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Justices Grapple With Unique Death Penalty Case · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:14
Speaker 2: Attorney General Drummond did not confess error here lightly. Indeed,
0:19
Speaker 2: he continues to defend multiple capital convictions and opposed mister
0:24
Speaker 2: Glossop's penultimate sert petition, But after commissioning an independent review,
0:30
Speaker 2: he reluctantly reached the conclusion that Brady and Napu violations
0:34
Speaker 2: by the state's own prosecutors obligated him to confess error
0:39
Speaker 2: and waive procedural obstacles.
0:41
Speaker 3: It's a very unusual death penalty case where the State
0:44
Speaker 3: of Oklahoma is coming before the Supreme Court on the
0:48
Speaker 3: same side as a defendant on death row, arguing that
0:52
Speaker 3: Richard Glossop's murder conviction and capital sentence should be Undone
0:57
Speaker 3: former US Solicitor General Paul Clement argued for Oklahoma's attorney general,
1:03
Speaker 3: who'd issued what's known as a confession of error after
1:07
Speaker 3: finding out that the prosecutor in Glossop's case had suppressed
1:11
Speaker 3: evidence about the state's star witness and elicited his false testimony.
1:16
Speaker 2: They're looking at the testimony that their prosecutor elicited. They're
1:19
Speaker 2: looking at that in context of the notes and the
1:22
Speaker 2: medical information sheet, and General Drummond reached the conclusion regretfully,
1:28
Speaker 2: but reached the conclusion, our prosecutors elicited perjury here, and
1:31
Speaker 2: a man's going to go to his death. We can't
1:33
Speaker 2: allow that to happen.
1:35
Speaker 3: The prosecutor's handwritten notes, which were unearthed in twenty twenty
1:39
Speaker 3: two from a box of evidence not turned over to
1:42
Speaker 3: the defense, revealed that the star witness had been diagnosed
1:46
Speaker 3: with bipolar disorder and was being treated by a psychiatrist
1:50
Speaker 3: with lithium. Several of the justices seemed divided about the
1:54
Speaker 3: importance of the information that was withheld and how it
1:58
Speaker 3: might have impacted the jury's verdict. Here are Chief Justice
2:03
Speaker 3: John Roberts and Justice is Elena Kagan and Brett Kavanaugh.
2:08
Speaker 4: Because the jury knew about the lithium, and what they
2:11
Speaker 4: didn't know is that it was prescribed by a psychiatrist.
2:15
Speaker 4: Do you really think it would make that much of
2:17
Speaker 4: a difference to the jury.
2:19
Speaker 5: That seems pretty material to me. I mean, it's just
2:22
Speaker 5: your one witness has been exposed as a liar.
2:27
Speaker 6: Would have made the conviction more likely if the jury
2:29
Speaker 6: knows that, not only does he have an incentive to lie,
2:32
Speaker 6: that he's lied on the stand in that he's bipolar,
2:36
Speaker 6: therefore creating all sorts of avenues for questioning his credibility.
2:42
Speaker 3: Joining me is Cliff Sloan, a professor at Georgetown Law
2:45
Speaker 3: who's argued several cases at the Supreme Court, including a
2:49
Speaker 3: victory in a case involving the death penalty. Golossip has
2:53
Speaker 3: been on death row for more than twenty five years.
2:56
Speaker 3: He's faced nine execution dates in all, and eaten his
3:00
Speaker 3: last meal three times. Tell us about the evidence that's
3:04
Speaker 3: been discovered lately by the Oklahoma Attorney General.
3:08
Speaker 7: So what was discovered was very important prosecutorial notes establishing
3:16
Speaker 7: that the main witness, and really the only witness tying
3:21
Speaker 7: Golossop to the murder, had a bipolar disorder and had
3:26
Speaker 7: received lithium under a prescription from a psychiatrist. And this
3:31
Speaker 7: was directly contrary to this witness's testimony at the trial
3:37
Speaker 7: where he said he had received lithium for a cold,
3:41
Speaker 7: and he flatly said he had never seen a psychiatrist,
3:44
Speaker 7: And right there in the notes of the prosecutor or
3:48
Speaker 7: notes establishing that it was from a psychiatrist. And also
3:53
Speaker 7: there was separately a medical record establishing that the psychiatrist
3:58
Speaker 7: had prescribed the lithium for the bipolar disorder. This would
4:02
Speaker 7: have been extremely important to the jury both in its
4:05
Speaker 7: consideration of guilt or innocence and in his consideration of
4:09
Speaker 7: the death penalty. Because the witness was really the entire
4:14
Speaker 7: case against mister Glossop. It's undisputed he had no role
4:19
Speaker 7: in the actual killing of the victim himself. The theory
4:23
Speaker 7: of the state was that he hired this other man's
4:27
Speaker 7: Need to do the killing, and so Need's testimony was
4:31
Speaker 7: the only thing that linked Glossop to the killing.
