November 29, 2024 • 38 mins
On this special holiday weekend edition of Bloomberg Law, host June Grasso takes a look at some of the crucial cases facing the Supreme Court this term. She breaks down San Francisco's battle with the EPA, a case to determine regulations on ghost guns and a unique death penalty appeal that finds the state of Oklahoma siding with a defendant on death row.
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And analysis of important legal issues, cases and headlines.
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Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:44):
Welcome to a special Holiday edition of the Bloomberg Law Show.
I'm June Grosso. Ahead in this hour, we'll take a
look back at some crucial Supreme Court arguments this term.
The justices considered regulations on ghost guns just months after
all landmark decision on bump stocks. Will also look at
a unique death penalty appeal where the state of Oklahoma
(01:07):
is siding with the death row inmate. But first, the
liberal city of San Francisco found itself in an unusual
position at the Supreme Court, taking on the Environmental Protection
Agency over sewage discharge into the Pacific Ocean. With a
ten billion dollar fine on the line. The city's attorney,
(01:28):
Tara Steely, argued that the regulations were too vague.
Speaker 3 (01:32):
They might as well have said, do not violate the
Clean Water Act. It doesn't tell us anything.
Speaker 2 (01:37):
But the liberal justice is pushed back on San Francisco's arguments.
Here are Justices Elena Kagan and Sonya So to Mayor.
Speaker 4 (01:46):
It's prescribing that you have to meet water quality standards, Like,
how more clearly could you meet this statutory language than that?
What they're asking you is to become responsible doing what's necessary.
Speaker 2 (02:03):
The ideological divide was apparent, with conservative justices expressing concerns
about the fairness of the city facing billions in fines
without knowing what its obligations are under a vague permit.
Just as Brett Cavanaugh challenged the EPA's attorney, Frederick lew.
Speaker 5 (02:22):
You're suing San Francisco separately for a lot of money
based on a standard that they had no idea. You know,
that's the theory. That's the theory in your position, your
position would allow that. I don't, yes, it will. I
mean the base I complaint is exhibit A for what
you said is not going to be true.
Speaker 2 (02:43):
And Chief Justice John Roberts pointed out that Congress had
updated the law to address the kind of concerns that
San Francisco was raising about a lack of clarity.
Speaker 6 (02:53):
The battle days is when we had water quality standards, right,
people didn't know what they were supposed to do, how
it was going to be allocated, sort of a problem
of the commons, and they put in the permit system.
And I think the danger here is that you're going
back to the other system.
Speaker 2 (03:07):
Joining me is former US Solicitor General Gregory garr, a
partner at Latham and Watkins. Great tell us about the
city's argument here.
Speaker 7 (03:15):
So, the City of San Francisco is concerned about the
lack of fair notice that they have in terms of
how to comply with the Clean Water Act as to
the sewage discharge that's going into the Pacific Ocean. And
their argument is that the Clean Water Act obligates the
EPA to set specific effluent limitations on the amount of
(03:37):
pollutants coming out of pink sources. Discharges like the pipes
going into the ocean, and that instead, what the EPA
has done here is just issued these vague water quality standards.
You have to be sure that the water is a
particular color where the sewage is coming out, or you know,
NEETs other criteria. And the city's argument is that, well,
(03:58):
they don't know how to meet those criteria, there's other
sources coming in, who's responsible for what? And you know,
all this is against the backtop of a suit brought
by the EPA in which they're seeking, according to the city,
literally ten billion dollars in penalties. So the city feels
as though they lacked the fair notice that they were
entitled to under the Act up front in terms of
(04:20):
what discharges could go into the ocean.
Speaker 2 (04:23):
Did it seem like the three liberal justices were pushing
back on the city's argument.
Speaker 7 (04:29):
Definitely. Justice Kagan, Justice Sodamor, and Justice Jackson all leaned
in hard against the city on their arguments, and they
took a number of different tacks. Most importantly, I think
they really wanted to focus the city on the text
of the Act and put the city on its heels
in terms of identifying a provision of the Act that
(04:50):
stripped EPA of the authority to issue these sorts of
broader water quality standards and justice Jackson in particular went
into the language in the Act which says that the
EPA could adopt quote any more stringent limitations end quote,
and argued that, you know, the city was wrong in
saying that the limitations were limited to effluent limitations coming out.
(05:14):
The justices also had hard questions for the cities about
the environmental impact potential environmental impacts of the city's position,
which at times got pretty gross in terms of talking
about floating toilet paper and the like. But the city
definitely based a tough crowd from the more liberal end.
Speaker 2 (05:31):
Of the court, and the EPA's attorney faced a tough
crowd from the more conservative justices. Tell us about his argument.
Speaker 7 (05:39):
So his argument was that number one, that the statute
did confer this more broader authority on EPA, and that
it could be exercise in particular instances more limited circumstances,
and that here he claimed that the problem really was
one of San Francisco's own creation, and that he claimed
that EPA had asked for specific data from the city
(06:02):
about its discharges and the like, and the city never
provided it, and so according to the EPA attorney, they
had no choice but to issue these more general water
quality standards. And you know, really one of the more
interesting dynamics of this oral argument is this was the
City of San Francisco, one of the more progressive jurisdictions
in the country, facing off against the Biden administration EPA,
(06:26):
and it was clear that there was no love loss
between them, at least as to this particular issue.
Speaker 4 (06:31):
Yeah.
Speaker 2 (06:31):
Well, this is a case where the city's Board of
supervisors voted eight to two to urge the city officials
to resolve the suit quickly, there being a concern that
a Supreme Court ruling in the city's favor could have
sweeping implications for curtailing water pollution definitely.
Speaker 7 (06:50):
And it's unclear how far the court would go even
if it ruled for the city in this case. You know,
there were justices sort of probing more narrow rulings, and
I think even if the court ruled in favor of
the city, it probably would you try to limit the
reach of its ruling. But you know, the basic question
on the table is whether ETA has the authority to
(07:12):
issue these broader water quality standards, which is something that
is the Chief Justice pointed out during the oral argument
that you know, this is what the prior regime did.
It issued these general water quality standards instead of specific
discharge limitations. And in his view, and this is what
the city argued, that the Clean Water Act was actually
enacted in part to replace that regime with one which
(07:35):
gave the dischargers more notice upfront in terms of the
specific limitations that were permissible.
Speaker 2 (07:42):
And did it seem just as the liberals were taking
issue with the City, that the Conservatives were taking issue
with the EPA.
Speaker 7 (07:52):
Well, there was a group of them. There was the
Chief Justice, Justice Kavanaugh. Justice Gorsich pushed back the hardest,
I think, and the main concern on that sort of
unified them was the lack of fair notice to the
city and other dischargers in this situation. Where As I
mentioned earlier, you know, potentially these jurisdictions are on the
hook for significant penalties in this case, you know, literally
(08:13):
billions of dollars according to the city, and they don't
know exactly, the city argues, and the Conservatives sort of
picked up on how to comply with the Clean Water
Act in this instance, particularly where there are multiple discharges
going into the same place, and who's responsible for what
in terms of figuring out whether or not the water
(08:34):
quality standard is met. But there was some uncertainty, at
least in terms of where the other justices were. Justice Barrett,
who actually joined the more liberal justices in an environmental
case last term, Ohio versus EPA, you know, didn't join
the stronger attack by the other conservative justices and seemed
to be probing a narrower angle and dealing with these
(08:56):
challenges under the arbitrary and capricious doctrine. Justice Solito picked
up a little bit on the government's argument that in
this case, the problem was that San Francisco hadn't provided
adequate data to the EPA, leaving it with the predicament
that it had to issue these more general standards, and
Justice Thomas definitely had some tough questions for the city,
(09:17):
although his position was a little bit less clear. So,
you know, San Francisco coming out of the argument, I
think should feel good about its position, but it's not
over yet.
Speaker 2 (09:26):
Are other cities in the same position as San Francisco
have the same problems.
Speaker 7 (09:31):
So I think that the use of general Walader quality
standards is definitely not the norm. But one thing that
came up during the oral argument in response to questioning
from Justice Kavanaugh was that there was many amikas brief
file friends of the Court, from businesses, municipalities, and the
like who had serious concerns and reservations and problems with
(09:53):
the EPA's approach here, and you know, talked about the
dangers and lack of fair notice with this sort of
more general water quality standard regime, and that was something
that resonated with Justice Kavanaugh at least and probably some
of the other justices as well.
