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<v Speaker 1>Welcome to scot Discast, a project of the Federalist Society

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<v Speaker 1>for Law and Public Policy Studies. Our contributors join us

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<v Speaker 1>from around the country to bring you expert commentary on

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<v Speaker 1>US Supreme Court cases as they are argued and the

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<v Speaker 1>decisions are issued. The Federalist Society takes no position on

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<v Speaker 1>particular legal or public policy issues. All expressions are those

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<v Speaker 1>of the speaker.

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<v Speaker 2>Hello, and welcome to scot Discast. I'm your host, Kyle

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<v Speaker 2>hammernis On, behalf of the Faculty division of the Federalist Society.

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<v Speaker 2>We are here today to discuss Gossip versus Oklahoma, which

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<v Speaker 2>is decided by the Court in a five to three

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<v Speaker 2>decision on February twenty fifth, twenty twenty five. It is

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<v Speaker 2>my honor to introduce our guests today, Zach Smith. Zach

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<v Speaker 2>is a legal fellow and manager of the Supreme Court

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<v Speaker 2>and Appellate Advocacy Program in the Edwin Meses Third Center

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<v Speaker 2>for Legal and Judicial Studies at the Heritage Foundation. He

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<v Speaker 2>previously served for several years and as an assistant United

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<v Speaker 2>States Attorney in the Northern District of Florida. Prior to that,

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<v Speaker 2>he spent two years as an associate in the Washington,

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<v Speaker 2>d c. Office of Clearly, gottlied Stein and Hamilton, which

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<v Speaker 2>he joined after clerking for the Honorable Emmett R. Cox

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<v Speaker 2>on the United States Court of Appeals for the Eleventh Circuit.

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<v Speaker 2>And with that, I'll hand things over to Zech to

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<v Speaker 2>get a started by talking about how the case got

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<v Speaker 2>to the Supreme Court.

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<v Speaker 3>Well, thank you so much for having me on the

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<v Speaker 3>show today. And I think it goes without saying it's

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<v Speaker 3>always a pleasure to be able to do these types

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<v Speaker 3>of events. And look, the Glass of case is very

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<v Speaker 3>unique in a number of respects, particularly in terms of

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<v Speaker 3>it's very tortured procedural history. This is not a case

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<v Speaker 3>that has gone through the essentially normal Pelt process and

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<v Speaker 3>is at the Court. It's gone through an extensive period

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<v Speaker 3>of litigation on direct appeal and then also on collateral

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<v Speaker 3>appeal as well, and so to go all the way

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<v Speaker 3>back to the very beginning. This case started in nineteen

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<v Speaker 3>ninety seven when Justice Need murdered Barry van Trees. Barry

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<v Speaker 3>Van Trees owned two motels, one in Oklahoma, one in Tulsa,

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<v Speaker 3>and Justin Snead was working at one of those motels

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<v Speaker 3>along with Richard Glossop. Now Glossop managed one of those motels,

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<v Speaker 3>and the facts underlying this entire the background of the

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<v Speaker 3>murder are somewhat in dispute, but essentially what happened is

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<v Speaker 3>Van Trees showed up at one of his hotels and

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<v Speaker 3>while he was there, Sneed murdered him. Now. Sneed later

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<v Speaker 3>came out and said that Glossop essentially solicited him to

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<v Speaker 3>murder Barry Van Trees, and Glossop was worried that he

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<v Speaker 3>was going to be fired by Van Trees, allegedly for

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<v Speaker 3>maybe some financial improprieties, and this meant that Sneed himself

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<v Speaker 3>would probably end up homeless because he too was living

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<v Speaker 3>at the hotel. Now in the wake of the murder

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<v Speaker 3>of Van Trees, in the immediate aftermath, Glossop said he

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<v Speaker 3>didn't know where Van Trees was. He said he had

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<v Speaker 3>seen Van Trees the next morning, after he had been murdered.

