --> 0:24:57.040 cases in recent years where the Court has rules for 0:24:57.080 --> 0:25:02.280 a capital defendants, but overwhelmingly the Court is dramatically tilting 0:25:02.680 --> 0:25:05.679 the playing field in favor of the death penalty. And 0:25:05.720 --> 0:25:09.640 this was nowhere more evidence than in the last six 0:25:09.720 --> 0:25:13.439 months of the Trump administration, when there was a spree 0:25:13.480 --> 0:25:17.560 of executions, you know, thirteen federal executions, even though there 0:25:17.600 --> 0:25:21.399 hadn't been any exec federal executions in a long time, 0:25:21.800 --> 0:25:25.520 and the Supreme Court did everything it could to speed 0:25:25.600 --> 0:25:29.919 up those executions. Even when lower court had said what 0:25:30.080 --> 0:25:35.560 I think of as reasonable timetables and schedules to consider 0:25:36.000 --> 0:25:39.399 the arguments in the thoughtful way, the Supreme Court just 0:25:39.760 --> 0:25:44.280 bulldozer through those to ensure very speedy executions. So I 0:25:44.320 --> 0:25:47.960 think it's very troubling the way that the Supreme Court 0:25:48.119 --> 0:25:51.640 is dealing with death penalty cases these days. 0:25:51.840 --> 0:25:52.080 Now. 0:25:52.160 --> 0:25:55.920 At the same time, public support for the death penalty 0:25:56.520 --> 0:26:01.000 has been considerably declining in recent years, been far fewer 0:26:01.400 --> 0:26:04.800 executions and far fewer death sentences impost and I think, 0:26:05.160 --> 0:26:08.040 you know, one of the reasons for that is the 0:26:08.240 --> 0:26:12.919 kind of problems that the Glossop case shows, the problems 0:26:12.960 --> 0:26:17.640 about issues of innocence and exoneration of people on death row, 0:26:17.720 --> 0:26:22.840 the problem of prosecutorial misconduct, but certainly in terms of 0:26:22.880 --> 0:26:25.040 the Supreme Court, it's very troubling the way the Court 0:26:25.200 --> 0:26:27.639 generally is dealing with capital cases or. 0:26:27.680 --> 0:26:29.960 Not dealing with them. We'll see what happens in the 0:26:29.960 --> 0:26:32.560