Speaker 2 (10:08):
This is the first case to grapple with federal agency
power since lopeer Bright was decided last June. That's the
case that overturned Chevron deference. So you didn't hear much
about Chevron deference in these oral arguments.
Speaker 7 (10:27):
No, not a word. EPA certainly didn't ask for it,
and you know, it was clear that this is going
to come down to what Congress actually said in the
statute and the Court's best interpretation of that, which, of
course is the way it works after Wiperbright, and really
the way has worked at the Supreme Court for many years,
even before Loperbright.
Speaker 2 (10:47):
Do you think that we're just not going to hear
about chevron defference in future arguments at all, or about
that concept.
Speaker 7 (10:53):
We're definitely not going to hear about chevron difference. I
think the more interesting question is will we hear about
other time types of difference, so called get more difference?
You know, how aggressive will the government be in trying
to claim some type of difference in other cases and
try to push back a little bit? And I think
(11:14):
that that'll be an interesting trend to follow on the
court this term and beyond.
Speaker 2 (11:19):
The EPA has faced a string of losses at the
Supreme Court in recent years, for example, with the court
curbing its ability to reduce greenhouse gases and to protect wetlands.
Does it seem like in some respect it's going to
lose in this case as well, whether it's broad or limited.
Speaker 7 (11:41):
I don't think that that's a certainty at this point.
I mean, one of the other questions that came up
during the oral argument was whether or not there were
some flaws with this case, and maybe the court just
not decided altogether. But you know, I think you're going
to feel better about youural argument coming out of it
if you're san Francisco an EPA, and I think you
know EPA and the government more generally has been behind
(12:03):
the eight ball and these administrative challenge cases, and you know,
EPA sort of finds itself in a particularly difficult positions
when you combined aggressive enforcement of its environmental priorities with
broader statutory provisions, which is the area where the Supreme
Court has been particularly adamant in demanding the the agency
(12:27):
point to more specific authority in the statute for what
it's doing.
Speaker 2 (12:30):
Thanks so much for coming on again, Greg and sharing
those insights with us. That's former US Solicitor General Gregory
Garr of Latham and Watkins. Coming up next on this
special holiday edition of the Bloomberg Law Show, the justices
grapple with whether ghost guns meet the federal definition of
a firearm. I'm June Grasso. When you're listening to.
Speaker 1 (12:51):
Bloomberg, this is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (13:06):
Thanks for joining us for a special holiday edition of
the Bloomberg Law Show. I'm June Grosso. We're looking at
some high profile Supreme Court arguments from this term. Still ahead,
we'll dive into an unusual death penalty case that finds
the State of Oklahoma siding with a defendant on death row.
Speaker 8 (13:25):
But first these guns were being purchased and used in crime.
They were sold to be crime guns. There was a
one thousand percent increase between twenty seventeen and twenty twenty
one in the number of these guns that were recovered
as part of criminal investigations. And it makes perfect sense
because the whole reason why you would want to get
your hands on one of these unseerialized, untraceable firearms is
(13:47):
if you are a prohibited person or you want to
use that gun in a crime.
Speaker 2 (13:51):
Solicitor General Elizabeth Prelager argued that the Supreme Court should
uphold the Biden administration's regulation of ghost guns, nearly untraceable
firearms that can be assembled at home in as little
as twenty minutes.
Speaker 8 (14:06):
Those untraceable guns are attractive to people who can't lawfully
purchase them or who plan to use them in crimes.
As a result, our nation has seen an explosion in
crimes committed with ghost guns.
Speaker 2 (14:17):
During oral arguments, the Justice is grappled with the question
of whether ghost guns meet the definition of firearms under
the Federal Gun Control Act that would allow the government
to regulate them. The analogies were plentiful. Justice Samuel Alito,
who seemed skeptical of the government's argument, compared the gun
kits to cooking ingredients.
Speaker 5 (14:39):
There I show you I put out on a counter
some eggs, some chopped up ham, some chopped up pepper,
and onions.
Speaker 1 (14:50):
Is that a Western ovelet?
Speaker 8 (14:53):
No, because again those items have well known other uses
to become something other than an omelet. The key difference
here is that these up and parts kits are designed
and intended to be used as instruments of combat, and
they have no other conceivable use.
Speaker 2 (15:06):
But Justice Amy Coney Barrett jumped in comparing gun kits
to meal kits.
Speaker 4 (15:12):
No pre lager.
Speaker 3 (15:13):
I just want to follow up on Justice Alito's question
about the omelet. Would your answer change if you ordered
it from Hello Fresh and you've got a kit and
it was like turkey chili, but all of the ingredient
answer in the kit.
Speaker 1 (15:25):
Yes.
Speaker 2 (15:26):
The best analogies seemed to be if you buy a
bed from Ikea that you have to assemble, is it
still a bed? Joining me? Is Kevin Tobia, a professor
at Georgetown Law, Many people might expect that this is
a second Amendment case since it concerns guns, but tell
us what the question before the court was.
Speaker 9 (15:45):
Here, So it's not a second in the case. It's
a statutory case. So it concerns the Gun Control Act
of nine sixty eight. And there's two questions in the case,
and so both of them involve the meaning of different
language in this statute. So the question in some ways
is kind of simple, right before you get to like
all the kind of complexity that they were working through,
which is what counts as a firearm for this law.
(16:05):
And so these gun parts kits, they're marketed and sold
as kits that you can buy and assemble and construct
into a functional firearm. So, you know, a lot of
the conversation was drawing analogies to different sorts of goods,
playing kind of with language and trying to understand, you know,
what counts as an omelet or what counts as a table.
Speaker 8 (16:24):
Right.
Speaker 9 (16:24):
So Justice A. Leado offered this example kind of possible
to the government's position that if we just have you know,
peppers and mushrooms and eggs, that's not an omelet yet.
So in the same way, like a collection of gun
parts is not a firearm yet, And just as Barrett
actually sort of responded as said, well, what if those
come in a Hello Fresh kit, we actually might understand
that as an omelet, even though it's not completely assembled yet.
(16:44):
And you know, the example of Nikia table came up
as well. Some of the argument got into the technicalities
of like what exactly is included in these parts kits?
What's a frame and receiver? More broadly, a lot of
the justices were drawing these analogies to other sorts of
items that were pretty comfortable to call tables even though
they're assembled or onless, even though they're unassembled.
Speaker 2 (17:02):
The ghost gun kits don't come with fully assembled frames
or receivers the core component of a firearm, so a
kit might require the purchaser to drill some hole so
that pins can be inserted. The challengers, the gun manufacturers
and gun right supporters, argue that's what puts the kits
outside the law, But their attorney, Peter Patterson, faced a
(17:25):
tough audience, especially from the Chief Justice, who didn't seem
to be buying that argument.
Speaker 6 (17:32):
What is the purpose of selling a receiver without the
holes drilled in it?
Speaker 10 (17:39):
Well, there are some individuals, and just like some individuals
enjoy like working on their car every weekend. Some individuals
want to construct their own firearms. So the purpose of
selling it is to allow I'm trying to go his
to assist and provide individuals with material which which they
can do that.
Speaker 6 (17:58):
Well. I mean, drilling whole or two I would think
doesn't give the same sort of reward that you get
from working on your car on the weekends.
Speaker 9 (18:07):
Yeah, so I thought that line of questioning from Justice
Roberts was really interesting. I think, especially if you're trying
to read the tea leaves and sort of think about
where some of these justices will vote, and I think
Roberts is a kind of important one in this case.
He asked straight up, like, what's the purpose of selling
a receiver without the holes drilled in it? And you know,
one answer from Patterson is, you know, people buy this
as a hobbyist, right in the same way you might
(18:29):
buy like a collection of unassembled parts to make it
like a little toy ship or model or something, or
working on a car and you enjoy it. And Justice
Roberts really did not seem to be buying that answer, right.
He said, you know, drilling a whole or two doesn't
really give you the kind of reward you get from
working on your car over the weekend. And I think
he's exactly right there. Right, So, like when you look
at how these guns are marketed as well, these parts
(18:49):
kits are not marketed for hobbyists, Like they're not described
by language like this is a really leisurely, enjoyable, difficult build, right,
They're marketed in terms like this is extremely fast and easy,
this is ridiculously easy, like this is dummy proof, like
you can do this really fast with no expertise. And
so I think that analogy that Patterson was trying to
draw between buyers of these kids and cobbyists just really
(19:11):
fell apart. And I think there's a great question from
Justice Roberts and also give some insight into where he
might stand on this case.
