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