Clarence Thomas Loves Killing Potentially Innocent Men

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Clip: So, just a yes or no, you still do not have a plan? I have concepts of a plan. That is a damning non -answer. I'm not trying to make it about myself, Your Honor. I'm just trying to show his bias toward the defendant. Just don't make it yourself.

0:00:33 Clip: Something simple as a crack pipe, a used crack pipe. The rules were that you guys weren't going to fact check.

0:00:45 Thomas: Hello and welcome to Opening Arguments. This is episode 1078. I'm your host Thomas Smith and with me as always is real-life attorney Matt Cameron. How you doing, Matt?

0:00:55 Matt: Too bad, considering that we're looking today at the case which abolitionists should hold up for all time as the example of why we can't allow the state to kill people. Otherwise, doing okay.

0:01:03 Thomas: Yeah, jokes. I don't know. Yeah, that's...

0:01:05 Matt: There's no joke, no opening joke on this one.

0:01:07 Thomas: Yeah, the only joke is the Supreme Court. About that? Does that work? Is that good?

0:01:12 Matt: Just about. A couple of members of the Supreme Court, at least, will be looking at.

0:01:15 Thomas: Yeah well even though this one is perhaps bit of a bummer uh we've Got the Footnote to bring us back

0:01:20 Matt: We've got a footnote featuring one of our favorite OA characters. So it's something to look forward to. I won't ruin the surprise yet.

0:01:23 Thomas: Who could that be so many

0:01:26 Matt: It could be a lot of people. One of your faves, I know for

0:01:26 Thomas: Different ones over the oh man I'm excited all right well I'll hold on to that excitement while we get to talk about this, oral arguments in Glossop. Supreme Court is done with their summer and now they're back to ruining everyone's life. You know you're a bad employee when people are like, oh, they're Back From Vacation. Just, no, go on another vacation, Supreme Court. Like, you know, take a year off.

0:01:51 Matt: There's got to be a billionaire out there who can send you somewhere.

0:01:53 Thomas: Yeah. Take a sabbatical for, for a few years well still be paid you know it was fine all well we'll take our usual break uh then we'll get to all that and if you want to avoid the super annoying auto ads go to patreon.com/law and support the show and you don't have to hear those terrible ads anymore it's such a win win win when the only people who lose are the ad people and and that's great.

0:01:57 Matt: You've earned it. That's right.

0:02:19 Thomas: Well, Lordy, there are tapes, so I've got tapes queued up, but where do we want to begin, Matt?

0:02:24 Matt: Let's talk about this case, Glossop v. Oklahoma. Now, this really is, I mean, I've been following this case but I hadn't gone deep on it until recently after I listened to the oral arguments. And I mean it when I say that this is really the case that we can use for all time, those of us on the right side of this issue, and I don't see any other side of the this issue. The state should not be killing people. United States is one of the last countries on earth with, or less functioning countries on Earth that still does this to people. And I think that after you hear about the procedural history of this case, after you hear the absolute travesty that was this trial and this investigation, and how this case got to the court and what the court now thinks of it, I really have to hope, and there's a reason that Republicans are now lining up, several prominent Republicans are lining up to say that this man should not be executed. That's the point we've reached here in this case. Yeah.

0:03:09 Matt: Yeah, that's, yeah. Including one of my least favorite Republicans, Ken Cuccinelli, the former Attorney General of Virginia, who had a big hand in DHS during the Trump years. He really knocked it out, I think, with an amicus brief that I really appreciated.

0:03:21 Thomas: That's okay. Know how bad it has to be for Republicans to not call for someone's death? Really bad.

0:03:25 Matt: I mean, I was very surprised to learn that one of the heroes of this story is the Republican Attorney General of Oklahoma. Talk about that, but let's get some background on this case first. Actually has a lot of parallels to Adnan Saeed and where it's at right now, except that this is something that actually should have deserved a podcast, I'm going to tell you. And we're doing one now, but it certainly could have used a long -term sort of serial style investigation just to really bring out the horrors of this investigation and what happened here. Because just tell you straight up that this case involves a murder committed by a man named Justin Sneed. You might notice this case is not called Sneed v. Oklahoma.

0:03:44 Thomas: Maybe we should do it. Yeah. That was going to be my question, Matt. That That seems a little weird. Changed his name to Glossop. No?

0:04:03 Matt: So Mr. Sneed, Yeah, no, no. No, different guy. Is no question whatsoever that this is the man who beat Barry Von Trees to death with a baseball bat. He's the owner of the motel where that Richard Glossop was the manager of. And within 20 minutes of being interviewed by detectives, they started pushing him to implicate Glossup, the manager, again, of the hotel, the murder. Come up with a theory that Glossap was going to lose his job because he was embezzling from the motel.

0:04:27 Thomas: Why, though? Like,

0:04:34 Matt: And this story came to develop as Sneed began to unravel his story. So they decided that this was a murder for hire, that Glosop had either paid or promised us to pay Snead to do this. The understanding that he would be spared the death penalty, Justin Snead gave them the story of how Glossop had offered to pay him to kill Barry Ventris. And right off almost entirely on the testimony of someone who's trying to get out the death penalty. Sounds like a problem, that it is a problem, that pretty much every state does not allow a conviction on completely uncorroborated testimony when the witness has this kind of conflict, including Oklahoma. I double-checked. Glaze v. State, 1977. It's pretty clear. Even weaker than the Marcellis Williams case that we talked about a few weeks ago. And that was pretty weak and that had its own problems. And in case, you might remember that the family was completely in favor favor of sparing Williams from execution because of the issues with the trial. That's not the case in this one. The Von Treece family is still on the side of execution. But notably, the state is not on the site of execution, the state does not want to execute him. So this is where things get really weird. This is a very strange procedural history. It is the strangest procedural history, I think, in any death penalty case in US history. And one of the many reasons this should be held up as a travesty.

0:05:46 Thomas: There seems to be two levels to it. So Sneed is the person who actually like violently beat someone to death. Right. And that person is avoiding the death penalty but the person who allegedly hired him is on death row is possibly going to get the death penalty depending on how this goes right what

0:06:04 Matt: Had three last meals and nine execution dates so far. I mean, that's just psychological torture.