Speaker 2 (19:17):
Is anyone arguing that this isn't a kit to assemble
a gun? What I'm getting at is, are they just
looking for a loophole here?
Speaker 9 (19:26):
Yeah, So I think everyone agrees that these are kits
to be assembled into a gun. Vanderstock's argument is just
because of a kid that you could assemble into a
gun does not in fact make it a firearm. Within
the meaning of the statute, and the government sees the
statutory meeting a firearm to include these kits. You know,
interesting thing that came out to your question is there
was some discussion, a lot of discussion actually about kind
of where to draw the line. And I think even
(19:46):
Patterson conceded that a firearm that's disassembled as a firearm,
and so this question about like how close does it
have to be? And so you know, the government's argument is,
you know, once it's readily convertible, which these kids they
think are, that's good enough. And so the term fire
arms should encompass these kits which could be readily converted
to function as firearms very quickly.
Speaker 2 (20:05):
Justice Gorsuch asked questions of a textualist nature. Where do
you think a textualist analysis gets you here?
Speaker 9 (20:14):
So there's two questions in the case, right. So the
first one is about whether a parts kit falls under
the Part A of this statute. So any weapon which
will is designed to or may readily be converted to
expel a projectile by the action explosive. As a matter
of textualism, I think that question in this case is
extremely straightforward, that these parts kits fall under that language.
Just as part of the ordinary meaning of firearm. And
(20:34):
then you're underscored by the statutory language. The statute explicitly
contemplates things that could be readily converted to expel a projectile,
which just seems to be explicitly describing things like these
parts kits. And in question, the second question in the
case is about the meaning of the frame or receiver
of any such weapon in the statue, and many of
Justice Gorsuch's questions had to do with that second question.
(20:55):
So there the question is, if these companies sell an
eighty percent receiver, which, as the government says, you have
to drill a few holes in to convert this to
a one hundred percent functional receiver, does that count as
a frame or receiver within the meaning of the statute?
And so you know, Justice Gorsuch was asking a number
of kind of interesting questions about that, and going in
I would not have kind of, as a matter of politics,
(21:16):
expected Justice Gorsage to be favorable to the government in
this case, but his questions sort of suggested some openness
to following the text in this case to a place
that might not lead to the sort of conservative politics.
So he was asking, you know, when you look at
this statue and look at the context. Every other part
of the statute is contemplating convertible parts in addition to
fully functional parts, and so in that context, might we
(21:38):
understand frame and receiver just giving them their ordinary meaning
in that context to also include things that are extremely
close to functional and frame and receivers. I thought it
was a really interesting kind of exchange between Gorsuch and
the Swisser General from that point, So, the.
Speaker 2 (21:50):
Solicitor General mentioned several times the explosion in crimes committed
using ghost guns and that the new regulations are crucial
for solving gun crimes. And also you had a group
of twenty major cities filing with the Supreme Court saying
that the regulation appears to have been effective reducing the
(22:10):
use of ghost guns. Where does that fit into the
Supreme Court's analysis, especially if it's a textualist analysis.
Speaker 9 (22:19):
That's interesting if you think about textualism sort of as stated,
with the idea that the court will resolve this question
just by looking at the statutory text and giving that
language the meaning it would have in the eyes of
an ordinary reader, you might think those conserations about the
practical consequences are irrelevant, Like, that's exactly the sort of
political consequential decisions that they're trying to screen off with textualism.
(22:40):
So what's interesting is if that's right, looks like actually
a majority of the justices are inclined to read the
text in line with the government. That would be the
three Democratic appointees and then potentially Roberts, Kavanaugh, Barrett Gorsich.
I think Roberts in particular was responsive to some of
the government's arguments about the practical consequences kind of over
and above the text. So, currently, federal law prohibits selling
(23:01):
firearms to twenty one year olds, It requires backgrounds, check, serialization,
all these requirements, and if the court decides that these
kits are not firearms, those requirements will not apply at
the federal level. And so there's a real concern right that, again,
if people who are buying these kits are not hobbyists
but rather people who just want a firearm, there's a
real circumvention concern that basically all of the law that
would apply to firearm regulation effectively is meaningless because someone
(23:26):
could just get the ghost gun and build their own
kit in twenty minutes or however long it takes, and so,
you know, some of Robert's questions, I think we're very
much kind of responsive to that set of concerns and
the principle that if you read the statute in that way,
the way Vnderstock wants it to, you'll render a big
chunk of federal law meaningless. And so Congress was really underscoring.
Speaker 2 (23:45):
Just a few months ago, the Supreme Court, in a
six to three decision, tossed out a ban on bump stocks.
That Cargol case was also a statutory interpretation case. Does
that case have implications for this Vounderstock case?
Speaker 9 (24:03):
That case it actually concerned a different firearm statue, So
it concerns the definition of machine gun. Wherever you come
out on Garland versus Cargo, whether it's sort of easy
or difficult case textually, the case that they heard dander
Stock as a matter of language is like just much
more straightforward, you know. I think it's reassuring actually that
the Court's oral argument, many of the questions, especially from
Barrett and Roberts and course such in Kavandah, really seem
(24:25):
to recognize that fact these gun part kits are firearms
in ordinary English. And then the statute explicitly talks about
weapons that could be readily converted to expel a projectile,
which you know also really underscores that these sort of
kits are included, and the context indicates the same with
the frame of receivers. And so for this oral argument,
I think if you think the court is primarily a
political actor, you see the bump stock case, you think
(24:45):
this is going to come out the same way. Six
y three after the oral argument, I've got a little
more hope that the Court's going to follow the text,
although time will tell.
Speaker 2 (24:53):
Thanks Kevin. That's Georgetown Law professor Kevin Tobia. I note
Michael Bloomberg, the founder majority owners of Bloomberg LP, the
parent company of Bloomberg Radio, is a donor to groups
that support gun control, including Every Town for Gun Safety.
You're listening to a special holiday edition of the Bloomberg
Law Show. Up next a death penalty case that finds
(25:16):
the State of Oklahoma siding with a defendant on death row.
Remember you can always at the latest legal news by
listening to our Bloomberg Law podcast. You can find them
on Apple Podcasts, Spotify, and at Bloomberg dot com Slash
podcast Slash Law. I'm June Grosso and you're listening to Bloomberg.
Speaker 1 (25:47):
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 5 (25:53):
This is a.
Speaker 2 (25:54):
Special holiday edition of the Bloomberg Law Show. I'm June Grosso.
We're looking at some import and Supreme Court case. Is
this term?
Speaker 11 (26:02):
Attorney General Drummond did not confess error here lightly. Indeed,
he continues to defend multiple capital convictions and opposed mister
Glossop's pen ultimate sert petition, But after commissioning an independent review,
he reluctantly reached the conclusion that Brady and Napu violations
(26:22):
by the state's own prosecutors obligated him to confess error
and waive procedural obstacles.
Speaker 2 (26:29):
It's a very unusual death penalty case where the State
of Oklahoma is coming before the Supreme Court on the
same side as a defendant on death row, arguing that
Richard Glossop's nineteen ninety seven murder conviction and capital sentence
should be undone due to prosecutorial misconduct. Former US Solicitor
(26:50):
General Paul Clement argued for the Oklahoma ag gentner Drummond,
who had made an extraordinary concession known as a confession
of error admitted that the prosecutor in the case withheld
evidence from the defense and elicited false testimony from the
state's star witness at trial. The prosecutor's handwritten notes, which
(27:11):
were unearthed in twenty twenty two, revealed that the state's
star witness had been diagnosed with bipolar disorder and was
being treated by a psychiatrist with lithium. Several of the
justices seem to be divided about how important that evidence
would have been to the jury. Here are Chief Justice
John Roberts and Justice is Elena Kagan and Brett Kavanaugh.
Speaker 6 (27:33):
Because the jury knew about the lithium, and what they
didn't know is that it was prescribed by a psychiatrist,
do you really think it would make that much of
a difference to the jury.
Speaker 4 (27:45):
That seems pretty material to me. I mean, it's just
your one witness has been exposed as a liar.
