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Speaker 2: Hello, and welcome to scot Discast. I'm your host, Kyle
Speaker 2: hammernis On, behalf of the Faculty division of the Federalist Society.
Speaker 2: We are here today to discuss Gossip versus Oklahoma, which
Speaker 2: is decided by the Court in a five to three
Speaker 2: decision on February twenty fifth, twenty twenty five. It is
Speaker 2: my honor to introduce our guests today, Zach Smith. Zach
Speaker 2: is a legal fellow and manager of the Supreme Court
Speaker 2: and Appellate Advocacy Program in the Edwin Meses Third Center
Speaker 2: for Legal and Judicial Studies at the Heritage Foundation. He
Speaker 2: previously served for several years and as an assistant United
Speaker 2: States Attorney in the Northern District of Florida. Prior to that,
Speaker 2: he spent two years as an associate in the Washington,
Speaker 2: d c. Office of Clearly, gottlied Stein and Hamilton, which
Speaker 2: he joined after clerking for the Honorable Emmett R. Cox
Speaker 2: on the United States Court of Appeals for the Eleventh Circuit.
Speaker 2: And with that, I'll hand things over to Zech to
Speaker 2: get a started by talking about how the case got
Speaker 2: to the Supreme Court.
Speaker 3: Well, thank you so much for having me on the
Speaker 3: show today. And I think it goes without saying it's
Speaker 3: always a pleasure to be able to do these types
Speaker 3: of events. And look, the Glass of case is very
Speaker 3: unique in a number of respects, particularly in terms of
Speaker 3: it's very tortured procedural history. This is not a case
Speaker 3: that has gone through the essentially normal Pelt process and
Speaker 3: is at the Court. It's gone through an extensive period
Speaker 3: of litigation on direct appeal and then also on collateral
Speaker 3: appeal as well, and so to go all the way
Speaker 3: back to the very beginning. This case started in nineteen
Speaker 3: ninety seven when Justice Need murdered Barry van Trees. Barry
Speaker 3: Van Trees owned two motels, one in Oklahoma, one in Tulsa,
Speaker 3: and Justin Snead was working at one of those motels
Speaker 3: along with Richard Glossop. Now Glossop managed one of those motels,
Speaker 3: and the facts underlying this entire the background of the
Speaker 3: murder are somewhat in dispute, but essentially what happened is
Speaker 3: Van Trees showed up at one of his hotels and
Speaker 3: while he was there, Sneed murdered him. Now. Sneed later
Speaker 3: came out and said that Glossop essentially solicited him to
Speaker 3: murder Barry Van Trees, and Glossop was worried that he
Speaker 3: was going to be fired by Van Trees, allegedly for
Speaker 3: maybe some financial improprieties, and this meant that Sneed himself
Speaker 3: would probably end up homeless because he too was living
Speaker 3: at the hotel. Now in the wake of the murder
Speaker 3: of Van Trees, in the immediate aftermath, Glossop said he
Speaker 3: didn't know where Van Trees was. He said he had
Speaker 3: seen Van Trees the next morning, after he had been murdered.
Speaker 3: He spoke to Van Trees's wife on the phone, assuring
Speaker 3: her that everything was okay. And it turned out, of
Speaker 3: course that that just wasn't true. And it wasn't until
Speaker 3: several days later that a police officer showed up at
Speaker 3: the hotel and found Van Trees's body in one of
Speaker 3: the rooms, which, by the way, Snead and Glossop had
Speaker 3: replaced broken glass in the room to try to hide
Speaker 3: the crime. And so what happened, police arrested Snead. They
Speaker 3: later arrested Glossop as well, and they initially charged Glossop
Speaker 3: as an accessory after the fact of the murder, but
Speaker 3: after talking to Sneed getting more factual information, they also
Speaker 3: charged Richard Glossop with capital murder, essentially for soliciting Sneed
Speaker 3: to commit the murder. Now, in terms of the trial,
Speaker 3: Gossop was originally tried and convicted in nineteen ninety eight,
Speaker 3: sentenced to death for his role in Barry Ventree murder.
