Death-Row Inmate Backed by State Divides Supreme Court (1)

It wasn’t obvious that the US Supreme Court will undo Oklahoma inmate Richard Glossip’s death sentence even though the state’s Republican attorney general agrees that it should be undone.

The case argued Wednesday shows how difficult it is for capital defendants to win with the current 6-3 conservative majority, as Glossip has several hurdles to overcome before he can get a new trial.

The attorney general “did not confess error here lightly,” said Oklahoma’s attorney Paul Clement, referring to state Attorney General Gentner Drummond’s 2023 statement. In it, Drummond said he “cannot stand behind the murder conviction and death sentence” because of multiple constitutional flaws by prosecutors.

Several of the justices were supportive of Glossip’s claims that prosecutors withheld favorable evidence and failed to correct knowingly false testimony made at trial.

Along with the court’s three liberal justices, Justice Brett Kavanaugh was skeptical of the argument that even absent the alleged prosecutorial misconduct, the jury would have voted the same. “I’m having some trouble on that last piece of the argument,” when the misconduct related to the state’s star witness and the “whole case depended on his credibility,” Kavanaugh said.

But Justice Neil Gorsuch is recused from the case because he sat on a version of it while a judge on the US Court of Appeals for the Tenth Circuit. So Glossip can only lose three votes, as an evenly split court will affirm a state court ruling against him.

And at least two justices, Clarence Thomas and Samuel Alito, appear to be likely votes against Glossip.

Alito described the notes upon which Glossip relies as “cryptic,” suggesting he doesn’t read them the same way Glossip and the state’s attorney general does. “You read a lot into that,” Alito told Glossip’s attorney Seth Waxman. Thomas agreed that he “couldn’t make heads or tails” of the notes.

The case will seemingly come down to Chief Justice John Roberts and Justice Amy Coney Barrett, who asked both sides probing questions.

Roberts, for example, at one point suggested that the evidence, even if revealed to the jury, was unlikely to change the outcome. “Do you really think it would make that much of a difference,” Roberts asked Clement.

But later he pressed Christopher Michel, the attorney appointed by the court to argue in defense of the Oklahoma criminal court’s decision, on whether that was really true, suggesting he agreed with Kavanaugh that the evidence might have undone the star witness’s credibility.

State Grounds

Before the justices can even get to the merits of the effect the evidence would have had, Glossip must first overcome an issue the justices introduced into the case. That’s whether the court even has jurisdiction to decide the dispute.

Quinn Emanuel’s Michel said the justices don’t have jurisdiction because the state court’s decision, while rejecting the federal constitutional claims, also rejected Glossip’s appeal on “adequate and independent state grounds.” The Supreme Court only reviews issues of federal law.

There’s an Oklahoma statute that has two requirements, Alito said. The state judges went “through the two requirements, and they say that they weren’t satisfied,” he said. “I don’t see what’s unclear or even ambiguous about that.”

Clement, a former US solicitor general who is now with Clement & Murphy, emphasized that the state had waived that argument. But in a departure from “a hundred years of unbroken practice” of allowing parties to present the case as they see it, the Oklahoma court rejected that waiver.

That’s important, WilmerHale’s Waxman said, because a procedural ruling can’t form the basis of an adequate and independent state ground “unless strictly or regularly followed.” Waxman is also a former US solitor general.

Several justices pressed Michel on what Barrett said was the state court’s “unusual” ruling. “Do you have any other” waiver of a “procedural bar ever that Oklahoma has rejected?” Justice Ketanji Brown Jackson asked. “No, right?”

Confessing Error

If there are enough justices who agree that the court can reach the merits, it still isn’t a slam dunk that Glossip will win—at least not outright.

The heart of the case centers largely on notes taken by a state prosecutor that indicates that the state’s star witness was prescribed lithium for bipolar disorder. That witness testified at trial that he was given lithium for a cold.

Michel emphasized that the notes were just three words: “Lithium? Dr. Trumpet?” The witness testified for five hours and the testimony about lithium “was about 30 seconds.”

Justice Elena Kagan balked at the idea that that wouldn’t have had an effect on the jury, however.

“False is false,” Kagan said. Maybe reasonable minds could disagree about the significance of the testimony, but here “the critical question that a jury is asking is, do I believe this guy and everything he says and particularly, do I believe him when he points the finger at the accused?”

If “I know that he has gotten up to the stand and lied about anything, whether it’s important or not,” then “I’m going to take that into account in deciding whether, when he accuses the defendant, he’s telling the truth,” Kagan said.

Alito suggested that perhaps the court should remand the case back to state court for an evidentiary hearing on what the note really means.

If the court thinks an evidentiary hearing is necessary, “then the attorney general will be there, confessing error again,” Clement said.

The case is Glossip v. Oklahoma, U.S., No. 22-7466, argued 10/9/24.