Speaker 5 (27:52):
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 in that he's bipolar,
therefore creating all sorts of avenues for questioning his credibility.
Speaker 2 (28:07):
Gossip has faced nine execution dates and eaten his last
meal three times. In is more than twenty five years
on death row. Joining me is Cliff Sloan, a professor
at Georgetown Law who's argued several cases at the Supreme Court,
including a victory in a case involving the death penalty.
Tell us about the evidence the Oklahoma ag found a
(28:29):
few years ago about the state star witness who testified
against Glossop in exchange for not getting the death penalty himself.
Speaker 12 (28:38):
So what was discovered was very important prosecutorial notes establishing
that the main witness, and really the only witness tying
Gossop to the murder, had a bipolar disorder and had
received lithium under a prescription from a psychiatrist. And this
(29:00):
was directly contrary to this witness's testimony at the trial
where he said he had received lithium for a cold,
and he flatly said he had never seen a psychiatrist,
And right there in the notes of the prosecutor or
notes establishing that it was from a psychiatrist. And also
(29:21):
there was separately a medical record establishing that the psychiatrist
had prescribed the lithium for the bipolar disorder. This would
have been extremely important to the jury both in its
consideration of guilt or innocence and in his consideration of
the death penalty. Because the witness was really the entire
(29:41):
case against mister Glossop. It's undisputed mister Glossops had no
role in the actual killing of the victim himself. The
theory of the state was that he hired this other man,
Sneed to do the killing, and so Sneed's testimony was
the only thing that linked Glossop to the killing.
Speaker 2 (30:03):
What's so unusual in this case is that Oklahoma's age
is arguing along with Glossop that his murder conviction should
be set aside.
Speaker 12 (30:12):
The Republican Attorney General of Oklahoma, who generally is very
much in favor of the death penalty, has really acted
in the finest traditions of justice here because he commissioned
an independent investigation which concluded that mister Glossop's conviction and
his death penalty cannot stand because of this false testimony
(30:36):
and because of the failure to turn over important evidence
to the defense, which is a constitutional violation, and so
he concluded in good conscience he had to stand up
and say that the conviction should be set aside and
the death penalty should be set aside. And there also
was another independent investigation commissioned by the Republican state legislator
(31:00):
which reached the same conclusion. But what is really striking
here is that the Oklahoma Court flatly rejected the very
considered decision of the Oklahoma Attorney General that there needs
to be a new trial and that the death sentence
cannot stand.
Speaker 2 (31:17):
And at the oral arguments, a lot of time was
spent on the procedural question whether the state court's decision
rested on independent state grounds, in which case the Supreme
Court couldn't review the case. Something Justice Samuel Alito kept pressing.
Speaker 12 (31:36):
Well, you know, that's the issue that's presented about whether
there's a threshold procedural problem that is based in state
law and that would prevent the Supreme Court from reaching
the federal constitutional issues. So it's an important threshold issue.
But you had other justices very much emphasizing that they
(31:58):
don't think that is a serious problem. That they think
it's clear that the Oklahoma Court rested its decision on
an erroneous analysis of the federal constitutional claims. That the
state procedural reference was wrapped up in that, and you
even had Justice Kagan asking a question where she suggested
that the reference to the state procedural issue was simply
(32:22):
because the Oklahoma Court was throwing in the entire kitchen sink,
and so it was just mixed up with a lot
of other things. It had no independent basis. And you
also had a number of the justices, including Justices Kagan,
so the mayor and Jackson emphasizing that this supposed independent
rule that the Oklahoma Court was enforcing had never been
(32:46):
enforced in this kind of context in any case other
than one involving Richard Colossa, which added to their view.
But this is something that was a makewight that Oklahoma
was just throwing in and is not a bar to
Supreme Court review.
Speaker 2 (33:03):
So Glossop has a claim of a Brady violation where
the prosecutor didn't turn over evidence, and also a NAPU
violation where the prosecutor presented false testimony and didn't correct
it at trial. Here's Justice Kagan on that a.
Speaker 4 (33:18):
Napoo violation is a pretty dramatic thing when a prosecutor says, leg,
we'll stop there, that was a lie under NAPO.
Speaker 12 (33:27):
A prosecutor, of course cannot put on perjured testimony, and
if the prosecutor learns that the testimony has been perjured,
the prosecutor has to corrected or notified the defense about
it and hear. What the independent investigations have found is
that the prosecutor put out perjured testimony, never corrected it
(33:48):
to the contrary, took efforts to protect it. That's a
very very serious constitutional violation. It goes to the heart
of what the criminal justice system should be about. And
you know, some of the justices were very much bothered
by this violation and seemed to think that it's open
(34:08):
and shut. Other justices seemed more skeptical about whether it
was as clear a violation and also how significant it
would have been, you know, in terms of materiality, which
is important for NAPO, and whether it would have made
a difference or not. So I think there's clearly a
(34:28):
split among the justices both about the procedure and the
substance in terms of how they're viewing it.
Speaker 2 (34:34):
It's always hard to read through oral arguments what's going
to happen, and particularly in this case where a lot
of the justices said very little, Do you have any
idea of what the lineup might be from these arguments, well.
Speaker 12 (34:47):
You know, with the usual important caveat that is very
difficult to predict. Here's what I took away from the argument.
And by the way, Justice course it was not participating,
but it as from the argument that Justice Alito and
Justice Thomas were very hostile to glossop claims into the
(35:08):
position of the Oklahoma Attorney General and very skeptical of it.
It seems that Justices Soda, Mayor, Kagan, and Jackson were
very sympathetic to the positions of Glossop and the Oklahoma
Attorney General. And so that leaves Chief Justice Roberts, Justice Kavanaugh,
and Justice Barrett. And I think it was difficult to
(35:31):
tell from the questions exactly where those three are, and
I think that you know, that's going to be the
ballgame where those three justices are.
Speaker 2 (35:39):
There did seem to be some support for a sort
of middle position remanding the case back to the State
Court for an evidentiary hearing.
Speaker 12 (35:48):
A couple of the justices were suggesting that perhaps what
should happen is that it should be sent back for
additional facts finding about exactly what happened and how important
it was. Some of the Justices were very explicitly saying
that they didn't think that was necessary in light of
the record and how clear the violations were.
Speaker 2 (36:08):
The Supreme Court rarely grants relief in death penalty cases.
Tell us about the Roberts Court's history in this area.
Speaker 12 (36:15):
Well, I think that the way in general that the
current Supreme Court is approaching death penalty cases is very,
very troubling. It's very very difficult for capital defendants. The
Court is creating all sorts of new procedural obstacles, and
it's also as a general matter, being very unsympathetic to
(36:39):
claims of capital defendants. Now that's not you know, one
hundred percent of the time. There have been, you know,
a few cases in recent years where the Court has
rules for capital defendants, but overwhelmingly, the Court is dramatically
tilting the playing field in favor of the death penalty.
And you know, the class of case really illustrates three
(37:00):
of the most troubling characteristics of the death penalty in
the United States today. One of them is the prevalence
of cases of innocence and exoneration of people on death row.
There have been two hundred people on death row who
have been found to be innocent and who have been exonerated,
(37:22):
a truly shocking and alarming fact. The second problem that
it highlights is misconduct by prosecutors. In seventy percent of
the cases where there has been found to be innocence
of people on death row, there has been misconduct by
prosecutors exactly this kind of thing, putting on false testimony,
(37:44):
not correcting it, not turning over very important evidence. And
the third, very disturbing problem is when courts don't accept prosecutors'
conclusions that a conviction and a death penalty cannot stand.
That happened recently in the execution of Marcellus Williams, and
(38:04):
we're seeing it in the Glossop case.
Speaker 2 (38:06):
And in Glossop's case, he can only afford to lose
three votes because with eight justices hearing the case, a
four to four vote would affirm the Oklahoma courts ruling
against him. Thanks so much for being on the show.
That's Professor Cliff Sloan of Georgetown Law, and that does
it for this special holiday edition of The Bloomberg Law Show.
(38:27):
I'm June Brosso. Stay with us. Today's top stories and
global business headlines are coming up right now.
Bloomberg Audio Studios, Podcasts, radio news. This is Bloomberg Law.
Speaker 2 (00:10):
What does a prosecutor have to prove in order to
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is sometimes referred to as the tenth Justice.
