Glossip v. Oklahoma
Oral argument transcript · No. 22-7466 · October Term 2024 · argued October 9, 2024 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Seth P. Waxman, Washington, D.C., for the petitioner
- Paul D. Clement, Alexandria, Virginia, for the respondent
- Christopher G. Michel, Washington, D.C., amicus curiae supporting the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument this morning in Case 22-7466, Glossip versus Oklahoma. Mr. Waxman. ORAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER
Seth P. Waxman: Mr. Chief Justice, and may it please the Court: Richard Glossip was convicted on the word of one man, Justin Sneed, the undisputed murderer in this case. Oklahoma has now disclosed evidence revealing that Mr. Sneed lied to the jury about his history of psychiatric treatment, including the fact that a prison psychiatrist prescribed lithium to treat his previously undiagnosed bipolar disorder. The prosecution suppressed that evidence and then failed to correct Mr. Sneed's perjured denial, just as it suppressed evidence that in the middle of trial, in violation of the court's sequestration order, Sneed altered his testimony about the knife wounds on the victim at the urgent request of the prosecutor, who then Official 1 falsely denied to the court her prior knowledge. There is no adequate or independent jurisdictional bar to review and no warrant for an evidentiary hearing. As to independence, the court's opinion is suffused with merits determinations on the Brady and Napue claims. And, certainly, there is no "clear and express statement" that the court's decision is based on a bona fide separate, adequate, and independent grounds, as long required by this Court to preclude review. Nor is there any adequate bar. By rejecting the State's waiver, the court created a jurisdictional threshold it had never applied in any other case. The disposition was "without support in prior state law," as required by over 60 years of this Court's precedent to establish adequacy. No evidentiary hearing could alter the conclusion that Mr. Glossip was denied due process. There's no dispute that, contrary to Sneed's sworn testimony, the State's own suppressed record shows that he was, in fact, treated by a psychiatrist for bipolar disorder, just as there is no dispute that Sneed changed Official 1 his testimony about the knife at the urgent mid-trial request of the prosecutor, who then falsely denied that very fact to the court. This Court should reverse and remand for a new trial. I welcome the Court's questions.
Justice Thomas: Mr. Waxman, you place quite a bit of weight on the note -- notes from Smothermon and Ackley, and from your opening statement, you clearly do not agree with them. Did you at any point get a statement from either one of the prosecutors?
Seth P. Waxman: Yes.
Justice Thomas: Did you interview them?
Seth P. Waxman: Well, to be clear, we -- 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 mentions the account that he has now provided to the -- in the amicus brief for the Van Treese family. And, as to Ms. Smothermon, Ms. Smothermon was interviewed both by the Official 1 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 Treese brief.
Justice Thomas: 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 that they -- that an interview of these two prosecutors would be central. They suggest that the -- their interviews were generally about prosecuting capital cases and not specifically about the details of this.
Seth P. Waxman: Well, 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 that they -- you know, to which they're entitled. When -- 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. As to -- Official
Justice Thomas: Did they make themselves unavailable? Sorry to interrupt you.
Seth P. Waxman: Well, he -- he made himself available. He provided us a declaration.
Justice Thomas: No, it's -- what you're saying is -- would make sense if, for some reason, they had made themselves unavailable. They suggest that they were not sought out and given an opportunity to give detailed accounts of what those notes meant and -- and what they did during the trial.
Seth P. Waxman: 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 the -- 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 disbursed 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 Official 1 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 "fishing expedition" and said that no such records existed. She -- this is a prosecutor who engineered a mid-trial change in Justin Sneed's testimony and then denied doing so in the court and stood silent in the face of the testimony -- the false testimony that she elicited about psychiatric treatment. And I think --
Chief Justice Roberts: Mr. Waxman, the counsel appointed by the Court argues that a central element of your case is the jury -- that the jury would have regarded the matter differently if they knew that the lithium had been prescribed by a psychiatrist as opposed to someone else because the jury knew about the lithium and what they didn't know is that it was prescribed by a psychiatrist. Do you -- do you really think it would make that much of a difference to the jury?
Seth P. Waxman: Well, I think that's not the only material difference here, that the -- the -- the fact was not only that he was -- it Official 1 was that he lied and was allowed to lie when he said that he never saw a psychiatrist, which the defense -- which -- you know, it is one thing for a witness to stand up in court and testify on the basis of a promise of leniency by the prosecution. It's one thing for a witness to speculate or be inaccurate about what actually happened. What the jury is told, this is a witness who lied about the fact that he had seen psychiatric testimony and was diagnosed with bipolar disorder, and this is a witness who, at the mid-trial inducement of the prosecutor, changed his testimony about whether, in fact, he had also stabbed the victim. It very well could have made a significant difference in the --
Justice Sotomayor: Mr. Waxman --
Seth P. Waxman: -- outcome of the case. Just the --
Justice Sotomayor: -- the issue wasn't about him taking lithium. The issue was about why he was taking the lithium.
Seth P. Waxman: Yes, of course.
Justice Sotomayor: And so the fact Official 1 that the jury knew he had taken lithium during incarceration doesn't tell them anything about whether he had bipolar -- a bipolar condition, that his use of drugs would have led to impulsive and violent behavior, correct?
Seth P. Waxman: That's correct. And --
Justice Sotomayor: And would have explained the murder, correct?
Seth P. Waxman: I'm sorry?
Justice Sotomayor: And would have explained --
Seth P. Waxman: And would have explained the murder.
Justice Sotomayor: -- the murder. Now can I go back to the two questions here? I have three of my own, okay?
Seth P. Waxman: Okay.
Justice Sotomayor: There's a lot -- and you spent a whole lot of time in your introduction, a lot of spilt ink here, on whether the PCPA is an adequate and independent state ground. I'm not even sure why we're doing all that when -- you're right, the court below seemed to confuse the merits with the procedural bar, but it's very clear that a procedural bar Official 1 is always waiveable under Oklahoma law. Legions of cases say that, correct?
Seth P. Waxman: Correct.
Justice Sotomayor: So --
Seth P. Waxman: And under federal law.
Justice Sotomayor: -- so, once you waived, the only issue before the court was the substantive issue of whether there was a violation of federal law, correct?
Seth P. Waxman: Correct.
Justice Sotomayor: So that's really the only issue before us, the procedural bar. A lot of spilt ink goes on and on about is this the first time they didn't waive it, is it not the first time they didn't waive it. The reason that's true is because they accept the waiver when there's a violation of a right, and they don't accept the waiver when there's no violation of a right. Here, they found no violation of a right, so they reached the substantive legal issue and said: We're not going to waive. You don't find any case in Oklahoma law -- and your adversary, Mr. Waxman, can tell me -- where they found a constitutional Official 1 violation either under state or federal law and said: We won't accept a PCPA waiver. Can't find it because it doesn't exist. So now we're on the federal issue, okay? That's all I'm looking at. Was there a Napue? Was there a Brady violation? That's your argument, correct?
Seth P. Waxman: Correct.
Justice Sotomayor: Now, on the Van Treese issue, that's non-record evidence, so it's not before us.
Seth P. Waxman: It's not only not before you, it wasn't the basis on -- it wasn't before the Oklahoma Court of Criminal Appeals.
Justice Sotomayor: So whatever that was.
Seth P. Waxman: It was never even suggested then.
Justice Sotomayor: Now we know we had two independent counsels. At least one of them, if not both, talked to Gary Ackley because --
Seth P. Waxman: Correct.
Justice Sotomayor: -- he submitted an affidavit.
Seth P. Waxman: Correct. Official
Justice Sotomayor: And he said in that affidavit that Justice Sneed was on lithium as treatment for bipolar disorder would have been an important fact for the defense to know.
Seth P. Waxman: Correct.
Justice Sotomayor: So he concedes the basis of the Napue -- violation here, didn't he?
Seth P. Waxman: Certainly the Brady violation.
Justice Sotomayor: Right. Now, if he's changed his testimony now in unsworn materials, that's irrelevant to us here, and it's irrelevant to the finding the Oklahoma court made below, correct?
Seth P. Waxman: That's right.
Justice Sotomayor: All right. So now let's go to the substance of the issue that the Chief raised, which was: Could he have found this earlier and does that make a difference to the Napue violation and the Brady violation? I thought the essence of the Napue violation is: Was there a falsehood? Did the prosecutor know it was a falsehood? Not whether the defendant knew it was a falsehood but whether the prosecutor has an obligation to Official 1 correct it. Is that correct?
Seth P. Waxman: It is correct that both the Napue and its subsequent cases and Brady and its progeny both look to the -- the obligation, the constitutional obligation, of the prosecutor and not what the defense could have discovered.
Justice Sotomayor: All right. Now let's go to --
Chief Justice Roberts: Thank you, counsel. We'll -- we'll get back shortly through the seriatim questions. Justice Alito?
Justice Alito: You didn't ask -- you don't have a question?
Justice Thomas: No, go.
Justice Alito: Sorry. All right. Well, Mr. Waxman, Justice Sotomayor has taken us through the whole case, so maybe there's not much left to discuss, but I did have a few questions. The Oklahoma Court of Criminal Appeals said in paragraph 24 of its opinion, "Even if this claim overcomes procedural bar, the facts do not rise to the level of a Brady violation." Why isn't that a quintessential clear Official 1 statement under -- under Long? Even if it does not overcome the procedural bar, then -- and it goes on, then to the federal issue?
Seth P. Waxman: Well, I -- I think -- I think that the sentence you just read me is susceptible to at least two interpretations. One is the one you're implying, and the other is that they have just finished dispensing with a number of other claims in their opinion, all of which they very clearly unequivocally barred on state procedural default grounds. When they come to the Brady claim, the court says: Even if this claim overcomes procedural bar, I will then now spend the next four paragraphs -- well, three of the next four paragraphs discussing the merits of the Brady claim. And, at a minimum, Justice Alito, I think we have to acknowledge that paragraphs 24 through 28 -- and this is repeated again at paragraph 41 and paragraph 12 -- that the -- any statements by the court with respect to the state procedural bar are, to quote this Court's precedents, interwoven with and influenced by its consideration of the federal constitutional Official 1 claims.
Justice Alito: Why -- why is that so? In paragraph 26, the -- the Oklahoma court goes through the two requirements under state law under 1089: "The issue is one that could have been presented previously because the factual basis for the claim was ascertainable through the exercise of reasonable diligence." And then it goes on to the -- to the innocence requirement: "And the facts are not sufficient to establish by clear and convincing evidence that, but for the alleged error, no reasonable fact finder would have found the applicant guilty of the underlying offense or would have rendered the penalty of death."
Seth P. Waxman: I -- I don't deny --
Justice Alito: What -- what's ambiguous about that?
Seth P. Waxman: Justice Alito, there is no denying that the entirety of paragraph 26 is a near-verbatim recitation of the two prongs of the state procedural bar. There is also no denying that it is preceded by two paragraphs discussing the merits of the Brady claim and succeeded by a paragraph Official 1 which also goes in -- in which goes in detail in explaining why the Brady claim fails.