0:06:07 Thomas: The okay well first off I feel like you should get those six other meals like just right off the just at a minimum like secondly wow but does the controversy lie is it that okay why are you killing the murder for hire but not the guy who did the violent murder or is it like there's not really any proof other than this guy's word that he did hire the guy okay

0:06:13 Matt: That's a good It's mostly the latter. I will point out that murder for hire in Oklahoma is an aggravating factor that makes you eligible for the death penalty. That is considered to be extra egregious if you order a murder for hire. It has been in front of a number of courts for a number reasons because it has so many different issues and holes and problems, and there's so many issues with the investigation. But by the time we've reached the Supreme Court in 2024, there are just a couple of issues that it's gotten down to. But I want to talk about the procedural history and why this is so strange and the parallel with the Adnan Saeed case, in which, of course, you remember the Baltimore city attorney brought a motion for new trial in front of the court and tried to vacate an unsaid sentence, almost did. And we were contemplating at the time how much leeway a judge has when the state is coming before the court, and saying, this is a wrongful conviction, you have to reverse it. And generally speaking, I completely support the state doing that, and the Adnan Said case is a very rare case in which there's some kind of strange motive going on, or there might be something else going on behind the scenes, and the whole thing was done off the record. That's sort of a different situation. This is the Republican Attorney General of Oklahoma, someone who adamantly supports the death penalty to the point that he has personally attended every execution held on his watch. He's actually been there to watch. And this man has come out strong and said that this was a

0:06:35 Thomas: If sorry if you are the if you order okay jeez

0:07:43 Matt: Wrongful conviction. Now, he's not saying he's innocent. He

0:07:44 Thomas: Your honor I like killing people as much as the next republican but uh yeah

0:07:49 Matt: Yeah. Have it. No, this is I mean, and honestly, I have to say I would never vote for somebody ever who supports a death penalty or is willing to carry it out. But I do respect the integrity of saying I attend these executions, I see these people die, and I can't attend one of someone whose conviction I don't trust. That's about as much integrity as I've heard of from a Republican a very long time.

0:08:09 Matt: I will say that. And he's actually said publicly that he's willing to lose his job over this. He understands that voters might replace him, but he is really motivated about this case. Yeah, I know. It's really something.

0:08:17 Thomas: Then why is this still happening matt what in every movie that's already the you're already we're already in like the postscript to the posts like why is this still going sounds like we won

0:08:20 Matt: Great question. Yeah. Be the end of it when the state comes in and says, and this is a confession of error, it's a confession of constitutional error, because there are some issues with the prosecution we're going to talk about that they determined after releasing eight boxes of evidence in total. It took a while to get to that eighth one, but once they got through these boxes of evidences of being withheld previously, were able to not only reveal what we'll talk about in the eighth box, but there's also evidence that's been destroyed that evidence that'S been destroyed is not on appeal, is not part of the appeal because of reasons we can discuss, but just to list it off very quickly, the surveillance video from the morning after the murder was lost, and that would have shown potentially gossip on the premises. Very important box that contained the shower curtain that they allegedly wrapped the body in, financial documents that would've shown whether or not he was embezzling from the motel, critical evidence. That was destroyed in the DA's order a few years ago.

0:09:17 Matt: Yeah, destroyed by the police. And yeah, well, I think they're like, well he's used up his appeals, he's done everything, he's got his habeas, so let's get rid of it.

0:09:16 Thomas: All on the deep what you can just do that I

0:09:26 Matt: Are a number of other prosecutorial issues that we'll get into, but just off the bat, we've got stuff that you absolutely need at trial. And there have been two independent investigations of this case. One conducted at the behest of the state legislature, which again is very Republican, and the other one conducted at the governor's order. And both of these came to the conclusion that this was a bad conviction and it must be vacated.

0:09:25 Thomas: See and closed you're free to go or well you're freedom not be killed I guess I don't know what I'm sure you can tell us what I'll still be doing but yeah okay again this is over determined what are are we still doing here matt huh

0:09:54 Matt: Sadly, no. Yeah. Just want to really overemphasize as much as I can that this is way beyond the usual thing where the defense is coming up with all this. This is the state. And to the point that I listened to the interview with one of his attorneys last night in a very recent interview where he was saying they had exhausted the judiciary and they decided to just go for the other branches of government to start going after the governor and the legislature and see what they could do for him. And that actually worked. And it should have worked at least. So that gets us up to the Oklahoma Court of Criminal Appeals, who I'm going to tell you are the real villains in this case. They were reviewing the new evidence that came out of this box eight. And that included prosecutor's notes, very similar to the Saeed situation. Prosecutor's notes that are a little less ambiguous, I would say, although Clarence Thomas is going to tells us they're extremely ambiguous. The crux of it, what you need to know about this new evidence is that the jury was aware that Snead, first of all, had a serious meth problem on top of everything else, meth and heroin. And he said he was pretty much high every day that he was at work. On top of that, the knew that he had been prescribed lithium, but they didn't know that he wasn't working with a psychiatrist in the jail where he was being held. And they weren't told that he bipolar. Now, again, I want to be careful when I talk about this. I'm

0:11:03 Matt: Not going to say that bipolar people are naturally violent, but it would have been another theory of the case. It would have been something the defense could have used to know that not only was he taking lithium, he was prescribed it by a psychiatrist because of this condition. And that's something that the prosecution knew, and they did not allow it to to him on the record. And worse, when Snead actually testified, he was asked directly if he was on prescription medication. And then he said, somehow they ended up giving me lithium for some reason. I don't know why. I never seen no psychiatrist or anything. So he directly lied about whether he was seeing a psychiatrist.

