1 00:00:02,880 --> 00:00:07,120 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:08,760 --> 00:00:11,800 Speaker 2: It was an extremely rare victory for a death row 3 00:00:11,920 --> 00:00:15,960 Speaker 2: prisoner at the Supreme Court, but then Richard Glossop's case 4 00:00:16,200 --> 00:00:20,759 Speaker 2: was unusual in many respects. Glossip has been on Oklahoma's 5 00:00:20,760 --> 00:00:24,520 Speaker 2: death row for twenty seven years. He's been scheduled to 6 00:00:24,560 --> 00:00:28,560 Speaker 2: be executed nine times and has eaten his last meal 7 00:00:28,720 --> 00:00:33,200 Speaker 2: three times, once avoiding execution only because of a mix 8 00:00:33,320 --> 00:00:35,960 Speaker 2: up in the lethal drugs that were to be administered. 9 00:00:36,360 --> 00:00:40,279 Speaker 2: Through decades of appeals, including to the Supreme Court, Glossop 10 00:00:40,320 --> 00:00:43,440 Speaker 2: has maintained his innocence of the murder of his boss, 11 00:00:44,000 --> 00:00:48,760 Speaker 2: But then in twenty twenty three, an unlikely ally joined 12 00:00:48,800 --> 00:00:53,200 Speaker 2: his appeals to have his conviction overturned. The state's Republican 13 00:00:53,240 --> 00:00:57,840 Speaker 2: Attorney General, Gettner Drummond, who's an advocate of the death penalty, 14 00:00:58,440 --> 00:01:01,840 Speaker 2: after an investigation. In review of the trial record and 15 00:01:01,920 --> 00:01:06,320 Speaker 2: the box of documents prosecutors had withheld from Glossop's attorney, 16 00:01:06,600 --> 00:01:10,320 Speaker 2: Drummond said the conviction could no longer stand because the 17 00:01:10,360 --> 00:01:14,880 Speaker 2: prosecution had withheld evidence favorable to the defense and failed 18 00:01:14,920 --> 00:01:18,199 Speaker 2: to correct false testimony at trial. I do not believe 19 00:01:18,200 --> 00:01:20,640 Speaker 2: that Richard Blossop is innocent. 20 00:01:21,280 --> 00:01:23,280 Speaker 1: I believe him to be guilty, but I believe him 21 00:01:23,360 --> 00:01:24,880 Speaker 1: to not have been given a fair trial. 22 00:01:26,160 --> 00:01:30,600 Speaker 2: This week, the Supreme Court agreed that misconduct by prosecutors 23 00:01:30,800 --> 00:01:35,440 Speaker 2: had violated Glossop's constitutional rights, and the Court threw out 24 00:01:35,480 --> 00:01:39,679 Speaker 2: his conviction, with the liberal justices joined by conservatives Brett 25 00:01:39,760 --> 00:01:44,840 Speaker 2: Cavanaugh and Chief Justice John Roberts. My guest is Cliff Sloane, 26 00:01:44,880 --> 00:01:49,160 Speaker 2: a professor of criminal justice at Georgetown Law. He's argued 27 00:01:49,240 --> 00:01:52,280 Speaker 2: and won a death penalty case before the Supreme Court. 28 00:01:52,560 --> 00:01:56,240 Speaker 2: A death penalty case before the Supreme Court. The Oklahoma 29 00:01:56,280 --> 00:02:01,120 Speaker 2: ag said he wasn't surprised by the Supreme Court's decision, but, 30 00:02:01,360 --> 00:02:06,640 Speaker 2: knowing how this court denies virtually all execution appeals, were 31 00:02:06,680 --> 00:02:08,200 Speaker 2: you surprised, No. 32 00:02:08,160 --> 00:02:11,560 Speaker 1: I wasn't surprised by it, but I was heartened by it. 33 00:02:11,880 --> 00:02:15,640 Speaker 1: I wasn't surprised by it because I thought on the merits, 34 00:02:15,720 --> 00:02:20,280 Speaker 1: the case for Glossop and the Supreme Court was so strong, 35 00:02:20,919 --> 00:02:25,079 Speaker 1: and it seemed in the oral argument that this is 36 00:02:25,160 --> 00:02:29,359 Speaker 1: we're clearly favoring Golossop's claim. A couple of them is 37 00:02:29,480 --> 00:02:32,200 Speaker 1: Thomas and Alito were clearly hostile, and then there were 38 00:02:32,240 --> 00:02:37,040 Speaker 1: a few that we couldn't really tell exactly. But as 39 00:02:37,080 --> 00:02:40,600 Speaker 1: you said, the Supreme Court has been extremely hostile to 40 00:02:40,760 --> 00:02:44,840 Speaker 1: claims raised by death row defendants in recent years. I 41 00:02:44,880 --> 00:02:49,360 Speaker 1: think unfortunately so, and I think unjustifiably so. And so 42 00:02:49,480 --> 00:02:53,720 Speaker 1: it was far from a sure thing that the Supreme 43 00:02:53,760 --> 00:02:58,839 Speaker 1: Court was going to reach this decision, even though as 44 00:02:58,840 --> 00:03:02,640 Speaker 1: I mentioned, I think that the merits for Glossop were 45 00:03:03,120 --> 00:03:07,000 Speaker 1: extremely strong. So it wasn't a total surprise, but it 46 00:03:07,080 --> 00:03:09,440 Speaker 1: also was far from a foregone conclusion. 47 00:03:09,800 --> 00:03:14,480 Speaker 2: Tell us about the unusual aspects of Glossop's case. 48 00:03:15,200 --> 00:03:19,480 Speaker 1: One thing that's very unusual about Glossop's case is that 49 00:03:19,520 --> 00:03:25,120 Speaker 1: you had the Republican Attorney General of Oklahoma, who generally 50 00:03:25,200 --> 00:03:28,760 Speaker 1: is very much in favor of the death penalty, very 51 00:03:28,840 --> 00:03:32,440 Speaker 1: strongly saying that he did not get a fair trial, 52 00:03:32,639 --> 00:03:35,920 Speaker 1: and of course the death sentence that went with it 53 00:03:36,000 --> 00:03:39,440 Speaker 1: was unfair and that he should have a new trial, 54 00:03:39,600 --> 00:03:45,240 Speaker 1: and that Gossop was right that there had been prosecutorial misconduct, 55 00:03:45,560 --> 00:03:50,200 Speaker 1: very important misconduct by the prosecutors that prevented him from 56 00:03:50,280 --> 00:03:54,040 Speaker 1: having a fair trial, and that required setting aside this 57 00:03:54,160 --> 00:03:57,520 Speaker 1: conviction and the death sentence and getting a new trial. 58 00:03:57,760 --> 00:04:01,760 Speaker 1: So you had a unanimity, had a census by both 59 00:04:01,880 --> 00:04:06,240 Speaker 1: Blossop and by the state, by the prosecutors that his 60 00:04:06,400 --> 00:04:09,680 Speaker 1: conviction and death sentence were unfair and could not stand. 61 00:04:10,160 --> 00:04:14,840 Speaker 1: And yet even with that consensus view, and even with 62 00:04:15,280 --> 00:04:19,000 Speaker 1: the strength of their reasons for that, the Oklahoma Court 63 00:04:19,000 --> 00:04:22,120 Speaker 1: of Criminal Appeals, the highest court in Oklahoma on criminal matters, 64 00:04:22,600 --> 00:04:26,960 Speaker 1: rejected that position and said that the conviction is going 65 00:04:27,000 --> 00:04:29,839 Speaker 1: to stand and he's going to be executed. And so 66 00:04:29,920 --> 00:04:33,320 Speaker 1: it was this sort of remarkable situation where you had 67 00:04:33,680 --> 00:04:38,719 Speaker 1: the state court rejecting the views even of the prosecutor, 68 00:04:39,000 --> 00:04:42,520 Speaker 1: which was sharing the view of the defendant that under 69 00:04:42,520 --> 00:04:45,880 Speaker 1: the constitution he was entitled to a new trial. Now, 70 00:04:45,960 --> 00:04:47,960 Speaker 1: you know, one of the things, this is not the 71 00:04:47,960 --> 00:04:51,680 Speaker 1: only time that this has happened in recent years, and 72 00:04:51,839 --> 00:04:55,479 Speaker 1: one that got a lot of attention last year was 73 00:04:55,560 --> 00:04:59,160 Speaker 1: the case of Marcellus Williams in Missouri, and who had 74 00:04:59,600 --> 00:05:05,719 Speaker 1: a long innocence claim and the local prosecutor, the office 75 00:05:05,760 --> 00:05:09,880 Speaker 1: that had prosecuted him and secured the death sentence, agreed 76 00:05:10,240 --> 