Continuing a discussion of the Supreme Court's term: death row litigation

This year is destined to seem a remarkable one for yet unborn historians of the struggle over capital punishment in these United States, if only because this was the year that Richard Glossip escaped execution. It was a near-run thing, but it now seems that not only will Glossip get a new trial, but that death will be "off the table" in the context of this new trial.  

On February 25 of this year, SCOTUS held, in an opinion by Justice Sotomayor, that Glossip must get a new trial on the precedent of the same court's ruling in 1959, NAPUE v. ILLINOIS.

NAPUE established that prosecutors violate the constitution when they knowingly obtain a conviction using false evidence, either by soliciting false testimony or by allowing false testimony to stand without correction. 

When that happens, Sotomayor wrote, the defendant is entitled to a new trial if there is a reasonable chance that the false testimony could have affected the first jury's decision.   

In this case, much turned on the fact that the only direct witness to Glossip's involvement in the murder at the heart of this case, a witness named Justin Sneed, was taking prescription lithium for a psychiatric disorder at the time of his testimony.  The wrinkle that led to the lying on which Sotomayor's opinion turns was the reason. Sneed testified that he was on lithium accidentally, it had been prescribed for him for a cold, and that he had never been treated by a psychiatrist.

Sneed was not just a witness. He was, at the minimum, the muscleman in the underlying murder. He avoided death himself for the murder of Barry Van Treese by testifying that Glossip, the manager at a motel where Sneed was a maintenance man, had instructed him to do the killing. 

So it is a matter of great significance that Sneed's testimony about his prescription for lithium was simply false. He was under psychiatric treatment and the lithium was a non-accidental part of that treatment. It WAS the treatment, and it is difficult to believe any medical professional would have confused it with Sudafed. Even though the two words have so much in common -- each has a "u" in it. 

Sneed's lie on this point (of which the prosecutors were well aware) had it been disclosed to the jury, would surely have hurt his credibility as the key witness against Glossip. That is enough to make the point material.  But there is another point in which this lie had material bearing, Sotomayor said. Bipolar disorder system can be exacerbated by the use of methamphetamines, to which use Sneed has confessed. This helps the case for Sneed as an alternative murder suspect in the underlying matter -- the use of meth by someone who is already bipolar can set off paranoia and impulsive violence: violence that no one has to order up. 

Hence there is a "reasonable likelihood," Sotomayor concludes, "that correcting Sneed's testimony would have affected the judgment of the jury."  

Cruel and unusual 

The year 2025 will also go down in history as the year of the execution of Jessie Hoffman in Louisiana. Hoffman's execution is an important datum about our day NOT because there is reason to believe that he is innocent of the rape and murder of Mary Elliot in 1998 (there is not), but because he was executed by a new method, one might even call it in constitutional terms an "unusual" method, and (deliberately) a cruel one, nitrogen hypoxia, a method that is no longer used to euthanize animals, because of the general recognition in that context that it is too much of a dysthanization method to be a euthanization method. 

On March 18th of this year the Supreme Court dismissed a last-second effort by his defense attorneys to stay the execution: and it proceeded.

Heck, why not return to the old-school electric chair for these events? Not cruel enough for us? 

DNA testing and mental impairment

Another death row inmate, Ruben Gutierrez, has recently come before the US Supreme Court. On June 26th the Court held that Gutierrez, held by Texas, can bring a federal civil rights claim to challenge the constitutionality of state laws governing DNA testing. 

In a 14-page opinion, Justice Sonia Sotomayor (again) wrote that Gutierrez’s case was “indistinguishable” from the court’s 2023 decision in Reed v. Goertz, in which the court revived an inmate’s effort to seek DNA evidence that he contended would exonerate him. Both the Gutierrez and the Reed cases came before the court as "standing" issues -- that is, a dispute over whether an inmate has standing to sue a prosecutor who has denied him access to DNA testing.  

The Gutierrez case allowed Justice Thomas in dissent to take a swipe at the whole idea of a substantive  liberty interest in the 14th amendment's due process clause, while tying that dubiously to the matter of standing. Thomas wrote that the notion of such a right is so fallacious and the reliance of the petitioner's case on that premise so blatant, that the Supreme Court has "no business intervening in the case in the first place." 

Sotomayor disposes of that argument in a footnote. Clearly the bit of the due process clause here most at issue is in the word "life," not the following word "liberty."  The distinction between the two is the basis of the idea of a "super die process" for death penalty cases. Furthermore, there is nothing substantive about Gutierrez' claims.  They involve old-fashioned procedural due process. Sotomayor's footnote on the point reminds Thomas that no view of the merits of the due process claim transformed itself into a standing argument. 

I'll speak to just one other case today, the Supreme Court continues to explore the idea that mental defects that do not affect legal responsibility for one's actions nonetheless affect one's susceptibility to capital punishment. In 2014 and 2017 the Court somewhat eased the burden of proving the necessary level of disability in such cases. This spring the Court agreed to hear a case in that line involving the life of Joseph Clifton Smith, and many fear (some, I would imagine, hope) that it has taken this case up as a way of moving the law in the opposite direction.

Some of the amici in this matter appear to want the court to go a good deal further than that. Conservative states attorneys general have suggested that it was wrong of the court, back in 1976, to tie the constitutional phrase "cruel and unusual" to “the evolving standards of decency that mark the progress of a maturing society,” Estelle v. Gamble, 429 U.S. 97, 102 (1976). They want the ESTELLE language rebuked. 

I don't think they're going to get that, but I can think of two vote they can count on.