Speaker 3: But because of an ineffective assistance of Council claim that
Speaker 3: was brought, the Oklahoma Court of Criminal Appeals, which is
Speaker 3: the highest criminal court in Oklahoma, sent the case back
Speaker 3: for retrial. So Richard Glossip was retried, convicted once again,
Speaker 3: and once again sentenced to death after a trial in
Speaker 3: two thousand and four. And so it's the proceedings of
Speaker 3: that two thousand and four trial that are really an
Speaker 3: issue in this collateral appeal. Now. Since his conviction in
Speaker 3: two thousand and four, Glossop as I mentioned earlier, has
Speaker 3: taken a number of direct appeals, he has filed a
Speaker 3: number of collateral attacks on his sentence. And so the
Speaker 3: collateral attack is that the Supreme Court considered and ruled
Speaker 3: on was actually his fifth Habeus petition that he had
Speaker 3: filed with Oklahoma's court system. So it's a long and
Speaker 3: tortured history that this case took to ultimately end up
Speaker 3: at the Supreme Court and for the Court to issue
Speaker 3: this decision.
Speaker 2: Great, Well, thank you so much for providing that really
Speaker 2: necessary background, because it does seem, you know, a bit complicated.
Speaker 2: So I guess as we turned toward the oral arguments
Speaker 2: and which arguments each side was making, can you go
Speaker 2: a little bit more into that and kind of give
Speaker 2: us a clear picture of where each side stood.
Speaker 3: Yeah. So, as part of his tortured history along the way,
Speaker 3: the Oklahoma legislature essentially responded to some of the political
Speaker 3: pressure was receiving and commissioned a law from Readsmith to
Speaker 3: write a report about whether certain things have been turned
Speaker 3: over appropriately to Richard Gossip's council during the trial to
Speaker 3: flag any other issues with the trial. And so reed
Speaker 3: Smith wrote the report and issued report flagging a number
Speaker 3: of issues, particularly as it relates to some evidence that
Speaker 3: they alleged wasn't turned over, particularly as it relates to
Speaker 3: some testimony that came out at trial. And so what
Speaker 3: ultimately happened is shortly after Reed Smith wrote its report,
Speaker 3: a new Oklahoma Attorney General also took office. Now the
Speaker 3: Oklahoma Attorney General who took office, he turned over additional
Speaker 3: evidence to Richard Gossop's counsel, which prompted the filing of
Speaker 3: this fifth habeas petition with the cork And along the
Speaker 3: way he turned over an eighth box. There were seven
Speaker 3: boxes originally that he turned over. He turned over an
Speaker 3: eighth box as well, which contained some handwritten notes from
Speaker 3: the prosecutor that tried the case. And so after he
Speaker 3: turned over this eighth box, Richard Gossop's council was alleging
Speaker 3: that Justin Sneed, remember the man who actually murdered Barry Ventries,
Speaker 3: offered what Glossop's council characterized as false testimony at trial. Essentially,
Speaker 3: Justin snead he had mental health issues. He'd been prescribed
Speaker 3: lithium to deal with bipolar disorder, and at trial, one
Speaker 3: of the questions to ask was whether he had ever
Speaker 3: been prescribed to lithium, and he said, yes, he took lithium,
Speaker 3: but he said he took it either in the wake
Speaker 3: of a toothache, or that he had been inadvertently prescribed
Speaker 3: lithium because he had a head cold and was supposed
Speaker 3: to get zoodafed. Now everyone knows the only reason someone
Speaker 3: would be prescribed to lithium is for mental health issues.