00:05:14,280 Speaker 1: that he should not be executed. And yet the Missouri 77 00:05:14,320 --> 00:05:17,719 Speaker 1: courts rejected that, and the Supreme Court did not intervene, 78 00:05:17,839 --> 00:05:21,520 Speaker 1: and that has happened in some other circumstances also, So 79 00:05:21,560 --> 00:05:25,200 Speaker 1: it's very striking in the Glossop case, but it actually 80 00:05:25,240 --> 00:05:28,839 Speaker 1: reflects the kind of pervasive problem that we have right 81 00:05:28,920 --> 00:05:34,440 Speaker 1: now when state courts are rejecting the consensus view of 82 00:05:34,640 --> 00:05:39,719 Speaker 1: prosecutors and defendants that the individual didn't get a fair 83 00:05:39,800 --> 00:05:43,880 Speaker 1: trial or didn't get a death sentence fairly imposed, and 84 00:05:44,000 --> 00:05:48,359 Speaker 1: the state courts just barrel ahead you upholding the conviction 85 00:05:48,680 --> 00:05:53,080 Speaker 1: and ordering the execution. Now, sometimes what you have, and 86 00:05:53,160 --> 00:05:56,680 Speaker 1: this happens with Marcellus Williams, sometimes you have a bit 87 00:05:56,720 --> 00:05:58,960 Speaker 1: of a division on the state side where you have 88 00:05:59,080 --> 00:06:02,440 Speaker 1: the local prosecut for example, saying that it should be 89 00:06:02,440 --> 00:06:05,240 Speaker 1: set aside, and then you have the state attorney general 90 00:06:05,560 --> 00:06:08,400 Speaker 1: trying to kind of intervene and say no, no, no, 91 00:06:08,400 --> 00:06:11,359 Speaker 1: we think the execution should go forward. You didn't have 92 00:06:11,440 --> 00:06:14,120 Speaker 1: that in the Glossop case, and there was nobody from 93 00:06:14,120 --> 00:06:17,240 Speaker 1: the state who was saying that the conviction should be 94 00:06:17,320 --> 00:06:20,520 Speaker 1: upheld and that the execution should go forward. But this 95 00:06:20,720 --> 00:06:22,839 Speaker 1: is a problem that comes up, and it's kind of 96 00:06:22,880 --> 00:06:28,320 Speaker 1: surprising and troubling. I think that state courts are rejecting 97 00:06:29,080 --> 00:06:33,600 Speaker 1: the positions of the prosecutors when they're saying, yes, the 98 00:06:33,640 --> 00:06:36,480 Speaker 1: defendant is right, and either the conviction shouldn't stand or 99 00:06:36,520 --> 00:06:38,159 Speaker 1: the execution shouldn't go forward. 100 00:06:38,800 --> 00:06:43,040 Speaker 2: Justice Sonia Sotomayua wrote the majority opinion. Will you explain 101 00:06:43,120 --> 00:06:44,279 Speaker 2: her reasoning. 102 00:06:44,040 --> 00:06:48,000 Speaker 1: Well, this case was a bit of an unusual case 103 00:06:48,040 --> 00:06:52,640 Speaker 1: to begin with, because it involved mister Golossop's conviction for 104 00:06:52,800 --> 00:06:56,240 Speaker 1: murder and death sentence, even though there's no question he 105 00:06:56,440 --> 00:07:01,760 Speaker 1: wasn't involved in the actual physical commission of the murder, 106 00:07:01,800 --> 00:07:06,080 Speaker 1: and the case against the Glossop depended entirely on the 107 00:07:06,120 --> 00:07:12,480 Speaker 1: testimony of an individual who said that Glossop had recruited 108 00:07:12,600 --> 00:07:16,720 Speaker 1: him to commit the murder, and there was no other 109 00:07:17,000 --> 00:07:21,760 Speaker 1: direct evidence that gossip was involved in planning the murder 110 00:07:22,360 --> 00:07:26,400 Speaker 1: in any way. And yet it came out later that 111 00:07:26,720 --> 00:07:33,280 Speaker 1: the individual whose testimony was so critical in implicating Glossop, 112 00:07:33,680 --> 00:07:39,320 Speaker 1: he lied on the stand, and that the prosecution knew 113 00:07:39,320 --> 00:07:41,960 Speaker 1: that it was false testimony, and what it was about 114 00:07:42,600 --> 00:07:47,200 Speaker 1: was that he had taken lithium, and what he testified 115 00:07:47,280 --> 00:07:50,920 Speaker 1: to was that he had never been treated by a psychiatrist, 116 00:07:51,440 --> 00:07:56,040 Speaker 1: and he had no mental health problems or issues, and 117 00:07:56,080 --> 00:07:59,840 Speaker 1: that he had received the lithium as a mistake when 118 00:07:59,880 --> 00:08:02,800 Speaker 1: he requested something for a cold. And one of the 119 00:08:02,800 --> 00:08:05,120 Speaker 1: things that came out years later, and that was kind 120 00:08:05,120 --> 00:08:07,320 Speaker 1: of the heart of the case in the Supreme Court, 121 00:08:07,960 --> 00:08:11,600 Speaker 1: was that the prosecutor had in her notes of a 122 00:08:11,640 --> 00:08:17,360 Speaker 1: conversation with him a reference to lithium and to the 123 00:08:17,480 --> 00:08:21,440 Speaker 1: name of the psychiatrist at the facility where he was 124 00:08:21,520 --> 00:08:27,600 Speaker 1: being incarcerated, and the medical records reflected that he had 125 00:08:27,640 --> 00:08:34,360 Speaker 1: been prescribed lithium by a psychiatrist and had bipolar disorder, 126 00:08:34,840 --> 00:08:37,520 Speaker 1: And this would have been very, very important for the 127 00:08:37,640 --> 00:08:42,800 Speaker 1: jury to understand in terms of evaluating his testimony, both 128 00:08:42,840 --> 00:08:46,840 Speaker 1: in terms of his credibility, and again, the entire case 129 00:08:46,960 --> 00:08:50,240 Speaker 1: against Gossop depended on his credibility, and here he blatantly 130 00:08:50,360 --> 00:08:55,240 Speaker 1: lied about the circumstances of his receiving lithium and whether 131 00:08:55,280 --> 00:08:58,440 Speaker 1: he had ever been treated by a psychiatrist, and also 132 00:08:59,160 --> 00:09:04,160 Speaker 1: possible patients that they might draw about whether he would 133 00:09:04,200 --> 00:09:07,840 Speaker 1: have acted impulsively and whether it could have been connected 134 00:09:07,920 --> 00:09:12,560 Speaker 1: to his psychological difficulty. So it is extremely important evidence. 135 00:09:12,600 --> 00:09:15,480 Speaker 1: That was the view of the majority, and there's a 136 00:09:15,600 --> 00:09:19,120 Speaker 1: Supreme Court case going back to the nineteen fifties called napoo, 137 00:09:19,559 --> 00:09:24,360 Speaker 1: which says that the prosecution cannot knowingly put on false 138 00:09:24,440 --> 00:09:29,040 Speaker 1: testimony and that if there is a false testimony that 139 00:09:29,120 --> 00:09:32,560 Speaker 1: the prosecution knows about, it has to correct that before 140 00:09:32,600 --> 00:09:36,320 Speaker 1: the jury, and if not, it's a violation of the 141 00:09:36,320 --> 00:09:40,080 Speaker 1: defendant's constitutional rights, it's a violation of due process. And 142 00:09:40,120 --> 00:09:44,439 Speaker 1: so Glossop's argument in the Oklahoma Attorney General agreed, this 143 00:09:44,480 --> 00:09:49,040 Speaker 1: is a classic open and shut napoo violation. The only 144 00:09:49,120 --> 00:09:53,640 Speaker 1: witness against him gave false testimony. We've got this evidence 145 00:09:53,840 --> 00:09:57,839 Speaker 1: in the records that shows that the prosecutor she knew 146 00:09:58,000 --> 00:10:01,360 Speaker 1: it was false testimony, and yet she didn't do anything 147 00:10:01,679 --> 00:10:04,160 Speaker 1: to correct it. So that was the view of justice. 148 00:10:04,200 --> 00:10:07,520 Speaker 1: So the mayor and the majority justices. 149 00:10:07,160 --> 00:10:12,560 Speaker 2: Clarence Thomas and Samuel Alito dissented, Amy Cony Barrett concurred 150 00:10:12,679 --> 00:10:15,920 Speaker 2: in part, dissented in part. Thomas said that the High 151 00:10:16,000 --> 00:10:20,640 Speaker 2: Court had no authority to override Oklahoma's state courts. 