Speaker 1 (00:19):
Interviews with prominent attorneys in Bloomberg Legal Experts.
Speaker 2 (00:22):
That's Jennifer k for Bloomberg Law. Joining me is former
federal prosecutor Robert mint.
Speaker 1 (00:27):
And analysis of important legal issues, cases and headlines.
Speaker 2 (00:30):
It's the toughest hurdle for prosecutors proving Trump's intent. Alito
took on Congress, saying Congress has no power to regulate
the Supreme Court.
Speaker 1 (00:38):
Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:44):
Welcome to a special Holiday edition of the Bloomberg Law Show.
I'm June Grosso. Ahead in this hour, we'll take a
look back at some crucial Supreme Court arguments this term.
The justices considered regulations on ghost guns just months after
all landmark decision on bump stocks. Will also look at
a unique death penalty appeal where the state of Oklahoma
(01:07):
is siding with the death row inmate. But first, the
liberal city of San Francisco found itself in an unusual
position at the Supreme Court, taking on the Environmental Protection
Agency over sewage discharge into the Pacific Ocean. With a
ten billion dollar fine on the line. The city's attorney,
(01:28):
Tara Steely, argued that the regulations were too vague.
Speaker 3 (01:32):
They might as well have said, do not violate the
Clean Water Act. It doesn't tell us anything.
Speaker 2 (01:37):
But the liberal justice is pushed back on San Francisco's arguments.
Here are Justices Elena Kagan and Sonya So to Mayor.
Speaker 4 (01:46):
It's prescribing that you have to meet water quality standards, Like,
how more clearly could you meet this statutory language than that?
What they're asking you is to become responsible doing what's necessary.
Speaker 2 (02:03):
The ideological divide was apparent, with conservative justices expressing concerns
about the fairness of the city facing billions in fines
without knowing what its obligations are under a vague permit.
Just as Brett Cavanaugh challenged the EPA's attorney, Frederick lew.
Speaker 5 (02:22):
You're suing San Francisco separately for a lot of money
based on a standard that they had no idea. You know,
that's the theory. That's the theory in your position, your
position would allow that. I don't, yes, it will. I
mean the base I complaint is exhibit A for what
you said is not going to be true.
Speaker 2 (02:43):
And Chief Justice John Roberts pointed out that Congress had
updated the law to address the kind of concerns that
San Francisco was raising about a lack of clarity.
Speaker 6 (02:53):
The battle days is when we had water quality standards, right,
people didn't know what they were supposed to do, how
it was going to be allocated, sort of a problem
of the commons, and they put in the permit system.
And I think the danger here is that you're going
back to the other system.
Speaker 2 (03:07):
Joining me is former US Solicitor General Gregory garr, a
partner at Latham and Watkins. Great tell us about the
city's argument here.
Speaker 7 (03:15):
So, the City of San Francisco is concerned about the
lack of fair notice that they have in terms of
how to comply with the Clean Water Act as to
the sewage discharge that's going into the Pacific Ocean. And
their argument is that the Clean Water Act obligates the
EPA to set specific effluent limitations on the amount of
(03:37):
pollutants coming out of pink sources. Discharges like the pipes
going into the ocean, and that instead, what the EPA
has done here is just issued these vague water quality standards.
You have to be sure that the water is a
particular color where the sewage is coming out, or you know,
NEETs other criteria. And the city's argument is that, well,
(03:58):
they don't know how to meet those criteria, there's other
sources coming in, who's responsible for what? And you know,
all this is against the backtop of a suit brought
by the EPA in which they're seeking, according to the city,
literally ten billion dollars in penalties. So the city feels
as though they lacked the fair notice that they were
entitled to under the Act up front in terms of
(04:20):
what discharges could go into the ocean.
Speaker 2 (04:23):
Did it seem like the three liberal justices were pushing
back on the city's argument.
Speaker 7 (04:29):
Definitely. Justice Kagan, Justice Sodamor, and Justice Jackson all leaned
in hard against the city on their arguments, and they
took a number of different tacks. Most importantly, I think
they really wanted to focus the city on the text
of the Act and put the city on its heels
in terms of identifying a provision of the Act that
(04:50):
stripped EPA of the authority to issue these sorts of
broader water quality standards and justice Jackson in particular went
into the language in the Act which says that the
EPA could adopt quote any more stringent limitations end quote,
and argued that, you know, the city was wrong in
saying that the limitations were limited to effluent limitations coming out.
(05:14):
The justices also had hard questions for the cities about
the environmental impact potential environmental impacts of the city's position,
which at times got pretty gross in terms of talking
about floating toilet paper and the like. But the city
definitely based a tough crowd from the more liberal end.
Speaker 2 (05:31):
Of the court, and the EPA's attorney faced a tough
crowd from the more conservative justices. Tell us about his argument.
Speaker 7 (05:39):
So his argument was that number one, that the statute
did confer this more broader authority on EPA, and that
it could be exercise in particular instances more limited circumstances,
and that here he claimed that the problem really was
one of San Francisco's own creation, and that he claimed
that EPA had asked for specific data from the city
(06:02):
about its discharges and the like, and the city never
provided it, and so according to the EPA attorney, they
had no choice but to issue these more general water
quality standards. And you know, really one of the more
interesting dynamics of this oral argument is this was the
City of San Francisco, one of the more progressive jurisdictions
in the country, facing off against the Biden administration EPA,
(06:26):
and it was clear that there was no love loss
between them, at least as to this particular issue.
Speaker 4 (06:31):
Yeah.
Speaker 2 (06:31):
Well, this is a case where the city's Board of
supervisors voted eight to two to urge the city officials
to resolve the suit quickly, there being a concern that
a Supreme Court ruling in the city's favor could have
sweeping implications for curtailing water pollution definitely.
Speaker 7 (06:50):
And it's unclear how far the court would go even
if it ruled for the city in this case. You know,
there were justices sort of probing more narrow rulings, and
I think even if the court ruled in favor of
the city, it probably would you try to limit the
reach of its ruling. But you know, the basic question
on the table is whether ETA has the authority to
(07:12):
issue these broader water quality standards, which is something that
is the Chief Justice pointed out during the oral argument
that you know, this is what the prior regime did.
It issued these general water quality standards instead of specific
discharge limitations. And in his view, and this is what
the city argued, that the Clean Water Act was actually
enacted in part to replace that regime with one which
(07:35):
gave the dischargers more notice upfront in terms of the
specific limitations that were permissible.
Speaker 2 (07:42):
And did it seem just as the liberals were taking
issue with the City, that the Conservatives were taking issue
with the EPA.
Speaker 7 (07:52):
Well, there was a group of them. There was the
Chief Justice, Justice Kavanaugh. Justice Gorsich pushed back the hardest,
I think, and the main concern on that sort of
unified them was the lack of fair notice to the
city and other dischargers in this situation. Where As I
mentioned earlier, you know, potentially these jurisdictions are on the
hook for significant penalties in this case, you know, literally
(08:13):
billions of dollars according to the city, and they don't
know exactly, the city argues, and the Conservatives sort of
picked up on how to comply with the Clean Water
Act in this instance, particularly where there are multiple discharges
going into the same place, and who's responsible for what
in terms of figuring out whether or not the water
(08:34):
quality standard is met. But there was some uncertainty, at
least in terms of where the other justices were. Justice Barrett,
who actually joined the more liberal justices in an environmental
case last term, Ohio versus EPA, you know, didn't join
the stronger attack by the other conservative justices and seemed
to be probing a narrower angle and dealing with these
(08:56):
challenges under the arbitrary and capricious doctrine. Justice Solito picked
up a little bit on the government's argument that in
this case, the problem was that San Francisco hadn't provided
adequate data to the EPA, leaving it with the predicament
that it had to issue these more general standards, and
Justice Thomas definitely had some tough questions for the city,
(09:17):
although his position was a little bit less clear. So,
you know, San Francisco coming out of the argument, I
think should feel good about its position, but it's not
over yet.
Speaker 2 (09:26):
Are other cities in the same position as San Francisco
have the same problems.