4:35
Speaker 3: An unusual piece to this case is that Oklahoma's Republican
4:40
Speaker 3: Attorney General, Gentner Drummond, is arguing alongside Glossop that his
4:46
Speaker 3: murder conviction should be undone.
4:49
Speaker 7: The Republican Attorney General of Oklahoma, who generally is very
4:53
Speaker 7: much in favor of the death penalty, has really acted
4:57
Speaker 7: in the finest traditions of justice here because he commissioned
5:01
Speaker 7: an independent investigation which concluded that mister Glossop's conviction and
5:07
Speaker 7: his death penalty cannot stand because of this false testimony
5:12
Speaker 7: and because of the failure to turn over important evidence
5:18
Speaker 7: to the defense, which is a constitutional violation, and so
5:21
Speaker 7: he concluded, in good conscience he had to stand up
5:25
Speaker 7: and say that the conviction should be set aside and
5:29
Speaker 7: the death penalty should be set aside. And there also
5:32
Speaker 7: was another independent investigation commissioned by the Republican state legislature
5:37
Speaker 7: which reached the same conclusion. But what is really striking
5:41
Speaker 7: here is that the Oklahoma court has rejected the prosecutor's
5:47
Speaker 7: determination that there needs to be a new trial and
5:51
Speaker 7: that the death suttons cannot stand. And you know, the
5:54
Speaker 7: Glossop case really illustrates three of the most troubling characteristics
6:00
Speaker 7: of the death penalty in the United States today. One
6:03
Speaker 7: of them is the prevalence of cases of innocence and
6:08
Speaker 7: exoneration of people on death row. There have been two
6:13
Speaker 7: hundred people on death row who have been found to
6:17
Speaker 7: be innocent and who have been exonerated, a truly shocking
6:21
Speaker 7: and alarming fact. The second problem that it highlights is
6:26
Speaker 7: the problem of misconduct by prosecutors. And in seventy percent
6:33
Speaker 7: of the cases where there has been found to be
6:36
Speaker 7: innocence of people on death row, there has been misconduct
6:40
Speaker 7: by prosecutors, exactly this kind of thing, putting on false
6:44
Speaker 7: testimony not correcting it not turning over very important evidence.
6:49
Speaker 7: And the third, very disturbing problem is when courts don't
6:54
Speaker 7: accept prosecutors' conclusions that a conviction and a death penalty
7:00
Speaker 7: cannot stand. That happened recently in the execution of Marcellus Williams,
7:06
Speaker 7: and we're seeing it in the Glossop case where the
7:08
Speaker 7: Oklahoma Court just flatly rejected the very considered decisions of
7:14
Speaker 7: the Oklahoma Attorney General as the prosecutors in the case
7:18
Speaker 7: that the conviction and the death penalty cannot stand.
7:21
Speaker 3: What exactly is the Supreme Court reviewing what aspects of
7:26
Speaker 3: the case.
