Legal Docket: Death penalty doubts

JENNY ROUGH, HOST: It’s Monday October 28th, and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

AUDIO: [MONTAGE OF CHIEF JUSTICE ROBERTS AND PAUL CLEMENT]

That’s the voice of the very prolific Supreme Court advocate Paul Clement, along with Chief Justice John Roberts. The funny moment was that Clement was appearing for the second time on the same day, representing different clients. We cut that montage together to make the point that Clement is widely seen as the most experienced Supreme Court advocate among active attorneys, having argued more than 100 cases.

Four years ago when Clement hit the 100 milestone, the court took a moment to recognize the occasion.

JUSTICE ROBERTS: That is a rare milestone …

Clement’s most recent appearance before the high court is in a case from Oklahoma involving a convicted killer named Richard Glossip.

CLEMENT: Glossip is facing the death penalty. And so as in any death penalty case, the stakes are incredibly high.

So Jenny, you got to talk to the famous Paul Clement in his office near D.C. That audio is from your interview with him.

ROUGH: Yes, quite the honor. His office is across the Potomac River in Alexandria, Virginia. Paul Clement’s really been involved in highly consequential cases ranging from religious liberty to gun rights and when we talked, we discussed the case we’ll analyze today, a significant case on the death penalty.

EICHER: So a familiar name and familiar voice, as we’ve heard Clement in action over the years here, but the death penalty case has some familiarity to it as well. The Glossip case goes back over a quarter of a century. Richard Glossip was convicted in a 27-year-old murder-for-hire case and was sentenced to death in Oklahoma.

ROUGH: Glossip’s first case before the Supreme Court came in 2015. He challenged Oklahoma’s method of execution lethal injection.

But he lost. And now, Glossip’s back with a completely different challenge.

CLEMENT: So the Glossip case is a really interesting case.

Interesting for many reasons.

Normally, Supreme Court cases focus on a principle of law that’s at stake. But in death penalty cases, the focus tends to shift to what happened at trial. So let’s go back to that.

There are three key players to keep in mind:

Barry Van Treese, the murder victim. He owned a motel in Oklahoma City at the time he was killed.

Glossip, the prisoner. He worked for Van Treese as manager of the motel and lived on the premises.

And Justin Sneed, the motel handyman.

EICHER: The motel had fallen into disarray, both physically and financially. Van Treese suspected Glossip was stealing, so he paid Glossip a visit. During the inspection, Van Treese gave Glossip a deadline to produce missing receipts or be fired.

According to handyman Justin Sneed, Glossip offered to pay Sneed $10,000 to kill Van Treese. So Sneed sneaked into Van Treese’s motel room at night and beat him to death using a baseball bat.

Sneed testified to that.

ROUGH: He did, and he also testified that he had been prescribed the drug lithium.

Now, this is a medication used to treat bipolar disorder, a mental illness. But Sneed said he took lithium for a head cold. And he testified under oath that he’d “never seen no psychiatrist.”

EICHER: I’m assuming this detail is going to figure in the case later on, Jenny.

ROUGH: Big time.

EICHER: But let’s talk about the rest of the particulars: Sneed was a star witness in the case against Glossip and for cooperating with the prosecution the state agreed to spare Sneed’s life and he’ll serve a life sentence instead.

ROUGH: Glossip has admitted he helped Sneed cover up the crime but he maintains his innocence as to arranging the murder. Here’s Paul Clement again.

PAUL CLEMENT: So the whole question is really did Sneed commit the murder on his own and Glossip help out after the fact? Or did Glossip basically put Sneed up to do it?

A lot rests on the story Sneed tells.

CLEMENT: Sneed's testimony about Glossip is the central testimony in the whole case.

EICHER: And that brings us to Glossip’s latest challenge, and what this case is all about: the drug and the psychiatric treatment.

ROUGH: It all goes back to the lithium and the fact that Sneed denied that he was under psychiatric care.

As the execution date loomed last year for Glossip, the Oklahoma attorney general requested an independent review of the case.

Around that time, the state produced documents that it hadn’t disclosed before. Handwritten notes from the prosecutor, Connie Smothermon. The notes came from a pre-trial meeting with Sneed—the handyman. In one place, she wrote down the words on Lithium followed by a question mark. And in another place Dr. Trumpet, also followed by a question mark.

The assumption is that Dr. Trumpet refers to Dr. Trombka, the prison’s only psychiatrist at the time.

But her notes are very cryptic. So it’s hard to say for sure.

A medical record sheet did confirm Sneed took lithium for bipolar disorder. But prosecutors didn’t disclose that either.

EICHER: Glossip now argues that the state denied his due process rights. He says he didn’t get a fair trial because the prosecutors failed to turn over that evidence of mental illness to the defense. And he says prosecutors knowingly elicited false testimony from Sneed because they didn’t correct him about why he was on lithium.

Jenny, I remember talking with you a few weeks ago about this case when we did an overview of the Court’s term. You mentioned Paul Clement represents Oklahoma, not Glossip.

Normally, in a case called Glossip v. Oklahoma, Oklahoma would oppose Glossip’s argument that he’s entitled to a new trial. The parties are on opposite sides of the “v” so-to-speak.

But that’s not quite true here. This case is unusual.

ROUGH: It is, as Clement explained to me.

CLEMENT: What makes it different from most capital cases is that the state, who is my client in the case—

ROUGH: Oklahoma

CLEMENT: They have admitted that there were material errors, material that should have been given to the defense wasn't given to the defense. And then this error that involves eliciting false testimony.

In other words, Glossip and Oklahoma both agree that Glossip is entitled to a new trial.

CLEMENT: The state isn't saying that Mr. Glossip is completely innocent of the crime.