Speaker 7 (09:31):
So I think that the use of general Walader quality
standards is definitely not the norm. But one thing that
came up during the oral argument in response to questioning
from Justice Kavanaugh was that there was many amikas brief
file friends of the Court, from businesses, municipalities, and the
like who had serious concerns and reservations and problems with
(09:53):
the EPA's approach here, and you know, talked about the
dangers and lack of fair notice with this sort of
more general water quality standard regime, and that was something
that resonated with Justice Kavanaugh at least and probably some
of the other justices as well.
Speaker 2 (10:08):
This is the first case to grapple with federal agency
power since lopeer Bright was decided last June. That's the
case that overturned Chevron deference. So you didn't hear much
about Chevron deference in these oral arguments.
Speaker 7 (10:27):
No, not a word. EPA certainly didn't ask for it,
and you know, it was clear that this is going
to come down to what Congress actually said in the
statute and the Court's best interpretation of that, which, of
course is the way it works after Wiperbright, and really
the way has worked at the Supreme Court for many years,
even before Loperbright.
Speaker 2 (10:47):
Do you think that we're just not going to hear
about chevron defference in future arguments at all, or about
that concept.
Speaker 7 (10:53):
We're definitely not going to hear about chevron difference. I
think the more interesting question is will we hear about
other time types of difference, so called get more difference?
You know, how aggressive will the government be in trying
to claim some type of difference in other cases and
try to push back a little bit? And I think
(11:14):
that that'll be an interesting trend to follow on the
court this term and beyond.
Speaker 2 (11:19):
The EPA has faced a string of losses at the
Supreme Court in recent years, for example, with the court
curbing its ability to reduce greenhouse gases and to protect wetlands.
Does it seem like in some respect it's going to
lose in this case as well, whether it's broad or limited.
Speaker 7 (11:41):
I don't think that that's a certainty at this point.
I mean, one of the other questions that came up
during the oral argument was whether or not there were
some flaws with this case, and maybe the court just
not decided altogether. But you know, I think you're going
to feel better about youural argument coming out of it
if you're san Francisco an EPA, and I think you
know EPA and the government more generally has been behind
(12:03):
the eight ball and these administrative challenge cases, and you know,
EPA sort of finds itself in a particularly difficult positions
when you combined aggressive enforcement of its environmental priorities with
broader statutory provisions, which is the area where the Supreme
Court has been particularly adamant in demanding the the agency
(12:27):
point to more specific authority in the statute for what
it's doing.
Speaker 2 (12:30):
Thanks so much for coming on again, Greg and sharing
those insights with us. That's former US Solicitor General Gregory
Garr of Latham and Watkins. Coming up next on this
special holiday edition of the Bloomberg Law Show, the justices
grapple with whether ghost guns meet the federal definition of
a firearm. I'm June Grasso. When you're listening to.
Speaker 1 (12:51):
Bloomberg, this is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (13:06):
Thanks for joining us for a special holiday edition of
the Bloomberg Law Show. I'm June Grosso. We're looking at
some high profile Supreme Court arguments from this term. Still ahead,
we'll dive into an unusual death penalty case that finds
the State of Oklahoma siding with a defendant on death row.
Speaker 8 (13:25):
But first these guns were being purchased and used in crime.
They were sold to be crime guns. There was a
one thousand percent increase between twenty seventeen and twenty twenty
one in the number of these guns that were recovered
as part of criminal investigations. And it makes perfect sense
because the whole reason why you would want to get
your hands on one of these unseerialized, untraceable firearms is
(13:47):
if you are a prohibited person or you want to
use that gun in a crime.
Speaker 2 (13:51):
Solicitor General Elizabeth Prelager argued that the Supreme Court should
uphold the Biden administration's regulation of ghost guns, nearly untraceable
firearms that can be assembled at home in as little
as twenty minutes.
Speaker 8 (14:06):
Those untraceable guns are attractive to people who can't lawfully
purchase them or who plan to use them in crimes.
As a result, our nation has seen an explosion in
crimes committed with ghost guns.
Speaker 2 (14:17):
During oral arguments, the Justice is grappled with the question
of whether ghost guns meet the definition of firearms under
the Federal Gun Control Act that would allow the government
to regulate them. The analogies were plentiful. Justice Samuel Alito,
who seemed skeptical of the government's argument, compared the gun
kits to cooking ingredients.
Speaker 5 (14:39):
There I show you I put out on a counter
some eggs, some chopped up ham, some chopped up pepper,
and onions.
Speaker 1 (14:50):
Is that a Western ovelet?
Speaker 8 (14:53):
No, because again those items have well known other uses
to become something other than an omelet. The key difference
here is that these up and parts kits are designed
and intended to be used as instruments of combat, and
they have no other conceivable use.
Speaker 2 (15:06):
But Justice Amy Coney Barrett jumped in comparing gun kits
to meal kits.
Speaker 4 (15:12):
No pre lager.
Speaker 3 (15:13):
I just want to follow up on Justice Alito's question
about the omelet. Would your answer change if you ordered
it from Hello Fresh and you've got a kit and
it was like turkey chili, but all of the ingredient
answer in the kit.
Speaker 1 (15:25):
Yes.
Speaker 2 (15:26):
The best analogies seemed to be if you buy a
bed from Ikea that you have to assemble, is it
still a bed? Joining me? Is Kevin Tobia, a professor
at Georgetown Law, Many people might expect that this is
a second Amendment case since it concerns guns, but tell
us what the question before the court was.
Speaker 9 (15:45):
Here, So it's not a second in the case. It's
a statutory case. So it concerns the Gun Control Act
of nine sixty eight. And there's two questions in the case,
and so both of them involve the meaning of different
language in this statute. So the question in some ways
is kind of simple, right before you get to like
all the kind of complexity that they were working through,
which is what counts as a firearm for this law.
(16:05):
And so these gun parts kits, they're marketed and sold
as kits that you can buy and assemble and construct
into a functional firearm. So, you know, a lot of
the conversation was drawing analogies to different sorts of goods,
playing kind of with language and trying to understand, you know,
what counts as an omelet or what counts as a table.
Speaker 8 (16:24):
Right.
Speaker 9 (16:24):
So Justice A. Leado offered this example kind of possible
to the government's position that if we just have you know,
peppers and mushrooms and eggs, that's not an omelet yet.
So in the same way, like a collection of gun
parts is not a firearm yet, And just as Barrett
actually sort of responded as said, well, what if those
come in a Hello Fresh kit, we actually might understand
that as an omelet, even though it's not completely assembled yet.
(16:44):
And you know, the example of Nikia table came up
as well. Some of the argument got into the technicalities
of like what exactly is included in these parts kits?
What's a frame and receiver? More broadly, a lot of
the justices were drawing these analogies to other sorts of
items that were pretty comfortable to call tables even though
they're assembled or onless, even though they're unassembled.
Speaker 2 (17:02):
The ghost gun kits don't come with fully assembled frames
or receivers the core component of a firearm, so a
kit might require the purchaser to drill some hole so
that pins can be inserted. The challengers, the gun manufacturers
and gun right supporters, argue that's what puts the kits
outside the law, But their attorney, Peter Patterson, faced a
(17:25):
tough audience, especially from the Chief Justice, who didn't seem
to be buying that argument.
Speaker 6 (17:32):
What is the purpose of selling a receiver without the
holes drilled in it?
Speaker 10 (17:39):
Well, there are some individuals, and just like some individuals
enjoy like working on their car every weekend. Some individuals
want to construct their own firearms. So the purpose of
selling it is to allow I'm trying to go his
to assist and provide individuals with material which which they
can do that.
Speaker 6 (17:58):
Well. I mean, drilling whole or two I would think
doesn't give the same sort of reward that you get
from working on your car on the weekends.
Speaker 9 (18:07):
Yeah, so I thought that line of questioning from Justice
Roberts was really interesting. I think, especially if you're trying
to read the tea leaves and sort of think about
where some of these justices will vote, and I think
Roberts is a kind of important one in this case.
He asked straight up, like, what's the purpose of selling
a receiver without the holes drilled in it? And you know,
one answer from Patterson is, you know, people buy this
as a hobbyist, right in the same way you might
(18:29):
buy like a collection of unassembled parts to make it
like a little toy ship or model or something, or
working on a car and you enjoy it. And Justice
Roberts really did not seem to be buying that answer, right.