Speaker 3: But the fact that the prosecutors didn't go back and
Speaker 3: clarify that Glossop said that was a false testimony that
Speaker 3: essentially had been left uncorrected, which would be a violation
Speaker 3: of the Supreme courtse holding in Napoo versus Illinois. So
Speaker 3: the Oklahoma Attorney General, he actually conceded error in front
Speaker 3: of the Oklahoma Court of Criminal Appeals and asked for
Speaker 3: mister Gossip's sentenced to be vacated and for Glossop to
Speaker 3: receive a new trial. Now, for state procedural reasons, Oklahoma
Speaker 3: has a many states, like the federal government, has a
Speaker 3: statute that governs when a prisoner can bring a successive
Speaker 3: habeas petition, And essentially the Oklahoma Court of Criminal Appeals
Speaker 3: said that Glossop hadn't met those very strict procedural requirements,
Speaker 3: particularly because much of the information that now is being
Speaker 3: disputed could have been discovered by his attorneys much much
Speaker 3: earlier in the process, and they certainly had access to
Speaker 3: much of the underlying information about these issues. But nonetheless
Speaker 3: Oklahoma's attorney general conceded error. Now, it's interesting when the
Speaker 3: case came to the Supreme Court, because Oklahoma's attorney general
Speaker 3: had conceded error below and actually supported mister Glossop's efforts
Speaker 3: to get a new trial. The Oklahoma Attorney General was
Speaker 3: lined up on the same side as Richard Glossom. What
Speaker 3: this meant is that the court had to appoint in
Speaker 3: amikus someone to argue on behalf of the state to
Speaker 3: actually uphold the integrity of this conviction. And I think
Speaker 3: the individual of the court appointed did a very good
Speaker 3: job at that. At the oral arguments, it was clear
Speaker 3: that justices were divided on exactly how to deal with
Speaker 3: this issue, and there were really two substant issues. The
Speaker 3: court was grappling with an argument and I think you
Speaker 3: see that coming out in the opinion is one whether
Speaker 3: the Court even had the power to hear this case,
Speaker 3: because if there's an independent and adequate state ground where
Speaker 3: a state ice court reaches the decision, the US Supreme
Speaker 3: Court will not have the ability to hear that case.
Speaker 3: So that's the first prosecut issue. The second issue the
Speaker 3: court was being asked to consider was whether, in fact,
Speaker 3: this new information that came out constituted either a violation
Speaker 3: of Napou versus Illinois, whether there's false testimony that the
Speaker 3: prosecution left uncorrected, and also whether there was a violation
Speaker 3: of Brady, where essentially prosecutors have to provide exculpatory evidence
Speaker 3: to criminal defendants. Great.
Speaker 2: Uh, so, I guess that that's that's that's perfectly to
Speaker 2: talk about the opinions. There were three opinions that were
Speaker 2: released by the court. The first was the holding opinion,
Speaker 2: the majority opinion by Justice sodom Or. Can you touch
Speaker 2: a little bit about how she ruled and the reasoning
Speaker 2: behind her ruling?
Speaker 3: Yeah? Absolutely, And I think it's interesting at the outset
Speaker 3: to note that Justice new Corsich didn't participate in this case.
Speaker 3: That's like because while he was a judge on the
Speaker 3: Tenth Circuit Court of Appeals, previous iterations of mister Glossops
Speaker 3: case came before the Tenth Circuit, and so Justice Gorsich
Speaker 3: didn't rule at all or to take any part in
Speaker 3: the consideration of this case. Now, Justice side in my
Speaker 3: War in her opinion that was joined by everyone except
Speaker 3: for Justice Alito and Justice Thomas, joined in part by
Speaker 3: Justice Barrick, and we can talk about that more in
Speaker 3: a minute, But essentially, Justice sign in my War said
Speaker 3: that the procedural bar to the case, there was not
Speaker 3: an adequate and independent state ground for the Court to
Speaker 3: avoid ruling on the case. And the reason she did that,
Speaker 3: I agree with Justice Thomas for rationale was somewhat convoluted
Speaker 3: on this respect. But she said because the Oklahoma Court
Speaker 3: of Criminal Appeals, essentially, in the process of deciding the
Speaker 3: state law procedural issues, had to reject mister Glossop's napu claim,
Speaker 3: which would be a federal claim, a claim arising from
Speaker 3: federal law that aadequate federal ground existed essentially to allow
Speaker 3: the court to take jurisdiction. Now, the reason napoo claim
Speaker 3: is a federal claim is because essentially the Court said
Speaker 3: in that case that the Fourteenth Amendments Due Process clause
Speaker 3: requires that prosecutors essentially not knowingly solicit or allow false
Speaker 3: testimony to stand uncorrected, particularly when it can have a
Speaker 3: material impact on the jury's verdict. So that's the first
Speaker 3: thing Justice Sonom Martter said. She said, the court had
Speaker 3: the jurisdiction, you take the case, and then when she
Speaker 3: got to the merits of the claim, she never ruled
Speaker 3: on the Brady violation issue whether exculpatory evidence was not
Speaker 3: provided to mister Blossipan's defense team. And the reason she
Speaker 3: didn't rule in the Brady claim is because she said
Speaker 3: that the napoo claim would resolve the case. And so
Speaker 3: again for the reasons you know we've talked about, she
Speaker 3: said that essentially this testimony about the lithium, justin sneed
Speaker 3: taking it, why he received it, that that was that
Speaker 3: was sufficient to raise a successful napoo claim in this circumstance.