152 00:10:20,880 --> 00:10:23,600 Speaker 1: Well, so there were two issues in the case. There 153 00:10:23,640 --> 00:10:27,080 Speaker 1: was a procedural issue and a substantive issue. And we've 154 00:10:27,080 --> 00:10:30,040 Speaker 1: been talking about the substantive issue about the merits of 155 00:10:30,120 --> 00:10:34,520 Speaker 1: the napok claim. But it also is the case that 156 00:10:35,000 --> 00:10:41,320 Speaker 1: if a state court decision rests entirely on a state ground, 157 00:10:41,440 --> 00:10:45,640 Speaker 1: what they call an adequate and independent state ground, then 158 00:10:45,679 --> 00:10:48,800 Speaker 1: that's a sufficient basis for it. So, for example, let's 159 00:10:48,800 --> 00:10:52,400 Speaker 1: say the state says that a brief has to be 160 00:10:52,520 --> 00:10:56,680 Speaker 1: filed within thirty days, and somebody filed it ninety days later, 161 00:10:56,840 --> 00:10:59,280 Speaker 1: and the state says, we're not going to consider it 162 00:10:59,280 --> 00:11:02,600 Speaker 1: because it violates did our state rule? Well, that's been 163 00:11:02,600 --> 00:11:05,840 Speaker 1: held to be an adequate and independent state ground. And 164 00:11:05,920 --> 00:11:10,480 Speaker 1: so here the Oklahoma Court of Criminal Appeals said a 165 00:11:10,520 --> 00:11:13,080 Speaker 1: lot of different things that the oral argument, Justice Stagan 166 00:11:13,120 --> 00:11:16,160 Speaker 1: said they were basically thrown in the kitchen sink, but 167 00:11:16,240 --> 00:11:21,080 Speaker 1: they made some reference to some of the state court rules. 168 00:11:21,679 --> 00:11:26,440 Speaker 1: And so one of the arguments that was made by 169 00:11:26,720 --> 00:11:32,079 Speaker 1: a lawyer whose Supreme Court appointed to defend the decision 170 00:11:32,240 --> 00:11:35,240 Speaker 1: of the Oklahoma Court or Criminal Appeals, which is common 171 00:11:35,280 --> 00:11:38,440 Speaker 1: for the Supreme Court to do if the parties are 172 00:11:38,480 --> 00:11:43,200 Speaker 1: in agreement and nobody's defending the lower court decision. So 173 00:11:43,280 --> 00:11:45,960 Speaker 1: that person who is appointed by the Supreme Court said, well, 174 00:11:46,000 --> 00:11:50,040 Speaker 1: there's an adequate and independent state ground here, and so 175 00:11:50,440 --> 00:11:55,079 Speaker 1: you don't even reach the federal constitutional issue. And all 176 00:11:55,160 --> 00:12:00,560 Speaker 1: of the justices except for Justice Thomas and Alito rejected 177 00:12:00,559 --> 00:12:04,480 Speaker 1: that view and said that no, their view even of 178 00:12:04,559 --> 00:12:07,800 Speaker 1: the application of the state rules was based on their 179 00:12:07,880 --> 00:12:10,920 Speaker 1: view that there wasn't a NAPOU violation, that it was 180 00:12:11,000 --> 00:12:15,080 Speaker 1: quote unquote meritless, and that's a federal constitutional issue, so 181 00:12:15,240 --> 00:12:18,920 Speaker 1: there's not an adequate and independent state procedural ground. But 182 00:12:19,080 --> 00:12:22,760 Speaker 1: Justice Thomas and Justice Alito said no, they thought that 183 00:12:22,880 --> 00:12:26,120 Speaker 1: there was an adequate and independent state ground. There was 184 00:12:26,160 --> 00:12:31,760 Speaker 1: a sufficient reliance on that state rule, which included a 185 00:12:31,800 --> 00:12:34,440 Speaker 1: provision that you can't raise an issue that could have 186 00:12:34,480 --> 00:12:38,000 Speaker 1: been raised earlier, and in their view, it could have 187 00:12:38,040 --> 00:12:41,120 Speaker 1: been raised earlier. So that was the arguments that he 188 00:12:41,240 --> 00:12:43,360 Speaker 1: was making there. And you know, by the way, well, 189 00:12:43,360 --> 00:12:45,599 Speaker 1: and we're talking about the lineup of the justices, we 190 00:12:45,640 --> 00:12:49,120 Speaker 1: should just mention that it was eight justices who decided this. 191 00:12:49,400 --> 00:12:52,800 Speaker 1: Justice Coursich didn't participate because when he was a Court 192 00:12:52,800 --> 00:12:55,920 Speaker 1: of Appeals judge, he had been involved in an earlier 193 00:12:55,960 --> 00:12:59,520 Speaker 1: stage of the Glossop proceeding. So the only two justices 194 00:12:59,559 --> 00:13:02,880 Speaker 1: who thought there was a procedural bar to considering it 195 00:13:02,920 --> 00:13:04,600 Speaker 1: were Justices Thomas and Alito. 196 00:13:05,120 --> 00:13:08,920 Speaker 2: Coming up next, will Glossop be tried again you're listening 197 00:13:08,920 --> 00:13:14,240 Speaker 2: to Bloomberg. This week, the Supreme Court granted Oklahoma death 198 00:13:14,320 --> 00:13:18,720 Speaker 2: row inmate Richard Glossop a new trial, finding that misconduct 199 00:13:18,720 --> 00:13:24,080 Speaker 2: by prosecutors violated his constitutional rights at his trial. The 200 00:13:24,120 --> 00:13:28,160 Speaker 2: Court threw out the conviction, agreeing with Oklahoma's Republican Attorney 201 00:13:28,240 --> 00:13:32,680 Speaker 2: General that the prosecution withheld evidence favorable to the defense 202 00:13:33,000 --> 00:13:37,320 Speaker 2: and failed to correct false testimony at trial. Two conservative 203 00:13:37,600 --> 00:13:42,600 Speaker 2: justices dissented. I've been talking to Georgetown law professor Cliff Sloane. 204 00:13:42,640 --> 00:13:46,880 Speaker 2: In his dissent, Clarence Thomas said, there's no reason to 205 00:13:47,080 --> 00:13:52,839 Speaker 2: think that disclosing the bipolar disorder of the state's star 206 00:13:53,000 --> 00:13:57,040 Speaker 2: witness would have affected the outcome of the trial. I'm 207 00:13:57,080 --> 00:13:59,880 Speaker 2: not sure how he can come to that kind of conclusion, 208 00:14:00,360 --> 00:14:03,800 Speaker 2: especially because you never know what's going to affect the 209 00:14:03,840 --> 00:14:06,679 Speaker 2: credibility of a witness in the eyes of the jury. 210 00:14:07,160 --> 00:14:11,280 Speaker 2: Is there any set of circumstances where Thomas and Alito 211 00:14:11,400 --> 00:14:14,160 Speaker 2: would rule against the death penalty. 212 00:14:13,920 --> 00:14:19,520 Speaker 1: Well, you know, they generally have been extremely hostile to 213 00:14:20,080 --> 00:14:25,720 Speaker 1: capital defendants, and even in a case where Justice Alito 214 00:14:26,400 --> 00:14:28,800 Speaker 1: did join almost all of the other members of the 215 00:14:28,840 --> 00:14:32,120 Speaker 1: court in ruling for a capital defendants, but he wrote 216 00:14:32,200 --> 00:14:36,400 Speaker 1: a very narrow concurrence in the judgment where he basically said, 217 00:14:36,600 --> 00:14:39,360 Speaker 1: you know this case and this case only, but that 218 00:14:39,760 --> 00:14:41,800 Speaker 1: you know brings up a very important point not just 219 00:14:41,840 --> 00:14:45,200 Speaker 1: about Justice Thomas and Justice Alito, but about the Supreme 220 00:14:45,200 --> 00:14:49,320 Speaker 1: Court as a whole that relates to Glossop and this 221 00:14:49,400 --> 00:14:53,880 Speaker 1: overall picture with the death penalty, because since the modern 222 00:14:54,040 --> 00:14:58,200 Speaker 1: era of the death penalty began in the mid nineteen seventies, 223 00:14:58,560 --> 00:15:02,400 Speaker 1: there have been two two one hundred people who have 224 00:15:02,480 --> 00:15:07,040 Speaker 1: been exonerated on death row. Two hundred people who were 225 00:15:07,640 --> 00:15:12,440 Speaker 1: convicted and sentenced to death and had death penalties hanging 226 00:15:12,440 --> 00:15:15,680 Speaker 1: over their heads and then were found to be innocent. 