7:27
Speaker 7: Well, it's reviewing two points. One is on the substance
7:32
Speaker 7: of the claims. Has there been established a constitutional violation
7:37
Speaker 7: in terms of both the perjured testimony that the prosecutors
7:42
Speaker 7: did not correct and in terms of the very important
7:46
Speaker 7: evidence that was not turned over to the defense. And
7:48
Speaker 7: so that's on the merits. And again you have both
7:51
Speaker 7: Glossop and the Oklahoma Attorney General saying these are very
7:55
Speaker 7: very strong grounds for concluding that there were fundamental institutional
8:00
Speaker 7: violations here. Now there's also a procedural question because in
8:04
Speaker 7: the Oklahoma Court opinion it made some reference to state
8:10
Speaker 7: rules about the preservation of certain kinds of issues, and
8:14
Speaker 7: it's a kind of technical procedural issue. But there's a
8:17
Speaker 7: question that the Supreme Court will be considering, which is
8:21
Speaker 7: whether Oklahoma's rejection of the attorney General's position is based
8:28
Speaker 7: on a state rule that is sufficient without getting into
8:32
Speaker 7: the federal constitutional issues. Now, the argument by mister Glossop
8:37
Speaker 7: and by the Oklahoma Attorney General is that no, there's
8:40
Speaker 7: not an independent state ground, that that reference is completely
8:45
Speaker 7: interwoven with the Oklahoma court rejections, erroneous rejections in their
8:51
Speaker 7: view of the constitutional claim. So that's a kind of
8:54
Speaker 7: threshold procedural question that the Supreme Court also will have
8:58
Speaker 7: to decide.
8:59
Speaker 3: And at the arguments, a lot of time was spent
9:03
Speaker 3: on the procedural issue. Justice Samuel Alito, in my mind,
9:07
Speaker 3: seemed to be taking on the role of attacking Glossop's case.
9:11
Speaker 7: Well, you know, that's the issue that's presented about whether
9:15
Speaker 7: there's a threshold procedural problem that is based in state
9:20
Speaker 7: law and that would prevent the Supreme Court from reaching
9:25
Speaker 7: the federal constitutional issues. So it's an important threshold issue.
9:29
Speaker 7: But you had other justices very much emphasizing that they
9:34
Speaker 7: don't think that is a serious problem that they think
9:36
Speaker 7: it's clear that the Oklahoma Court rested its decision on
9:41
Speaker 7: an erroneous analysis of the federal constitutional claims, that the
9:46
Speaker 7: state procedural reference was wrapped up in that. And you
9:49
Speaker 7: even had Justice Kagan asking a question where she suggested
9:53
Speaker 7: that the reference to the state procedural issue was simply
9:58
Speaker 7: because the Oklahoma Court was growing in the entire kitchen sink,
10:02
Speaker 7: and so it was just mixed up with a lot
10:04
Speaker 7: of other things. It had no independent basis. And you
10:07
Speaker 7: also had a number of the justices, including Justices Kagan,
10:11
Speaker 7: so the mayor and Jackson emphasizing that this supposed independent
10:17
Speaker 7: rule that the Oklahoma Court was enforcing had never been
10:22
Speaker 7: enforced in this kind of context in any case other
10:26
Speaker 7: than one involving Richard Colossa, which added to their view.
10:31
Speaker 7: But this is something that was a makewight that Oklahoma
10:34
Speaker 7: was just throwing in and is not a bar to
10:38
Speaker 7: Supreme Court review.
10:39
Speaker 3: So Glossop has a claim of a Brady violation where
10:43
Speaker 3: the prosecutor didn't turn over evidence, and also what's known
10:47
Speaker 3: as a Napou violation where the prosecutor presented false testimony.
10:53
Speaker 3: Here's Justice Elena Kagan on.
10:54
Speaker 5: That a NAPOO violation is a pretty dramatic thing when
10:58
Speaker 5: a prosecutor says, leg, well, stop there, that was a lie.
11:02
Speaker 7: Under NAPU, a prosecutor, of course cannot put on perjured testimony.
11:07
Speaker 7: And if the prosecutor learns that the testimony has been perjured,
11:11
Speaker 7: the prosecutor has to correct it or notify the defense
11:14
Speaker 7: about it. And here what the independent investigations have found
11:19
Speaker 7: is that the prosecutor put on perjured testimony, never corrected
11:24
Speaker 7: it to the contrary, took efforts to protect it. It's
11:28
Speaker 7: a very very serious constitutional violation. It goes to the
11:33
Speaker 7: heart of what the criminal justice system should be about.
11:36
Speaker 7: And you know, some of the justices were very much
11:40
Speaker 7: bothered by this violation and seemed to think that it
11:44
Speaker 7: has opened and shut. Other justices seemed more skeptical about
11:49
Speaker 7: whether it was as clear a violation and also how
11:55
Speaker 7: significant it would have been, you know, in terms of materiality,
11:59
Speaker 7: which is important for NAPO, and whether it would have
12:02
Speaker 7: made a difference or not. So, you know, I think
12:04
Speaker 7: there's clearly a split among the justices both about the
12:08
Speaker 7: procedure and the substance in terms of how they're viewing it.