0:11:32 Thomas: And and the state knew that he was lying right and isn't that a bad lawyer thingy matt yeah

0:11:35 Matt: They knew. And we know from the notes, that's a terrible thing. And that would be a Brady violation if you're withholding something something that could be potentially exculpatory. On top of that, it's also a case called Napue from 1959, in which the Supreme Court found that when prosecutors know that a witness of theirs is lying, that you have an obligation to correct the record, obviously, even if it's just something that would affect his credibility, not something that's directly meritorious for the case. So those two, Brady and Napue, are both at issue, in part at least, in the Supreme Court case. But the Oklahoma Court of Criminal Appeals, very much like certain members of the the Supreme Court, was much more concerned about procedure and about finality and making sure that we respect the procedure. Now, when AG's office joined this motion and basically in response to the most recent motion for new trial, they joined it and said, we're going to waive any claims we might have to this being procedurally barred because the Oklahoma Post-Conviction Act is pretty strict. It's much stricter than what I'm used to. Here in Massachusetts, you can bring a motion for a new trial pretty much any time for any reason as long as it's not too duplicative. But in a lot of states like Oklahoma, you have strict rules about timing. You can only bring it 60 days after you learn new evidence. You can only bring so many, you can only have so many different claims. And so they found just offhand, even though the Attorney General's office had said, we don't care, and we're going to waive that. And they are the people who should be able to waave it, because

0:12:51 Matt: There's a people that would usually be asserting it. And these again, these are procedural bars. And as Sotomayor got the lawyers to admit in this, they can always be waived. These kinds of procedural bars are always optional. They should not keep somebody from presenting a claim of factual innocence or at least of extreme constitutional issues. And the appeals Court finds that even if the Attorney General's office says it's waived, that there's still procedural bars. They find that this is not Brady evidence because of their own interpretation of the note. And they specifically find that it doesn't really matter that the Attorney general's office is joining this. They think that this is a conviction that it should be final and that's it. And so that's where we are today. Day. There's the lithium evidence, and there's also the fact that the prosecution, we learned from these notes, and this is actually a note that was pretty to misinterpret. Prosecution went back and coached Sneed after they learned that, in fact, a blunt knife had been used, because the victim

0:12:51 Thomas: You would think what's yeah

0:13:40 Matt: Was beaten to death with a baseball bat, but there were also knife wounds they couldn't explain, and a blunt knife was found nearby. And Sneed originally said he didn't stab him at all, and then they went back, and coach him, and he's like, oh yeah, I might have stabbed him a little bit. And so that became another issue about the prosecution sort of working with the witness.

0:13:57 Matt: This is, again, he did do the murder, but his credibility really is at issue here because, it's a good question. This guy is not reliable at all in any way. I should mention the other thing that they're depending on, since we have to have some corroborating evidence. When Glossop was interviewed about this, his first response was to deny it. And then in his second interview, he admitted that he did help Snead to hide the body. So he was originally charged with accessory after the fact, which would have been appropriate.

0:13:56 Thomas: But I thought he did do the murder why I don't understand why he wouldn't have said the knife thing to begin with wow it's a real j situation wow

0:14:25 Matt: Yeah, exactly. He's possibly the J or maybe the Adnan, depending on who you ask. Again, remember that Drummond, the attorney general, does not actually believe that this is exculpatory. He thinks that if it were retried, that he could be convicted. But that at this point, the whole trial is so completely poisoned with this stuff that it should not stand.

0:14:43 Matt: And this is what's in front of the Supreme Court after many, many, many other appeals. And this has also just notably been in front of the Tenth Circuit where Neil Gorsuch had reviewed it. So, Neil Gorsuch had to recuse himself from this, which is notable because

0:14:54 Thomas: Someone actually recused them so I get wow surprising

0:14:56 Matt: Yeah, no, that's appropriate because that Tenth circuit case was a denial of habeas in which they were considering a lot of other different claims that did not survive it to this point.

0:15:05 Thomas: It's not something minor like a coup you know that trying to take over the government um

0:15:10 Matt: Yeah, or your wife helping to do that.

0:15:12 Thomas: Yeah exactly so I want to just make sure I have it straight so can you remind me who works for what hotel and what is the what I've

0:15:19 Matt: Treese was the owner of the motel. He was very well -liked in the community.

0:15:20 Thomas: Owner of the motel okay okay did

0:15:23 Matt: And Justin Sneed was being allowed to live at the motels in exchange for doing some handiwork, and Glossop was the manager of the hotel. And the prosecution's theory was that Glossup was about to lose his job because Van Trese was about to find out that he had been taking money and not doing repairs he was supposed to have been doing.

0:15:40 Thomas: They have proof for that well

0:15:41 Matt: Again, the financial documents have been destroyed. So at this point, it's all, yeah, it was.

0:15:44 Thomas: But I thought that was after the the trial. So did they have,

0:15:46 Matt: But I don't know.

0:15:47 Thomas: We don't know if they, okay.

0:15:48 Matt: Yeah, that evidence was not presented at trial, like specific evidence about embezzlement. The only real evidence presented at trail was from the testimony of Justin Sneed.

0:15:52 Thomas: What? Wouldn't it be important to back up the idea that there's embezzling or something? If that's the motive, wouldn't

0:16:00 Matt: You would think it's one of the many problems here. Just never heard of less. I mean, people talk about the Adnan Saeed case somehow as being not very much evidence. And to me, there's just overwhelming evidence compared to something like this, where the only testimony you really have is someone who has every reason to lie and who actually did the crime.

0:16:18 Thomas: That's, the other thing is, even if you were someone out there who still agreed or believed in the death penalty, should take more than this, right? I mean, shouldn't it be, you know, like you're putting someone to death. You better prove your case solidly. You know, even if you are someone who thinks the death penalty should exist. I guess I see maybe why some of these Republicans you're talking about or these people actually involved are against this.

0:16:42 Matt: No. And there's also, and again, this is not in the evidence because there has not been an evidentiary hearing on all of this, but Sneed at various points, at one point he asked his lawyer if he could recant his story. In various other communications, he told people that he felt like he had a heavy weight, like something he had to clear off his conscience, beyond presumably the brutal murder, and then there's also a cellmate that said that he told him that Glossop had done nothing to do with it. What that's worth, those are not always the most reliable witnesses. But there's also, and I guess just to get this out, the other evidence that they were using was that they allegedly split the $4,000 that was on Van Trees because it was known that he carried cash. And And the prosecution appears to have fudged the numbers to make it look like Glossop got his half, got the money that Glossup was found to have when they arrested him. Fudging the numbers was to make him look like he had not received that from the sale of goods he had just sold. There's some question about where that money came from as well. That's just yet another thing. But the only real pieces of evidence in front of the court that sort of made it up to the Supreme Court for various reasons that we can get into are the issue about the lithium being prescribed by a psychiatrist and the issue of the knife wounds, both of which I think do constitute Brady evidence and should be sufficient, and also NAPU violations. So of course, now that we're in front of the Supreme Court, this is a great time to talk about an innocent man potentially being tried in a bad way, being potentially railroaded in an investigation. No, what we want to talk about is procedure. Almost all of this oral argument, it's a very long oral argument is about procedure. It's infuriating to me as somebody who represents people. Point out the parties in this case. Again, this is so strange. You've got obviously the lawyer for Mr. Glossop, you've got a lawyer, Paul Clemente, representing the attorney general's office, which is opposed to the execution. And then the court had to appoint an amicus.