227 00:15:16,160 --> 00:15:22,200 Speaker 1: That is a truly astonishing and deeply troubling fact. And 228 00:15:22,240 --> 00:15:26,080 Speaker 1: it is a fact two hundred people since the nineteen 229 00:15:26,080 --> 00:15:30,920 Speaker 1: seventies sentenced to death who were exonerated. And yet the 230 00:15:31,000 --> 00:15:39,680 Speaker 1: Supreme Court very regularly is raising and constructing extremely complicated 231 00:15:39,840 --> 00:15:44,880 Speaker 1: procedural obstacles that make it very difficult and in some 232 00:15:44,920 --> 00:15:52,200 Speaker 1: cases impossible, for defendants to raige claims to have federal 233 00:15:52,280 --> 00:15:57,000 Speaker 1: courts examine the merits of their constitutional claims, even when 234 00:15:57,040 --> 00:16:01,840 Speaker 1: those claims relate to innocence and this very very strange 235 00:16:01,920 --> 00:16:05,360 Speaker 1: dichotomy where on the one hand, you've got the Supreme 236 00:16:05,400 --> 00:16:12,400 Speaker 1: Court majority creating these extremely difficult procedural obstacles that prevent 237 00:16:12,440 --> 00:16:15,400 Speaker 1: people from having their claims heard, and on the other hand, 238 00:16:15,400 --> 00:16:21,440 Speaker 1: we're seeing these very serious problems with two hundred exonerations 239 00:16:21,480 --> 00:16:23,520 Speaker 1: in recent years. And that's not the only problem with 240 00:16:23,560 --> 00:16:26,720 Speaker 1: the death penalty. I mean, there's a tremendous problem with 241 00:16:26,960 --> 00:16:32,240 Speaker 1: ineffective assistance of console, with terrible lawyering. Almost invariably somebody 242 00:16:32,280 --> 00:16:36,359 Speaker 1: who gets the death penalty, there's been terrible lawyering involved. 243 00:16:36,600 --> 00:16:41,200 Speaker 1: The Supreme Court's making it extremely difficult for somebody to 244 00:16:41,480 --> 00:16:44,800 Speaker 1: raise that claim. And in one case a couple of 245 00:16:44,880 --> 00:16:49,400 Speaker 1: years ago, the Supreme Court majority said, well, the Senate, 246 00:16:49,520 --> 00:16:55,440 Speaker 1: you're stuck with the record that you're completely inadequate lawyer 247 00:16:56,120 --> 00:16:59,960 Speaker 1: created for you, and you can't add to that record 248 00:17:00,080 --> 00:17:04,560 Speaker 1: instances of lawyers literally sleeping at times during capital trials 249 00:17:04,600 --> 00:17:07,080 Speaker 1: where courts have left that in place. So you have 250 00:17:07,160 --> 00:17:12,160 Speaker 1: this very strange dichotomy of the Supreme Court creating these 251 00:17:12,320 --> 00:17:17,200 Speaker 1: enormous procedural obstacles on the one hand, and this record 252 00:17:17,400 --> 00:17:19,400 Speaker 1: of abuses with the death penalty. 253 00:17:19,480 --> 00:17:23,480 Speaker 2: On the other turn, oklahom Attorney General Gentner Drummond said 254 00:17:23,600 --> 00:17:27,880 Speaker 2: at a news conference after this decision that I do 255 00:17:27,960 --> 00:17:31,480 Speaker 2: not believe Richard Glossip is innocent, and he said that 256 00:17:31,640 --> 00:17:34,760 Speaker 2: his office is going to review the ruling, visit the 257 00:17:34,800 --> 00:17:39,160 Speaker 2: family members determine the most appropriate course of action because 258 00:17:39,160 --> 00:17:42,359 Speaker 2: they have to decide now whether to try him again. 259 00:17:43,200 --> 00:17:45,760 Speaker 2: How do you try a case twenty eight years later 260 00:17:45,840 --> 00:17:48,959 Speaker 2: when there was never any physical evidence to begin with. 261 00:17:49,359 --> 00:17:52,600 Speaker 2: Now there's new evidence that the state's star witness lied 262 00:17:52,680 --> 00:17:56,240 Speaker 2: on the stand, wanted to recount his testimony so he 263 00:17:56,320 --> 00:17:58,080 Speaker 2: can be impeached. I mean, how do you try a 264 00:17:58,119 --> 00:17:58,840 Speaker 2: case like that. 265 00:17:59,320 --> 00:18:02,399 Speaker 1: Look, I I think it's going to be extremely difficult 266 00:18:02,520 --> 00:18:05,400 Speaker 1: for them to try the case, and we'll see what 267 00:18:05,600 --> 00:18:09,160 Speaker 1: charges they would bring. But for the reasons that you mentioned, 268 00:18:09,320 --> 00:18:11,760 Speaker 1: of course, it's a long time ago, but also it's 269 00:18:11,760 --> 00:18:16,160 Speaker 1: the very reason why this information was so important, because 270 00:18:16,400 --> 00:18:20,399 Speaker 1: the fact that the only witness against him blatantly lies, 271 00:18:20,720 --> 00:18:23,840 Speaker 1: you know, he is subject to impeachment on that basis, 272 00:18:23,880 --> 00:18:26,560 Speaker 1: and so I would think there'll be enormous problems in 273 00:18:26,640 --> 00:18:28,840 Speaker 1: trying the case. But I will say one thing about 274 00:18:28,840 --> 00:18:32,880 Speaker 1: the Oklahoma Attorney General I think he deserves tremendous credits because, 275 00:18:32,960 --> 00:18:35,720 Speaker 1: first of all, again he's somebody who very much supports 276 00:18:35,760 --> 00:18:39,120 Speaker 1: the death penalty and yet took a very principled stand 277 00:18:39,320 --> 00:18:42,560 Speaker 1: here that no, this man did not receive a fair 278 00:18:42,640 --> 00:18:46,679 Speaker 1: trial and both his conviction and death should not remain 279 00:18:46,800 --> 00:18:49,919 Speaker 1: in place. But in addition to that, this is all 280 00:18:50,000 --> 00:18:54,320 Speaker 1: in the context where his official position is the gloss 281 00:18:54,320 --> 00:18:56,920 Speaker 1: of his guilty, but that he should get a fair trial. 282 00:18:56,960 --> 00:19:00,000 Speaker 1: You know, it's a Supreme Court argument. Representing the state 283 00:19:00,119 --> 00:19:04,919 Speaker 1: of Oklahoma was Paul Clement, a former Solicitor General for 284 00:19:04,960 --> 00:19:08,879 Speaker 1: the United States in the George W. Bush administration, in 285 00:19:08,920 --> 00:19:12,679 Speaker 1: one of the preeminent and leading Supreme Court advocates of 286 00:19:12,720 --> 00:19:15,520 Speaker 1: our time. And you know, Paul Clement said that in 287 00:19:15,520 --> 00:19:18,200 Speaker 1: the oral argument, he said, we don't think mister Glossop 288 00:19:18,320 --> 00:19:20,320 Speaker 1: is a poster boy for innocence, and we're going to 289 00:19:20,520 --> 00:19:23,359 Speaker 1: try to retry him. And I think that if the 290 00:19:23,480 --> 00:19:26,240 Speaker 1: Supreme Court does the right thing he said, which we 291 00:19:26,400 --> 00:19:28,439 Speaker 1: urge you to do in terms of setting aside this 292 00:19:28,520 --> 00:19:31,560 Speaker 1: conviction of death, sense, we're going to try and convict 293 00:19:31,600 --> 00:19:35,439 Speaker 1: him again. And so I just think that really speaks 294 00:19:35,480 --> 00:19:38,960 Speaker 1: to the principal stance that the Oklahoma Attorney General took 295 00:19:39,000 --> 00:19:42,560 Speaker 1: here exactly what you want a public official to do, 296 00:19:42,720 --> 00:19:46,520 Speaker 1: regardless of political affiliation, to say, I've looked at the facts, 297 00:19:46,560 --> 00:19:49,719 Speaker 1: I've looked at the evidence. This man did not receive 298 00:19:49,760 --> 00:19:53,560 Speaker 1: a fair trial. Yes, he's guilty in our view. Of course, 299 00:19:53,560 --> 00:19:56,640 Speaker 1: Blossop very much disputes that, and we're going to try 300 00:19:56,680 --> 00:19:59,560 Speaker 1: to go after him again with a fair trial. That's 301 00:19:59,600 --> 00:20:01,439 Speaker 1: been there position throughout. I mean, the. 302 00:20:01,480 --> 00:20:04,120 Speaker 2: Victim's family wants this tried it again as a death 303 00:20:04,160 --> 00:20:08,600 Speaker 2: penalty case. Do you think there'll be pressure not only 304 00:20:08,640 --> 00:20:13,160 Speaker 2: on the Oklahoma Attorney General, but on the Oklahoma County 305 00:20:13,200 --> 00:20:15,720 Speaker 2: District attorney to try the case again. 