Justice Alito: But what does that show? Yes, there's no dispute that they -- they held in the alternative that there was no federal constitutional violation. But there is the Oklahoma statute. It has two requirements. They -- they -- they go through the two requirements, and they say that they weren't satisfied, and -- and they say: Even if it could overcome the procedural bar, it still would not provide a basis for -- for relief. I -- I don't see what's unclear --
Seth P. Waxman: Just --
Justice Alito: -- or even ambiguous about that.
Seth P. Waxman: Justice Alito, with respect, let me make two points. Number one -- I guess maybe two-and-a-half points. Number one, when the court deals with the Napue claim, which it does not address until paragraph 28, it never mentions procedural bar whatsoever. It is fully adjudicated on the merits. Number two, the -- I think that -- I Official 1 think that one has to concede that at a minimum, a minimum, with respect to the Brady claim, there is -- it is certainly interwoven with -- and it's physically on the page interwoven with what may or may not have been an adjudication of the state procedural bar. Certainly, it was influenced by it. And this Court, 41 years ago in Long versus Michigan and -- riterated 30 years ago also in another opinion by Justice O'Connor, reiterated that -- and I'm quoting -- "After Long, a state court that wishes to look to federal law for guidance ... as an alternative holding while still relying on adequate and independent state ground[s] can avoid the presumption of [federal jurisdiction] by stating 'clearly and expressly that [it's decision] is ... based on bona fide separate, adequate, and independent grounds.'"
Justice Alito: All right. Going on to a -- a -- another point, you rely very heavily on a note that says "Lithium? Dr. Trumpet?", and you read a lot into that. And the Van Treese family's amicus brief provides a pretty compelling Official 1 counter-reading of that. And -- and you want us to say, well, just pretend it doesn't exist and read those notes the way we think they should be read, those cryptic notes the way we think they should be read, because it's not the -- the material that the Van Treese brief relies on is not in the record of the case. We shouldn't even remand for an exploration of this?
Seth P. Waxman: As to the -- I'll deal with the remand first and then the weight that ought to be given to the Van Treese brief's eleventh-and-a-half-hour explanation of these notes. There is the -- this case comes to you based on a holding of the Oklahoma Court of Appeals that did not have that account in front of it because the Van Treese family did not present it to the court and was predicated on a series of factual allegations and interpretations that were presented both by the prosecutor, the attorney general, and by Mr. Glossip, and fully supported in great detail and with reasoning by the two independent investigators, the -- Official
Justice Alito: All right. I -- I --
Seth P. Waxman: -- investigations that had been done, and --
Justice Alito: -- I get your point. Your point is we shouldn't consider it because it's not in the record, right? That's the short answer?
Seth P. Waxman: I -- I think you shouldn't consider it for a whole lot of reasons, one of which is that it is inconsistent -- it not only was never mentioned at a time when, surely, if it was the case, it would have been, and is inconsistent with what Mr. Ackley says in his declaration. But let me -- let me just say this, Justice Alito. Even assuming that this account is true, there's no denying the fact -- and it's also in the record -- that on -- while his first conviction was on appeal, he was visited in prison by Mr. Glossip's defense lawyer and an investigator. And that is clearly reflected in the notes of both Ms. Smothermon and Mr. Ackley. There are a lot of other things that are accounted for in those notes that have nothing to do with that interview. Official
Justice Alito: All right. Let me just --
Seth P. Waxman: But even if --
Justice Alito: -- let me -- let me go on to one other question because the time is limited. You read McCarty, a 2005 case where the Oklahoma Court of Criminal Appeals accepted the State's waiver of 1089, and you rely on that. But there is no reasoning in McCarty. The court simply said that in a footnote the State expressly waived any procedural bar. Do you -- do you read this for the proposition that the Oklahoma court must accept all 1089 waivers in future cases?
Seth P. Waxman: I do. But even if I were wrong about that and it reflected the fact that it was a discretionary rule, it is clear from this Court's cases, Beard versus Kindler and Walker versus Martin, that a discretionary rule is inadequate unless applied consistent with an intelligible principle that is "firmly established and regularly followed." And going all the way back to the 1960s -- Official
Justice Alito: So one departure in the application of a discretionary -- if the -- in a discretionary rule, if the rule is applied in a discretion -- in -- in a -- in -- in a habeas petitioner-friendly way in one case, that's the end of the matter?
Seth P. Waxman: Well, I -- I think that there -- that there is a non-discretionary rule that that is the rule of party presentation that Oklahoma has followed for a hundred years, and McCarty is entirely consistent with that. But even if it were simply an instance of some discretion, again, this Court said in -- you know, 60 or 70 years ago and has reiterated since that a declination -- a state -- the invocation of a state procedural rule "without support in prior state law" is inadequate. And in Johnson versus Mississippi, this Court said, '"[A] state procedural [rule] ... is not 'adequate' unless 'strictly or regularly followed."'
Justice Alito: All right. Thank you.
Seth P. Waxman: Okay.
Chief Justice Roberts: Justice Sotomayor? Official
Justice Sotomayor: Counselor, no matter how we get past this, we have to reach whether the court ruled correctly on the constitutional issue, correct?
Seth P. Waxman: Well, I -- I -- I think so based on my -- my position and the State's position that there is no jurisdictional bar.
Justice Sotomayor: And everything that the Oklahoma courts have done, you said a hundred years of their history, party presentation, the fact that they've never had a case with a constitutional violation where they didn't accept the waiver, correct?
Seth P. Waxman: That's right.
Justice Sotomayor: And --
Seth P. Waxman: In fact, in this Court's -- in -- in the Oklahoma Court of Criminal Appeals' jurisprudence, there is a case -- it's cited by everybody, Valdez versus the State -- which says that the power to grant post- -- relief post-conviction "when an error complained of has resulted in a miscarriage of justice, or constitutes a substantive violation of a constitutional or statutory right." So this is not a rule that the court is "powerless" Official 1 to grant a waiver or that it does not, in fact, routinely defer to party presentation.
Justice Sotomayor: So I go back to the -- this is not AEDPA, correct? Our review is not AEPDA? Meaning --
Seth P. Waxman: Did you say --
Justice Sotomayor: It's not AEPDA review.
Seth P. Waxman: AEDPA?
Justice Sotomayor: AEDPA.
Seth P. Waxman: Oh, yeah. No, no, no.
Justice Sotomayor: No, no, no.
Seth P. Waxman: This is a direct review --
Justice Sotomayor: This is a straight did they get --
Seth P. Waxman: -- from a state supreme court.
Justice Sotomayor: -- if they -- if they reach the -- if they reach the constitutional question and we de novo decide whether they got the law right, correct?
Seth P. Waxman: That's my understanding.
Justice Sotomayor: So whatever they said their reasons or thinking was, we have to Official 1 look at the record and decide whether the facts and law support your argument that there were Brady and Napue violations, correct?
Seth P. Waxman: Yes.
Justice Sotomayor: Now tell me succinctly why, even assuming their finding that they could have determined this issue earlier, Brady and Napue violations would have occurred.
Seth P. Waxman: Well, the --
Justice Sotomayor: I say "they," meaning the court below.
Seth P. Waxman: Yeah. So, you know, the -- part of the adequacy determination, leaving aside this novel and unforeseen refusal to give credit to the -- the State's waiver of procedural bars, is whether there is fair and -- "fair and substantial support" for the prongs of the State procedural -- depart. Here, the court's analysis of diligence, which is paragraph 27 of the -- the court's opinion, defies any reasonable application of state law. The -- the supposition is that Mr. Glossip's lawyers should have brought a claim of constitutional error before they knew the salient facts establishing Official 1 the error. In this context, we have, number one, with respect to the --
Justice Sotomayor: It doesn't matter what state law says about that. The question is what does federal law say about it, correct?
Seth P. Waxman: Federal law -- I -- you know, I -- maybe I'm missing something here, but federal law doesn't -- I mean, the federal requirement of adequacy and independence is federal law, and those -- that definition of fair and substantial support comes from --
Justice Sotomayor: I -- I -- you miss -- you misunderstood my question, okay?
Seth P. Waxman: Okay. I -- I apologize.
Justice Sotomayor: I -- I'm past the procedural bar.
Seth P. Waxman: Okay.
Justice Sotomayor: I was past it long ago because I think we need to get to the federal question.
Seth P. Waxman: I hear you.
Justice Sotomayor: All right? So even -- is there a Napue or a Brady violation if they could have discovered this earlier? Official
Seth P. Waxman: The answer to that question is yes because the adequacy prong of this Court's --
Justice Sotomayor: Forget adequacy.
Seth P. Waxman: Okay. The answer is -- the answer is yes, the -- JUSTICE SOTOMAYOR. Forget -- let's assume they had granted your waiver.
Seth P. Waxman: Okay.
Justice Sotomayor: All right? Let's assume that.
Seth P. Waxman: Okay.
Justice Sotomayor: So adequacy and independence is not at issue. Under federal -- and this had happened, and it was the first case before the court, and they come up and they say: There was a Napue violation, there's a Brady violation. And your other side comes up and says: No, there wasn't, because you could have found this earlier.
Seth P. Waxman: Okay. The answer to your question is twofold. Number one, as this Court has said in several cases, Brady and Napue do not stand for Official 1 the proposition -- stand for the opposite of the proposition that the prosecution may hide and the defense must try to seek. That's the antithesis of what Brady and Napue and their progeny provide. In addition, it is simply preposterous to argue either with respect to the -- you know, what's -- the -- the document that is in -- on page 1005 of the Joint Appendix, that is, the -- the jail record, that this document could have been discovered in the face of a solicited denial under oath that he'd ever had psychiatric treatment and the State's mocking of a discovery request, number one, for all -- the substance of all statements of Justin Sneed to the prosecutor, which is required not only by the Due Process Clause but also under state statutory law, Title 22, Section 2002(a)(1)(C), which requires the prosecution to produce the substance of any oral statements made to the prosecution by a co-defendant. And how on earth could defense counsel have known that in Ms. Smothermon's files there was a memo that she sent immediately after the medical examiner testified to Mr. Sneed's Official 1 lawyer, saying we "need to get to Justin today. The knife is our biggest problem," and then received back handwritten notes discovered in Box 8 that -- I guess it was Box 7 -- that, in fact, Sneed was going to change his testimony and say that he did stab the victim. And the prosecutor then, in response to a mistrial motion, affirmatively tells the court --
Justice Sotomayor: Counsel, the -- the last --
Seth P. Waxman: -- we're hearing this for the first time.
Justice Sotomayor: -- the one fact you didn't mention is that there was a defense request for medical records --
Seth P. Waxman: Absolutely.
Justice Sotomayor: -- that were resisted by the government, and they succeeded. They never turned over his medical records.
Seth P. Waxman: That's correct.
Justice Sotomayor: So they had no way of determining from his medical records the lithium issue?
Seth P. Waxman: Correct. Official
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan?
Justice Barrett: You forgot Justice Kavanaugh.
Chief Justice Roberts: Yeah, sorry. (Laughter.)
Chief Justice Roberts: Justice Kavanaugh? Justice Barrett?
Justice Barrett: No.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So, from your colloquy with Justice Alito, it seems that there is agreement that the court in this case applied the procedural bar, right? I mean, at least you -- it's in the alternative, but they did actually apply the bar, is that right?