0:18:26 Thomas: They had to find someone to defend the killing of him hey

0:18:29 Matt: The they had to appoint somebody and they appointed a former Roberts clerk.

0:18:33 Thomas: Maybe if you're to the point where like hey will anyone defend the putting to death of this guy can we pay someone to do that like no one else will maybe that's a sign that you shouldn't be doing it I

0:18:43 Matt: You think? Former Roberts clerk Christopher Michel was appointed and he did the best he could with what he had, but he had some moments. Clearly at point he was asked why it wasn't an issue that the prosecution knew about these things and didn't bring them out. And he's like, well, the jury already knew the guy There's no worries. It's fine. We don't have to point out every way that he was a liar.

0:19:02 Thomas: Do you want my real answer the answer I'm paid to oh the paid oh uh because

0:19:06 Matt: Yeah. Pretty much. Thing that was really notable through all of this was Clarence Thomas, really very active in this conversation. And I flagged for you some of the places, sort of a Clarence Thomas supercut here, so just to set this up a little, Thomas' only concern during this hearing is for the prosecutors. He is not interested in any claims about innocence or about the problems with these trials.

0:19:33 Clip: Did you go and get a statement from either one of the prosecutors? Yes. Did you interview them? Well, to be clear, we did get a sworn statement, which I believe is at page 960 of the joint appendix from Gary Ackley, in which for, among other things, he never mentions the fact that, he never mentioned the account that he has now provided to, in the amicus brief, for Van Treese family. And as to Ms. Smotherman, Ms. Smotherland was interviewed both by the independent, the legislature's independent counsel and by the attorney general's independent counsel, Mr. Duncan. She gave different answers each time, none of which was the account she's now provided in an unsworn letter attached to the Van Trees brief. Well, it would seem that because not only, you know, their reputations are being impugned, but they are central to this case. It would seem an interview of these two prosecutors would be central. They suggest that their interviews were generally about prosecuting capital cases and not specifically about the details of this. Their current unsworn statement, appended at the very last minute for the very first time in a merits amicus brief before this court, deserves all the benefit of the doubt to which they are entitled. In the context of Mr. Ackley did file an affidavit, it is in the record in this case, and it is not in any way consistent with his current account. Did they make themselves unavailable? Sorry to interrupt. Well, he made himself available. He provided us a declaration. No, what you're saying would make sense if for some reason they had made themselves unavailable. But they suggest that they were not sought out and given an opportunity to give detailed accounts of what those notes meant and what they did during the trial. Justice Thomas, with respect, there is a reason why both independent counsels and the Attorney General of the state credited the account of what those notes show and their own words, her own words on the notes can't be disputed. And the reason that they gave for that explanation amounts to the fact that in context, this is a prosecutor who, one, destroyed and dispersed material evidence both before and during the appeal of this case and during post -conviction proceedings. Two, she falsely told the court that it had complied with its obligation to provide the substance of all statements by Justin Sneed. Number three, they belittled the formal discovery request for mental health records as a, quote, fishing expedition and said that no such records existed. This is a prosecutor who engineered a mid -trial change in Justin Smeed's testimony and then denied doing so in the court and stood silent in the face of the false testimony that she elicited about psychiatric treatment. Mr.

0:23:08 Matt: Is asking straight up, this is his first question in the oral argument, is aren't you impugning these poor prosecutors' reputation by suggesting they were withholding evidence and destroying evidence. That's all he cares about. There were two independent investigations, as was said. Now, Glossop didn't get a chance at an evidentiary hearing. They denied him an evidentary hearing, which would be where you would call the prosecutors in and put them on the stand and ask them what they were doing under oath. Solicitor General Seth Waxman is arguing on behalf of Glossop. As he notes, there are some unsworn statements that are attached to the amicus filed by the family. This is very strange. You're not supposed to be introducing what amounts to new evidence and an amicus brief in front of the Supreme Court.

0:23:42 Matt: Yep, they're emails specifically. I want to just give you an idea of how ridiculous this explanation is. The in question here is question mark because they'd learned that he was prescribed lithium, and then Dr. Trumpet. It turned out the doctor's name in the facility was Dr. Tromka and Snead was just not remembering, but Dr .Trumpet. Well, this is about to get really really ridiculous. Smotherman is the other sort of villain of this story, the person who's trying to uphold this conviction, one of the prosecutors. Was provided ample opportunity. And this is something that Thomas keeps coming back to and just can't accept that these investigations interviewed them at length and allowed them to provide their stories. They both provided sworn statements that gave their accounts, and by the way, changing accounts accounts over the years. When she was asked about this note, she's very defensive about this. And she says, I asked him why he thought it was Dr. Trumka and not Dr. Trumpet, the jazz musician,

0:23:40 Thomas: It's unsworn yeah okay huh oh god what

0:24:40 Matt: And I was making a personal note. You know, the famous jazz musician Dr. trumpet that we've all heard of. I mean, that's not a thing. That's not guy.

0:24:41 Thomas: Dr trumpet sorry what the

0:24:51 Matt: Yeah. She's like, like, well, how do you know it wasn't the jazz musician?

0:24:55 Thomas: Musician dr trumpet is that what I'm

0:24:58 Matt: That's your final answer. Yes. Yeah. I'm reading directly from the email. This is a follow -up question where they're like, hey, we found this note. What does it mean? And she's complaining, I've been asked about this and I've told them that maybe it was Dr. Dr. Trumpet. Maybe it was a personal note. Maybe I was going to go see a show that night or something. I don't know. But she's just kind of denying that obviously it's Dr. Tromka, because that's a very unusual name. And you were talking about somebody who has done a lot of methamphetamine. Justin Sneed is the witness who she's interviewing at this point. And so understandably, he says Trumpet instead of Tromca. That's pretty obviously a mistake.