306 00:20:16,240 --> 00:20:21,440 Speaker 1: Death penalty cases, by their nature, they are always very 307 00:20:21,560 --> 00:20:25,560 Speaker 1: very high profile and with a lot of public pressure. 308 00:20:25,560 --> 00:20:30,320 Speaker 1: It's one of the reasons it's very important for public officials, 309 00:20:30,400 --> 00:20:34,840 Speaker 1: even in that kind of situation to act in principled ways. 310 00:20:34,840 --> 00:20:39,919 Speaker 1: But they're always very very controversial situations with you know, 311 00:20:40,119 --> 00:20:45,200 Speaker 1: horrible crimes that are at issue, you know, victims' families. 312 00:20:45,800 --> 00:20:48,360 Speaker 1: There can be a wide variety. I mean, there's sometimes 313 00:20:48,480 --> 00:20:52,040 Speaker 1: is a situation where victims' families are actually against the 314 00:20:52,080 --> 00:20:54,760 Speaker 1: death penalty for a lot of reasons that they don't 315 00:20:54,760 --> 00:20:57,960 Speaker 1: think the taking of life justifies the taking of life. 316 00:20:58,240 --> 00:21:01,080 Speaker 1: They also think accurate lea it's going to lead to 317 00:21:01,119 --> 00:21:04,879 Speaker 1: a much more prolonged and difficult process for them. And 318 00:21:04,920 --> 00:21:09,200 Speaker 1: then you have some victims' families who are in favor 319 00:21:09,240 --> 00:21:11,800 Speaker 1: of the death penalty and who you know, obviously have 320 00:21:12,400 --> 00:21:17,560 Speaker 1: suffered extremely difficult anguish of losing a loved one, and 321 00:21:18,000 --> 00:21:22,080 Speaker 1: the victim's family here is being very aggressive in supporting 322 00:21:22,240 --> 00:21:26,320 Speaker 1: the death penalty for Glossop and in supporting their view 323 00:21:26,600 --> 00:21:29,760 Speaker 1: that he is guilty. And in fact, they filed in 324 00:21:29,800 --> 00:21:35,040 Speaker 1: the Supreme Court and amicus brief arguing very strongly against 325 00:21:35,119 --> 00:21:40,440 Speaker 1: the Oklahoma Attorney General and Glossop in saying that the 326 00:21:40,480 --> 00:21:45,320 Speaker 1: notes of the prosecutor were being misinterpreted. They actually attached 327 00:21:45,680 --> 00:21:49,959 Speaker 1: new documents that hadn't been part of the record and 328 00:21:50,040 --> 00:21:54,760 Speaker 1: made new arguments, and Justice Thomas's descent relies at times 329 00:21:54,960 --> 00:21:57,760 Speaker 1: on that brief, and the majority took pains to say 330 00:21:58,119 --> 00:22:01,240 Speaker 1: those documents were not in the record. So in this case, 331 00:22:01,359 --> 00:22:05,680 Speaker 1: it certainly is true that you have a very very 332 00:22:06,040 --> 00:22:09,600 Speaker 1: active victims family that's going to be pushing both for 333 00:22:09,720 --> 00:22:11,320 Speaker 1: retrial and the death penalty. 334 00:22:11,840 --> 00:22:15,359 Speaker 2: Is this the strangest saga for a death row inmates 335 00:22:15,480 --> 00:22:18,720 Speaker 2: case or are there others that are just as bad? 336 00:22:19,359 --> 00:22:22,520 Speaker 1: Oh, there are many that are just as bad, and 337 00:22:23,359 --> 00:22:25,760 Speaker 1: in a number of ways. I mean, first of all, 338 00:22:26,160 --> 00:22:31,080 Speaker 1: as we were talking about the problem of people turning 339 00:22:31,200 --> 00:22:37,640 Speaker 1: out to be innocent and also the problem of prosecutorial misconducts, 340 00:22:38,000 --> 00:22:41,520 Speaker 1: both of those are rampant in death penalty cases, and 341 00:22:41,560 --> 00:22:45,040 Speaker 1: there's actually a high correlation between the two. That's frequently 342 00:22:45,080 --> 00:22:48,359 Speaker 1: when somebody has been wrongly convicted, it's because there's been 343 00:22:48,480 --> 00:22:51,800 Speaker 1: prosecutorial misconduct. But those aren't the only kinds of claims. 344 00:22:51,840 --> 00:22:55,880 Speaker 1: There are all sorts of other claims that turn out 345 00:22:55,880 --> 00:23:01,560 Speaker 1: to be meritorious, including in effective assistance of console, including 346 00:23:02,200 --> 00:23:05,560 Speaker 1: problems connected with race. And you know, some people who 347 00:23:05,720 --> 00:23:09,760 Speaker 1: are in favor of the death penalty complain about the 348 00:23:09,880 --> 00:23:12,840 Speaker 1: length of time that it takes, and that includes some 349 00:23:12,960 --> 00:23:16,679 Speaker 1: of the conservative justices on the Supreme Court. You know, 350 00:23:16,800 --> 00:23:19,760 Speaker 1: Glossop previously had a case in the Supreme Court where 351 00:23:19,800 --> 00:23:25,080 Speaker 1: he was objecting to lethal injection as cruel and usual, 352 00:23:26,119 --> 00:23:28,920 Speaker 1: that it was an untried procedure that was going to 353 00:23:29,040 --> 00:23:32,400 Speaker 1: make it feel like somebody was being burned alive, and 354 00:23:32,520 --> 00:23:37,600 Speaker 1: the Supreme Court majority rejected that claim, and both in 355 00:23:37,640 --> 00:23:40,719 Speaker 1: the oral argument and in the opinion talked about this 356 00:23:40,840 --> 00:23:47,440 Speaker 1: guerrilla campaign against the death penalty and expressed real frustration 357 00:23:48,040 --> 00:23:52,880 Speaker 1: and impatience with efforts to impede the death penalty. Now, 358 00:23:53,040 --> 00:23:57,200 Speaker 1: the other side of that is that the reason that 359 00:23:57,240 --> 00:23:59,640 Speaker 1: these issues come up so much is because there are 360 00:23:59,800 --> 00:24:03,880 Speaker 1: so many pervasive and fundamental problems with the death penalty, 361 00:24:04,119 --> 00:24:07,560 Speaker 1: and frequently it takes a while to get them litigated, 362 00:24:07,720 --> 00:24:12,840 Speaker 1: including because there's frequently such poor lawyering at the trial level. 363 00:24:13,119 --> 00:24:16,040 Speaker 1: And yet frequently there is a kind of vindication in 364 00:24:16,119 --> 00:24:20,400 Speaker 1: the end for the death row inmate. Obviously not always, 365 00:24:20,640 --> 00:24:25,840 Speaker 1: And although we have fewer executions each year and fewer 366 00:24:25,880 --> 00:24:29,879 Speaker 1: death sentences than we've had in the past, and lower 367 00:24:30,359 --> 00:24:34,520 Speaker 1: public support, and the death sentences that are handed out 368 00:24:34,520 --> 00:24:38,800 Speaker 1: and the executions that occur are in a relatively small 369 00:24:39,000 --> 00:24:43,760 Speaker 1: handful of jurisdictions, but there are executions that are going forwards. 