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<v Speaker 3>He spoke to Van Trees's wife on the phone, assuring

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<v Speaker 3>her that everything was okay. And it turned out, of

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<v Speaker 3>course that that just wasn't true. And it wasn't until

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<v Speaker 3>several days later that a police officer showed up at

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<v Speaker 3>the hotel and found Van Trees's body in one of

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<v Speaker 3>the rooms, which, by the way, Snead and Glossop had

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<v Speaker 3>replaced broken glass in the room to try to hide

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<v Speaker 3>the crime. And so what happened, police arrested Snead. They

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<v Speaker 3>later arrested Glossop as well, and they initially charged Glossop

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<v Speaker 3>as an accessory after the fact of the murder, but

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<v Speaker 3>after talking to Sneed getting more factual information, they also

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<v Speaker 3>charged Richard Glossop with capital murder, essentially for soliciting Sneed

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<v Speaker 3>to commit the murder. Now, in terms of the trial,

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<v Speaker 3>Gossop was originally tried and convicted in nineteen ninety eight,

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<v Speaker 3>sentenced to death for his role in Barry Ventree murder.

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<v Speaker 3>But because of an ineffective assistance of Council claim that

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<v Speaker 3>was brought, the Oklahoma Court of Criminal Appeals, which is

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<v Speaker 3>the highest criminal court in Oklahoma, sent the case back

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<v Speaker 3>for retrial. So Richard Glossip was retried, convicted once again,

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<v Speaker 3>and once again sentenced to death after a trial in

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<v Speaker 3>two thousand and four. And so it's the proceedings of

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<v Speaker 3>that two thousand and four trial that are really an

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<v Speaker 3>issue in this collateral appeal. Now. Since his conviction in

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<v Speaker 3>two thousand and four, Glossop as I mentioned earlier, has

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<v Speaker 3>taken a number of direct appeals, he has filed a

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<v Speaker 3>number of collateral attacks on his sentence. And so the

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<v Speaker 3>collateral attack is that the Supreme Court considered and ruled

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<v Speaker 3>on was actually his fifth Habeus petition that he had

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<v Speaker 3>filed with Oklahoma's court system. So it's a long and

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<v Speaker 3>tortured history that this case took to ultimately end up

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<v Speaker 3>at the Supreme Court and for the Court to issue

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<v Speaker 3>this decision.

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<v Speaker 2>Great, Well, thank you so much for providing that really

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<v Speaker 2>necessary background, because it does seem, you know, a bit complicated.

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<v Speaker 2>So I guess as we turned toward the oral arguments

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<v Speaker 2>and which arguments each side was making, can you go

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<v Speaker 2>a little bit more into that and kind of give

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<v Speaker 2>us a clear picture of where each side stood.

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<v Speaker 3>Yeah. So, as part of his tortured history along the way,

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<v Speaker 3>the Oklahoma legislature essentially responded to some of the political

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<v Speaker 3>pressure was receiving and commissioned a law from Readsmith to

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<v Speaker 3>write a report about whether certain things have been turned

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<v Speaker 3>over appropriately to Richard Gossip's council during the trial to

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<v Speaker 3>flag any other issues with the trial. And so reed

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<v Speaker 3>Smith wrote the report and issued report flagging a number

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<v Speaker 3>of issues, particularly as it relates to some evidence that

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<v Speaker 3>they alleged wasn't turned over, particularly as it relates to

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<v Speaker 3>some testimony that came out at trial. And so what

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<v Speaker 3>ultimately happened is shortly after Reed Smith wrote its report,

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<v Speaker 3>a new Oklahoma Attorney General also took office. Now the

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<v Speaker 3>Oklahoma Attorney General who took office, he turned over additional

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<v Speaker 3>evidence to Richard Gossop's counsel, which prompted the filing of

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<v Speaker 3>this fifth habeas petition with the cork And along the

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<v Speaker 3>way he turned over an eighth box. There were seven