0:25:31 Thomas: It was so it wasn't her mistake of saying that maybe dr

0:25:35 Matt: She just wrote down Trumpet, so maybe she might have written it down wrong. Who knows? But obviously, Trompa, Trumpet – there's nothing else that could have have meant.

0:25:37 Thomas: Trumpet and so this is the evidence that she knew she was is essentially suborning perjury kind of thing and

0:25:46 Matt: Had to try to find a way to explain it.

0:25:48 Thomas: And knows maybe it was the jazz musician we've all heard of dr trumpet yeah sure

0:25:52 Matt: Right. Yeah. Makes a lot more sense than the actual prison psychiatrist that he was seeing for bipolar disorder. Sure. She ends the email by saying, the whole conversation made me mad. Call if you want this afternoon. She's just not happy that she has to go back and think about about this case again, that she considers to be a win, and it's done, and it's final. Coming out that she was aware that he was being treated by a psychiatrist and prescribed lithium, something the defense really could have used. Talking about potentially a very serious Brady violation, but they're not arguing necessarily about the merits of the Brady violation, even though the Oklahoma court found that it wasn't a Brady violation. So that's a serious issue on appeal. The main things they're arguing about are the procedural bar, whether or not that was properly not waived, because there's a procedural bar that should have kept this motion from being filed that the attorney general's office waived on behalf of the government and said, we don't care. Don't apply this because this is important. And also whether there's an independent adequate state ground that would keep it from being able to be in front of the Supreme Court at all, because the Oklahoma decision was so bad. One point, is talking about the Oklahoma decision and somebody suggests that it seems like you don't think it's very well written. You might have something to say about that. She's like, I haven't even started talking about

0:26:58 Matt: That decision. Laugh in this death penalty case.

0:26:58 Thomas: And gonna ask how the hell did they decide that wasn't a brady violation does that but I guess does that not end up mattering based on the procedural crap we're doing right

0:27:07 Matt: Said it's procedurally barred. But also, if we were to get there, we don't think it's a Brady violation because the defense could have figured this out, basically. And because it's not necessarily material, it wouldn't have changed the jury's decision. Again, this is evidence that they were aware of that they didn't turn over. And it seems they made a point of not correcting him on the stand when he said he wasn't treated by a psychiatrist. Seems important. What it comes down to. But to me, it's disheartening. I think to anybody that cares about justice, and especially as opposed to the death penalty, to have to sit through so many minutes of just back and forth, because the conservatives are pretty much only concerned about this procedural stuff. They're trying to figure out a way to keep from having to hear this at all or think about the merits. And of course, the liberals are trying to find a way out of this. And so I think it's trying to talk about the merits and how to point out that maybe there really was some travesty here and the fact that the government wants this to be stopped, maybe that should be considered. But problem is, of course, that we're talking at this point without Gorsuch, a 4 -4, and if this is a tie, then that goes back for the execution. So that

0:28:02 Matt: Is a real problem. And it looks like that might be where things are going. It's kind of murky right now, but yeah, that could be where we end up. At one point suggests, shouldn't we just send this back for for an evidentiary hearing, which I have to agree would be a pretty good use of time if you're going to do something rather, you know, to have more evidence entered and to have the prosecutor come and explain herself. Very much like with the Adnan Saeed thing, right? There was a note at issue there that was the basis of a new trial, but they never had any evidence of what it meant. They didn't bring him in to talk about it. Makes sense if you are saying this is Brady evidence to bring them in and let them testify under oath instead of attaching an email to an amicus brief to try try to explain it. Looking into this and listening to the arguments, reading the briefs, incredible that this is just something we accept in the United States. Not just the death penalty itself, but that we can have a case of this flood where we have a state that is trying not to execute somebody. And

0:28:06 Thomas: Way really yeah

0:28:55 Matt: We're to the point where the Supreme Court's like, well, let's see how we can do that anyway.

0:28:58 Thomas: There's nothing more disheartening and more than executions based on the card says moops like well I mean it says execution so but he didn't do it yeah but you know the card say moops there's no nothing we can do like come on so said that the Oklahoma court said it wasn't a Brady violation, and did they say on that? That's That's the one that – was it Kagan or Sotomayor said sucked?

0:29:05 Matt: The the Also, not only the way that they addressed that, but the way they addressed whether this was a state or federal issue was so murky, it was so hard to tell. And it really seemed like they were trying to make it a state issue, but they federalized it in some ways that they're trying to get it in front of the court. And obviously, just give them the benefit of the doubt and let the Supreme Court review it. Come on. This should not be a question.

0:29:41 Thomas: Because they're trying to keep it state so that they're like the final word kind of?

0:29:44 Matt: Yeah.

0:29:44 Thomas: Yeah, gotcha.

0:29:44 Matt: So the court can't say anything.

0:29:47 Thomas: Tried to waive the procedural bar. Now, did that happen or they not able to waive it and that's like what the appeal is?

0:29:54 Matt: Court wouldn't accept it. And this is, again, the Oklahoma Court of Criminal Appeals. There's only one appeals court in Oklahoma because it's a small enough state. And this was a 5 -0 decision. This is a unanimous court that decided that they were going to uphold this execution despite the state asking them not to. So I think that's pretty important. Word procedural appears on this transcript in the index at the end so many times, dozens of times. Infuriating when you're talking about a man's life, when you're talking about a trial that is so flawed that Republicans want to reverse it.

0:29:54 Thomas: They didn't accept it. Okay.

0:30:20 Matt: It's hard to watch, hard to listen to. Stuff on this is really brain -breaking. And don't give it a lot of credit because I don't care. I just don't care when you' re talking about something this important. I just don't want to be messing around with an hour's worth of procedural argument. Just skip the procedure, especially because the state has just told you to skip the procedure. Assume the Supreme Court has jurisdiction because it's a death penalty case and somebody's life is on the line and the state clearly botched this. Again, this is where I come from in my judicial philosophy, is benefit of the doubt to humans.

0:30:13 Thomas: Yeah um that's the thing yeah and not like paper that has procedures on it

0:30:52 Matt: Or the concept of finality, which is what the Oklahoma court was really concerned about.

0:30:55 Thomas: The concept of that matt

0:30:56 Matt: And that's what we really bow to here.