370 00:24:43,760 --> 00:24:46,080 Speaker 1: And I'm certainly not suggesting by any means that in 371 00:24:46,119 --> 00:24:49,800 Speaker 1: every case the defendant ultimately prevails, But in many of 372 00:24:49,840 --> 00:24:53,320 Speaker 1: these circumstances where it takes a long time for the litigation, 373 00:24:53,840 --> 00:24:57,600 Speaker 1: it turns out, as in this case, that the defendant 374 00:24:57,720 --> 00:25:01,800 Speaker 1: has very strong territorious claims and that it would be 375 00:25:01,840 --> 00:25:06,560 Speaker 1: completely unconstitutional either to uphold the convictions or to proceed 376 00:25:06,720 --> 00:25:09,000 Speaker 1: with the death sentence. So, I mean, there are some 377 00:25:09,240 --> 00:25:12,720 Speaker 1: unique twists and turns in mister Glossop's case, but the 378 00:25:12,760 --> 00:25:18,159 Speaker 1: idea of this sort of prolonged saga and very very 379 00:25:18,320 --> 00:25:21,000 Speaker 1: deep and troubling errors coming up along the way is 380 00:25:21,040 --> 00:25:22,800 Speaker 1: far from unique to his case. 381 00:25:23,119 --> 00:25:25,560 Speaker 2: Thanks so much for taking the time to talk with me. 382 00:25:26,400 --> 00:25:31,040 Speaker 2: That's Professor Cliff Sloan of Georgetown Law. The Supreme Court 383 00:25:31,119 --> 00:25:35,159 Speaker 2: dealt a set that to abortion opponents this week, refusing 384 00:25:35,200 --> 00:25:39,000 Speaker 2: to reconsider a two thousand decision that let states and 385 00:25:39,119 --> 00:25:43,600 Speaker 2: cities create protective zones to shield patients from being approached 386 00:25:43,640 --> 00:25:48,120 Speaker 2: near clinic entrances. The justices turned away two appeals that 387 00:25:48,359 --> 00:25:52,719 Speaker 2: argue the restrictions outside clinics violate the free speech rights 388 00:25:52,760 --> 00:25:55,800 Speaker 2: of abortion opponents who want to talk to women as 389 00:25:55,800 --> 00:26:00,679 Speaker 2: they enter the facilities. Two of the most conservative justices dissented. 390 00:26:01,040 --> 00:26:03,960 Speaker 2: Joining me is an expert in abortion law, Mary Ziegler, 391 00:26:04,040 --> 00:26:07,439 Speaker 2: a professor at UC Davis Law School. Mary tell us 392 00:26:07,480 --> 00:26:12,199 Speaker 2: about that two thousand decision that allowed buffer zones outside 393 00:26:12,240 --> 00:26:13,280 Speaker 2: abortion clinics. 394 00:26:13,680 --> 00:26:16,159 Speaker 3: So this is part of this series of rulings on 395 00:26:16,200 --> 00:26:20,760 Speaker 3: this topic called Hill versus Colorado. Hill was about a 396 00:26:20,840 --> 00:26:25,000 Speaker 3: Colorado law that was kind of prototypical of the era 397 00:26:25,119 --> 00:26:28,320 Speaker 3: that made it unlawful for anyone who was within one 398 00:26:28,400 --> 00:26:31,720 Speaker 3: hundred feet of a healthcare facilities entrance to knowingly come 399 00:26:31,760 --> 00:26:35,280 Speaker 3: within eight feet of another person unless the person they 400 00:26:35,280 --> 00:26:39,040 Speaker 3: were approaching consented. And you know, the idea was either 401 00:26:39,200 --> 00:26:41,720 Speaker 3: to you know, show them a sign or talk to 402 00:26:41,760 --> 00:26:46,320 Speaker 3: them or whatever. And a group of anti abortion protesters 403 00:26:46,880 --> 00:26:51,080 Speaker 3: thought that this violated the First Amendment and they sued, 404 00:26:51,960 --> 00:26:55,199 Speaker 3: and the US Supreme Court, in a sixty three ruling 405 00:26:55,400 --> 00:26:59,520 Speaker 3: held that Colorado's restrictions on this kind of speech related 406 00:26:59,560 --> 00:27:04,280 Speaker 3: conduct were constitutional. So this was a bid by the 407 00:27:04,760 --> 00:27:07,360 Speaker 3: new generation of abortion opponents to get rid of this 408 00:27:07,720 --> 00:27:08,439 Speaker 3: prior ruling. 409 00:27:08,760 --> 00:27:10,000 Speaker 2: I mean, I've wanted to get rid of it for 410 00:27:10,080 --> 00:27:12,600 Speaker 2: a long time. This was the first time this has 411 00:27:12,640 --> 00:27:16,480 Speaker 2: come up since the court overturned the right to abortion. 412 00:27:16,960 --> 00:27:19,679 Speaker 3: Yeah, it was so the court had kind of narrowed 413 00:27:19,960 --> 00:27:23,720 Speaker 3: the protections that it afforded medical facilities in a twenty 414 00:27:23,760 --> 00:27:27,760 Speaker 3: fourteen decision out of Massachusetts called McCullen, but the issue 415 00:27:27,800 --> 00:27:30,400 Speaker 3: hadn't really returned to the court in a meaningful way 416 00:27:30,440 --> 00:27:30,920 Speaker 3: since then. 417 00:27:31,720 --> 00:27:35,600 Speaker 2: As usual, the Court gave no explanation for why it 418 00:27:35,680 --> 00:27:39,120 Speaker 2: wasn't taking the cases. But do you think it's they 419 00:27:39,160 --> 00:27:41,439 Speaker 2: just want to avoid another abortion case. 420 00:27:41,960 --> 00:27:44,600 Speaker 3: It's hard to say it. Maybe that they didn't want 421 00:27:44,640 --> 00:27:47,119 Speaker 3: to take another abortion case, and maybe that this was 422 00:27:47,200 --> 00:27:50,520 Speaker 3: not the ideal case to take because Carbondale, which was 423 00:27:50,600 --> 00:27:53,720 Speaker 3: the site of one of the ordinances that was being challenged, 424 00:27:53,760 --> 00:27:56,879 Speaker 3: no longer was enforcing its ordinance, so there was an 425 00:27:57,000 --> 00:28:00,680 Speaker 3: argument that this was no longer a real live If 426 00:28:00,760 --> 00:28:03,119 Speaker 3: the justices do want to take up an abortion case, 427 00:28:03,119 --> 00:28:04,720 Speaker 3: they may not want to take up a case that 428 00:28:04,840 --> 00:28:10,320 Speaker 3: features protesters and potentially vigilantes right as opposed to abortion 429 00:28:10,440 --> 00:28:13,000 Speaker 3: opponents who are claiming to interpret laws on the books 430 00:28:13,080 --> 00:28:15,800 Speaker 3: rather than resist them. So it's hard to know how 431 00:28:15,880 --> 00:28:17,680 Speaker 3: much to read into this. It may not be a 432 00:28:17,800 --> 00:28:20,080 Speaker 3: sign that the Court's reluctant to get into the abortion 433 00:28:20,320 --> 00:28:23,119 Speaker 3: debate at all. It may simply be something unique to 434 00:28:23,200 --> 00:28:23,720 Speaker 3: this case. 435 00:28:24,359 --> 00:28:28,360 Speaker 2: So the conservative justices Clarence Thomas and Samuel Alito said 436 00:28:28,359 --> 00:28:31,679 Speaker 2: they would have heard both cases, and Thomas said in 437 00:28:31,720 --> 00:28:36,320 Speaker 2: a descending opinion that Hill has been seriously undermined, if 438 00:28:36,359 --> 00:28:40,800 Speaker 2: not completely eroded, and our refusal to provide clarity is 439 00:28:40,840 --> 00:28:44,000 Speaker 2: an abdication of of our judicial duty. What does he 440 00:28:44,080 --> 00:28:46,600 Speaker 2: mean that it's been seriously undermined? Is it by the 441 00:28:46,640 --> 00:28:48,160 Speaker 2: case that you were just talking about. 