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Oklahoma court won't stop Glossip execution, Florida makes new death sentences easier

So long as the death penalty exists, we are allowing the state to make biased, error-ridden, life-and-death decisions.

Chris Geidner
Apr 21, 2023
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Oklahoma court won't stop Glossip execution, Florida makes new death sentences easier

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So long as we allow states and the federal government to pursue death sentences and carry out executions, we are allowing the state to make biased, error-ridden, life-and-death decisions. And, yes, at times, the state will get it wrong and the government will kill an innocent person in our name.

I could go down the dark path of our criminal legal system and the many, many ways it has proven itself untrustworthy of killing people. Over time, I have covered many examples of that — and will continue to do so in the future.

Two decisions on Thursday alone are instructive, one in Oklahoma showing judges’ unwillingness to face the error in an existing death sentence and the other in Florida making future erroneous death sentences much more likely.


Oklahoma’s top criminal court ignores Republican AG in Glossip case

The Oklahoma Court of Criminal Appeals on Thursday denied Richard Glossip’s request to vacate his conviction — despite the fact that the state’s Republican attorney general agreed with the request from Glossip’s lawyers.

Attorney General Gentner Drummond, elected last fall, had agreed with Glossip’s lawyers that his conviction — including his death sentence — should not stand.

Glossip currently faces an execution date of May 18. In addition to denying the request to vacate the conviction, the Court of Criminal Appeals — the highest court in the state for criminal matters — denied the joint request for a stay of execution.

None of the five judges — all former prosecutors, Kyle Barry highlighted — dissented from today’s decision. (One judge wrote separately, agreeing with the court’s judgment.)

Judge David Lewis wrote the court’s opinion, dismissing Glossip’s claims in quick succession. An illustrative example comes in response to the key admission from Drummond about the key witness in the case. Lewis wrote:

425 Glossip claims that the State failed to disclose evidence of Justin Sneed’s mental health treatment and that Sneed lied about his mental health treatment to the jury. Though the State in its response now concedes that this alleged false testimony combined with other unspecified cumulative errors warrant post-conviction relief, the concession alone cannot overcome the limitations on successive post-conviction review.® See 22 0.8.Supp.2022, § 1089(D)(8). The State’s concession is not based in law or fact.

To justify ignoring the state’s admission, Lewis wrote:

26 This 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 the facts arc 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.

While this reads like a jumble of meaninglessness, this, ultimately, is how a lot of late death penalty claims are addressed.

To translate: “If you could have raised the claim earlier, because you could have found the underlying information earlier, then you can’t bring it now. And, also, even if you brought the claim early enough, if you can’t prove that the information would almost certainly have changed the outcome, we’re still going to allow the state to execute you.”

This standard completely ignores the insufficient (and sometimes bad) legal help that people accused of even capital crimes often have early on in their cases — and how it is even more difficult for those people to get the level of legal help necessary post-conviction to find the information necessary to bring claims in a timely manner.

Here, though, many people, including many Republicans, agree that Glossip’s trial was a bad one — including the Republican attorney general. Glossip has maintained his innocence. Republican Gov. Kevin Stitt has granted Glossip multiple reprieves of execution.

As Drummond wrote in his filing, his review of all available material, including a new independent counsel’s review of the case, led him to the conclusion that “Glossip’s trial was unfair and unreliable.”

He continued:

Moreover, in deciding to take this difficult stance, the State has carefully considered the ‘voluminous record in this case, the constitutional principles at stake, and the interests ofjustice. While the State has previously opposed relieffor Glossip, it has changed its position based on a careful review of the new information that has come to light, including its own Independent Counsel's review of the case. Given the admonition that the State has a duty to “use every legitimate means to bring about ajust” result (Viereck, supra, at 248), it urges this Court to give credence to the State’s consideredjudgment. See Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.) (vacating judgment of Texas Court of Criminal Appeals that refused to give effect to State's confessionoferror in successor habeas petition). Accordingly, the State requeststhattheCourt vacate Glossip’s conviction and thatthe case ‘be remanded to the district court.

This should be an obvious case to pull back and, at the very least, not kill the man.

Despite that, the Court of Criminal Appeals denied the request, with Lewis writing for the court that “we have found no legal or factual ground which would require relief in this case.”

Shortly after the decision, one of Glossip’s lawyers, Don Knight, said in a statement that the lawyers would be seeking U.S. Supreme Court review:

Since the State now agrees that the only witness to allege that Mr. Glossip was involved in this crime cannot be believed, it is unconscionable for the court to attempt to force the State to move forward with his execution. We cannot permit this longstanding injustice to go unchallenged and will be filing for review of this manifestly unjust ruling in the United States Supreme Court. We ask all Oklahomans who believe in justice to stand with Mr. Glossip, and the State of Oklahoma, to stop this wrongful judicial execution, and grant Mr. Glossip the new trial he so rightly deserves.