He said, you know, drilling a whole or two doesn't
really give you the kind of reward you get from
working on your car over the weekend. And I think
he's exactly right there. Right, So, like when you look
at how these guns are marketed as well, these parts
(18:49):
kits are not marketed for hobbyists, Like they're not described
by language like this is a really leisurely, enjoyable, difficult build, right,
They're marketed in terms like this is extremely fast and easy,
this is ridiculously easy, like this is dummy proof, like
you can do this really fast with no expertise. And
so I think that analogy that Patterson was trying to
draw between buyers of these kids and cobbyists just really
(19:11):
fell apart. And I think there's a great question from
Justice Roberts and also give some insight into where he
might stand on this case.
Speaker 2 (19:17):
Is anyone arguing that this isn't a kit to assemble
a gun? What I'm getting at is, are they just
looking for a loophole here?
Speaker 9 (19:26):
Yeah, So I think everyone agrees that these are kits
to be assembled into a gun. Vanderstock's argument is just
because of a kid that you could assemble into a
gun does not in fact make it a firearm. Within
the meaning of the statute, and the government sees the
statutory meeting a firearm to include these kits. You know,
interesting thing that came out to your question is there
was some discussion, a lot of discussion actually about kind
of where to draw the line. And I think even
(19:46):
Patterson conceded that a firearm that's disassembled as a firearm,
and so this question about like how close does it
have to be? And so you know, the government's argument is,
you know, once it's readily convertible, which these kids they
think are, that's good enough. And so the term fire
arms should encompass these kits which could be readily converted
to function as firearms very quickly.
Speaker 2 (20:05):
Justice Gorsuch asked questions of a textualist nature. Where do
you think a textualist analysis gets you here?
Speaker 9 (20:14):
So there's two questions in the case, right. So the
first one is about whether a parts kit falls under
the Part A of this statute. So any weapon which
will is designed to or may readily be converted to
expel a projectile by the action explosive. As a matter
of textualism, I think that question in this case is
extremely straightforward, that these parts kits fall under that language.
Just as part of the ordinary meaning of firearm. And
(20:34):
then you're underscored by the statutory language. The statute explicitly
contemplates things that could be readily converted to expel a projectile,
which just seems to be explicitly describing things like these
parts kits. And in question, the second question in the
case is about the meaning of the frame or receiver
of any such weapon in the statue, and many of
Justice Gorsuch's questions had to do with that second question.
(20:55):
So there the question is, if these companies sell an
eighty percent receiver, which, as the government says, you have
to drill a few holes in to convert this to
a one hundred percent functional receiver, does that count as
a frame or receiver within the meaning of the statute?
And so you know, Justice Gorsuch was asking a number
of kind of interesting questions about that, and going in
I would not have kind of, as a matter of politics,
(21:16):
expected Justice Gorsage to be favorable to the government in
this case, but his questions sort of suggested some openness
to following the text in this case to a place
that might not lead to the sort of conservative politics.
So he was asking, you know, when you look at
this statue and look at the context. Every other part
of the statute is contemplating convertible parts in addition to
fully functional parts, and so in that context, might we
(21:38):
understand frame and receiver just giving them their ordinary meaning
in that context to also include things that are extremely
close to functional and frame and receivers. I thought it
was a really interesting kind of exchange between Gorsuch and
the Swisser General from that point, So, the.
Speaker 2 (21:50):
Solicitor General mentioned several times the explosion in crimes committed
using ghost guns and that the new regulations are crucial
for solving gun crimes. And also you had a group
of twenty major cities filing with the Supreme Court saying
that the regulation appears to have been effective reducing the
(22:10):
use of ghost guns. Where does that fit into the
Supreme Court's analysis, especially if it's a textualist analysis.
Speaker 9 (22:19):
That's interesting if you think about textualism sort of as stated,
with the idea that the court will resolve this question
just by looking at the statutory text and giving that
language the meaning it would have in the eyes of
an ordinary reader, you might think those conserations about the
practical consequences are irrelevant, Like, that's exactly the sort of
political consequential decisions that they're trying to screen off with textualism.
(22:40):
So what's interesting is if that's right, looks like actually
a majority of the justices are inclined to read the
text in line with the government. That would be the
three Democratic appointees and then potentially Roberts, Kavanaugh, Barrett Gorsich.
I think Roberts in particular was responsive to some of
the government's arguments about the practical consequences kind of over
and above the text. So, currently, federal law prohibits selling
(23:01):
firearms to twenty one year olds, It requires backgrounds, check, serialization,
all these requirements, and if the court decides that these
kits are not firearms, those requirements will not apply at
the federal level. And so there's a real concern right that, again,
if people who are buying these kits are not hobbyists
but rather people who just want a firearm, there's a
real circumvention concern that basically all of the law that
would apply to firearm regulation effectively is meaningless because someone
(23:26):
could just get the ghost gun and build their own
kit in twenty minutes or however long it takes, and so,
you know, some of Robert's questions, I think we're very
much kind of responsive to that set of concerns and
the principle that if you read the statute in that way,
the way Vnderstock wants it to, you'll render a big
chunk of federal law meaningless. And so Congress was really underscoring.
Speaker 2 (23:45):
Just a few months ago, the Supreme Court, in a
six to three decision, tossed out a ban on bump stocks.
That Cargol case was also a statutory interpretation case. Does
that case have implications for this Vounderstock case?
Speaker 9 (24:03):
That case it actually concerned a different firearm statue, So
it concerns the definition of machine gun. Wherever you come
out on Garland versus Cargo, whether it's sort of easy
or difficult case textually, the case that they heard dander
Stock as a matter of language is like just much
more straightforward, you know. I think it's reassuring actually that
the Court's oral argument, many of the questions, especially from
Barrett and Roberts and course such in Kavandah, really seem
(24:25):
to recognize that fact these gun part kits are firearms
in ordinary English. And then the statute explicitly talks about
weapons that could be readily converted to expel a projectile,
which you know also really underscores that these sort of
kits are included, and the context indicates the same with
the frame of receivers. And so for this oral argument,
I think if you think the court is primarily a
political actor, you see the bump stock case, you think
(24:45):
this is going to come out the same way. Six
y three after the oral argument, I've got a little
more hope that the Court's going to follow the text,
although time will tell.
Speaker 2 (24:53):
Thanks Kevin. That's Georgetown Law professor Kevin Tobia. I note
Michael Bloomberg, the founder majority owners of Bloomberg LP, the
parent company of Bloomberg Radio, is a donor to groups
that support gun control, including Every Town for Gun Safety.
You're listening to a special holiday edition of the Bloomberg
Law Show. Up next a death penalty case that finds
(25:16):
the State of Oklahoma siding with a defendant on death row.
Remember you can always at the latest legal news by
listening to our Bloomberg Law podcast. You can find them
on Apple Podcasts, Spotify, and at Bloomberg dot com Slash
podcast Slash Law. I'm June Grosso and you're listening to Bloomberg.
Speaker 1 (25:47):
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 5 (25:53):
This is a.
Speaker 2 (25:54):
Special holiday edition of the Bloomberg Law Show. I'm June Grosso.
We're looking at some import and Supreme Court case. Is
this term?
Speaker 11 (26:02):
Attorney General Drummond did not confess error here lightly. Indeed,
he continues to defend multiple capital convictions and opposed mister
Glossop's pen ultimate sert petition, But after commissioning an independent review,
he reluctantly reached the conclusion that Brady and Napu violations
(26:22):
by the state's own prosecutors obligated him to confess error
and waive procedural obstacles.
Speaker 2 (26:29):
It's a very unusual death penalty case where the State
of Oklahoma is coming before the Supreme Court on the
same side as a defendant on death row, arguing that
Richard Glossop's nineteen ninety seven murder conviction and capital sentence
should be undone due to prosecutorial misconduct. Former US Solicitor
(26:50):
General Paul Clement argued for the Oklahoma ag gentner Drummond,
who had made an extraordinary concession known as a confession
of error admitted that the prosecutor in the case withheld
evidence from the defense and elicited false testimony from the
state's star witness at trial. The prosecutor's handwritten notes, which
(27:11):
were unearthed in twenty twenty two, revealed that the state's
star witness had been diagnosed with bipolar disorder and was
being treated by a psychiatrist with lithium. Several of the
justices seem to be divided about how important that evidence
would have been to the jury. Here are Chief Justice
John Roberts and Justice is Elena Kagan and Brett Kavanaugh.