442 00:28:48,520 --> 00:28:50,960 Speaker 3: Yeah, I think that on. Thomas's argument was that the 443 00:28:51,000 --> 00:28:55,800 Speaker 3: court's subsequent decisions after Hill had afforded more protection for 444 00:28:55,880 --> 00:28:59,000 Speaker 3: the speech of anti abortion protesters. And I think Thomas 445 00:28:59,080 --> 00:29:01,760 Speaker 3: was also stressing what had happened in Dobbs, the decision 446 00:29:01,800 --> 00:29:05,600 Speaker 3: overruling Row. So parts of Dobbs complained about what abortion 447 00:29:05,680 --> 00:29:10,160 Speaker 3: opponents call abortion distortion, the idea that Roe had kind 448 00:29:10,160 --> 00:29:13,080 Speaker 3: of deformed other areas of the law that weren't theoretically 449 00:29:13,080 --> 00:29:16,240 Speaker 3: closely related to abortion. And one of the areas that 450 00:29:16,400 --> 00:29:20,840 Speaker 3: Dobbs flagged was First Amendment doctrine and cited Hill as 451 00:29:20,880 --> 00:29:24,440 Speaker 3: an example of this distortion. So Thomas pointed to this 452 00:29:24,560 --> 00:29:27,160 Speaker 3: language in Dobbs and said, well, we already suggested that 453 00:29:27,440 --> 00:29:30,080 Speaker 3: Hill was a distortion, so why don't we overrule it. 454 00:29:30,720 --> 00:29:33,560 Speaker 3: That was the other I think inconsistency Justice Thomas was 455 00:29:33,600 --> 00:29:34,640 Speaker 3: trying to flag. 456 00:29:35,040 --> 00:29:37,360 Speaker 2: It takes four votes to take the case, and you 457 00:29:37,400 --> 00:29:41,920 Speaker 2: had two other conservative justices Neil Gorsuch and Amy Cony Barrett, 458 00:29:41,920 --> 00:29:45,760 Speaker 2: who had previously joined Tomas in criticizing the Hill ruling, 459 00:29:45,840 --> 00:29:48,040 Speaker 2: so that would have made four votes. It seems odd 460 00:29:48,040 --> 00:29:48,920 Speaker 2: that they didn't take it. 461 00:29:49,120 --> 00:29:50,800 Speaker 3: Yeah, I mean, like I said, there are any number 462 00:29:50,840 --> 00:29:53,800 Speaker 3: of reasons. We know historically that the justices have sometimes 463 00:29:53,800 --> 00:29:57,800 Speaker 3: been more uncomfortable with clinic blockaders and protesters than they 464 00:29:57,800 --> 00:30:01,320 Speaker 3: are with other anti abortion arguments, especially because there has 465 00:30:01,360 --> 00:30:04,040 Speaker 3: been sort of a flavor sometimes from those protesters of 466 00:30:04,280 --> 00:30:07,520 Speaker 3: answering to a higher law rather than to the Supreme Court. 467 00:30:07,840 --> 00:30:10,240 Speaker 3: We also know again that this case had some sort 468 00:30:10,240 --> 00:30:13,720 Speaker 3: of weird procedural issues that might have made some of 469 00:30:13,760 --> 00:30:16,200 Speaker 3: the justices, who weren't eager to get into this arena 470 00:30:16,240 --> 00:30:19,360 Speaker 3: again anyway, might have given them an excuse to wait. 471 00:30:19,720 --> 00:30:22,080 Speaker 3: So we might not know for sure, But again I 472 00:30:22,160 --> 00:30:24,240 Speaker 3: think it's much too early to say we won't see 473 00:30:24,280 --> 00:30:26,880 Speaker 3: the Court get involved in another abortion case in the 474 00:30:26,920 --> 00:30:27,400 Speaker 3: near term. 475 00:30:28,000 --> 00:30:30,640 Speaker 2: How big a setback is this? Is it a setback 476 00:30:30,680 --> 00:30:31,920 Speaker 2: for abortion opponents. 477 00:30:32,440 --> 00:30:35,160 Speaker 3: It's certainly a setback. I think there was a feeling 478 00:30:35,240 --> 00:30:38,560 Speaker 3: that abortion opponents had when the Court first decided Dabbs 479 00:30:38,680 --> 00:30:41,440 Speaker 3: that it was kind of open season and that any 480 00:30:41,840 --> 00:30:45,160 Speaker 3: precedent on abortion rights could be challenged and quickly done 481 00:30:45,200 --> 00:30:50,120 Speaker 3: away with. And that's certainly not the impression that this gives. 482 00:30:50,200 --> 00:30:54,200 Speaker 3: It seems that, you know, if, for example, plaintiffs don't 483 00:30:54,200 --> 00:30:57,920 Speaker 3: have standing, or if a case has defects like this 484 00:30:57,960 --> 00:31:00,400 Speaker 3: one does, that the justices may just pass on it. 485 00:31:00,680 --> 00:31:03,280 Speaker 3: I think it is a setback. But how significant is setback? 486 00:31:03,280 --> 00:31:05,680 Speaker 3: I think is challenging to determine. 487 00:31:05,880 --> 00:31:08,440 Speaker 2: Are there still at abortion clinics in a lot of 488 00:31:08,440 --> 00:31:11,560 Speaker 2: states people coming up to people walking in and trying 489 00:31:11,600 --> 00:31:13,560 Speaker 2: to dissuade them. Is that still going on? 490 00:31:14,240 --> 00:31:16,440 Speaker 3: It is to some degree. Yeah, I mean we know. 491 00:31:17,520 --> 00:31:20,360 Speaker 3: One of the I think obviously features of this is 492 00:31:20,400 --> 00:31:23,920 Speaker 3: that there were relatively few but there were some prosecutions 493 00:31:23,960 --> 00:31:27,760 Speaker 3: under the Federal Freedom of Access to Clinic Entrances Act, 494 00:31:28,080 --> 00:31:34,560 Speaker 3: and they're a relatively small percentage of prosecutions per protests, 495 00:31:34,960 --> 00:31:38,320 Speaker 3: and of course, you know, we expect to see more 496 00:31:38,360 --> 00:31:41,520 Speaker 3: of them because the Trump administration announced that they would 497 00:31:41,560 --> 00:31:46,480 Speaker 3: not be enforcing the Face Act against abortion opponents during 498 00:31:46,520 --> 00:31:49,640 Speaker 3: the Trump administration sort of regardless of what happens, so 499 00:31:50,320 --> 00:31:53,200 Speaker 3: there already are protests, and we'd expect to see more 500 00:31:53,320 --> 00:31:56,360 Speaker 3: to some degree. They're also more concentrated, of course, because 501 00:31:56,720 --> 00:31:59,120 Speaker 3: there are fewer places where it's possible to get a 502 00:31:59,200 --> 00:32:02,360 Speaker 3: legal abortion in the US, fewer clinics, so protesters can 503 00:32:02,480 --> 00:32:05,560 Speaker 3: kind of concentrate on the remaining locations. 504 00:32:06,360 --> 00:32:11,400 Speaker 2: Has the Trump administration made any other moves regarding abortion? 505 00:32:12,040 --> 00:32:12,640 Speaker 1: Not a lot. 506 00:32:12,760 --> 00:32:15,760 Speaker 3: So the Trump administration has made some of the kind 507 00:32:15,760 --> 00:32:18,560 Speaker 3: of standard moves we'd expect to see from a Republican 508 00:32:18,640 --> 00:32:24,840 Speaker 3: president on abortion, so for example, reinstituting limits on foreign 509 00:32:24,960 --> 00:32:30,720 Speaker 3: aid to NGOs that do abortion advocacy or referrals. We've 510 00:32:30,760 --> 00:32:34,160 Speaker 3: seen coded references to the idea of fetal personhood in 511 00:32:34,520 --> 00:32:38,440 Speaker 3: the Gender Executive Order that the Trump administration handed down. 512 00:32:38,600 --> 00:32:41,920 Speaker 3: As I mentioned that Trump and JD. Vance may clear 513 00:32:41,960 --> 00:32:44,920 Speaker 3: that there would be no more prosecutions under the face 514 00:32:44,960 --> 00:32:49,200 Speaker 3: AAC to protect access to abortion clinics or crisis pregnancy centers. Interestingly, 515 00:32:49,440 --> 00:32:51,800 Speaker 3: so we've seen that we haven't seen a lot of 516 00:32:51,800 --> 00:32:54,920 Speaker 3: the bigger moves that abortion opponents have been hoping for. 517 00:32:55,400 --> 00:32:57,520 Speaker 3: That doesn't mean we won't in the future, but Trump 518 00:32:57,520 --> 00:32:59,760 Speaker 3: has yet to take action on those fronts. 519 00:33:00,040 --> 00:33:04,320 Speaker 2: What are abortion opponents targeting right now is the abortion 520 00:33:04,400 --> 00:33:06,760 Speaker 2: film if a Pristone one of their targets. 