Seth P. Waxman: As -- arguably, as to Brady, not as to Napue.
Justice Jackson: All right. So even with respect to Brady, I guess -- doesn't that seem to be the problem, though, from the standpoint of AISG when the bar has been clearly waived? I think that was Justice Sotomayor's Official 1 initial point. Can parties in Oklahoma waive non-jurisdictional procedural bars?
Seth P. Waxman: Of course.
Justice Jackson: They can. Right.
Seth P. Waxman: Of course.
Justice Jackson: And -- and -- and what happens when those waivers occur? I mean, do -- do the Oklahoma courts routinely proceed to either evaluate the reasons for the waiver or reject it and continue on anyway? I thought they just accepted -- if a party says, this is a non-jurisdictional bar, I have a right to raise it, but I'm waiving that right, the Oklahoma courts' standard practice, just like most courts, if not all courts, is to accept that and go on, right?
Seth P. Waxman: Yes. Like the federal courts, the Oklahoma courts honor the principle of party presentation and adversarial presentation in honoring the waiver of those non-jurisdictional bars.
Justice Jackson: As a matter of practice. So we don't need a rule necessarily that Oklahoma always accepts these. They just do it. I mean, that's what -- we don't have any Official 1 evidence that they've ever rejected it, correct, the waiver?
Seth P. Waxman: That's correct.
Justice Jackson: Okay.
Seth P. Waxman: And, in fact, the rule that this Court applies on the adequacy prong is that it is -- the refusal to accept a waiver is not adequate unless it has been done consistently in the past.
Justice Jackson: Correct. Thank you.
Chief Justice Roberts: Thank you, counsel.
Seth P. Waxman: Yeah. Nothing? Thank you.
Chief Justice Roberts: Mr. Clement. ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENT, IN SUPPORT OF THE PETITIONER
Paul D. Clement: Mr. Chief Justice, and may it please the Court: Attorney General Drummond did not confess error here lightly. Indeed, he continues to defend multiple capital convictions and opposed Mr. Glossip's penultimate cert petition. But, after commissioning an independent review, he reluctantly reached the Official 1 conclusion that Brady and Napue violations by the State's own prosecutors obligated him to confess error and waive procedural obstacles, as his predecessor had done in McCarty. That confession demanded respectful consideration and resolution of the issues on the merits, as in McCarty. Instead, the court invoked procedural bars and essentially treated the confession of error as unfounded. The resulting decision made errors on two important federal constitutional issues, and those errors are not shielded by adequate independent grounds. When the State's one indispensable witness was under bipolar -- had -- had bipolar disorder and not a toothache or a common cold, that fact is highly material and merits a new trial. I welcome the Court's questions.
Justice Thomas: Mr. Clement, back to the prosecutors. If you had -- if they were using a note of yours from 20 years ago, wouldn't you expect them to call you and have an in-depth investigation as to what your note meant? Official
Paul D. Clement: I -- I mean, I -- I would expect that, Justice Thomas, and --
Justice Thomas: Well -- well, shouldn't these two prosecutors -- it seems as though their reputations are being impugned, and, according to them, they did not receive an opportunity to explain in depth.
Paul D. Clement: Justice Thomas, that's hard to square with the record here. There were two independent investigations. As Mr. Waxman has indicated, Mr. Axley -- Ackley submitted a affidavit under -- under oath. And, you know, I -- and -- and, ultimately, I think the attorney general, having commissioned a second independent review, looked at the results of that, looked at the notes, and he has to make his own judgment because, ultimately, the prosecutor has to decide whether a Napue violation has occurred.
Justice Thomas: Well, when I looked at the note of Ms. Smothermon, I couldn't make heads or tails of it. It had a few names. It had "lithium" and a question mark. And she explains what it was. And, according to her explanation, if Official 1 it's true, it's -- it was simply about a conversation that Glossip's lawyer had with -- was it Sneed?
Paul D. Clement: Sneed.
Justice Thomas: Sneed. And if that's the case, I don't see how there's any basis for either of those two violations.
Paul D. Clement: 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 to the defense.
Justice Thomas: Where -- where was that -- what was that sheet?
Paul D. Clement: That sheet's at Joint Appendix page 933, and it shows that -- that when he was transferred from the jail facility to the correctional facility, he was -- he was under lithium for bipolar disorder. So, if -- if -- if we're looking at those notes in conjunction with that medical information sheet, it seems quite -- the -- the Official 1 inescapable conclusion that the attorney general had to make on his own was --
Justice Thomas: I think her point was simply, I mean, even that sheet -- is that the sheet that she says the sheriff filled out? That it didn't come from -- actually from a doctor?
Paul D. Clement: Well, but -- but it's the -- the State's own record --
Justice Thomas: It was a transport --
Paul D. Clement: -- that at the point of transfer he was, A, under lithium, and, B, it was for bipolar disorder. And so I -- I mean, again, I think you ultimately have to draw the most plausible inference from all the information available. And the most --
Justice Thomas: But 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 -- which she thinks is inadequate information.
Paul D. Clement: Well, the attorney general is basing his judgment in part on the Official 1 independent investigation of Mr. Duncan. He talked to Ms. Smothermon. Afterwards, Ms. Smothermon says it wasn't a sufficiently lengthy conversation.
Justice Thomas: She's --
Paul D. Clement: I mean, at a certain point, I mean -- and -- but 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 evidentiary 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 -- 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 Napue, 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. Official
Justice Jackson: But are you saying that we are -- that -- that the question of Brady and Napue or a Napue violation is resolved because the attorney general has reached that conclusion?
Paul D. Clement: Absolutely not. And we --
Justice Jackson: All right. So why wouldn't we send it back? I mean, it's my understanding -- if we send it back for an evidentiary hearing? It's my understanding that there's never been a court determination of any of these facts. Justice Thomas is saying there are some disputes about what the notes mean and whatnot. So I just -- I guess I don't understand why we wouldn't, at the minimum, have some sort of requirement that a court make a finding about these things.
Paul D. Clement: I -- I -- I -- I mean, look, again, we didn't resist an evidentiary hearing below. We would be satisfied if you vacate the judgment below and order an evidentiary hearing. We do think an evidentiary hearing is not necessary here because I -- I -- I just think, if you look at those notes in Official 1 conjunction with the medical information sheet, there's no factual dispute. I don't think there's any factual dispute that they -- that -- that, certainly, the two in conjunction with each other are Brady material. I don't know --
Justice Sotomayor: Counselor --
Paul D. Clement: -- how they're not.
Justice Sotomayor: -- whether the prosecutor actually knew about it, knowledge is imputed to her, right?
Paul D. Clement: I -- I -- I would certainly think so, and so I don't -- I don't --
Justice Sotomayor: I think, under -- under the law, anything in the prosecutor's possession, which includes prison records, is -- the knowledge is imputed to the prosecutor, correct?
Paul D. Clement: Right. And, ultimately -- look, ultimately, the question is, did she elicit perjured testimony and fail to correct it? And it seems like, especially when you look at it in conjunction with the medical records and then you keep in mind that the medical records were withheld, in contradistinction of -- or in contravention of Official 1 Oklahoma law and Brady, I think there's only one conclusion to be make -- made here. And you can certainly understand why the attorney general -- I mean, whoever is the -- if you think an evidentiary hearing is fine, I mean is necessary, then the attorney general will be there, confessing error again, because, as you can understand, given all the evidence here of the Napue violation, the Brady violation, I mean, even under the most -- even under Smothermon's explanation that these are notes that she took based on what the -- what Sneed told her, there's an obligation under Oklahoma law to turn over all the defense -- all the -- all the witnesses' statements. So any -- and especially -- and, here, there was a request for it.
Justice Kagan: Mr. --
Paul D. Clement: So --
Justice Kagan: I'm sorry. Please.
Paul D. Clement: No, no. So -- so just looking at all of that material, the attorney general drew, I think, the only conclusion that he could.
Justice Kagan: Can I ask you, Official 1 Mr. Clement, about some of the questions that Justice Alito was asking Mr. Waxman about, the whether there is an independent and adequate state ground here, and -- and -- and really focus on these couple of pages of the Oklahoma court's opinion, which I find difficult to say the least, and ask you what you make of them?
Paul D. Clement: So a -- a -- a couple of things. One is I do think the easiest ground to say there is not an adequate independent state ground here is the waiver issue as opposed to splicing the opinion. If you're going to splice the opinion --
Justice Kagan: When you say "the waiver issue," what do you mean by that?
Paul D. Clement: I mean that it is an established principle of Oklahoma law and federal law up until this point that party presentation that procedural bars are defenses that the State has to invoke and can waive. And that is a hundred years of unbroken practice. McCarty is a perfect example of that. In some respects, I think the fact that there wasn't an elaborate explanation that Official 1 they were accepting the State's waiver is kind of the point. When the State waives a defense, you move on and you discuss the merits, which is exactly what the Court did in the McCarty decision. This Court's decision in Trest against Cain, which was a unanimous decision, says that procedural default is a defense that the State must raise or it waives. So you -- you just have this, you know, incredibly, like, unbroken tradition that procedural defects, procedural bars, are defenses that the State can waive.
Justice Kagan: And --
Paul D. Clement: And, here, for the first time, they say no, that's -- that's for us to do, not for you to do, Mr. Attorney General.
Justice Kagan: And -- and -- and suppose we want to go beyond that because it is true that we rarely say that there's no adequacy because this -- this is so out of the ordinary. It -- it's a very rare kind of thing for us to say. And if we want to just look at -- at what the Oklahoma court did in terms of justifying its denial of the confession of error Official 1 and its determination to proceed, how -- what do you -- how do you describe what they did?
Paul D. Clement: Sure. I think it's easy as to Napue, and it's a little more complicated as to Brady. As to Napue, I think paragraph 28 stands alone. It's their only resolution of the Napue claim. They don't talk about the procedural bars at all.
Justice Kagan: There -- there might be in that paragraph, the last sentence is an oblique, very oblique, reference to the materiality prong of -- of the procedural bar statute.
Paul D. Clement: Well, I -- I read it differently. I read it as oblique reference to the materiality standard under Napue.
Justice Kagan: Of Napue, okay.
Paul D. Clement: But, if we're into the world of competing oblique references, that's when I think Justice O'Connor comes to the rescue and says that if you're not clear about it and it's ambiguous, then the federal issue is before this Court to decide.
Justice Kagan: And paragraph 27? Official
Paul D. Clement: Paragraph 27, I think, is where the court is wrestling with the Brady issue. I think it's pretty clear that's Brady -- a -- a Brady paragraph, not a Napue paragraph. And I think that --
Justice Kagan: And then you get, like -- that's all the way down, right, until the last sentence, which is the "Moreover" sentence, and the "Moreover" sentence might suggest, again, a reference to the procedural bar. Is that -- is that true?
Paul D. Clement: "Moreover" as to the Brady. It says --
Justice Kagan: Yeah.
Paul D. Clement: -- "this issue," and I think the "this issue" there is Brady. And that's an inference based on the fact that the rest of paragraph 27 is all focused on what the defense counsel knew or should have known. And maybe that's marginally relevant for Brady, but it's completely irrelevant for Napue.