Speaker 6 (27:33):
Because the jury knew about the lithium, and what they
didn't know is that it was prescribed by a psychiatrist,
do you really think it would make that much of
a difference to the jury.
Speaker 4 (27:45):
That seems pretty material to me. I mean, it's just
your one witness has been exposed as a liar.
Speaker 5 (27:52):
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 in that he's bipolar,
therefore creating all sorts of avenues for questioning his credibility.
Speaker 2 (28:07):
Gossip has faced nine execution dates and eaten his last
meal three times. In is more than twenty five years
on death row. Joining me is Cliff Sloan, a professor
at Georgetown Law who's argued several cases at the Supreme Court,
including a victory in a case involving the death penalty.
Tell us about the evidence the Oklahoma ag found a
(28:29):
few years ago about the state star witness who testified
against Glossop in exchange for not getting the death penalty himself.
Speaker 12 (28:38):
So what was discovered was very important prosecutorial notes establishing
that the main witness, and really the only witness tying
Gossop to the murder, had a bipolar disorder and had
received lithium under a prescription from a psychiatrist. And this
(29:00):
was directly contrary to this witness's testimony at the trial
where he said he had received lithium for a cold,
and he flatly said he had never seen a psychiatrist,
And right there in the notes of the prosecutor or
notes establishing that it was from a psychiatrist. And also
(29:21):
there was separately a medical record establishing that the psychiatrist
had prescribed the lithium for the bipolar disorder. This would
have been extremely important to the jury both in its
consideration of guilt or innocence and in his consideration of
the death penalty. Because the witness was really the entire
(29:41):
case against mister Glossop. It's undisputed mister Glossops had no
role in the actual killing of the victim himself. The
theory of the state was that he hired this other man,
Sneed to do the killing, and so Sneed's testimony was
the only thing that linked Glossop to the killing.
Speaker 2 (30:03):
What's so unusual in this case is that Oklahoma's age
is arguing along with Glossop that his murder conviction should
be set aside.
Speaker 12 (30:12):
The Republican Attorney General of Oklahoma, who generally is very
much in favor of the death penalty, has really acted
in the finest traditions of justice here because he commissioned
an independent investigation which concluded that mister Glossop's conviction and
his death penalty cannot stand because of this false testimony
(30:36):
and because of the failure to turn over important evidence
to the defense, which is a constitutional violation, and so
he concluded in good conscience he had to stand up
and say that the conviction should be set aside and
the death penalty should be set aside. And there also
was another independent investigation commissioned by the Republican state legislator
(31:00):
which reached the same conclusion. But what is really striking
here is that the Oklahoma Court flatly rejected the very
considered decision of the Oklahoma Attorney General that there needs
to be a new trial and that the death sentence
cannot stand.
Speaker 2 (31:17):
And at the oral arguments, a lot of time was
spent on the procedural question whether the state court's decision
rested on independent state grounds, in which case the Supreme
Court couldn't review the case. Something Justice Samuel Alito kept pressing.
Speaker 12 (31:36):
Well, you know, that's the issue that's presented about whether
there's a threshold procedural problem that is based in state
law and that would prevent the Supreme Court from reaching
the federal constitutional issues. So it's an important threshold issue.
But you had other justices very much emphasizing that they
(31:58):
don't think that is a serious problem. That they think
it's clear that the Oklahoma Court rested its decision on
an erroneous analysis of the federal constitutional claims. That the
state procedural reference was wrapped up in that, and you
even had Justice Kagan asking a question where she suggested
that the reference to the state procedural issue was simply
(32:22):
because the Oklahoma Court was throwing in the entire kitchen sink,
and so it was just mixed up with a lot
of other things. It had no independent basis. And you
also had a number of the justices, including Justices Kagan,
so the mayor and Jackson emphasizing that this supposed independent
rule that the Oklahoma Court was enforcing had never been
(32:46):
enforced in this kind of context in any case other
than one involving Richard Colossa, which added to their view.
But this is something that was a makewight that Oklahoma
was just throwing in and is not a bar to
Supreme Court review.
Speaker 2 (33:03):
So Glossop has a claim of a Brady violation where
the prosecutor didn't turn over evidence, and also a NAPU
violation where the prosecutor presented false testimony and didn't correct
it at trial. Here's Justice Kagan on that a.
Speaker 4 (33:18):
Napoo violation is a pretty dramatic thing when a prosecutor says, leg,
we'll stop there, that was a lie under NAPO.
Speaker 12 (33:27):
A prosecutor, of course cannot put on perjured testimony, and
if the prosecutor learns that the testimony has been perjured,
the prosecutor has to corrected or notified the defense about
it and hear. What the independent investigations have found is
that the prosecutor put out perjured testimony, never corrected it
(33:48):
to the contrary, took efforts to protect it. That's a
very very serious constitutional violation. It goes to the heart
of what the criminal justice system should be about. And
you know, some of the justices were very much bothered
by this violation and seemed to think that it's open
(34:08):
and shut. Other justices seemed more skeptical about whether it
was as clear a violation and also how significant it
would have been, you know, in terms of materiality, which
is important for NAPO, and whether it would have made
a difference or not. So I think there's clearly a
(34:28):
split among the justices both about the procedure and the
substance in terms of how they're viewing it.
Speaker 2 (34:34):
It's always hard to read through oral arguments what's going
to happen, and particularly in this case where a lot
of the justices said very little, Do you have any
idea of what the lineup might be from these arguments, well.
Speaker 12 (34:47):
You know, with the usual important caveat that is very
difficult to predict. Here's what I took away from the argument.
And by the way, Justice course it was not participating,
but it as from the argument that Justice Alito and
Justice Thomas were very hostile to glossop claims into the
(35:08):
position of the Oklahoma Attorney General and very skeptical of it.
It seems that Justices Soda, Mayor, Kagan, and Jackson were
very sympathetic to the positions of Glossop and the Oklahoma
Attorney General. And so that leaves Chief Justice Roberts, Justice Kavanaugh,
and Justice Barrett. And I think it was difficult to
(35:31):
tell from the questions exactly where those three are, and
I think that you know, that's going to be the
ballgame where those three justices are.
Speaker 2 (35:39):
There did seem to be some support for a sort
of middle position remanding the case back to the State
Court for an evidentiary hearing.
Speaker 12 (35:48):
A couple of the justices were suggesting that perhaps what
should happen is that it should be sent back for
additional facts finding about exactly what happened and how important
it was. Some of the Justices were very explicitly saying
that they didn't think that was necessary in light of
the record and how clear the violations were.
Speaker 2 (36:08):
The Supreme Court rarely grants relief in death penalty cases.
Tell us about the Roberts Court's history in this area.
Speaker 12 (36:15):
Well, I think that the way in general that the
current Supreme Court is approaching death penalty cases is very,
very troubling. It's very very difficult for capital defendants. The
Court is creating all sorts of new procedural obstacles, and
it's also as a general matter, being very unsympathetic to
(36:39):
claims of capital defendants. Now that's not you know, one
hundred percent of the time. There have been, you know,
a few cases in recent years where the Court has
rules for capital defendants, but overwhelmingly, the Court is dramatically
tilting the playing field in favor of the death penalty.
And you know, the class of case really illustrates three
(37:00):
of the most troubling characteristics of the death penalty in
the United States today. One of them is the prevalence
of cases of innocence and exoneration of people on death row.
There have been two hundred people on death row who
have been found to be innocent and who have been exonerated,
(37:22):
a truly shocking and alarming fact. The second problem that
it highlights is misconduct by prosecutors. In seventy percent of
the cases where there has been found to be innocence
of people on death row, there has been misconduct by
prosecutors exactly this kind of thing, putting on false testimony,
(37:44):
not correcting it, not turning over very important evidence. And
the third, very disturbing problem is when courts don't accept prosecutors'
conclusions that a conviction and a death penalty cannot stand.
That happened recently in the execution of Marcellus Williams, and
(38:04):
we're seeing it in the Glossop case.
Speaker 2 (38:06):
And in Glossop's case, he can only afford to lose
three votes because with eight justices hearing the case, a
four to four vote would affirm the Oklahoma courts ruling
against him. Thanks so much for being on the show.
That's Professor Cliff Sloan of Georgetown Law, and that does
it for this special holiday edition of The Bloomberg Law Show.
(38:27):
I'm June Brosso. Stay with us. Today's top stories and
global business headlines are coming up right now.
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