12:11
Speaker 7: You should also mention there's one other possibility that came
12:15
Speaker 7: up in the argument, which would be to send it
12:18
Speaker 7: back for additional fact finding. You know, the position of
12:21
Speaker 7: Glossop and the Oklahoma Attorney General is that it's so
12:25
Speaker 7: clear that there's a NAPU violation and a Brady violation
12:28
Speaker 7: from not turning over, you know, very important evidence bearing
12:31
Speaker 7: on guilt or innocence, that there's no additional fact finding
12:36
Speaker 7: that's necessary. And the position of the Oklahoma Court was
12:41
Speaker 7: simply that his conviction should be affirmed and the death
12:43
Speaker 7: penalty should go forward. But a couple of the justices
12:46
Speaker 7: were suggesting that perhaps what should happen is that it
12:50
Speaker 7: should be sent back for additional fact finding about exactly
12:55
Speaker 7: what happened and how important it was. And again some
12:58
Speaker 7: of the justices were very explicit things that they didn't
13:01
Speaker 7: think that was necessary in light of the record and
13:03
Speaker 7: how clear the violations were.
13:07
Speaker 3: Richard Glossop has been on death row in Oklahoma for
13:11
Speaker 3: more than twenty five years. His case has reached the
13:14
Speaker 3: Supreme Court twice. Today's oral argument showed how difficult it
13:19
Speaker 3: is for capital defendants to win with the current six
13:22
Speaker 3: to three conservative majority, even in a case like Glossops,
13:27
Speaker 3: where Oklahoma's Attorney General agrees that his conviction and death
13:30
Speaker 3: sentence should be undone, and in fact is arguing at
13:34
Speaker 3: the Supreme Court alongside Glossop's attorney. I've been talking to
13:38
Speaker 3: Professor Cliff Stone of Georgetown Law. What seemed odd to
13:42
Speaker 3: me about Justice Clarence Thomas's questions is that in this
13:47
Speaker 3: case where a man is facing execution, his only questions
13:52
Speaker 3: to the three attorneys were about the prosecutors accused of
13:57
Speaker 3: these ethical violations and whether this was going to harm
14:00
Speaker 3: their reputations.
14:02
Speaker 8: Well, shouldn't these two prosecutors. It seems as though their
14:05
Speaker 8: reputations are being impugned, and according to them, they did
14:11
Speaker 8: not receive an opportunity to explain in depth.
14:17
Speaker 2: Justice Thomas. That's hard to square with the record here.
14:19
Speaker 2: There were two independent investigations.
14:23
Speaker 7: Well, I do think that the emphasis that Justice Thomas
14:26
Speaker 7: was giving on his concern about the prosecutor's reputation was
14:31
Speaker 7: very odd and misplaced. Here. You know, as the lawyer
14:35
Speaker 7: for the Oklahoma Attorney General, Paul Clement, said the proceeding
14:39
Speaker 7: that we have to be worried about is the fairness
14:42
Speaker 7: of the proceeding in the trial and death sentence of
14:47
Speaker 7: mister Glossop, and whether that stands or not, and the
14:50
Speaker 7: constitutional issues there. And you know, as you say, Justice
14:54
Speaker 7: Thomas seemed extremely concerned about the reputation of the prosecutors.
14:58
Speaker 7: The other odd point about Justice Thomas's questions one he
15:03
Speaker 7: kept emphasizing whether they had been interviewed, how much they
15:07
Speaker 7: had been interviewed, And in fact, as the lawyers pointed out,
15:11
Speaker 7: the prosecutors had been talked to in the course of
15:15
Speaker 7: the independent investigations, and in fact one of them had
15:18
Speaker 7: put in an affidavit. But the other point is that
15:22
Speaker 7: just as Thomas kept talking about what the prosecutors alone knew,
15:28
Speaker 7: and even if there was other information in government files
15:32
Speaker 7: that would have been very important to mister Glossop and
15:36
Speaker 7: his defense, well, how could they show the prosecutors actually
15:41
Speaker 7: knew about it. And as some of the other justices
15:44
Speaker 7: were pointing out in response to Justice Thomas, you know,
15:47
Speaker 7: the prosecutors are imputed to have knowledge of all of
15:51
Speaker 7: the information that is available within the government bearing on
15:55
Speaker 7: the defendant skills or innocence. It is absolutely not of
15:59
Speaker 7: that position for prosecutor to say, essentially, well, oh, that
16:05
Speaker 7: was in the file cabinet down the hall. I hadn't
16:07
Speaker 7: looked in that file cabinet. And yet that's what Justine
16:10
Speaker 7: Thomas seemed to be really talking a lot about. How
16:13
Speaker 7: could you show that this particular prosecutor had read this
16:18
Speaker 7: particular document even though there was no dispute that it
16:22
Speaker 7: was within the government files.