Justice Kagan: At the most, what you have here in these two paragraphs is very significant discussions of the substance and then maybe a sentence about, oh, there's this Official 1 procedural bar thing that we're doing too. Is that -- is that correct?
Paul D. Clement: I -- I think that's correct. The other point I would make --
Justice Kagan: And, you know, in a way, this actually relates to the first point that you made about how unusual it is to deny the State's request for a waiver here, because that's sort of what they start with. They say they have these two claims and the State has come forward and said this warrants post-conviction relief, and we're not accepting that because the State -- the State's concession is not based in law or fact. What -- what do you take that to mean?
Paul D. Clement: I -- I -- I just mean, you know, I'm not -- you know, I just take that to be the back of the hand to the confession of error. I think, if you --
Justice Kagan: I mean, the State has only come forward with Napue arguments and Brady arguments, is that right? So they must be saying we're not -- we're not going with the State because we don't agree with their views of Napue and Brady, as we're going to now explain. Official
Paul D. Clement: I -- I think that's a fair inference. I also think that one of the things that complicates this is -- and -- and maybe I read the one sentence a little differently than Justice Alito did, but they start with the Brad -- Brady claim on -- you know, on the -- on the merits, if you will, and then, you know, in the context of that, they basically say there was no Brady violation here because you should have known everything you needed to know from the fact that he had -- was taking lithium. And then I think that essentially infects the rest of the analysis about diligence and all of the -- the rest. So I think this is a classic case where they are interwoven. But -- but I will say -- and -- and -- and, you know, maybe you think that, you know, this is -- that the adequacy prong is so rare that it doesn't apply here, but this does seem to me to be a classic case for it because --
Justice Kagan: Of interwoven; therefore, you know, not independent?
Paul D. Clement: Well, yeah. Interwoven, not independent, but also inadequate because, Official 1 gee whiz, you know, this Court unanimously has said, everybody has always said, look, if it's not jurisdictional, procedural bars are defenses that you can waive. Even this opinion isn't very clear about it. Paragraph 24 refers to 1089(D) as a procedural bar. Paragraph 40 --
Justice Alito: Well, whether -- whether --
Justice Kavanaugh: Whoever -- whoever received --
Justice Kagan: And -- and is it --
Justice Barrett: Mr. Clement --
Justice Kagan: -- is it possible that -- is it possible that, you know, they know that they're doing something very unusual here, which is rejecting the State's request for a waiver, and they're just throwing everything in the kitchen sink in? They're saying, you know, we don't see the merits of these claims, either the Brady claim or the Napue claim. They're saying there's this procedural bar statute hanging around and we kind of think that that's been violated too. And we actually don't know, like, if you took this piece out, if you took Official 1 that piece out, how they would have come out.
Paul D. Clement: I -- I -- I think that is fair, and I think that gets you into Michigan v. Long and Coleman against Thompson. I also think it is fair to say what is clear is they have not accepted the State's procedural bar -- the waiver of procedural bar defenses for the first time in -- in the court's history.
Justice Barrett: But, Mr. Clement --
Justice Alito: Mr. Clement, whether a procedural bar must -- whether the waiver of a procedural bar must be accepted by the Oklahoma court is a question of Oklahoma law, right? The Oklahoma Court of Criminal Appeals can say: We always accept these, we never accept them, or sometimes we accept them, right?
Paul D. Clement: It's definitely a question of Oklahoma law, but --
Justice Alito: And you have exactly one case, McCarty, for the proposition that this must -- this waiver must be accepted. Exactly one. Have -- can you cite one other case where we've deemed a state decision inadequate for conflicting with one prior opinion? Official 1 I thought our decision said that there's inadequacy when they conflict with many -- with many "past unambiguous holdings."
Paul D. Clement: So, at least according to the dissenters in Cruz, that was a case where you found inadequacy when there wasn't a single case on point, and it was a question of first impression. I would say, though, this. I mean, I think it's important to understand McCarty does not stand alone. I mean, in addition to accepting the State's waiver in McCarty, the Oklahoma Court of Criminal Appeals on numerous occasions -- Valdez, Malicoat, both cases we cite in our briefs -- they basically treat the bars as things that the court itself can relax or waive. And that is equally inconsistent with treating them as a jurisdictional requirement that can't be waived. That stands, again, against the backdrop of Oklahoma party presentation principles, this Court decision in Trest v. Cain. The Tenth Circuit has treated 1089(D) as a procedural bar that the State can waive. And I think, ultimately, the question Official 1 for adequacy -- I mean, you know, this Court's cases say a law -- a rule is adequate -- a state rule is adequate if it's firmly established and regularly applied. The question for inadequacy is whether it's an unexplained departure from past practice.
Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further?
Justice Thomas: Just one point with respect to the transport order. I think my concern is that in their letter, the prosecutors say they did not see the transport order until 2022. So my problem is, if they don't -- if they never saw it, then how is there a Brady or Napue violation?
Paul D. Clement: So I think there's a Brady violation because, whether they saw it or not, it was something that was available to --
Justice Thomas: No. They say it was not in their files.
Paul D. Clement: I -- I don't think -- I mean, you know, let's keep -- keep in mind the Official 1 precise dynamic we have here, right? This is -- the interview takes place before the second trial. So Gloss -- I mean Sneed has been in state custody for close to five years at this point. He's been transferred from the jail to the correctional facility. I think the State is charged for Brady purposes with that transfer sheet --
Justice Thomas: But wouldn't it --
Paul D. Clement: -- being exchanged.
Justice Thomas: -- matter that -- whether or not they have it? I mean, you're -- again, I go back to the prosecutors. You're -- what I'm hearing is, and they're hearing, is that they did not turn over Brady material or that they permitted false testimony to take place, and they're saying: Look, it did not happen. And why wouldn't they be interviewed? Why don't we have materials from them other than in an amicus brief in this case?
Paul D. Clement: Well, with respect, Justice Thomas, you do have materials from them. Ackley's affidavit is in the Joint Appendix before this Court. Official 1 And it's not like Smothermon never talked to anybody. She's talked to people at various junctures, and her story has changed over time. Again, I don't want to overstate the point because we didn't resist an evidentiary hearing --
Justice Thomas: But they are central to this. It would seem like any dealings with them would also be central and we would not be arguing about Napue and Brady if that had been cleared up.
Paul D. Clement: I -- I -- I mean, I think they would still be submitting a -- amicus briefs with new stories. And at a certain point, you've got to deal with what is in front of you and what is in the record. And the attorney general had to deal what was in front of him and in the record. And particularly when you read the notes in light of that sheet, all of which is in the record now, I think General Drummond made the correct conclusion --
Justice Thomas: So -- so what are we to do with the point that they make that they Official 1 were frozen out of the process?
Paul D. Clement: I -- I -- I -- I -- they had access to both independent investigations. And I think, at a certain point, I mean, you know, this -- if I were in their positions, I'd be complaining about the process as well. But, you know, the -- the ultimate process that I think matters here is the process in Glossip's trial, and that was fundamentally distorted when he is allowed to make the lithium use innocuous by saying: Oh, it was for, you know, a common cold, and I've never seen a psychiatrist.
Chief Justice Roberts: Justice Alito? Justice Sotomayor?
Justice Sotomayor: At least one of the two prosecutors was interviewed in some way because we have an affidavit from him that was provided before the OCCA while this case was pending, correct?
Paul D. Clement: That is absolutely correct.
Justice Sotomayor: Do you know as a matter of fact or not whether or not the first prosecutor -- I can't say her name -- Official
Paul D. Clement: Smothermon.
Justice Sotomayor: -- Smothermon, whether she was interviewed?
Paul D. Clement: I mean, she was inter- -- I know she was interviewed by -- by -- by Duncan, who is the independent prosecutor appointed by the attorney general. I think she also talked to people in the context of the Reed Smith independent investigation. But Mr. Waxman --
Justice Sotomayor: So --
Paul D. Clement: -- may be able to fill that in. But --
Justice Sotomayor: -- so I -- I -- I'm having a hard time understanding what the current claim by both of them is: We weren't able to give our full story. They had -- they were interviewed, correct?
Paul D. Clement: My understanding is that they were interviewed. I think they do not think that the interview was as longstanding and as interactive as they had hoped. As I say, I mean, you know, it's -- it -- they're -- they -- Official
Justice Sotomayor: But there were -- it -- it wasn't as if they were boxed out?
Paul D. Clement: I -- I don't believe that they were boxed out. And, again --
Justice Sotomayor: All right.
Paul D. Clement: -- the attorney general here had --
Justice Sotomayor: Can I go back to your respectful consideration to an attorney general's confession of error, and Justice Jackson asked you whether the Court has to accept the confession of error, and you said no. And I think that's correct. The Court, as I understand the rule of confession of error, it's especially relevant to questions of fact, correct --
Paul D. Clement: I -- I -- I --
Justice Sotomayor: -- not questions of law? The court has to be satisfied that there's a basis in law and fact for the confession, correct?
Paul D. Clement: -- I -- I think, as to both, it's respectful consideration. And I think it's at its zenith when it's prosecutorial misconduct because I think the prosecutors are Official 1 in a particularly good position to judge what -- I mean, you know, starting with: What does "Dr. Trumpet?" in the notes mean in the context of a community where everybody knows that Dr. Trombka is the sole psychiatrist at the jail? I mean, I -- I think a prosecutor is going to have a -- a good basis to say, yeah, everybody knows that's just some kind of shorthand for "Trombka."
Justice Sotomayor: That's an issue of fact, and the AG says: If my prosecutor says she didn't know, I'm not accepting that because she should have known.
Paul D. Clement: And -- and -- and I don't find it plausible in light of everything that I now have before me. And I -- you know -- and there's -- there's the question of what Smothermon had before her in 2003, but now there's the question of -- I mean, because I think the Napue obligation on the government is a continuing one. So, when they're looking at it, they're looking at the testimony that their prosecutor elicited. They're looking that -- at Official 1 that in context of the notes and the medical information sheet. And General Drummond reached the conclusion -- regretfully, but reached the conclusion: Our prosecutors elicited perjury here, and a man's going to go to his death. We can't allow that to happen.
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan? Justice Kavanaugh?
Justice Kavanaugh: And your view is that the result likely would have been different, right?
Paul D. Clement: We think the result would have been different with respect to the standard that's applied under Brady and under Napue.
Justice Kavanaugh: And what -- can you spell that out? I mean, I think it's obvious, but -- but spell out why you think that.