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<v Speaker 3>boxes originally that he turned over. He turned over an

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<v Speaker 3>eighth box as well, which contained some handwritten notes from

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<v Speaker 3>the prosecutor that tried the case. And so after he

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<v Speaker 3>turned over this eighth box, Richard Gossop's council was alleging

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<v Speaker 3>that Justin Sneed, remember the man who actually murdered Barry Ventries,

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<v Speaker 3>offered what Glossop's council characterized as false testimony at trial. Essentially,

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<v Speaker 3>Justin snead he had mental health issues. He'd been prescribed

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<v Speaker 3>lithium to deal with bipolar disorder, and at trial, one

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<v Speaker 3>of the questions to ask was whether he had ever

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<v Speaker 3>been prescribed to lithium, and he said, yes, he took lithium,

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<v Speaker 3>but he said he took it either in the wake

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<v Speaker 3>of a toothache, or that he had been inadvertently prescribed

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<v Speaker 3>lithium because he had a head cold and was supposed

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<v Speaker 3>to get zoodafed. Now everyone knows the only reason someone

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<v Speaker 3>would be prescribed to lithium is for mental health issues.

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<v Speaker 3>But the fact that the prosecutors didn't go back and

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<v Speaker 3>clarify that Glossop said that was a false testimony that

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<v Speaker 3>essentially had been left uncorrected, which would be a violation

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<v Speaker 3>of the Supreme courtse holding in Napoo versus Illinois. So

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<v Speaker 3>the Oklahoma Attorney General, he actually conceded error in front

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<v Speaker 3>of the Oklahoma Court of Criminal Appeals and asked for

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<v Speaker 3>mister Gossip's sentenced to be vacated and for Glossop to

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<v Speaker 3>receive a new trial. Now, for state procedural reasons, Oklahoma

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<v Speaker 3>has a many states, like the federal government, has a

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<v Speaker 3>statute that governs when a prisoner can bring a successive

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<v Speaker 3>habeas petition, And essentially the Oklahoma Court of Criminal Appeals

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<v Speaker 3>said that Glossop hadn't met those very strict procedural requirements,

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<v Speaker 3>particularly because much of the information that now is being

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<v Speaker 3>disputed could have been discovered by his attorneys much much

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<v Speaker 3>earlier in the process, and they certainly had access to

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<v Speaker 3>much of the underlying information about these issues. But nonetheless

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<v Speaker 3>Oklahoma's attorney general conceded error. Now, it's interesting when the

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<v Speaker 3>case came to the Supreme Court, because Oklahoma's attorney general

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<v Speaker 3>had conceded error below and actually supported mister Glossop's efforts

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<v Speaker 3>to get a new trial. The Oklahoma Attorney General was

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<v Speaker 3>lined up on the same side as Richard Glossom. What

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<v Speaker 3>this meant is that the court had to appoint in

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<v Speaker 3>amikus someone to argue on behalf of the state to

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<v Speaker 3>actually uphold the integrity of this conviction. And I think

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<v Speaker 3>the individual of the court appointed did a very good

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<v Speaker 3>job at that. At the oral arguments, it was clear

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<v Speaker 3>that justices were divided on exactly how to deal with

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<v Speaker 3>this issue, and there were really two substant issues. The

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<v Speaker 3>court was grappling with an argument and I think you

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<v Speaker 3>see that coming out in the opinion is one whether

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<v Speaker 3>the Court even had the power to hear this case,

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<v Speaker 3>because if there's an independent and adequate state ground where

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<v Speaker 3>a state ice court reaches the decision, the US Supreme

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<v Speaker 3>Court will not have the ability to hear that case.

