The Republican-appointed Supreme Court majority declined to halt Marcellus Williams’ execution on Tuesday night, despite doubts about his guilt and the prosecutor objecting to it being carried out. As it happens, the same Supreme Court that permitted Williams’ death by lethal injection in Missouri is set to hear argument in another capital case where the death row prisoner, Richard Glossip, maintains his innocence and the state of Oklahoma agrees he should get a new trial.
The two cases have come before the justices amid an unusually high number of executions taking place across the country recently. And while there are differences between the Williams and Glossip cases, the Roberts Court’s unexplained refusal to stay Williams’ execution reminds us of the court’s tendency to move capital defendants toward their deaths, even when weighty questions are unresolved or government officials object — or both.
A key difference between the Williams and Glossip cases is how the parties have lined up. While the prosecutor currently representing the St. Louis office that obtained Williams’ conviction — Democrat Wesley Bell — sought to prevent the execution, Missouri’s Republican Attorney General Andrew Bailey successfully pressed on appeal for Williams’ death for the 1998 murder of Felicia Gayle. So it wasn’t a situation where the state’s legal representative on appeal was in agreement with the defense.
Glossip’s case is different. When he asked the justices to stay his execution last year, Oklahoma’s Attorney General Gentner Drummond (a Republican, by the way) agreed that Glossip should get a stay, as well as a new trial, due to what the state admitted was prosecutorial misconduct that led to his conviction for the 1997 murder of Barry Van Treese.
With that unusual agreement presented to them, the justices halted Glossip’s execution. But instead of sending the case back to Oklahoma for a new trial, the high court took it up for a full appeal and appointed a third party to argue in defense of the state court ruling against Glossip. The Supreme Court hearing will take place Oct. 9 during the first week of the new term, with a decision expected by July.
In his petition to the justices, Glossip asked them to consider due process issues, including whether a reversal of his conviction is required when even the state no longer seeks to defend it.
But in taking up the case instead of just sending it back for a new trial, the justices added a dense procedural question that they could use to approve Glossip’s execution: “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.” The court-appointed proxy opposing Glossip (and the State of Oklahoma) has dutifully argued in a brief that the justices don’t have jurisdiction to consider the due process issues and that the state court didn’t have to adopt the state’s confession of error. Next month’s oral argument could indicate whether a majority of the court will deploy that procedural hurdle against Glossip, or whether it will grant the state’s request to give the defendant a new, constitutional trial. Notably, unlike in Williams’ case — where the three Democratic appointees dissented from the denial of his stay — the court will be shorthanded in a way that could help the defendant. Justice Neil Gorsuch, who has ruled against death row prisoners in divided decisions, recused himself. The Trump appointee didn’t explain why, but it’s presumably because, as a federal appeals court judge on the circuit court covering Oklahoma, he sat on previous litigation involving Glossip years ago (and ruled against him). Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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