0:30:57 Thomas: Do you not care about the concept if I know you have no sympathy for the paper that there is that we wrote the the things on and the concept of finality it's like you don't even care about those things and you're just concerned with a man's life yeah

0:31:10 Matt: That's a potential wrongful execution. I know. It's pretty radical of me, but pick up some more, Thomas, just so you can hear how bad this gets. Let's

0:31:14 Thomas: But sure uh

0:31:19 Clip: And 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 Justice Thomas, that's hard to square with the record here. There were two independent investigations. As Mr. Waxman has indicated, Mr. Ackley submitted an affidavit under oath. And ultimately, I think the Attorney General, having commissioned a second independent review, looked at the results of that, looked at their notes, and he has to make his own judgment. Because ultimately, the prosecutor has to decide whether a Napue violation has occurred. When I looked at the note of Ms. Smotherman, I couldn't make heads or tails of it. It had a few names, it had lithium, question mark, and she explains what it was. And according to her explanation, if it's true, it was simply about a conversation that Glossop's lawyer had with Sneed.

0:32:12 Thomas: Had a well -known autograph Dr. Trumpet. I'm

0:32:32 Clip: And if that's the case, I don't see how there's any basis for either of those two violations. So there's a couple of problems with that explanation, Justice Thomas. First, it's inconsistent with her earlier explanations for the notes. Second, when General Drummond is making this determination, the notes don't stand alone. There's also the medical information sheet that was never disclosed. Where is that? Where is the sheet? That sheet's at Joint Appendix page 933, and it shows that when he was transferred from the jail facility to the correctional facility, he was under lithium for bipolar disorder. Order. So if you're looking at those notes in conjunction with that medical information sheet, it seems quite the inescapable conclusion that the attorney general had to make on his own. I think the point was simply, I mean, even that sheet, is that the sheet that she says, uh, the sheriff filled out, but it didn't come actually from a doctor? No, but, but it's the state's only record that at the point of transfer, he was A, under lithium, and B, it was for bipolar disorder. And so, I mean, again, I think you ultimately have to draw the most plausible inference from all the information available. And if you didn't, though, her point is that you didn't ask her, that you didn't have an in-depth conversation with her about it. You're drawing it from the note, and what she thinks is inadequate information. Well, the Attorney General is basing his judgment in part on the independent investigation of Mr. Duncan. He talked to Ms. Smotherman. Afterwards, Ms. smotherman says it wasn't a sufficiently lengthy conversation. I mean, at a certain point, let me put one more contextual point on the table here. The original request below was for an evidentiary hearing, and the state did not oppose an evidentary hearing. Now, we think if you look at those notes in light of the medical information sheet, there's no need for an evidentiary hearing. But ultimately, we didn't resist it below. If the court had granted it, we wouldn't be here. And the Attorney General just wants to get to the bottom of this, but he also, under NAPU, has to make his own judgment about whether the prosecutors have elicited perjured testimony and failed to correct it. And his best judgment, based on these records and this information, is that there was a Napue violation here.

0:35:00 Matt: So again, Clarence Thomas is just laser focused on did It's just, I guess, I

0:35:10 Thomas: And well, it's very important that he does that, Matt, because if don't, then the prosecutors are actually executed after this. So that's very importante that you, you know, do this format. A lot of podcasts are the format of expert and layperson. You know, the Supreme Court was doing that now too, where it's like, okay,,, they've got like these experts. And then justice Thomas is like, so the guys, what is it? Steed? No, Sneed.

0:35:18 Matt: Yeah. Weird system we got, but

0:35:34 Thomas: Sneed?

0:35:33 Matt: That got me. That got me

0:35:34 Thomas: Yeah. The, yeah.

0:35:34 Matt: The actual killer.

0:35:36 Thomas: The actual murder.

0:35:36 Matt: Don't know his name, but

0:35:37 Thomas: What's his name? So it seems like there's a— no, I don't know. You know, it's like he's less prepped than me for this podcast. I mean that's job security for you I guess you know yeah

0:35:45 Matt: Pretty much. It's such a good point. Paul Coleman on behalf of the attorney general, who, of course, is trying to stop the execution. Clarence Thomas had these questions. We won't keep going, but this is something he asked everybody, and he kept coming back to because he was very concerned. And again, as they continue, both lawyers continue to point out, there was a full independent investigation, not just once, but twice, in which they were allowed to give their story. And in that email, she says, like, I told him it was the trumpet thing. And, like – I mean, that's the explanation she had. So I guess that's what we got.

0:36:16 Thomas: What in the world is he talking about? What is— Tom, because, like, that point at the end made a lot of sense to me, where it's like, okay, yeah, there's the note, but like, the way this has to work for a Napue violation is he has to make his determination, and he determined that— Yes. It's like, and then Clarence Thomas wants to say, yeah, but like, you hear the other person's explanation for like, in what other context would he ever do that? Would would it would that be what he's reviewing? I don't understand.

0:36:31 Matt: This is it. Right, right. It says a lot about Clarence Thomas that this is what he's worried about, that he really wants to defend the government in every opportunity and make sure that this execution goes forward. It says so much. The way, one of the other issues on this appeal, because this has really never come up before as far as I know, is whether due process means that the death penalty can be reversed when the state abandons its case, when they just walk away from a case like this, should we still execute the guy? Think that has a pretty obvious answer to me, but not to Clarence Thomas.

0:37:07 Thomas: Think if I try to explain to my kids that very question you were answering, they would not, I would not be able to make them understand what you're even talking about. Hey, should some invisible rules that we should kill somebody when nobody wants to? Yes. Yes. Okay.

0:37:16 Matt: Because it's completely unjust. Yep, because somebody said we have to, pretty much. I wanted to add very quickly that we've heard Glossop's name before, because in Glossip v. Gross in 2015, he was one of the plaintiffs, he's a lead plaintiff, for some death row inmates who were challenging midazolam as a method of execution. We talked about that actually back in OA 1007, one of our first episodes together.

0:37:41 Matt: We talked about the fact that in that case, Alito found that as long as the state is offering something that you can't prove is painful, it's up to you as the person being executed, right? And then if you want to provide something better, you're going to have to show an alternative. And that case had a Scalia concurrence that still sends me every time I look at it. This is such a Scalia concurrence, the anger, because Breyer in this case wrote an impassioned request, almost begging the court to say, like, let's order some briefing on the constitutionality of the death penalty. It is time. After reading these accounts of the way these people died and how awful this was, like, we have to talk about whether this can happen at all.