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<v Speaker 3>So that's the first prosecut issue. The second issue the

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<v Speaker 3>court was being asked to consider was whether, in fact,

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<v Speaker 3>this new information that came out constituted either a violation

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<v Speaker 3>of Napou versus Illinois, whether there's false testimony that the

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<v Speaker 3>prosecution left uncorrected, and also whether there was a violation

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<v Speaker 3>of Brady, where essentially prosecutors have to provide exculpatory evidence

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<v Speaker 3>to criminal defendants. Great.

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<v Speaker 2>Uh, so, I guess that that's that's that's perfectly to

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<v Speaker 2>talk about the opinions. There were three opinions that were

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<v Speaker 2>released by the court. The first was the holding opinion,

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<v Speaker 2>the majority opinion by Justice sodom Or. Can you touch

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<v Speaker 2>a little bit about how she ruled and the reasoning

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<v Speaker 2>behind her ruling?

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<v Speaker 3>Yeah? Absolutely, And I think it's interesting at the outset

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<v Speaker 3>to note that Justice new Corsich didn't participate in this case.

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<v Speaker 3>That's like because while he was a judge on the

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<v Speaker 3>Tenth Circuit Court of Appeals, previous iterations of mister Glossops

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<v Speaker 3>case came before the Tenth Circuit, and so Justice Gorsich

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<v Speaker 3>didn't rule at all or to take any part in

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<v Speaker 3>the consideration of this case. Now, Justice side in my

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<v Speaker 3>War in her opinion that was joined by everyone except

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<v Speaker 3>for Justice Alito and Justice Thomas, joined in part by

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<v Speaker 3>Justice Barrick, and we can talk about that more in

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<v Speaker 3>a minute, But essentially, Justice sign in my War said

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<v Speaker 3>that the procedural bar to the case, there was not

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<v Speaker 3>an adequate and independent state ground for the Court to

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<v Speaker 3>avoid ruling on the case. And the reason she did that,

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<v Speaker 3>I agree with Justice Thomas for rationale was somewhat convoluted

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<v Speaker 3>on this respect. But she said because the Oklahoma Court

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<v Speaker 3>of Criminal Appeals, essentially, in the process of deciding the

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<v Speaker 3>state law procedural issues, had to reject mister Glossop's napu claim,

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<v Speaker 3>which would be a federal claim, a claim arising from

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<v Speaker 3>federal law that aadequate federal ground existed essentially to allow

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<v Speaker 3>the court to take jurisdiction. Now, the reason napoo claim

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<v Speaker 3>is a federal claim is because essentially the Court said

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<v Speaker 3>in that case that the Fourteenth Amendments Due Process clause

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<v Speaker 3>requires that prosecutors essentially not knowingly solicit or allow false

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<v Speaker 3>testimony to stand uncorrected, particularly when it can have a

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<v Speaker 3>material impact on the jury's verdict. So that's the first

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<v Speaker 3>thing Justice Sonom Martter said. She said, the court had

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<v Speaker 3>the jurisdiction, you take the case, and then when she

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<v Speaker 3>got to the merits of the claim, she never ruled

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<v Speaker 3>on the Brady violation issue whether exculpatory evidence was not

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<v Speaker 3>provided to mister Blossipan's defense team. And the reason she

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<v Speaker 3>didn't rule in the Brady claim is because she said

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<v Speaker 3>that the napoo claim would resolve the case. And so

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<v Speaker 3>again for the reasons you know we've talked about, she

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<v Speaker 3>said that essentially this testimony about the lithium, justin sneed

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<v Speaker 3>taking it, why he received it, that that was that

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<v Speaker 3>was sufficient to raise a successful napoo claim in this circumstance.

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<v Speaker 3>And a lot of the discussion between the majority of

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<v Speaker 3>the descent turned around some very cryptic handwritten notes that

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<v Speaker 3>the prosecutor in the case had made concerning mister Sneath's lithium,

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<v Speaker 3>maybe a doctor at the prison that had prescribed it.