16:24
Speaker 3: In this case, since the State of Oklahoma was arguing
16:28
Speaker 3: on the side of the defendant, Richard Glossop, the court
16:32
Speaker 3: appointed an attorney to argue in defense of the Oklahoma
16:37
Speaker 3: Criminal Court's decision, Christopher Michelle, and he basically argued that
16:43
Speaker 3: the withheld information wouldn't have made any difference in the
16:47
Speaker 3: jury's determination of the credibility of the state's star witness
16:51
Speaker 3: and wouldn't have made a difference in the verdict, and
16:54
Speaker 3: Justice Elena Kaigan vehemently disagreed with him.
16:58
Speaker 5: The critical question that the jury is asking is do
17:01
Speaker 5: I believe this guy in everything he says? And particularly
17:04
Speaker 5: do I believe him when he points the finger at
17:07
Speaker 5: the accuse? And if I know that he has gotten
17:10
Speaker 5: up to the stand and lied about anything, whether it's
17:13
Speaker 5: important or not, it might have been important, It might
17:16
Speaker 5: not have been important if he's lying, if he's trying
17:19
Speaker 5: to cover up something about his own behavior. I'm going
17:23
Speaker 5: to take that into account and deciding whether when he
17:25
Speaker 5: accuses the defendant he's telling the truth.
17:28
Speaker 9: Justice Kagan, I think in many cases where we were
17:31
Speaker 9: starting from the blank slate, that the witness is presumed
17:34
Speaker 9: to be credible, one lie would be important. In this case,
17:37
Speaker 9: the witness admitted that he beat a man to death
17:39
Speaker 9: with a baseball bat. The witness admitted that he was
17:41
Speaker 9: testifying in exchanged for avoiding the death penalty. The jury
17:45
Speaker 9: already had significant credibility questions about justin sneak.
17:49
Speaker 3: So how important does it have to be for a
17:51
Speaker 3: NAPU violation. What's the standard?
17:53
Speaker 7: Well, you know there is a standard of materiality. You know,
17:57
Speaker 7: eventually whether it would be relevant to the issues the
18:01
Speaker 7: juries making a decision about, and whether it would make
18:05
Speaker 7: a difference or could make a difference. But here it
18:08
Speaker 7: seems that the case for materiality is so strong because
18:13
Speaker 7: again the withheld evidence established that the main witness, who
18:20
Speaker 7: was the entire case against Glossop was lying about an
18:24
Speaker 7: important point. Now, the lawyer who was defending what the
18:28
Speaker 7: Oklahoma Court was saying. He was saying, well, the jury
18:31
Speaker 7: knew that he was taking lithium. But that's the whole point.
18:35
Speaker 7: He explicitly testifies he had taken lithium for a cold,
18:40
Speaker 7: and he denied that he had ever seen a psychiatrist
18:43
Speaker 7: or it was because of a mental condition. That was
18:46
Speaker 7: totally false. And when he's really the only witness against Glossop,
18:51
Speaker 7: for the jury to know first of all that actually
18:56
Speaker 7: he had at the time of the offense untreated bipolar
19:00
Speaker 7: disorder when he killed the victim, that would have been
19:03
Speaker 7: very important for the jury to know. But it also
19:05
Speaker 7: would have been very important for the jury to know
19:08
Speaker 7: that he was blatantly lying, because the jury had a
19:12
Speaker 7: very important credibility determination to make about this individual whose
19:17
Speaker 7: testimony was so important. And again to know that he
19:21
Speaker 7: was flat outline, that's the classic kind of Napoo violation
19:26
Speaker 7: of perjured testimony, is the classic of Brady violation. But
19:31
Speaker 7: important information that should be given to the defense, and
19:36
Speaker 7: so the idea that well they knew he was taking lithium,
19:40
Speaker 7: and the fact that he said it was for a
19:41
Speaker 7: cold rather than because it had been prescribed by a psychiatrist,
19:45
Speaker 7: and even though he had denied ever seeing a psychiatrist.
