Cert Petitions Granted with Decision Pending

The Supreme Court has granted certiorari in the following cases involving issues of interest to capital habeas litigators:

Glossip v. Oklahoma, 22-7466 (cert. petition granted January 22, 2024)
(case below: __ P.3d __, 2023 WL 3012463 (Okla. Crim. App.))

Questions presented:

     Justin Sneed was, in the State’s words, its “indispensable witness,” and Richard Glossip’s “fate turned on Sneed’s credibility.” Sneed is the person who “bludgeoned the victim to death, and his testimony linking Glossip to the murder was central to the conviction.” State Stay Resp. 10, Glossip v. Oklahoma, No. 22A941 (U.S.). He only claimed Mr. Glossip was involved after being fed Mr. Glossip’s name six times and threatened with execution. And his accounting of basic facts about the crime has shifted dramatically with each telling.

     With Sneed’s credibility already tenuous, the State undisputedly hid from the jury Sneed’s having “seen a psychiatrist” who diagnosed Sneed with a psychiatric condition that rendered him volatile and “potentially violent,” particularly when combined with methamphetamine use, a street drug Sneed was abusing at the time he murdered Barry Van Treese. Id. In fact, the State allowed Sneed to affirmatively tell the jury he had not seen a psychiatrist.

     Before the Oklahoma Court of Criminal Appeals (OCCA), the State confessed error, admitting that the failure to disclose the truth about Sneed’s psychiatric condition, leaving the jury with Sneed’s uncorrected false testimony and then suppressing this information for a quarter-century, rendered “Glossip’s trial unfair and unreliable.” Id. at 4–5. Before this Court, the State has admitted Mr. Glossip is entitled to a new trial on these grounds, as well as in light of “cumulative error” regarding “multiple issues raised in Glossip’s Post-Conviction Relief Application.” Id. at 4. But the OCCA has refused to stop the execution of an innocent man who never had a fair trial.

     This petition presents the following questions:

     1. a. Whether the State’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law. See Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959).

        b. Whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims. See Kyles v. Whitley, 514 U.S. 419 (1995).

2. Whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it. See Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).

Justice Gorsuch  took no part in the consideration of the petition.  (He was on the panel of the Tenth Circuit Court of Appeals that affirmed the denial of Glossip's earlier federal habeas corpus petition).  In granting certiorari review, the Supreme Court directed the parties to brief and argue the following additional question: "Whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment."

Thornell v. Jones, 22-982 (cert. petition granted December 13, 2023)
(case below: 52 F.4th 1104 (9th Cir.))

Question presented:

     Over thirty years ago, Respondent Danny Lee Jones beat Robert Weaver to death and also beat and strangled Weaver’s 7-year-old daughter, Tisha, to death, for which he was convicted and sentenced to death. The district court denied habeas relief following an evidentiary hearing on Jones’s ineffective-assistance-of-sentencing-counsel claims. But a Ninth Circuit panel reversed the district court, giving no deference to the district court’s detailed factual findings. Judge Mark Bennett authored a nine-judge dissent from the denial of en banc rehearing.

     The Question Presented is:

     Did the Ninth Circuit violate this Court’s precedents by employing a flawed methodology for assessing Strickland prejudice when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the State’s rebuttal when it reversed the district court and granted habeas relief?

Click here to view the certiorari petition.  Argument will be heard on April 17, 2024.

Smith v. Arizona, 22-899 (cert. petition granted Sept. 29, 2023)

Question presented:

     Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst's statements are offered not for their truth but to explain the expert's opinion, and (b) the defendant did not independently seek to subpoena the analyst.

Click here to view the certiorari petition.  Argument was heard on January 10, 2024.

McElrath v. Georgia, 22-721 (cert. petition granted June 30, 2023)
(case below: 880 S.E.2d 518 (Ga. 2022)
)

Question presented:

The Georgia Supreme Court held that a jury’s verdict of acquittal on one criminal charge and its verdict of guilty on a different criminal charge arising from the same facts were logically and legally impossible to reconcile. It called the verdicts “repugnant,” vacated both of them, and subsequently held that the defendant could be prosecuted a second time on both charges. Does the Double Jeopardy Clause of the Fifth Amendment prohibit a second prosecution for a crime of which a defendant was previously acquitted?

Click here to view the certiorari petition.  Argument was heard on November 28, 2023.