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<v Speaker 3>And there are different interpretations of what that meant. Certainly

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<v Speaker 3>the notes were kind of very quick scribbles you made

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<v Speaker 3>typically during the meeting. Justice Thomas actually appended an image

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<v Speaker 3>of the notes to his discent so everyone could see

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<v Speaker 3>just how cryptic they were in fact, and maybe not

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<v Speaker 3>as clear cut as just ae side of my Horse

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<v Speaker 3>suggested in her majority opinion. But because there was this

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<v Speaker 3>NAPU violation, according to the majority, the Court then ordered

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<v Speaker 3>a new trial for mister Glossop, and this was a

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<v Speaker 3>major point of contention, with Justice Thomas and the descent

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<v Speaker 3>essentially saying that this was not the correct remedy. And

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<v Speaker 3>this is where Justice Barrett disagreed with the majority as well.

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<v Speaker 3>She said, Justice Barrett, Justice Thomas, and Alito essentially took

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<v Speaker 3>issue with the Court ordering a new trial for mister Glossop.

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<v Speaker 3>And part of the reason Justice Thomas and Aledo in

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<v Speaker 3>particular took issue with that is because of the role

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<v Speaker 3>of the US Supreme Court versus state Supreme Court, so

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<v Speaker 3>the state's highest courts, where typically because the Supreme Court

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<v Speaker 3>does not exercise the same supervisory authority over state supreme

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<v Speaker 3>courts that it does over lower federal courts, that typically

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<v Speaker 3>whenever the US Supreme Court reverses a state Supreme court's

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<v Speaker 3>decision or the high decision from a state's highest court,

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<v Speaker 3>they'll simply send it back for further proceedings consistent with

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<v Speaker 3>this decision in this case, that usually would have meant

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<v Speaker 3>something like an evidentiary hearing would have needed to take place.

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<v Speaker 3>And so essentially this ruling that a new trial has required.

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<v Speaker 3>Justice Thomas, Justice Leado, and Justice bhar All argue that

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<v Speaker 3>this was an inappropriate remedy, something that was beyond the

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<v Speaker 3>Court's power to issue. And yet that's what Justice soughtamor

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<v Speaker 3>and the majority of justices ordered to take place in

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<v Speaker 3>this case.

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<v Speaker 2>Okay, so great, you covered every single opinion. Good and

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<v Speaker 2>I think I was when I was looking over the case,

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<v Speaker 2>I I did note that, you know, Justice Barrett did

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<v Speaker 2>uh concurring part and and uh and dissent in part.

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<v Speaker 2>So thank you for for clearing that up for us.

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<v Speaker 3>Uh.

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<v Speaker 2>I guess let's turn to what are some of the

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<v Speaker 2>ramifications do you see, uh, due to this case going

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<v Speaker 2>forward for other cases? How do you see this at

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<v Speaker 2>changing changing the body of law?

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<v Speaker 3>Well, it's hard to say exactly. At this point, I

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<v Speaker 3>think you are going to see more potentially habeas type

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<v Speaker 3>petitions coming out. Certainly a lot of this interplay between

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<v Speaker 3>what exactly is an independent and adequately state ground, particularly

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<v Speaker 3>in the habeas context, that has been significantly embodied. I

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<v Speaker 3>suspect the Court will have to address that again at

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<v Speaker 3>some point in the not too distant future. And then

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<v Speaker 3>also I think what remedies the Supreme Court can order

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<v Speaker 3>when it reverses a state Supreme Court's decision. That is

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<v Speaker 3>something that is going to have to be determined in

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<v Speaker 3>the future as well, because obviously, this order of a

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<v Speaker 3>new trial is just as Thomas pointed out, is a

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<v Speaker 3>somewhat very aggressive assertion of power by the US Supreme Court,

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<v Speaker 3>and it'll be We'll have to wait and see what

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<v Speaker 3>happens in future cases if the Court continues down this

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<v Speaker 3>path of ordering very specific relief, or if it will

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<v Speaker 3>simply continue to remand case for further proceedings consistent with