Speaker 3: And a lot of the discussion between the majority of
Speaker 3: the descent turned around some very cryptic handwritten notes that
Speaker 3: the prosecutor in the case had made concerning mister Sneath's lithium,
Speaker 3: maybe a doctor at the prison that had prescribed it.
Speaker 3: And there are different interpretations of what that meant. Certainly
Speaker 3: the notes were kind of very quick scribbles you made
Speaker 3: typically during the meeting. Justice Thomas actually appended an image
Speaker 3: of the notes to his discent so everyone could see
Speaker 3: just how cryptic they were in fact, and maybe not
Speaker 3: as clear cut as just ae side of my Horse
Speaker 3: suggested in her majority opinion. But because there was this
Speaker 3: NAPU violation, according to the majority, the Court then ordered
Speaker 3: a new trial for mister Glossop, and this was a
Speaker 3: major point of contention, with Justice Thomas and the descent
Speaker 3: essentially saying that this was not the correct remedy. And
Speaker 3: this is where Justice Barrett disagreed with the majority as well.
Speaker 3: She said, Justice Barrett, Justice Thomas, and Alito essentially took
Speaker 3: issue with the Court ordering a new trial for mister Glossop.
Speaker 3: And part of the reason Justice Thomas and Aledo in
Speaker 3: particular took issue with that is because of the role
Speaker 3: of the US Supreme Court versus state Supreme Court, so
Speaker 3: the state's highest courts, where typically because the Supreme Court
Speaker 3: does not exercise the same supervisory authority over state supreme
Speaker 3: courts that it does over lower federal courts, that typically
Speaker 3: whenever the US Supreme Court reverses a state Supreme court's
Speaker 3: decision or the high decision from a state's highest court,
Speaker 3: they'll simply send it back for further proceedings consistent with
Speaker 3: this decision in this case, that usually would have meant
Speaker 3: something like an evidentiary hearing would have needed to take place.
Speaker 3: And so essentially this ruling that a new trial has required.
Speaker 3: Justice Thomas, Justice Leado, and Justice bhar All argue that
Speaker 3: this was an inappropriate remedy, something that was beyond the
Speaker 3: Court's power to issue. And yet that's what Justice soughtamor
Speaker 3: and the majority of justices ordered to take place in
Speaker 3: this case.
Speaker 2: Okay, so great, you covered every single opinion. Good and
Speaker 2: I think I was when I was looking over the case,
Speaker 2: I I did note that, you know, Justice Barrett did
Speaker 2: uh concurring part and and uh and dissent in part.
Speaker 2: So thank you for for clearing that up for us.
Speaker 3: Uh.
Speaker 2: I guess let's turn to what are some of the
Speaker 2: ramifications do you see, uh, due to this case going
Speaker 2: forward for other cases? How do you see this at
Speaker 2: changing changing the body of law?