Paul D. Clement: Well, you know, this is a case where there's just no disputing the fact that the State has one indispensable witness. That witness is Sneed. He's the person who Official 1 committed the murder. He's the person -- until the police talked to him, Glossip was only charged as an accessory after the fact. So there's every indication this is the absolute critical witness. And if that witness lies on the stand, perjures himself on the stand, that seems to me that that could have a reasonable probability of leading to a different result for at least two reasons. One is this is the key witness, and the jury has just seen him under oath lie to their faces. And if that comes out -- I mean, whatever other problems with his credibility that the prosecutors have at that point, they have a much bigger problem at that point. And without his testimony, there's no way to get the conviction of murder, let alone the death penalty. The second thing, though, of course, is that defense counsel, I think, logically, if -- if -- if Sneed's testimony hadn't led them away from bipolar disorder, then they bring in a psychiatric expert and they make a big deal about how his confessed -- methamphetamine use, combined with bipolar disorder, makes him Official 1 somebody who could act impulsively and violently, and that opens up a whole other defense for the -- for -- for -- for -- for Glossip. Now, to be clear, I'm in an unusual position here because General Drummond has not only confessed error, but he's made it clear that he's not going to drop this prosecution or doesn't accept that this is, you know, the poster child for an actual innocence case and he intends to -- to -- to -- to reinitiate criminal process. But I think he thinks that given the centrality of Sneed's testimony in this perjury, this -- this is not a conviction that can stand.
Justice Kavanaugh: Okay. Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: On McCarty, so that is the only case, right --
Paul D. Clement: Well --
Justice Barrett: -- that you have? I mean, otherwise, it's party presentation for a long time but not zeroing in on the procedural bar at issue here? I just want to be sure I Official 1 understand. I'm not trying to be hostile.
Paul D. Clement: And -- and -- and I'm not trying to be evasive. I don't view it as our only case because I think Valdez and Malicoat, both decisions of the OCCA that treat it as non-jurisdictional because they say the court itself can excuse 1089(D) if it -- there's manifest injustice or a serious statutory or constitutional error. And -- and -- and that's -- that's invoked even in paragraph 40 of the opinion here. So -- so I don't think -- the way I think of party presentation in all of that, I don't think that the court can have it both ways. If it's jurisdictional --
Justice Barrett: Mm-hmm.
Paul D. Clement: -- it's jurisdictional and nobody gets to waive it. And so that's why I don't think McCarty stands alone. And, of course, you know, we're talking -- the standard is unexpected departure.
Justice Barrett: Mm-hmm.
Paul D. Clement: Okay? Here's -- here's the attorney general's office. We got McCarty, but we got Valdez, we have Malicoat, we have the Official 1 Tenth Circuit saying 1089(D) is a procedural defense that we can waive --
Justice Barrett: Did you cite McCarty, or did -- I don't -- so, in the fourth -- let me make sure I've got the sequencing right too. This is the fifth post-conviction application --
Paul D. Clement: Yeah.
Justice Barrett: -- right? And in the fourth, they also refused to accept the confession of error and the waiver, right?
Paul D. Clement: That is true.
Justice Barrett: So, when the fifth came up, it wasn't as -- as much of a surprise, right? I mean, why wasn't the attorney general ready at that point to say, you know, but you -- there's McCarty and you can't -- you can't reject our waiver?
Paul D. Clement: I mean, look, in a perfect world, I mean, you know, maybe we would have done that. But, in the real world, we thought we were waiving it. I mean, I know this is, like, in the weeds, but, you know, we -- we expressly argue that the evidence is sufficient under 1089(C), which is the standard for the Official 1 first habeas petition. So it's clear to everybody -- I mean, you know, my -- my friend and your friend, your Court-appointed friend, says, well, maybe it wasn't clear enough to the Oklahoma Court of Criminals Appeals. But it was crystal clear to them that we were trying to waive it and they weren't going to let us. And I think the fact that, you know, yes, it's two cases in the history of man, both involving Mr. Glossip, I -- I think that still puts us well within the edits. And the only thing I was going to add, and I know I said it before, but I think it's really powerful, is Trest, Trest against Cain, this Court unanimously says, yeah, of course, procedural bars, procedural default, that's a defense. The State can waive it. And the State can waive it not just by intentional relinquishment but by abandonment. That's Wood against Milyard. And, like, even if there's some question about whether we were sufficient in intentionally relinquishing it, we absolutely abandoned it. So I -- I -- I just think this is a case where -- and -- and there's a systemic Official 1 issue here, right, because, I mean, it's Oklahoma law. They get to do what they want. But, if Oklahoma is going to say you can't waive under these circumstances, it's going to create a whole federal courts exam about how it is that a -- a state prosecutor is supposed to confess error when they discover a Brady or a Napue violation after the first, like, state habeas petition has been filed. And, you know, I've tried to think through it all, and I think, at the end of the day, there must be a due process right to present that somewhere, but, boy, that's a --
Justice Barrett: But we don't have that issue?
Paul D. Clement: It's -- well, I don't think -- you don't have it directly. And it's a lot harder issue than whether invoking this as an unwaiveable jurisdictional bar for the first time in the history of man is adequate. I think that's a far easier question than the due process question about is there some ability to bring this kind of confession of error to some court somewhere and get to the merits.
Justice Barrett: Okay. I want to ask Official 1 you about the standard of review for looking at Smothermon's notes because one of the difficulties, I think, with the notes is that, putting aside whether the Van Treese brief is in the record, it's not, it still -- it still reveals that there are multiple plausible interpretations of the notes. So are we supposed to be -- applying kind of a preponderance standard, that we think it's most likely that they reflect that she knew about the psychiatric examination?
Paul D. Clement: I -- I think that's right. I think it is a preponderance.
Justice Barrett: Okay. Okay.
Paul D. Clement: And I think, not to be repetitive, but I think that's also the standard for the prosecutor, because the prosecutor in the first instance, I -- I think you want them to confess Napue errors. You want them to confess Brady errors. And I don't think you want them applying a clear and convincing standard or beyond a reasonable doubt. I think you want them to say straight up, if -- if -- if we blew it and there's a Napue violation here, we should confess it. Official
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So just going back to Justice Barrett's question about whether McCarty is your only case, if I'm hearing you correctly, it is not because the principle that you're relying on is the fact that it is firmly established in Oklahoma law and procedure that non-jurisdictional procedural bars are waiveable and the courts accept those waivers. They do it when a party waives a non-procedural jurisdictional bar. So it's pretty much every case in which a non-jurisdictional procedural bar has been offered and accepted by the court, right?
Paul D. Clement: I -- that -- that's our view. And I think it's buttressed by the fact that the Valdez and Malicoat cases, even though they're not sort of confession of error or express waiver cases, they show the Oklahoma Court of Criminal Appeals treating 1089(D) as non-jurisdictional because, if it's non-jurisdictional, they can't excuse it because of --
Justice Jackson: Right. So it fits Official 1 into the category of a non-procedural -- a -- a non-jurisdictional.
Paul D. Clement: Right.
Justice Jackson: I think that part of the problem here that is what is confusing about Oklahoma's opinion is that they seem to be conflating which I -- what I think are two different bases for not applying the procedural bar, right? One is the waiver, and the other is potentially the confession of error. In your discussion with Justice Barrett, it's -- you talked a little bit about Glossip IV. And in my reading of that, that was a situation in which there was a waiver expressly made, but I didn't know that there was also a confession of error. Am I right about that in that?
Paul D. Clement: You're absolutely right about that. In fact --
Justice Jackson: All right. So --
Paul D. Clement: -- it was the least confession of -- I mean it was the furthest removed --
Justice Jackson: Exactly.
Paul D. Clement: -- from a confession of Official 1 error. It's like there's a lot of chum in the water and we just want you to decide the merits, but we think they are absolutely wrong.
Justice Jackson: And so I think that's really important because the prosecutor, I think, is actually making two different determinations that might be relevant to whether or not the procedural bar applies. The first is whether or not to waive it, which is what they do in Glossip IV. And the second is whether or not to confess error, which they go on to do in Glossip V. And only the latter, the confession of error, is the one that might call into question the -- the, you know, reasons for it, the court saying, well, you're confessing error, but let me figure out whether or not it's based in law and fact, and I'll only accept it under those conditions. If I'm right about that, then the real problem happened with its deviating from the ordinary practice of allowing parties to waive and accepting them. And that's why you said, I think, in response to Justice Kagan that the waiver track is the easiest way to understand Official 1 why we don't have an AISG here.
Paul D. Clement: Absolutely, Your Honor. And, again, just in all candor to this Court, I'm representing Oklahoma. Oklahoma, in a lot of other cases, is going to be saying that's adequate and independent state ground. But I think we want to be in a position where, if we make a determination that there's been a constitutional problem with one of our prosecutions, we want to be able to confess that error and get to the merits of it.
Justice Jackson: No, I understand, but I don't want to conflate the two. I mean, when there is a waiver, courts don't ordinarily go into why you are waiving.
Paul D. Clement: Yeah.
Justice Jackson: You say this is my right to press this procedural bar and I'm waiving it, and the court says, fine, we move on to the merits of the argument. What happened here, I appreciate the attorney general goes on to explain the reason why he wants to waive it, it's a confession of error, but I don't think the court gets to reject the waiver if it disagrees with the Official 1 confession of error because waiver is a separate basis for, you know, relinquishing the procedural bar.
Paul D. Clement: I agree entirely. And I think, ultimately, getting back to Justice Kagan's question, it may also explain why the opinion is sort of intertwined --
Justice Jackson: Correct.
Paul D. Clement: -- because --
Justice Jackson: Correct.
Paul D. Clement: -- they are sort of treating them as one and the same. In -- in fact, I think it's --
Justice Jackson: Exactly.
Paul D. Clement: -- you know, paragraph 25 or 26 specifically says the confession can't overcome 1089(D), which is perfect evidence that they've kind of conflated the two --
Justice Jackson: Correct.
Paul D. Clement: -- because the confession isn't what overcomes 1089(D). It's the waiver that should at least historically everywhere but Oklahoma.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, Official 1 counsel. Mr. Michel. ORAL ARGUMENT OF CHRISTOPHER G. MICHEL, COURT-APPOINTED AMICUS CURIAE IN SUPPORT OF THE JUDGMENT BELOW
Christopher G. Michel: Mr. Chief Justice, and may it please the Court: Over the past 20 years, the Oklahoma Court of Criminal Appeals has reviewed and upheld Petitioner's conviction six separate times, finding compelling evidence that he commissioned the murder of Barry Van Treese. Petitioner now contends that the note "Dr. Trumpet?" would have so transformed his case as to justify vacating his conviction. That is wrong. The court below correctly rejected Petitioner's claims on adequate and independent state grounds, that he failed to show reasonable diligence or clear and convincing evidence of innocence. The attorney general did not waive those bars in this case, and the court was free to apply them in any event. This Court should accordingly dismiss the case for lack of jurisdiction, leaving Petitioner free to pursue Official 1 state law clemency or other available relief. If the Court reaches the merits, it should affirm. The cryptic note does not establish any of the threshold elements of Petitioner's claim, and perhaps, most clearly, the note is immaterial because it adds nothing of substance to what Petitioner already knew. Critically, Petitioner has known since he received the competency report in 1997 that Justin Sneed took lithium and had a mental illness, but Petitioner chose not to question Sneed's mental health at the trial because he knew that doing so would reinforce the prosecution's theory that Sneed was vulnerable to his manipulation. Nothing in the note would have changed that decision or the jury's, particularly considering the extensive other evidence against Petitioner, including his motive to commit the crime and his coverup of the body. The parties rely heavily on the attorney general's confession of error, but courts, not executives, determine whether to vacate final judgments of conviction. The court here decided the case on the law and the facts. Official 1 This Court cannot ask for any more than that. It should leave the conviction in place. I welcome the Court's questions.