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<v Speaker 3>this decision. The last thing I'll note one of the

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<v Speaker 3>interesting shout outs from Justice Sotomeyer's opinion, and I think

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<v Speaker 3>was underlining a lot of the discussion but never really

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<v Speaker 3>explicitly talked about, was an ameekus brief that Paul Cassel filed. Now,

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<v Speaker 3>if you don't know Paul Kassel, he's a professor at

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<v Speaker 3>the University of Utah. He's a former federal judge himself,

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<v Speaker 3>and he writes a lot on crime and criminal justice,

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<v Speaker 3>and particularly he writes a lot in the realm of

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<v Speaker 3>victim's rights. And he actually filed a very powerful Meekis

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<v Speaker 3>brief on behalf of Barry Van Trees's family, highlighting some

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<v Speaker 3>of the problems with the physician, the Oklahoma Attorney General,

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<v Speaker 3>the Reed Smith Report, and many other previous iterations of

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<v Speaker 3>this case had taken. And he was arguing that mister

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<v Speaker 3>Van Trees's family had really received adequate opportunity to participate

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<v Speaker 3>in this case. He was also arguing that essentially those

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<v Speaker 3>handwritten notes, he very much agreed with Justice Thomas that

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<v Speaker 3>they certainly didn't constitute Brady violation or NAPU violation. But

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<v Speaker 3>if folks are interested in doing a little bit of

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<v Speaker 3>a deeper dive, particularly on how victims' rights statutes often

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<v Speaker 3>interplay with some of these criminal cases, Paul Cussell's brief

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<v Speaker 3>is a very excellent explanation of kind of the background

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<v Speaker 3>and some of the larger picture items related to these

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<v Speaker 3>types of cases.

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<v Speaker 2>Hi, thank you for the recommendation. I'll definitely check it out.

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<v Speaker 2>I guess just one more question, because you talked about

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<v Speaker 2>how the Court chose to chose a specific remedy. Have

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<v Speaker 2>they done so before in the history of the court

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<v Speaker 2>or is this something completely new that we haven't seen.

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<v Speaker 3>Well, according to Justice Thomas, this is a very aggressive

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<v Speaker 3>remedy that the Court typically, into my knowledge, has not

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<v Speaker 3>done before, even in these types of cases. And it's

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<v Speaker 3>hard to say why the Court chose to take this path. Obviously,

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<v Speaker 3>the Oklahoma Court of Criminal Appeals essentially overruled essentially the

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<v Speaker 3>Attorney General's confession of error and said that the court

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<v Speaker 3>has a duty to decide for itself whether an error

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<v Speaker 3>has been committed. So I don't know if the Court

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<v Speaker 3>was essentially worried that the Oklahoma Court of Criminal Appeals

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<v Speaker 3>might not issue the specific judgment that it wanted, that

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<v Speaker 3>justices wanted the issue in a case, which, of course

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<v Speaker 3>is certainly it's prerogative as a separate and independent court

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<v Speaker 3>exercising separate stop authority aside from the Supreme Courts and so.

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<v Speaker 3>But yes, according to Justice Thomas and even Justice Barrett

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<v Speaker 3>and Herkin Currents noted, this was a very unusual and

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<v Speaker 3>very aggressive remedy to the Court ordered.

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<v Speaker 1>Right.

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<v Speaker 2>Well, thank you so much, Zach for joining us that

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<v Speaker 2>that was really, really excellent. I'm glad you were able

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<v Speaker 2>to clear some of the muddy waters there in this case.

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<v Speaker 2>Thank you so much for joining.

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<v Speaker 3>Us, of course, thank you for having me on.

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<v Speaker 1>Thank you for listening to this episode of SCO discst

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<v Speaker 1>SC Discust is the project of the Federalist Society, not

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<v Speaker 1>power is essential to our constitution, and that it is

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<v Speaker 1>emphatically the province and duty of the judiciary to say

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