Speaker 3: Well, it's hard to say exactly. At this point, I
Speaker 3: think you are going to see more potentially habeas type
Speaker 3: petitions coming out. Certainly a lot of this interplay between
Speaker 3: what exactly is an independent and adequately state ground, particularly
Speaker 3: in the habeas context, that has been significantly embodied. I
Speaker 3: suspect the Court will have to address that again at
Speaker 3: some point in the not too distant future. And then
Speaker 3: also I think what remedies the Supreme Court can order
Speaker 3: when it reverses a state Supreme Court's decision. That is
Speaker 3: something that is going to have to be determined in
Speaker 3: the future as well, because obviously, this order of a
Speaker 3: new trial is just as Thomas pointed out, is a
Speaker 3: somewhat very aggressive assertion of power by the US Supreme Court,
Speaker 3: and it'll be We'll have to wait and see what
Speaker 3: happens in future cases if the Court continues down this
Speaker 3: path of ordering very specific relief, or if it will
Speaker 3: simply continue to remand case for further proceedings consistent with
Speaker 3: this decision. The last thing I'll note one of the
Speaker 3: interesting shout outs from Justice Sotomeyer's opinion, and I think
Speaker 3: was underlining a lot of the discussion but never really
Speaker 3: explicitly talked about, was an ameekus brief that Paul Cassel filed. Now,
Speaker 3: if you don't know Paul Kassel, he's a professor at
Speaker 3: the University of Utah. He's a former federal judge himself,
Speaker 3: and he writes a lot on crime and criminal justice,
Speaker 3: and particularly he writes a lot in the realm of
Speaker 3: victim's rights. And he actually filed a very powerful Meekis
Speaker 3: brief on behalf of Barry Van Trees's family, highlighting some
Speaker 3: of the problems with the physician, the Oklahoma Attorney General,
Speaker 3: the Reed Smith Report, and many other previous iterations of
Speaker 3: this case had taken. And he was arguing that mister
Speaker 3: Van Trees's family had really received adequate opportunity to participate
Speaker 3: in this case. He was also arguing that essentially those
Speaker 3: handwritten notes, he very much agreed with Justice Thomas that
Speaker 3: they certainly didn't constitute Brady violation or NAPU violation. But
Speaker 3: if folks are interested in doing a little bit of
Speaker 3: a deeper dive, particularly on how victims' rights statutes often
Speaker 3: interplay with some of these criminal cases, Paul Cussell's brief
Speaker 3: is a very excellent explanation of kind of the background
Speaker 3: and some of the larger picture items related to these
Speaker 3: types of cases.
Speaker 2: Hi, thank you for the recommendation. I'll definitely check it out.
Speaker 2: I guess just one more question, because you talked about
Speaker 2: how the Court chose to chose a specific remedy. Have
Speaker 2: they done so before in the history of the court
Speaker 2: or is this something completely new that we haven't seen.
Speaker 3: Well, according to Justice Thomas, this is a very aggressive
Speaker 3: remedy that the Court typically, into my knowledge, has not
Speaker 3: done before, even in these types of cases. And it's
Speaker 3: hard to say why the Court chose to take this path. Obviously,
Speaker 3: the Oklahoma Court of Criminal Appeals essentially overruled essentially the
Speaker 3: Attorney General's confession of error and said that the court
Speaker 3: has a duty to decide for itself whether an error
Speaker 3: has been committed. So I don't know if the Court
Speaker 3: was essentially worried that the Oklahoma Court of Criminal Appeals
Speaker 3: might not issue the specific judgment that it wanted, that
Speaker 3: justices wanted the issue in a case, which, of course
Speaker 3: is certainly it's prerogative as a separate and independent court
Speaker 3: exercising separate stop authority aside from the Supreme Courts and so.
Speaker 3: But yes, according to Justice Thomas and even Justice Barrett
Speaker 3: and Herkin Currents noted, this was a very unusual and
Speaker 3: very aggressive remedy to the Court ordered.
Speaker 1: Right.
Speaker 2: Well, thank you so much, Zach for joining us that
Speaker 2: that was really, really excellent. I'm glad you were able
Speaker 2: to clear some of the muddy waters there in this case.
Speaker 2: Thank you so much for joining.
Speaker 3: Us, of course, thank you for having me on.
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