Justice Thomas Seems More Willing To Kill A Possibly Innocent Person Than Mildly Impugn The Reputations Of Prosecutors

There are few things the government loves less than admitting wrongdoing, especially when the admission might affect multiple levels of government. That’s why nearly every settlement paid out to litigants includes a disavowment of any wrongdoing. And that’s why courts — at multiple levels — are so extremely reluctant to give possibly innocent people an opportunity to plead their case.

Then there’s the wildcard: justices like Clarence Thomas, who don’t seem to care what the law says and continually seek to convert their own personal ideologies into precedent. While this is definitely something Thomas does more consistently than most, refusing to consider new evidence or any genuine questions of guilt is a common feature of all courts at all levels.

“Innocent until proven guilty” is the ideal. The reality — for far too many judges, prosecutors, and jurors — is the opposite: an indictment or arrest makes a person guilty and places the burden on them to prove their innocence. When the system gets rigged through police or prosecutorial misconduct, it’s almost impossible to overturn this presumption of guilt, even via multiple visits to courts, which are supposed to be doing all they can to prevent miscarriages of justice.

The case of Richard Glossip has made it clear most courts don’t care what happens to people once they’ve been convicted, no matter how much exculpatory evidence is uncovered following the conviction. Glossip is on death row at the Oklahoma State Penitentiary, allegedly for hiring 19-year-old Justin Sneed to kill Barry Van Treese back in 1997. He was convicted in 1998 but had his conviction thrown out in 2001 by the Oklahoma District Court of Appeals, which called the prosecution’s case “extremely weak” and finding Glossip had received ineffective assistance of counsel.

Nearly a quarter-century later, this is still somehow being litigated. Glossip was convicted again by a new jury in 2004 and his conviction was affirmed by the same court that found the prosecution lacking the first time around. Multiple appeals, a bunch of new evidence pointing to Glossip’s supposed “accomplice” acting alone, support from local politicians, and questionable acts by the prosecutors handling the case have managed to keep Glossip from being executed, along with various challenges over Oklahoma’s constantly morphing execution cocktail recipe.

At this point, even the Oklahoma state Attorney General, Gentner Drummond, is unwilling to argue against Glossip in court. For some reason, the Supreme Court has decided someone should argue against Glossip, so it hired a former clerk who worked for two current justices (John Roberts, Brett Kavanaugh) to argue the state’s case on its behalf.

The Supreme Court’s hired gun, Christopher Michel — one with ties to two conservative justices — did exactly what was asked of him: he argued it didn’t matter the state AG thought the case was indefensible. The Supreme Court should still consider it defensible and ignore the public disavowal of this conviction.

Michel argues that the court should pay no mind to Drummond’s concerns about the legality of executing Glossip. “Nothing in the Constitution compels a state court to provide a particular measure of deference to a state official’s confession of error,” Michel wrote. In other words, it doesn’t matter how flawed Drummond believes the case is, the court is under no obligation to take those concerns seriously.

Chances are, Justice Clarence Thomas would have said what he said, even if he hadn’t been prompted by Roberts and Kavanaugh’s former foot soldier. Thomas has never met a right he isn’t willing to violate if it means helping cops/prosecutors or any right he isn’t willing to imagine into existence if it helps his far-right buddies (Donald Trump, Trump supporters, anti-choice legislators, Republicans complaining about internet “censorship,” etc.) get what they want.

So, he went all in against Glossip and those advocating for him. The real problem here, said Justice Thomas, is that people are maligning prosecutors who seemingly engaged in a whole bunch of misconduct.

Responding to Glossip’s attorney’s assertions that key information was withheld by prosecutors about the actual killer (Justin Sneed) would have given the accused man a chance to challenge the sole witness’s credibility, Thomas acted as though it was unfair the prosecutors were never given a chance to defend themselves from these accusations, despite having had nearly a quarter-decade to do so.

These omissions are no small matter. The due process clause requires prosecutors to turn over potentially favorable evidence to the defense, and compels them to correct false testimony. [State prosectuors] Smothermon and Ackley did neither. If they had, Glossip’s attorneys might have undermined Sneed’s credibility by proving that he lied on the stand. They may have more persuasively painted him as the lone killer, too, since [Sneed’s psychiatrist, Dr.] Trombka believed Sneed was capable of violent “manic episodes.” Because prosecutors chose to stay silent, Glossip’s attorneys could not make the strongest case for their client.

Yet during Wednesday’s arguments, Thomas sought to recast Smothermon and Ackley as innocent victims of a smear campaign. He immediately asked Seth Waxman, Glossip’s lawyer: “Did you at any point get a statement from either one of the prosecutors?” Waxman told him that he did, in fact, get a sworn statement from Ackley, and that Smothermon was interviewed by an independent counsel appointed by Drummond. So yes: Both prosecutors provided statements. Yet Thomas persisted as if they hadn’t. “It would seem that because not only their reputations are being impugned, but they are central to this case—it would seem that an interview of these two prosecutors would be central.” Waxman protested that, again, both prosecutors were given an opportunity to tell their side of the story. And again, Thomas refused to accept it: “They suggest,” the justice said, “that they were not sought out and given an opportunity to give detailed accounts of what those notes meant.”

That’s the take Thomas makes: that the notes referring to things said about Justin Sneed by his therapist (a therapist he denied seeing while testifying against Glossip), including the fact Dr. Trombka thought Sneed was “capable of violent manic episodes,” were simply misinterpreted by Glossip’s lawyers. And since the prosecutors who wrote the notes have never testified directly that they say the things they say, they’ve somehow been unfairly forced out of this court battle to prevent Glossip from being executed for a crime he didn’t commit.

This is garbage law work. If an attorney tried to make the same arguments in front of the court, they’d be shut down and/or berated by the judges on the bench. But if a justice says it, I guess it’s all ok. But Supreme Court justices are expected to be the best at lawyering, since they’re tasked with making final determinations that not only affect the parties in the current case, but the entirety of judicial system across America. But instead of seriously and neutrally considering the facts of the case, activist justices like Clarence Thomas are making things worse for millions of Americans because they’ve decided their own moral compasses (such as they are, especially in Thomas’s case) are the gold standard for constitutional law.