Drummond, while not declaring his next steps, also issued a strong statement:

Drummond statement on OCCA's Glossip ruling OKLAHOMA CITY (April 20, 2023) – Attorney General Gentner Drummond made the following remarks today after the Oklahoma Court of Criminal Appeals (OCCA) denied his motion to vacate the conviction of death row inmate Richard Glossip and remand the case back to district court. In addition, the Court denied the State’s motion for a stay of execution.  "While I respect the Court of Criminal Appeals’ opinion, I am not willing to allow an execution to proceed despite so many doubts. Ensuring the integrity of the death penalty demands complete certainty. I will thoroughly review the ruling and consider what steps should be taken to ensure justice."  ###

Law Dork will monitor future developments.

Law Dork with Chris Geidner brings you independent, reader-supported legal and political journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a free or paid subscriber today.

DeSantis makes it easier to sentence someone to death

Florida Gov. Ron DeSantis, a Republican, on Thursday signed into law legislation that will allow non-unanimous juries to recommend death sentences.

Capital trials are split between guilt and sentencing phases. If a jury unanimously convicts a person of murder in the guilt phase, the trial moves to the sentencing phase. Within that phase, there are two votes under Florida law.

Under the new Florida law, the first vote still requires unanimity. The jury must unanimously find that an aggravating factor exists — this is part of the “narrowing” required by the U.S. Supreme Court to, allegedly, ensure that only the worst offenses are subject to the death penalty. Since the Supreme Court made that clear, however, states have nonetheless been allowed to define aggravating circumstances extremely broadly. Here, for example, are Florida’s aggravating factors:

(6) AGGRAVATING FACTORS.—Aggravating factors shall be limited to the following: (a) The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation. (b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person. (c) The defendant knowingly created a great risk of death to many persons. (d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb. (e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. (f) The capital felony was committed for pecuniary gain. (g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. (h) The capital felony was especially heinous, atrocious, or cruel. (i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. (j) The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties. (k) The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim’s official capacity. (l) The victim of the capital felony was a person less than 12 years of age. (m) The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim. (n) The capital felony was committed by a criminal gang member, as defined in s. 874.03. (o) The capital felony was committed by a person designated as a sexual predator pursuant to s. 775.21 or a person previously designated as a sexual predator who had the sexual predator designation removed. (p) The capital felony was committed by a person subject to an injunction issued pursuant to s. 741.30 or s. 784.046, or a foreign protection order accorded full faith and credit pursuant to s. 741.315, and was committed against the petitioner who obtained the injunction or protection order or any spouse, child, sibling, or parent of the petitioner.

The second vote, then, is the vote where a jury actually decides whether a person should get the death penalty. That step requires the jury to weigh any aggravating factors against any mitigating factors presented by the defense. Here is where the law changes.

Previously, that second vote also required unanimity, as is the case in all other death penalty states but one. The new Florida law changes it so that only 8 of 12 jurors need to vote that death is the appropriate sentence. If eight or more jurors do so, under the new law, the jury “must” recommend a death sentence to the court. (The other outlier state, Alabama, has a higher threshold — requiring at least 10 of 12 jurors to vote for death.)

Once the judge receives that recommendation of death, the judge may either sentence the person to death or to life without the possibility of parole. If the judge decides to sentence the person to life, “The court must include in its written order the reasons for not accepting the jury’s recommended sentence,” under the new law.

The new law will lead to litigation, but DeSantis and the Florida legislature have determined — probably with good reason — that the current Florida and federal courts will allow this.

This law would lead to more people being sent to Florida’s death row — already the second largest death row in the nation. As the state that has also already had the highest number of death penalty exonerations in the country, this law will likewise make it that much easier for people to wrongly be sentenced to death in Florida.

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Oklahoma court won't stop Glossip execution, Florida makes new death sentences easier

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Melanie Kalmanson
Writes Legal Writing Corner
Apr 21Liked by Chris Geidner

The new law also removed several other determinations in the jury's sentencing process. Under Florida's old law (implemented in 2017 after the U.S. Supreme Court held in 2016 that Florida's prior capital sentencing scheme was unconstitutional), the jury was required to make 4 determinations unanimously. This new law removes that and ends with the two determinations you mention. I've explained this entire debacle on Tracking Florida's Death Penalty and will be following the litigation, which has already started.

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Ian Mark Sirota
Writes Ian’s Substack
Apr 21Liked by Chris Geidner

We live in a completely dystopian society. Both of these stories are horrifying.

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