19:48
Speaker 7: To me, that's completely unpersuasive in the context of this case.
19:53
Speaker 7: It just is of sort of ignoring what was really
19:56
Speaker 7: the main focus at the time.
19:58
Speaker 3: So, I mean, it's hard to read through oral arguments
20:02
Speaker 3: what's going to happen, and particularly in this case where
20:06
Speaker 3: a lot of the justices said very little. I mean,
20:09
Speaker 3: it seems obvious that Alito and Thomas are not going
20:13
Speaker 3: to vote in Glossop's favor. In fact, last time this
20:17
Speaker 3: case was before the Supreme Court regarding the method of
20:21
Speaker 3: execution in twenty fifteen, Alita wrote, is it appropriate for
20:25
Speaker 3: the judiciary to countenance what amounts to a guerrilla war
20:29
Speaker 3: against the death penalty? How do you see it? Do
20:31
Speaker 3: you have any idea of what the lineup might be
20:33
Speaker 3: from these arguments?
20:35
Speaker 7: Well, you know, with the usual important caveat, that is
20:40
Speaker 7: very difficult to predict. Here's what I took away from
20:45
Speaker 7: the argument. And by the way, just as course it
20:47
Speaker 7: was not participating, but it aems from the argument that
20:51
Speaker 7: Alito and Justice Thomas were very hostile to claims and
20:57
Speaker 7: to the position of the Oklahoma Attorney General and very
21:00
Speaker 7: skeptical of it. It seems that Justices Soda, Mayor, Kagan,
21:05
Speaker 7: and Jackson were very sympathetic to the positions of Glossop
21:11
Speaker 7: and the Oklahoma Attorney General, And so that leaves Chief
21:15
Speaker 7: Justice Roberts, Justice Kavanaugh, and Justice Barrett. And I think
21:18
Speaker 7: it was difficult to tell from the questions exactly where
21:23
Speaker 7: those three are. And I think that you know that's
21:26
Speaker 7: going to be the ballgame where those three justices are.
21:30
Speaker 3: And since Justice Gorsuch recused himself, most likely because he
21:34
Speaker 3: was involved in an earlier version of the case while
21:38
Speaker 3: he was a judge on the Tenth Circuit, that means
21:41
Speaker 3: with eight justices deciding the case, Glossup can only afford
21:45
Speaker 3: to lose three votes because an evenly divided court four
21:51
Speaker 3: to four would mean an affirmance of the Oklahoma Court's
21:54
Speaker 3: ruling against him. And this doesn't have to be just
21:57
Speaker 3: an upwor down decision by the courts whether his conviction
22:01
Speaker 3: should be overturned.
22:02
Speaker 7: There's one other possibility that came up in the argument,
22:06
Speaker 7: which would be to send it back for additional fact finding.
22:10
Speaker 7: You know, the position of Glossop and the Oklahoma Attorney
22:13
Speaker 7: General is that it's so clear that there's a NAPU
22:16
Speaker 7: violation and a Brady violation from not turning over you know,
22:20
Speaker 7: very important evidence bearing on guilt or innocence that there's
22:24
Speaker 7: no additional fact finding that's necessary. And the position of
22:30
Speaker 7: the Oklahoma Court was simply that his conviction should be
22:32
Speaker 7: affirmed and the death penalty should go forward. But a
22:35
Speaker 7: couple of the justices were suggesting that perhaps what should
22:39
Speaker 7: happen is that it should be sent back for additional
22:43
Speaker 7: fact finding about exactly what happened and how important it was.
22:47
Speaker 7: And again some of the justices were very explicitly saying
22:50
Speaker 7: that they didn't think that was necessary in light of
22:53
Speaker 7: the record and how clear the violations were.
22:56
Speaker 3: And here's how Justice Katanji Brown Jackson explained it.
23:00
Speaker 10: Jackson, there seems like there's some pretty significant factual questions
23:04
Speaker 10: that have been debated. You know, what did council know?
