Thomas and Alito sound eager to push for execution despite prosecutor’s objection
Even Oklahoma’s Republican attorney general thinks death row prisoner Richard Glossip should get a new trial. You might think that automatically means he wouldn’t be executed, but it’s not that simple with this Supreme Court.
Indeed, the court appointed a third party to defend the state court ruling that, if upheld by the justices, would send Glossip to the execution chamber. That’s despite the state’s admission that prosecutorial misconduct tainted his trial.
All this led to a strange high court hearing in Washington on Wednesday, where three lawyers presented arguments to the justices. One represented Glossip, another represented Oklahoma, and the third defended the Oklahoma Court of Criminal Appeals’ ruling against Glossip.
It’s not unheard of for the justices to appoint third parties to defend abandoned positions, but the practice made for an unusual outing in this capital case. Former U.S. solicitors general represented Glossip (Seth Waxman) and Oklahoma (top conservative lawyer Paul Clement). The appointed lawyer, Christopher Michel, also previously worked in the solicitor general’s office, and he clerked for Chief Justice John Roberts as well as Justice Brett Kavanaugh when the latter was a federal appeals court judge.
But despite the state’s confession of error, Justices Clarence Thomas and Samuel Alito in particular quizzed the lawyers in ways that suggested those justices want Glossip’s execution to go forward. That’s not surprising, given that they and Justice Neil Gorsuch have split from even their Republican-appointed colleagues to vote against death row prisoners.
So what about Gorsuch, then? In another twist, he’s recused. He didn’t explain why, but it’s probably because he sat on prior Glossip-related litigation when he was a federal appellate judge on the court that covers Oklahoma.
But even in Gorsuch’s absence, it’s not guaranteed that Glossip and Oklahoma will succeed in getting a new trial. Because a 4-4 tie would uphold the state court ruling, they need to convince a majority of this eight-justice court. Wednesday’s hearing reflected that the court’s three Democratic appointees are (as expected) prepared to side with Glossip, who maintains his innocence. That leaves the open question of Roberts and Justices Kavanaugh and Amy Coney Barrett, whose votes can be decisive at the court these days. This life-or-death appeal is no different.
How the court will ultimately rule, in a decision expected by late June, is further complicated by the fact that there are multiple legal issues in play. There’s a threshold issue (added by the court when it took up the case) about whether the justices even have jurisdiction to review the Oklahoma state court ruling. It’s the sort of procedural hurdle that the high court likes to employ, to avoid having to deal with potential injustices lurking in the actual merits of cases.
The merits of Glossip’s appeal deal with due process, including whether that constitutional mandate was violated when prosecutors suppressed their key witness’s admission that he was under the care of a psychiatrist and failed to correct the witness’s false testimony about that care and related diagnosis.
With the caveat that questions at oral argument don’t necessarily signal how a justice will vote, Kavanaugh at one point asked the appointed lawyer, Michel, a question that could be seen as hopeful for Glossip:
I think you had said earlier …, if you get past all the procedural bars and you get to the point where the prosecutors didn’t comply with their obligations, that it still wouldn’t have made a difference to the jury had they known that Sneed [the key state witness] was bipolar and that he had lied on the stand. And I’m having some trouble on that last piece of the argument, if we get there, … when the whole case depended on his credibility.
Thomas, meanwhile, seemed to take offense at the notion that there was prosecutorial misconduct in this case. At least he thought the prosecutors didn’t get to fully explain themselves. “[I]t would seem that because not only, you know, their reputations are being impugned, but they are central to this case, it would seem that … an interview of these two prosecutors would be central,” Thomas said, in a theme that he pressed throughout the hearing.
Lawyers for Glossip and Oklahoma contested that the prosecutors were given short shrift. But on the subject of factual discrepancies in the case, some justices’ questions raised the prospect of the court sending the case back for a hearing to get more information. While that could obviously be better for Glossip (and Oklahoma) than the justices upholding the state court ruling against him right now, his lawyer said on Wednesday that “[n]o evidentiary hearing could alter the conclusion that Mr. Glossip was denied due process.”
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