Justice Thomas: What do you make of the absence of statements by the prosecutors in this record and the absence of Ackley's notes from the same meeting?
Christopher G. Michel: Well, I think, as the Van Treese family's amicus brief explains, it indicates that the investigation the attorney general conducted here and the other independent investigations were not particularly thorough. I will note that the Ackley affidavit -- this is at JA 940 -- says that he thinks the mental condition was disclosed to the Petitioner with the competency report in 1997. And I agree with that, and that's their witness who, I think, has conceded an important point against them.
Chief Justice Roberts: Mr. Michel, I asked -- I -- I forget whether it was Mr. Waxman or Mr. Clement -- about your argument in the brief that all that's at issue here is whether or not the lithium was prescribed by a psychiatrist or by someone else and that that Official 1 alone was not sufficient to affect the jury's deliberations. Now they had responses to that that elaborate on what they regarded as the significance of not just who prescribed it but the lithium itself, in other words, the -- the bipolar determination. And we heard him, you know, emphasize that, contrary to what he had said, it's not simply for a cold. I wondered if you could respond to that.
Christopher G. Michel: Sure, Mr. Chief Justice. I think materiality -- I think this question goes to materiality. It's a comparative doctrine. You have to compare what was in the case before the new information and then determine whether the new information would have made a difference. And I think, in this case, that determine -- that determination can be speculative in some cases. This is perhaps the rare case where the defendant's own conduct sheds considerable light on the importance of the information. After all, as I said at the outset, Petitioner has known since 1997 that Official 1 Sneed took lithium. And if you look at page JA 700, that's the Dr. King competency report. It says, does this patient have a mental illness? And the answer is yes, underlined, exclamation point. If Petitioner thought that Sneed's mental health was important to his defense, surely, that would have been a bright red flag that he would have presented that defense at trial. The notion that the marginal additional information that he was arguably based on the notes treated by a psychiatrist would have changed that decision, I think, is difficult to reconcile with the record. I would also note the way you get from the notes, "Dr. Trumpet?," which I think my friend said they were able to do in a matter of hours because it was well-known that Dr. Trombka was the chief psychiatrist at the jail, they already had the roadmap to do it. Remember, the competency report says that Sneed received lithium at the jail. They've had that since 1997. They could have simply gone to the jail and said: Who's the chief psychiatrist? And they would have been Official 1 told Dr. Lawrence Trombka, and then they could have asked Dr. Trombka the same question that they asked in 2023, and he would have said: Well, if anybody treated Sneed, I treated him. But they chose not to do that. And I think, one, that's overwhelming evidence of lack of diligence and that the state procedural bar is satisfied, but it's also overwhelming evidence on materiality because Petitioner didn't do this out of negligence. He did it out of strategy. And that was because, as the Oklahoma Court of Criminal Appeals explained on page JA 991, arguing that Sneed had a mental deficiency or a mental illness would have reinforced the prosecution's theory that Sneed was vulnerable to Glossip's -- to Petitioner's manipulation.
Justice Kagan: Isn't there --
Justice Sotomayor: Counsel --
Justice Kagan: -- a separate question, though, about just he lied on the stand? And, in a case where the entire case rested on the testimony of one person and his credibility, if you can show that he lied on the stand when he said, I never saw a psychiatrist Official 1 and I didn't get a prescription from the psychiatrist, it was, you know, they gave me lithium for a common cold, and -- and then the prosecutor says: Well, that was a lie, I better correct that under Napue and -- and doesn't, that seems pretty material to me. I mean, it's just your one witness has been exposed as a liar.
Christopher G. Michel: A couple of responses, Justice Kagan. I think, first, there are threshold elements under Napue, including whether this was false testimony. I don't think it was false testimony, but I want to take your question on its own terms. This false testimony that Sneed saw a psychiatrist, that would have been harmful to Petitioner under his theory of the case. Remember, the prosecution's --
Justice Kagan: False is false. You know, like, whether you can, like, parse the content of the testimony this way or that way, the critical question that a jury is asking is, do I believe this guy and everything he says and particularly, do I believe him when he points Official 1 the finger at the accused? And if I know that he has gotten up to the stand and lied about anything, whether it's important or not -- it might have been important; it might not have been important -- if he's lying, if he's trying to cover up something about his own behavior, I'm going to take that into account in deciding whether, when he accuses the defendant, he's telling the truth.
Christopher G. Michel: I -- Justice Kagan, I think, in many cases where we were starting from the blank slate that the witness is presumed to be credible, one lie would be important. In this case, the witness admitted that he beat a man to death with a baseball bat. The witness admitted that he was testifying in exchange for avoiding the death penalty. The jury already had significant credibility questions about Justin Sneed. And the notion that this --
Justice Kagan: I have to say I find that an -- an odd argument, Mr. Michel. It's like this witness was so not credible anyway that we don't have to consider any further lies Official 1 that he tells?
Christopher G. Michel: No. What I think is difficult to understand is if the jury would have believed Justin Sneed and convicted Petitioner despite those problems, and yet, because Justin Sneed saw a psychiatrist according to the notes, the jury would have done a 180 and reached a different result.
Justice Kagan: You know, and a -- a Napue violation is a pretty dramatic thing when a prosecutor says, like, whoa, stop there, that was a lie. You know, a -- I think a reasonable jury takes that into account when it's like: Wow, that was such a significant lie that the prosecutor had to sort of say stop.
Christopher G. Michel: I -- I -- I don't think that would have happened in this case given the distinctive nature of the witness that we're talking about. I also want to underscore that this is a tangential issue. Justin Sneed testified for five hours. The question about lithium was about -- was about 30 seconds.
Justice Barrett: But, I guess, Mr. Michel, what --
Justice Sotomayor: Would it have Official 1 made -- I -- I'm sorry.
Justice Barrett: Oh, no, go ahead.
Justice Sotomayor: What do we do with the other violations that the prosecutor committed? Presumably, he lied about the knife incident, which was provoked by the prosecutor and not his initial statement. There was withheld -- a ton of other withheld information. Once you find a violation and you're deciding on materiality, are you entitled to ignore all that other evidence having been improperly withheld? I know that it was in Glossip IV and -- and prior rulings the court didn't find any one of those a violation, but do we ignore it? Meaning because we're -- we would be looking at this issue de novo, so does the calculus of materiality take into account everything?
Christopher G. Michel: So I think this is several steps down the road. Of course, I think you should dismiss the case for lack of jurisdiction because there's adequate and independent state grounds.
Justice Sotomayor: You've already Official 1 lost it, but I'm asking you this question. So I -- I give you points --
Christopher G. Michel: I'm hoping I might find a few.
Justice Sotomayor: -- I give you points for --
Christopher G. Michel: Yeah. Right.
Justice Sotomayor: -- for trying to --
Christopher G. Michel: Yeah.
Justice Sotomayor: -- revive, but let's get to --
Christopher G. Michel: Sure.
Justice Sotomayor: -- the end, that we accept what Justice Kagan has said, that there was a falsehood. And now you're saying there was, even if she knew about it, it wasn't material. At that point, because, according to you, he lied outside of court a number of times, but does all the other withheld evidence that shows not just one or two lies but a whole body of changed testimony -- do we consider that?
Christopher G. Michel: I do think the Court has said in cases like Kyles versus Whitley that if Official 1 you get all the way to the materiality standard -- I think there are many off-ramps before that in this case -- you would consider all of the other evidence. I think it's notable on the knife point, however, which my friend, Mr. Waxman, mentioned at length, the -- the State does not concede error on that point. The State discusses at length why it doesn't support his position on that. And that's actually the subject of the fourth post-conviction relief application.
Justice Sotomayor: No. But I do think that we know that he had an accomplice, a girlfriend, in prior robberies, and he never had Mr. Sneed present at the robbery. And yet there were two types of wounds. So it suggests the presence of a second person. And if it's not Mr. Sneed, then this robbery is much more consistent with his pattern.
Christopher G. Michel: I think the Oklahoma Court --
Justice Sotomayor: And that pattern was withheld from defense counsel. So that's why I'm asking about materiality. Official
Christopher G. Michel: I mean, to be very clear, the -- the pattern is not the knife. The question about the knife is the wounds on the body and --
Justice Sotomayor: No, I agree --
Christopher G. Michel: Right. The Oklahoma Court --
Justice Sotomayor: -- but I -- I -- it had to do with whether there was one or two people involved.
Justice Barrett: Mr. Michel, I do want to ask you about the adequate and independent state grounds because this is unusual, not to accept, you know, the waiver of the procedural bar, and, you know, you heard us talk about that with Mr. Clement and Mr. Waxman. What's your response to that?
Christopher G. Michel: So, Justice Barrett, I actually don't think it -- it's that unusual, although that's partly because we have a very small sample size. As -- as I -- as I read the cases, there's only one case in which the Oklahoma attorney general has squarely waived a procedural bar and the Oklahoma Court of Criminal Appeals has squarely addressed what to Official 1 do with that, and that's the decision on the fourth post-conviction review application, in which the Oklahoma Court of Criminal Appeals, on page JA 775, said that it was not going to accept the attorney general's waiver of the procedural bars. The attorney general -- in this Court, this attorney general told you that that was an adequate and independent state ground and that this Court, accordingly, lacks jurisdiction over the -- over the fourth post-conviction relief application. So this -- this decision I actually think does not actually address a waiver of a procedural bar because the attorney general, quite understandably, after he received that decision from the Oklahoma Court of Criminal Appeals, did not actually waive the procedural bar in this case. Instead, if you look at JA 976 and 977, the attorney general says, "What Glossip has to do is meet the procedural bar." Then he goes on to describe the diligence prong and the innocence prong and why, in the attorney general's legal opinion, those requirements are Official 1 satisfied. But arguing that the requirements are satisfied is not the same thing as waiving the procedural bar. And in the one case where the Oklahoma Court of Criminal Appeals has addressed that, it has said that it doesn't have to accept the waiver.
Justice Barrett: What about Mr. Clement saying that we have a hundred years of practice and that this is just what the law is and procedural bars are always waiveable; they're not jurisdictional?
Christopher G. Michel: With -- with all respect to Mr. Clement, I don't think you have a hundred years of this. I think the one case he's pointed to, as several of -- of the Justices pointed out, is the McCarty case from 2005 --
Justice Jackson: But why is that? Why -- why are you making the sample size so small? I mean, I understand that that's the only case that involves an attorney general who expressly waives a -- a procedural bar, but procedural bars are waived -- of all kinds are waived all the time. So why wouldn't what Oklahoma courts Official 1 do when a procedural bar is waived, why wouldn't that be the universe of cases that we're looking at?
Christopher G. Michel: Well, I think I would start with the statute that's before the Court in this case. I think whether that bar has been waived --
Justice Jackson: Are you saying that statute is a jurisdictional one?
Christopher G. Michel: I'm not saying that statute is a jurisdictional one, but --
Justice Jackson: All right. So then we're into the world of non-jurisdictional procedural bars, and the question is, what is Oklahoma's practice when a party, it doesn't have to be this -- attorney general, it can be a party, who could have invoked a -- a non-jurisdictional procedural bar, what does the court do?