23:08
Speaker 10: What did these notes' markings mean? Was Sneed's statement that
23:15
Speaker 10: he never saw a psychiatrist? True or false? Would you
23:19
Speaker 10: object to an evidentary hearing? As I understood it, no
23:23
Speaker 10: court has ever actually made findings on those things.
23:27
Speaker 3: So after twenty five years and so many appeals, there
23:30
Speaker 3: could be a hearing about the new Evidence. Coming up
23:34
Speaker 3: next on the Bloomberg Law Show, I'll continue this conversation
23:37
Speaker 3: with Georgetown Law's Cliff Sloan to look at how the
23:40
Speaker 3: Roberts Court has handled death penalty cases. The Supreme Court
23:47
Speaker 3: rarely grants relief in death row cases. Indeed, it allowed
23:51
Speaker 3: a Missouri man, Marcellus Williams to be put to death
23:55
Speaker 3: despite questions his attorneys raised over jury selection at his
23:59
Speaker 3: trial of evidence in the case, and despite the victim's
24:03
Speaker 3: family wanting william sentence commuted to life without the possibility
24:07
Speaker 3: of a parole. I've been talking to Georgetown Law professor
24:11
Speaker 3: Cliff Sloane, who argued and won a death penalty case
24:15
Speaker 3: before the Supreme Court. Cliff tell us about the history
24:19
Speaker 3: of the Roberts Court and the death penalty.
24:22
Speaker 7: Well, I think that the way in general that the
24:26
Speaker 7: current Supreme Court is approaching death penalty cases is very,
24:30
Speaker 7: very troubling. It's very very difficult for capital defendants. The
24:36
Speaker 7: court is creating all sorts of new procedural obstacles, and
24:41
Speaker 7: it's also as a general matter, being very unsympathetic to
24:48
Speaker 7: claims of capital defendants. Now that's not you know, one
24:52
Speaker 7: hundred percent of the time. There have been a few
24:54
Speaker 7: cases in recent years where the Court has rules for
24:57
Speaker 7: a capital defendants, but overwhelmingly the Court is dramatically tilting
25:02
Speaker 7: the playing field in favor of the death penalty. And
25:05
Speaker 7: this was nowhere more evidence than in the last six
25:09
Speaker 7: months of the Trump administration, when there was a spree
25:13
Speaker 7: of executions, you know, thirteen federal executions, even though there
25:17
Speaker 7: hadn't been any exec federal executions in a long time,
25:21
Speaker 7: and the Supreme Court did everything it could to speed
25:25
Speaker 7: up those executions. Even when lower court had said what
25:30
Speaker 7: I think of as reasonable timetables and schedules to consider
25:36
Speaker 7: the arguments in the thoughtful way, the Supreme Court just
25:39
Speaker 7: bulldozer through those to ensure very speedy executions. So I
25:44
Speaker 7: think it's very troubling the way that the Supreme Court
25:48
Speaker 7: is dealing with death penalty cases these days.
25:51
Speaker 3: Now.
25:52
Speaker 7: At the same time, public support for the death penalty
25:56
Speaker 7: has been considerably declining in recent years, been far fewer
26:01
Speaker 7: executions and far fewer death sentences impost and I think,
26:05
Speaker 7: you know, one of the reasons for that is the
26:08
Speaker 7: kind of problems that the Glossop case shows, the problems
26:12
Speaker 7: about issues of innocence and exoneration of people on death row,
26:17
Speaker 7: the problem of prosecutorial misconduct, but certainly in terms of
26:22
Speaker 7: the Supreme Court, it's very troubling the way the Court
26:25
Speaker 7: generally is dealing with capital cases or.
26:27
Speaker 3: Not dealing with them. We'll see what happens in the
26:29
Speaker 3: Glossup case. Thanks so much for being on the show
26:32
Speaker 3: and sharing your insights. That's Georgetown Law professor Cliff Sloane
26:37
Speaker 3: and that's it for this edition of the Bloomberg Law Podcast.
26:40
Speaker 3: Remember you've can always get the latest legal news by
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Speaker 3: subscribing and listening to the show on Apple Podcasts, Spotify,
26:47
Speaker 3: and at Bloomberg dot com, Slash podcast, Slash Law. I'm
26:50
Speaker 3: June Grosso, and this is Bloomberg