521 00:33:07,400 --> 00:33:12,560 Speaker 3: The steps that they're primarily interested in are either imposing 522 00:33:12,640 --> 00:33:16,520 Speaker 3: new limits on mithapristone through FDA or directly through AHHS 523 00:33:16,560 --> 00:33:21,040 Speaker 3: Secretary Robert F. Kennedy, or potentially even removing mythapristone from 524 00:33:21,040 --> 00:33:26,800 Speaker 3: the market altogether. There's also a potential push to have 525 00:33:26,880 --> 00:33:29,640 Speaker 3: the Trump Justice Department treat the Comstock Act as a 526 00:33:29,680 --> 00:33:32,960 Speaker 3: de facto ban on mailing abortion related items and to 527 00:33:33,040 --> 00:33:36,080 Speaker 3: start prosecutions. Those are I think the two things that 528 00:33:36,120 --> 00:33:39,320 Speaker 3: have captured the most attention. The other thing, of course, 529 00:33:39,360 --> 00:33:41,640 Speaker 3: that will have a major impact but won't be as 530 00:33:41,640 --> 00:33:43,880 Speaker 3: evident in the short term, is that Trump will continue 531 00:33:43,960 --> 00:33:48,280 Speaker 3: to fill judicial vacancies with conservative judges like Matthew Tasmeric 532 00:33:48,360 --> 00:33:53,080 Speaker 3: and James Hoe, who've issued pretty strongly conservative and sweeping 533 00:33:53,160 --> 00:33:57,720 Speaker 3: rulings on abortion since Trump nominated them during his last administration. 534 00:33:57,880 --> 00:34:01,280 Speaker 3: So I think the courts overall will probably be moving 535 00:34:01,640 --> 00:34:04,080 Speaker 3: significantly to the right on these issues, but those are 536 00:34:04,080 --> 00:34:06,360 Speaker 3: not impacts we'll see from the Trump administration in the 537 00:34:06,400 --> 00:34:08,800 Speaker 3: coming weeks. That's a longer term change. 538 00:34:09,000 --> 00:34:12,840 Speaker 2: As far as RFK Junior, what is his position on abortion. 539 00:34:13,480 --> 00:34:15,760 Speaker 2: I mean, is he a threat to abortion rights? 540 00:34:16,360 --> 00:34:19,319 Speaker 3: It's difficult again to say so. RFK had telegraphed during 541 00:34:19,360 --> 00:34:24,000 Speaker 3: and after his confirmation hearing that he would be investigating 542 00:34:24,040 --> 00:34:27,960 Speaker 3: the safety of MIFFA pristone at Donald Trump's request. Now, 543 00:34:28,040 --> 00:34:30,359 Speaker 3: abortion opponents, on the one hand, we're excited about this, 544 00:34:30,440 --> 00:34:32,920 Speaker 3: because there's no real need to studying mif for pristone 545 00:34:33,000 --> 00:34:36,719 Speaker 3: unless you're telegraphing a move to limit it. MIHA. Pristone's 546 00:34:36,760 --> 00:34:39,680 Speaker 3: one of the most studied and really regulated drugs in 547 00:34:39,719 --> 00:34:42,040 Speaker 3: the United States. On the other hand, of course, the 548 00:34:42,040 --> 00:34:45,840 Speaker 3: Trump administration has been perfectly capable of taking very quick 549 00:34:45,920 --> 00:34:50,000 Speaker 3: action to establish policies at wants, and the fact that 550 00:34:50,080 --> 00:34:53,880 Speaker 3: it's sort of slow walking these policies may mean that 551 00:34:53,880 --> 00:34:56,720 Speaker 3: the Trump administration is simply trying to buy time rather 552 00:34:56,800 --> 00:34:59,759 Speaker 3: than building toward a sweeping new abortion policy. So I 553 00:34:59,760 --> 00:35:02,640 Speaker 3: think just too early to say which of those we're seeing. 554 00:35:03,600 --> 00:35:09,120 Speaker 2: Something that caught my eye is two states, Louisiana and Texas, 555 00:35:09,880 --> 00:35:14,719 Speaker 2: criminally prosecuting a doctor in New York for sending out 556 00:35:14,760 --> 00:35:15,760 Speaker 2: abortion pills. 557 00:35:16,400 --> 00:35:21,600 Speaker 3: There are two cross border disputes that have unfolded. Texas 558 00:35:21,640 --> 00:35:26,280 Speaker 3: has already had a civil judgment, a default judgment against 559 00:35:26,520 --> 00:35:28,880 Speaker 3: doctor Carpenter from New York that it's going to have 560 00:35:28,920 --> 00:35:31,960 Speaker 3: to try to enforce in the New York courts. And meanwhile, 561 00:35:32,080 --> 00:35:35,560 Speaker 3: Louisiana prosecutors are trying to extradite that same New York 562 00:35:35,600 --> 00:35:38,799 Speaker 3: doctor to Louisiana to face criminal charges. And we know 563 00:35:38,920 --> 00:35:41,600 Speaker 3: that New York Governor Kathy Hoko has made clear that 564 00:35:41,640 --> 00:35:44,799 Speaker 3: she has no plans to extradite doctor Carpenter. So both 565 00:35:44,840 --> 00:35:48,560 Speaker 3: of these cases seem likely to end up with disputes 566 00:35:48,560 --> 00:35:51,399 Speaker 3: in federal court that will probably eventually make their way 567 00:35:51,440 --> 00:35:52,320 Speaker 3: to the Supreme Court. 568 00:35:52,680 --> 00:35:56,160 Speaker 2: There must be a lot of doctors sending abortion pills 569 00:35:56,200 --> 00:35:58,600 Speaker 2: through the mail. Is there a reason why they went 570 00:35:58,680 --> 00:36:00,680 Speaker 2: after that doctor in particular? 571 00:36:01,280 --> 00:36:03,720 Speaker 3: I think it's largely just a function of what evidence 572 00:36:03,840 --> 00:36:06,960 Speaker 3: they find. In the Texas case, a partner of an 573 00:36:07,000 --> 00:36:10,000 Speaker 3: abortion patient who took her to the hospital when she 574 00:36:10,040 --> 00:36:14,080 Speaker 3: thought she was experiencing complications went home found the pills 575 00:36:14,160 --> 00:36:17,279 Speaker 3: which doctor Carpenter had prescribed. Remember at this point in time, 576 00:36:17,320 --> 00:36:21,840 Speaker 3: New York wasn't allowing for anonymous prescriptions, and then reported 577 00:36:21,880 --> 00:36:26,880 Speaker 3: this to local law enforcement, which led to the complaint 578 00:36:26,880 --> 00:36:30,399 Speaker 3: filed against her In Louisiana, it seems to have been 579 00:36:30,680 --> 00:36:36,520 Speaker 3: similarly coincidental. A woman ordered pills from doctor Carpenter for 580 00:36:36,719 --> 00:36:40,080 Speaker 3: her daughter, and when the daughter took the pills when 581 00:36:40,080 --> 00:36:43,880 Speaker 3: the mother wasn't home, she was worried about the bleeding 582 00:36:44,000 --> 00:36:46,400 Speaker 3: she was experiencing and called nine to one one and 583 00:36:46,480 --> 00:36:49,520 Speaker 3: law enforcement again found the pills with doctor Carpenter's name 584 00:36:49,560 --> 00:36:52,759 Speaker 3: on them. So I think there will likely be a 585 00:36:52,800 --> 00:36:56,040 Speaker 3: certain amount of randomness in terms of who's targeted in 586 00:36:56,080 --> 00:36:58,960 Speaker 3: these kinds of cross border disputes, just depending on what 587 00:36:59,080 --> 00:37:01,120 Speaker 3: law enforcement can actually uncover. 588 00:37:01,719 --> 00:37:05,920 Speaker 2: And this month, Governor hokel signed a law that shields 589 00:37:05,920 --> 00:37:10,320 Speaker 2: the identity of doctors in New York who prescribe abortion pills. 590 00:37:10,560 --> 00:37:12,560 Speaker 2: Thanks so much for being on the show. Mary. That's 591 00:37:12,600 --> 00:37:16,279 Speaker 2: Professor Mary Ziegler of UC Davis Law School. And that's 592 00:37:16,320 --> 00:37:18,920 Speaker 2: it for this edition of The Bloomberg Law Show. Remember 593 00:37:18,960 --> 00:37:21,040 Speaker 2: you can always get the latest legal news on our 594 00:37:21,080 --> 00:37:25,239 Speaker 2: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 595 00:37:25,400 --> 00:37:30,439 Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law. 596 00:37:30,840 --> 00:37:33,440 Speaker 2: And remember to tune into The Bloomberg Law Show every 597 00:37:33,480 --> 00:37:37,400 Speaker 2: weeknight at ten pm Wall Street time. I'm June Grosso 598 00:37:37,520 --> 00:37:39,120 Speaker 2: and you're listening to Bloomberg