Christopher G. Michel: I -- I don't understand my friends to argue -- perhaps this morning they did for the first time -- that Oklahoma has an absolute rigid categorical rule transsubstantively across all areas that procedural -- Official
Justice Jackson: No, but we don't need that.
Christopher G. Michel: -- non-jurisdictional procedural bars have to be accepted.
Justice Jackson: We don't need that under Cruz. We don't need a rule that says we have to accept it. What we need is the practice --
Christopher G. Michel: Right.
Justice Jackson: -- of the court when this kind of thing happens.
Christopher G. Michel: Right.
Justice Jackson: And so have you shown a case in which a non-jurisdictional procedural bar has been rejected by the Oklahoma --
Christopher G. Michel: Absolutely.
Justice Jackson: Which one?
Christopher G. Michel: The one that's before you. The one that's before you --
Justice Jackson: Other than the one that's before us. We're trying to determine whether the one that's before us --
Christopher G. Michel: No, no, I'm sorry. I'm sorry. I wasn't -- Official
Justice Jackson: -- is a deviation.
Christopher G. Michel: Right. I'm sorry.
Justice Jackson: Right?
Christopher G. Michel: The one -- the fourth post-conviction relief application, which is also before you on this cert petition --
Justice Jackson: Not -- not Mr. Glossip's situation. Do you have a case that does not involve a person named Glossip -- (Laughter.)
Justice Jackson: -- in which the court has rejected --
Christopher G. Michel: Right.
Justice Jackson: -- any non-jurisdictional procedural bar?
Christopher G. Michel: Usually, being --
Justice Jackson: That was waived?
Christopher G. Michel: Right. I mean, usually, being able to cite a case that involves the same litigant seems relatively on point, but I don't -- I think there's only other case that has come before the Oklahoma Court of Criminal Appeals where the attorney general has waived this procedural bar. That's the McCarty case. In three footnotes, the Court of Official 1 Criminals Appeals observed that the attorney general had waived the procedural bar, but it did not say it was deciding the issues for that reason. And in the 19 years since McCarty --
Justice Kagan: I think -- I think, Mr. Michel, you are avoiding the question. It was a pretty simple question. One case not involving this defendant in which a waiver has been rejected.
Christopher G. Michel: Right. I -- I think there are three cases under this statute in which the court has seen waivers. Arguably, in one of those, it rejected the waiver. In McCarty, it was ambiguous. And in --
Justice Kagan: Not -- not --
Christopher G. Michel: -- in this case, I think it was also ambiguous.
Justice Kagan: -- not a case involving this -- it doesn't -- not a case involving this defendant, and we don't have to be in attorney general confession-of-error land.
Justice Kagan: Just one case where the Oklahoma court says, even though a party wants to waive this procedural bar, you know, Official 1 we're going to insist on opposing it.
Christopher G. Michel: I -- I don't -- I have not canvassed Oklahoma law for all non-jurisdictional procedural waivers, but I think most courts, including this Court, will exercise discretion to allow those waivers in some cases and not allow them in others.
Justice Barrett: Mr. --
Christopher G. Michel: And as the Court --
Justice Barrett: Well, I'm -- I'm just wondering what the right sample size is. When we're asking this question about whether this is adequate or not, should we be looking transsubstantively, or should we be looking just at this statute?
Christopher G. Michel: I think you should be looking just at this statute. I think that's how the Court has analyzed the adequacy cases in the past. And I think several important adequacy cases here are Beard versus Kindler and Walker versus Martin, where the Court looked at --
Justice Jackson: But the thing that's relevant about this statute is whether or not it's jurisdictional. I don't understand how the Official 1 sample size could possibly be that small because the question we're asking is whether it's waiveable, right? So -- I understand we have a statute and the question is what does a court do when this procedural bar is waived. Fine. But do you -- are you rejecting the proposition that this is a waiveable bar?
Christopher G. Michel: I'm not rejecting that. I --
Justice Jackson: So you don't say this is a jurisdictional statute.
Christopher G. Michel: I'm not saying that. I think you could understand it that way, but that's not my position.
Justice Jackson: But you're not saying that, all right.
Justice Jackson: So you accept that this is waiveable. And assuming -- I understand you -- you -- your argument is that the attorney general did not waive it.
Christopher G. Michel: Right.
Justice Jackson: But assuming that he did for a moment, do you have any other Official 1 procedural bar ever that Oklahoma has rejected? Do we have any reason to believe that Oklahoma's practice is to look at particular statutes and it rejects some waivers with respect to certain statutes and it accepts some? No, right?
Christopher G. Michel: Well, I mean, I don't want to come back to it, but, if you look at practice, you have the decision on the fourth application in this case, which is the only one in which the Court of Criminal Appeals has addressed this issue. So, to be fair, I think that's quite relevant.
Justice Kagan: Can I ask you about the independence prong?
Christopher G. Michel: Sure.
Justice Kagan: So the way I -- this is very confusing, two pages, to me. I've read it a dozen times and I'm still not sure what each paragraph is doing exactly, you know, what or where or why. But the first thing they say is, you know, the State has come to us and has confessed error and we're not going to accept that concession, is what they call it. And the concession that they're referring to is the Official 1 concession that he warrants post-conviction relief, right? And what the State has said in its -- in its, you know, concession as they call it is -- focuses on Napue and why it is that Napue supports Glossip here. And -- and it says the State's concession is not based in law or fact. And -- and that's what gets it to everything else that it does, right, because, first, it has to reject the concession, and it says not based on law and fact, essentially meaning that the state's Napue argument is wrong. So, before it gets to anything that might be conceived of as a procedural bar, what it has said is that the State's Napue argument is wrong, correct?
Christopher G. Michel: I think that's one potential way to read the opinion. I agree with you it's not pellucid in all respects.
Justice Kagan: Okay. So, if -- if --
Christopher G. Michel: But I do think it's pretty pellucid in paragraph 26.
Justice Kagan: -- if -- if -- if that's -- if that's one way to read the -- like, the only way that they go through the door to Official 1 start talking about procedural bars is because they say that the State's Napue argument is wrong, you know, they wouldn't have gone through the door except that they made this error of federal law. So this is all founded on an error of federal law, the error being that the State's concession based on Napue is -- is -- is incorrect in law.
Christopher G. Michel: I don't agree with that, Justice Kagan. I agree that that sentence comes earlier in -- in the opinion, but I did not mean to agree that, as a substantive legal matter, the court had reached the Napue issue before it was applying the procedural bars. I recognize that it's conceivable this opinion could have been written more clearly, but I do think paragraph 26 is pretty darn clear what it applies --
Justice Kagan: Well, I guess what I was suggesting --
Christopher G. Michel: -- in terms of two procedural bars.
Justice Kagan: -- is you would never get to paragraph 26, except for the prior Official 1 determination that the State -- that the State's concession is wrong, which has to be a determination on the merits.
Christopher G. Michel: But --
Justice Kagan: Even if that's not the case -- let's say that I've just made it a little bit too neat, that you have to have that the State is wrong with the merits in order to go into the procedural bar analysis. Even if that's too neat, I mean, like, there are sentences in this opinion -- one -- one sentence we're talking about the merits, one sentence we're talking about the procedural bar. It keeps on going back and forth. I mean, how -- how on earth could one reach a conclusion that the -- that the court would have done exactly what the court did if the court had a different view of the merits? I mean, everything was intertwined with everything else here.
Christopher G. Michel: Well, I mean, just to respond to your prior question and I think this one too, if it's true that the court had resolved the issue on federal law, I'm not sure what paragraph 26 is doing in the opinion. I Official 1 mean, there's no reason to address the procedural bars at that point.
Justice Kagan: It's like and another thing.
Christopher G. Michel: Yeah, well -- but I actually think the reason it's in the opinion is because the court is applying the procedural bars there and that your inference, respectfully, is not a correct reading of the case, but --
Justice Sotomayor: I'm sorry. They have to decide -- the claim was based on federal and state law. So they might have been going to it based on the state law. But please continue answering.
Christopher G. Michel: Well, the procedural bars are a state law threshold, reasonable diligence and clear and convincing evidence of innocence, unless those two threshold --
Justice Kagan: I -- I have to say that is not the way these two pages are written. I mean, it would be very easy to say: Before we get to the merits, the procedural bar is a state -- I mean, that's so not the way these two pages are written. Official 1 (Laughter.)
Christopher G. Michel: Yeah. Justice Kagan --
Justice Kagan: It -- it -- it starts with the substantive standard. Then it tells you that the State's concession is wrong as a matter of law. Then, by the way, it tells you some stuff about the procedural bar standard. Then it goes back to the merits again.
Christopher G. Michel: Justice Kagan, you've issued, you know, a strong legal writing critique of this opinion. But this opinion was issued -- (Laughter.)
Justice Kagan: I haven't even started. (Laughter.)
Christopher G. Michel: The question under this Court's independent and adequate state ground doctrine is not how well written the opinion it is.
Justice Kagan: No, but, actually --
Christopher G. Michel: It is what did it decide the case under.
Justice Kagan: Totally right, it's not how well written it is. But it's a high bar Official 1 to say that something is independent, you know, if there's ambiguity, if there's uncertainty. We do not give that benefit of the doubt to the state under Michigan v. Long. Quite the opposite.
Christopher G. Michel: Justice Kagan, with respect, I think you're striving for ambiguity where there is clarity in paragraph 26. Paragraph 26 says that the court is --
Justice Kagan: Well, paragraph 26 is, number one, one paragraph of six or seven, right? So -- so I -- I don't think that you get to just say: This is my best paragraph. You have to look at the analysis and say: Is it intertwined or is it independent? And, you know, all paragraph 26 does is to state a standard. It's like, okay, we know that they thought that this standard had something to do with something. But the rest of the two pages is, like, totally merits-infused.
Christopher G. Michel: So I have to respectfully disagree. Twenty-six does not state a standard. It applies the standard and says it's satisfied. Paragraph 27, in particular, if you look at the last sentence, it says: Moreover Official 1 and controlling here is the fact that this issue could have and should have been raised with reasonable diligence. That's a direct invocation of the bar. I agree that there are other paragraphs in the opinion addressing the federal law issue. But, as this Court held squarely in Harris versus Reed, state courts are allowed to issue alternative holdings, one on the state law and one on the federal law. And that does not mean that the state law holding becomes immune from the adequate and independent state ground doctrine. As the Court said in Coleman versus Thompson, it's ultimately looking for a fair, reasonable reading of what the court did. And this Court, reviewing this case for the sixth time, with a looming execution date on the calendar, trying to decide this quickly, trying to provide reasons for the parties and the public in a case of high public interest, did address both the procedural bar and the merits. But I think, in paragraph 26 and 27, it does squarely independently and adequately Official 1 apply the state procedural bars. That means this Court lacks jurisdiction. It doesn't mean that Petitioner has no other remedies available. He has the state law clemency relief available to him. My understanding is, if this Court dismisses for lack of jurisdiction or affirms on the merits, his execution will be rescheduled. There will then be a clemency hearing scheduled. He will be able to present his views to the clemency board. Of note, the clemency board has changed in its composition since the last clemency hearing. A member of the board who was --
Justice Jackson: Can I just -- sorry.