0:38:14 Thomas: Cast your mind back to this is a time where Kennedy was a swing justice, right? So it's like, if anyone's really young listening, this was a time where doing an impassioned plea like that might actually have made sense. Like now you wouldn't even, what's the point?

0:38:25 Matt: Well, now it's for us to read and for podcasts. He makes fun of Breyer in several different ways. And then he writes about a vocal minority of the court waving over their heads a ream of the most recent abolitionist studies, a super abundant genre, as though they've discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. I mean, it's just, yes, it should be.

0:38:41 Thomas: Dude, what are you talking talking about.

0:38:49 Matt: He loves the death penalty. He accuses Breyer of rejecting not just this ruling of the death penalty, but the enlightenment, the entire enlightenment.

0:38:57 Thomas: Yeah. You know, I want to do, if I had time, which I don't, I want to do a whole show, because I got so sick of the conventional wisdom that still existed. Well, Scalia, yeah, he was an asshole and he was wrong about everything, but he was a real genius and a sharp pen. He had a sharp pen, that Scalia.

0:39:13 Thomas: I just want to go through all that shit and be like, no, not clever, not smart, doesn't, like, it's stupid. It doesn't make any Shakespeare's lost folios. What is, why would that, does it, like he could've used maybe the Dead Sea Scrolls. That would make sense. Like the last folios lost didn't reveal. Wow. Turns out Hamlet didn't die at the end of Hamlet. Like, what are you talking about?

0:39:19 Matt: It's very stupid. Yeah. Sure, sure. Yeah.

0:39:36 Thomas: God, pseudo intellectual garbage.

0:39:37 Matt: Pretty much. Now, I don't want to get too much of Alito's majority and Scalia's concurrence on this one. It's pretty bad. But I just want to mention that just because we've heard Glossop's name before, and just in case people remembered that.

0:39:47 Thomas: This to a close, then, do you have any predictions for us? I mean, it is an interesting four-four court, I suppose. I suppose it'd be a good thing to lose Gorsuch, or maybe not. I don't know. I guess, yeah.

0:39:58 Matt: Potentially. They could pick up a Coney Barrett. It could happen.

0:40:00 Thomas: Were— okay, if you were a gambling man and you were betting on this, and like, trying to get, obviously, the not-kill-someone-for-no-reason outcome, and someone's like, all right, it's like a weird Monty Hall problem. You can either keep nine on the justice court, or you can get rid of Gorsuch. What would you, would you think that's, like better chances for you or worse?

0:40:17 Matt: Yeah, I'd get rid of Gorsuch, I think. And then you at least only have to persuade one other. Yeah. I mean, it's just a basic Monty Hall thing. At least you're you're eliminating a door. But no, to

0:40:26 Thomas: That guy is a real door. Rid of that door. Anyway. So with 4-4, and just to refresh, I think you said tie goes to the killer. Tie goes to the murderer, and it's bad, right?

0:40:38 Matt: Appeals court, yeah, that's right.

0:40:39 Thomas: Okay. So unbelievable.

0:40:39 Matt: And the state has to carry out an execution that they're trying to stop. It is

0:40:43 Thomas: So what's your prediction for how this is going to go?

0:40:46 Matt: Provisionally, I think 4-4 for now after listening to the arguments, but I'm hoping for better. I really am. We'll see. We will certainly cover it when we get there.

0:40:53 Thomas: Yikes. Well, that sucks, Matt, I hate that.

0:40:56 Matt: It does. But you know who doesn't suck is former Georgia Governor Roy Barnes.

0:41:01 Thomas: Oh my God, that's such a teaser, that is my whole— that's, that's a Gavelpod character. Well, it's both. I guess He's made appearances on, but it's like, Frasier, you know, started on Cheers, you know, and then he got his own show, which right oh oh I love this guy.

0:41:08 Matt: For sure. Yeah. Yeah, that's right. OA 1007, you can hear his voice, his beautiful voice. I knew

0:41:17 Thomas: All right, well, uh, we'll pause for this break while we, uh, palate cleanse, uh, of talking about some of the worst people in the world in the Supreme Court, and Clarence Thomas. Let's talk about my favorite. That's my favorite! You undersold it, man. Now, don't blame me. I would have given it away. My literal favorite character from the history of all of our shows. Like, this guy ruled. I can't wait for your footnote. All right, what's my guy up to? What's happening?

0:41:38 Matt: You'd love it. All All right. So Nathan Wade, you may remember from the Fani Willis prosecution, Nathan Wade of course had to recuse himself, had to leave that prosecution after Judge Scott McAfee ordered basically one of you has to go. And so Nathan Wade was called in by Jim Jordan. There's some dispute about how much he was called in and how much he knew about this. He claims that he found out about the subpoena from the news and was never actually served on him. They say that he was trying to evade it. Roy Barnes is involved because he represents Fani Willis and in some capacity represents Nathan Wade.

0:41:46 Thomas: I do? Yes? What? Really?

0:42:09 Matt: So Roy Barnes sent a letter to Jim Jordan, which is well worth reading. I would like to have you read it. Don't know if you'd want to do a Roy Barnes impression. I'm going

0:42:17 Thomas: Oh, it's impossible. What can anyone do?

0:42:19 Matt: So this letter is dated September 30th, 2024, and it is addressed to the Honorable, question mark, Jim Jordan. What Roy Barnes has to say about Jim Jordan sending a subpoena to his client, Nathan Wade.