EICHER: Yet, Oklahoma still wants a re-trial. But it agrees that the due process rights of Glossip were violated. Strange.

ROUGH: But this case gets even stranger.

CLEMENT: And what makes the case even more extraordinary is that even though the state confessed error in the lower courts, the lower courts disregarded that confession of error and said, “That's all very well that the attorney general thinks that there was prosecutorial misconduct. But we don't think there's a basis for overturning the conviction.”

In other words, the Oklahoma Court of Criminal Appeals disagreed with the state’s confession of error and wants to leave the death sentence in place.

EICHER: So Glossip appealed to the Supreme Court and teamed up with the state of Oklahoma insofar as both filed briefs asking to set aside his execution to consider the due process claims.

Now, Jenny, how does oral argument work in a circumstance like this? I mean, the Supreme Court needs someone to argue the other side.

ROUGH: Right, and just to be clear, here’s what the “other side” is: specifically the lower court’s decision that Glossip’s due process rights weren’t violated.

Situations like these do sometimes happen. And when they do, the Supreme Court will appoint a lawyer to argue the other side.

In this case, Chief Justice John Roberts asked one of his former law clerks, Chris Michel, to do that.

EICHER: OK, so then that left Glossip’s attorney Seth Waxman and Oklahoma’s attorney Paul Clement, each to take a turn trying to persuade the court to order a new trial.

Then Chris Michel took a turn arguing it should not.

ROUGH: Exactly. Lots went on during oral argument.

We’ll emphasize three issues that I heard the justices raise.

The first centered the state’s inferences about the prosecutor’s notes. Justice Samuel Alito said that Glossip reads a lot into a few scribbled words: “lithium?” and “Dr. Trumpet?”

And Justice Clarence Thomas made much of the fact that the prosecutor Connie Smothermon didn’t have the chance to fully give her side of the story. Namely, she didn’t get to say what her own notes meant. She was frozen out of the process.

Let’s listen to Justice Thomas in an exchange with Clement about that.

JUSTICE THOMAS: Well, when I looked at the note of Ms. Smothermon, I couldn't make heads or tails of it. It had a few names. It had "lithium" and a question mark.

CLEMENT: I think you ultimately have to draw the most plausible inference from all the information available. And the most—

JUSTICE THOMAS: But you didn't, though. Her point is that you didn't ask her. You're drawing it from the note, which she thinks is inadequate information.

EICHER: The second issue had to do with the significance of Sneed’s mental illness.

Chief Justice John Roberts asked: If the jury knew he was bipolar and had lied on the stand, would that have mattered? After all, the defense did know he was taking lithium — that part wasn’t hidden.

Let’s hear Roberts asking Glossip’s attorney Seth Waxman about that.

JUSTICE ROBERTS: Because the jury knew about the lithium. And what they didn't know is that it was prescribed by a psychiatrist. Do you really think it would make that much of a difference to the jury?

SETH WAXMAN: This is a witness who lied. It very well could have made a significant difference.

But then Chris Michel, defending the judgment of the lower court, said the defense has known about Sneed’s mental illness.

CHRIS MICHEL: Petitioner has known since 1997 that Sneed took lithium.

That’s 27 years. After Sneed’s arrest back then, he underwent a competency evaluation. All the attorneys received a copy of that resulting report.

MICHEL: It says, does this patient have a mental illness? And the answer is yes, underlined, exclamation point. If Petitioner thought that Sneed's mental health was important to his defense, surely, that would have been a bright red flag that he would have presented that defense at trial.

ROUGH: This relates to a third issue, a highly important state law. And it might actually prevent the Supreme Court from overturning the conviction, even if Glossip’s due process rights were violated!

States have laws on the books that limit how many times a prisoner can attack his conviction and sentence, whether at the trial level or appeal. Such laws prevent prisoners from litigating over and over so that they’re never executed. It has to end at some point.

Here, the Oklahoma Court of Criminal Appeals held that Glossip’s most recent petition doesn’t meet the requirements to overcome the finality of the lower court judgment.

Justice Samuel Alito seemed to agree.

JUSTICE ALITO: But there is the Oklahoma statute. It has two requirements. They go through the two requirements, and they say that they weren't satisfied.

Basically, in order to get his conviction overturned, Glossip must show the prosecutor’s errors could not have been raised earlier. If the information was available to the defense, and it didn’t exercise diligence in raising it before, it can’t do so now. As we’ve talked about, there does seem to be some indication Glossip should have known about Sneed’s mental illness.

EICHER: But Glossip also must show the outcome of the trial would have been different, but for the errors. Justice Elena Kagan seemed to side with Glossip on this point. She said the jury might not have found him guilty if it had known Sneed lied on the stand.

JUSTICE KAGAN: 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 he's lying, if he's trying to cover up something about his own behavior, I'm going to take that into account in deciding whether, when he accuses the defendant, he's telling the truth.

Justice Neil Gorsuch recused himself from the case because he was involved in one of Glossip’s earlier cases on the Tenth Circuit. If the judgment is split 4 to 4, Glossip’s conviction stays in place and his execution will be rescheduled.

ROUGH: Right, and that’s a risk here.

And I should add, the Oklahoma Pardon and Parole Board could recommend clemency. But so far, it hasn’t done that.

The Supreme Court may grant an evidentiary hearing on Glossip’s due-process claims. But the more I think about this case, I wonder whether the Oklahoma state law will prevent any further action. Then again, maybe not, because there was a ton of discussion about whether that bar can be waived.

Highly complicated, even for an experienced attorney like Paul Clement, whom I thank for making time to talk with WORLD listeners.

And that’s this week’s Legal Docket.

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