Christopher G. Michel: I -- I -- the Court might be interested to know the -- the member of the board who was recused is no longer on the board. That member has been replaced. Another member of the board who voted against clemency is also no longer on the board. That member has been replaced.
Justice Kagan: Okay.
Christopher G. Michel: So it's a new board.
Justice Jackson: Yes.
Christopher G. Michel: Sorry, Justice Jackson. Official
Justice Jackson: Sorry.
Christopher G. Michel: Yeah.
Justice Jackson: I'm sorry to have cut you off.
Christopher G. Michel: Yeah.
Justice Jackson: So you -- you talk about a fair understanding of what the court did. Can we go to a -- to the understanding of what you think the AG did here. I understood from your argument that you said that the AG did not waive the bar in this case, and I'm just trying to understand how that could possibly be when he confessed error and asked for the conviction to be vacated on the grounds of the merits of the Napue claim. If he was also asserting the procedural bar, I don't understand how he -- how he's making arguments about the merits in this way.
Christopher G. Michel: Oh, I think -- I think --
Justice Jackson: Not in the alternative. He doesn't say "and in the alternative," right? He -- he -- he doesn't say: I'm invoking the procedural bar, but if you, you know, somehow think it's overcome, let Official 101 me go on, right?
Christopher G. Michel: Well, I would look at JA 976.
Justice Jackson: Okay.
Christopher G. Michel: He says: "To obtain" -- here, JA 976.
Justice Jackson: Yes.
Christopher G. Michel: "To obtain post-conviction relief, Glossip needs to show that the issue could have been raised in a direct appeal and supports a conclusion that the outcome of the trial would have been different," citing the procedural bar.
Justice Jackson: Okay.
Christopher G. Michel: Then he says: "At a minimum, Glossip was not made aware of Sneed's treatment." That's the diligence prong.
Justice Jackson: Okay.
Christopher G. Michel: Then he says: "The State is also not comfortable asserting that the outcome would have been [different]." That's the innocence prong.
Justice Jackson: Does he also say: I'm incorporating my arguments from Glossip IV, where he expressly waived? Official
Christopher G. Michel: He says: I'm incorporating my arguments from Glossip IV. But remember, in Glossip IV, he said: I expressly waive for this case, but I will expressly invoke the bar for future cases. Enough is enough. And the Oklahoma Court of Criminal Appeals in that case told him that he wasn't allowed to waive. So I think it's quite responsible for the attorney general does not waive.
Justice Jackson: Well, maybe that's -- maybe -- maybe the -- right. But -- but maybe the Oklahoma court's telling him he's not allowed to waive explains why he goes through the procedural bar, but it doesn't explain whether or not he intend to -- intended to invoke it. In other words, it -- it seems odd to me that he would be talking about the merits of this claim, trying to get the -- the conviction vacated, but also still invoking the procedural bar. And the oddity, it seems to me, is explained by the previous attempt to waive the -- the -- the -- the procedural bar that was Official 103 rejected by the court. He sort of -- it was sort of like law of the case, and so he's talking about it in V because the Oklahoma court has already said: Don't talk to us about the waiver.
Christopher G. Michel: I mean, I think we have a point of agreement, which is that after the Oklahoma court told him that he couldn't waive, which is, after all, a state law issue, then he didn't waive. He said --
Justice Jackson: Right. But what I'm saying is --
Christopher G. Michel: -- the bar is satisfied and he prevails on the merits.
Justice Jackson: -- don't we have -- don't we have to credit his intention to waive in this case, which he expressed clearly in IV and was told by the court he couldn't. And so I understand that your argument that he doesn't waive in V is, you know, he doesn't make an express waiver statement. But, of course, he doesn't because the court already told him he couldn't waive. So --
Christopher G. Michel: Well, two -- two points. It was his predecessor in -- in IV, Official 104 not him. And in all events, the fact that the Oklahoma court told him he couldn't waive is strong evidence that the Oklahoma court, as we discussed earlier, doesn't always accept the attorney general's waivers. I mean, remember, we're talking about the state court --
Justice Jackson: No, no, no. It -- I'm asking you, isn't it evidence that he expressly intended to waive?
Christopher G. Michel: No. The -- the fact that he argued that the bar was satisfied is not evidence that he expressly intended to waive.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito? Justice Sotomayor? Justice Kagan? Justice Kavanaugh?
Justice Kavanaugh: Yeah. I think you had said earlier and I want to explore, if you get past all the procedural bars and you get to Official 105 the point where the prosecutors didn't comply with their obligations, that it still wouldn't have made a difference to the jury had they known that Sneed was bipolar and that he lied on the stand. And I'm having some trouble on that last piece of the argument, if we get there, understanding that, when the whole case depended on his credibility. Can you explain that some more?
Christopher G. Michel: Yes. And -- and one of the critical arguments in the case -- if you read the closing arguments, for example, there's extensive discussion about whether Petitioner was manipulating Sneed. That's probably the issue that comes up the most in the closing arguments, which are not evidence but are a reflection of what was at issue in the trial. And, therefore, Petitioner's strategic decision in this case not to question Sneed's mental illness, I think, was informed by the fact that he didn't want to support the prosecution's theory. And, as this Court explained, for example, in Wood versus Bartholomew, you can Official 106 infer from the -- the strategic decisions of the defendant what was material, what was important in the case. If the defendant himself, who has every incentive to raise the arguments that are best for him, doesn't want to raise arguments about Sneed's mental health, that is a strong clue, a strong indicator that it's not material, at least material in the sense that it would change the result in his favor. It may have made the conviction more likely, but, of course, that's not what he needs to show for materiality.
Justice Kavanaugh: Would have made the conviction more likely if the jury knows that not only does he have an incentive to lie, that he's lied on the stand and that he's bipolar, therefore, creating all sorts of avenues for questioning his credibility?
Christopher G. Michel: I think that the Oklahoma Court of Criminal Appeals explained in -- on page JA 991 that evidence that would have furthered the prosecution's theory that he could be manipulated, that he had a mental illness, would have undercut his theory and would have Official 107 made the conviction more likely. Now I do want to underscore there is lots of other evidence in the case against Petitioner that doesn't relate to Sneed, including his motive, including his possession of cash, including the fact that he was the only one who knew where the money would be found, and, I think most importantly, his elaborate 24-hour coverup, which cannot be explained by anything having to do with Justin Sneed's mental state or whether he had a psychiatrist or whether he had bipolar. That would be, I think, the second-most prevalent issue in the closing arguments. And so I think it's difficult to say the jury would have rejected Petitioner's central defense that he was only an accessory after the fact and yet turned around and accepted it if only it knew that Justin Sneed allegedly saw a psychiatrist.
Justice Kavanaugh: All right. Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: No. Official
Chief Justice Roberts: Justice Jackson?
Justice Jackson: There seems like there's some pretty significant factual questions that have been debated. You know, what did counsel know? What do these notes' markings mean? Was Sneed's statement that he never saw a psychiatrist true or false? Would you object to an evidentiary hearing? I -- as I understood it, no court has ever actually made findings on those things.
Christopher G. Michel: I'm not even really sure if I have standing to object to an evidentiary hearing. (Laughter.)
Christopher G. Michel: You know, I don't think it's -- I guess we all agree that it's not --
Justice Jackson: No. So you all agree --
Christopher G. Michel: -- that it's not necessary.
Justice Jackson: -- that it isn't necessary? You say we can look at it and --
Christopher G. Michel: Well --
Justice Jackson: -- rule in your Official 109 favor. I mean, they say we can look at it and rule in their favor. But I'm just trying to understand, don't we have to have some -- maybe we don't, but --
Christopher G. Michel: I mean, I don't want to dodge your question. I think you can dismiss and should dismiss the case for lack of jurisdiction because of the adequate and independent state grounds. If you do that, you don't have to worry --
Justice Jackson: Right.
Christopher G. Michel: -- about the facts of the notes --
Justice Jackson: If we disagree with that --
Christopher G. Michel: Yeah.
Justice Jackson: -- if we're getting to the merits, what -- how -- how should we go about deciding --
Christopher G. Michel: Yeah.
Justice Jackson: -- whether there was a Brady or Napue violation here?
Christopher G. Michel: I think you should start with the premise that it's Petitioner's burden to prove the -- the Brady and Napue violations. Official 110 And based on the evidence that he's chosen to present and particularly given that he's now told you he wants the case decided on the current record without an evidentiary hearing, I think the proper conclusion would be that he's failed to satisfy his burden, and, thus, if you reach the merits, you should affirm the judgment below.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Rebuttal, Mr. Waxman? REBUTTAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER
Seth P. Waxman: Thank you, Your Honor. I have a few -- a few short points. Number one, there is -- nothing that will come up at an evidentiary hearing is going to avoid the imperative, the necessity, for a new trial for due process violations. If you look at the -- JA 1005, which is the jail medical report, there is no world in which that report, which was suppressed by the defense -- by the prosecution, is not Brady material and highly, highly relevant impeachment Official 111 material. There -- if you look at page 953 of the Joint Appendix, these are the Smothermon notes, the Smothermon mid-trial note, we have to get to Justin right away, the knife is the "biggest problem." There is no way that that -- those suppressed notes, number one, don't reflect a Napue violation and, number two, are not Brady material. And, with respect to the meaning of the Smothermon notes, even if you were to take the complete extra-record explanation of this, which -- and, yes, Mr. Ackley and Mr. Smothermon were both interviewed by both independent investigations. Mr. Ackley has a declaration which in no way suggests that when he says that he was told by Sneed about taking lithium and when he was told about the discrepancy in the jail medical records, that it had to do with a relating of questions the defense counsel had had. Ms. Smothermon said when she was questioned, number one, I'm not sure that Trumpet is Trombka. Explanation number two, I was referring to Dr. Trumpet, a jazz musician I Official 112 wanted to hear. That was a personal note. And so, when -- in any event, even if she's right that all Sneed said was I was questioned by the defense and I told them that I was prescribed lithium by Dr. Trumpet, given the obvious fact that this prosecutor for Oklahoma County knew as well as everybody else that Dr. Trombka was the only jail psychiatrist, she committed a Napue violation even under the Van Treese brief extra-record explanation. Now there was a question about -- I think, Justice Thomas, it was yours, but pardon me if I've misallocated it -- about, well, the jail records, like, they were in the prosecutor's file. The jail records are clearly Brady material. They were -- under this Court's decision in Kyles and other cases, Brady material includes not as only -- not only what is in the prosecutor's file but what is also in the police and investigators' files. That is an obligation that the prosecution has. And they were in the -- the sheriff's office files. The sheriff office ran the jail. The sheriff's office was -- investigated this crime. The -- a Official 113 deputy sheriff was called by the prosecution to report on his investigation. And Mr. Ackley, at page 26 -- paragraph 26 of his declaration, page 939, says that he knew about jail records and misapplications. Thank you.
Chief Justice Roberts: Thank you, Mr. Waxman. The case is submitted