0:42:30 Thomas: Mr. Chairman, I have reviewed your letter of September 21st, 2024, addressed to Nathan Wade, Esquire, regarding his appearance before your committee. Though my client and I were discussed in the letter, I was not sent a copy. I thus obtained the same through public sources. I find the tone of your letter to be filled with vitriol and anger. I would suggest that you take some deep breaths and calm down so this matter may be discussed without emotion. An anger management course might also help. Wow. In regard, in what capacity I represent the Honorable Fani T. Willis, I represent Ms. Willis in a personal capacity as well as her capacity as the duly elected district attorney of Fulton County. I insist on the procedures outlined in my earlier correspondence upon the examination of Mr. Wade. I am just a country lawyer, unaware of the ways of Washington, D.C., but I must comment on your statements regarding obedience to subpoenas lawfully issued by committees of Congress. I notice you were served with a duly issued subpoena of a Committee of Congress, which investigated the January 6th insurrection against the government of the United States of America. You failed to appear before that committee. I therefore find your protestations somewhat hollow. It reminds me of what Jesus said in Matthew 7:3. Why do you see the speck that is in your brother's eye, but do not notice the log that is in your own eye? In the South, we have a similar saying. That is like the skunk telling a possum his breath stinks.

0:43:58 Matt: Such a great Southern saying.

0:43:59 Thomas: Yeah, this is so good. I'm just a simple country lawyer. Oh, fantastic. Country hyper chicken.

0:44:03 Matt: He really said it.

0:44:04 Thomas: When you have calmed down and done the anger management class, I will be glad to discuss this matter with you in a logical, dispassionate manner. I wish you and the other members of Congress the very best in undertaking the work of the people. By the way, since Georgia just experienced a great tragedy, a school shooting by a young man with a machine gun. Do you think you could take a short break and solve that problem? I remain respectfully yours, Roy Barnes.

0:44:26 Matt: Check out what it says after that. Underneath, Roy Barnes,

0:44:28 Thomas: Counsel for Fani Willis, Esquire, in all capacities in which she may exist. What does that mean?

0:44:32 Matt: I love that. I don't know. I love it so much, though. I want to assign that to everything now, for all my clients. Like spiritual, temporal, moral capacities. I don't know.

0:44:41 Thomas: It must be for something, right? Maybe Jim Jordan tried to not send him the subpoena, you know, because— yeah, what would that be, there's got to be some reason, 100%,

0:44:49 Matt: He means both personal and professional, but that's just a really funny way to say it. The reason that he's involved is because he's insisting on asserting Fani Willis' privilege. So Nathan Wade did actually appear in front of the committee on October 15th. Jim Jordan gave him a chance to come back. Don't know what happened yet. It was a closed -door deposition, but Roy Barnes was there to represent Fani Willis's interests. So this is all being played out. But this, of course, is Jim Jordan wasting enormous amounts of time going about his weaponization of government, and how Trump is being persecuted, and whatever. And this is Barnes appropriately responding to Jim Jordan. This is the only way that you should write a letter to Jim Jordan. Should never take him seriously.

0:45:19 Thomas: It's Not like Roy Barnes is a Democrat, was he, or was he, I don't— oh, he was okay okay but he's the governor, oh, okay, yeah, I— I was guessing if you're a governor of Georgia you're probably not a Democrat, but I forget, governors sometimes you see bipartisan when it comes to governors, I don't really know why, but yeah, weird, but okay. Okay. That's awesome. That, amazing. I'm so glad for that. I've almost forgotten how much Clarence Thomas sucks for a small moment. Hey, Roy, can you write some letters to Clarence Thomas too? Let's just do Roy's, Roy Barnes's new podcast writes, Roy writes letters. It's just, can he just do this, but for almost every Republican in, in any position of power, I would love that.

0:45:23 Matt: He was. He was the last Democratic governor of Georgia.

0:45:35 Matt: Massachusetts right up until recently was all Republican governors. It happens. Yeah. Love a good letter. Also, I just noticed the top of his letterhead, Barnes Law Group, you see at the top there, their slogan is, making it right. That's awesome.

0:46:05 Thomas: Making it right. Wow.

0:46:06 Matt: That is a great slogan for a law firm.

0:46:08 Thomas: I love this guy. If anyone wants to enjoy the moment in trial history for me, just— this guy came into the Fani Willis hearing, and it was like he was a celebrity that every lawyer there was like fawning over. And I get it because the most delightful, charismatic person. It's— it's like when, one of the later forgettable Office seasons, when James Spader came in to interview for, you know, Michael Scott's job, and like, he was so charismatic and charming that, like, everybody was just completely taken by him. But is it's like that where like Roy Barnes just walked in and he all sides. Everybody was just like, it's a pleasure to be questioning you, sir.

0:46:22 Matt: He's beloved. Even What was supposed to be the hostile questioning was like, hey, what's up? Haven't seen you in a while. It was so good.

0:46:49 Thomas: Yeah yeah what you, what you've been up to, what you— what you're doing, man, hi, yeah, I don't blame it's the best well that was fantastic man, thank you for that delightful footnote fetish. All Well, that's our show, uh, thanks so much for listening, everybody, thanks, Matt, for the great breakdown as always. Let's— and again, please support the show, patreon.com/law, if you would be so kind. Or if you can't, we understand. Please give us a five-star review on whatever podcast-player-y thing that you do, or be super helpful, especially because, uh, you know, an unnamed asshole who used to be here kind of, uh, tanked the ratings a little bit with something that happened, so we do need, uh, to offset that, so please consider going and writing a review, giving us five stars. All right, Matt, I guess until we meet again, we'll, uh, see everyone Monday.

0:46:55 Matt: Everybody loves Roy Barnes. So there we go. Anytime. Good.

0:47:32 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:47:50 Thomas: You know how bad it has to be for Republicans to not call for someone's death?

0:47:53 Matt: Oh, wait, did I just do it again? I just did it again.

0:47:55 Thomas: No, you actually did it right that time.

0:47:57 Matt: Did I say Marcellis, though? Is it Marcellus?

0:47:58 Thomas: Marcellus Williams. Yeah, It is Marcellus, because the problem is you kept saying Marcellus Wallace. Or you said Marcellus Wallace once.

0:48:04 Matt: Wallace. That's right. Okay, I see, I now really spooked myself. There we go. Okay, good. Okay great.

0:48:07 Thomas: I listened. It's hard to catch them all, but yeah.

0:48:12 Matt: Again, remember that the Attorney General's office was actually putting in a full – that's our haunted heater.

0:48:15 Thomas: What I'm— that's I'm hearing noise, sorry, there's— what? Yeah,

0:48:18 Matt: It does that sometimes. That time of year.

0:48:22 Thomas: Gotta wait until that's done, also,

0:48:24 Matt: Does this like once a day. Of course, it has to be right now. It shouldn't be long.