The Supreme Court heard arguments on Wednesday Glossip vs. Oklahomaa death penalty case that raises a question so bizarre that its very existence should serve as an indictment of the death penalty: Can courts force a state to execute a potentially innocent prisoner when the state itself does not want to? Richard Glossip, the plaintiff, argues that prosecutors at his trial concealed key evidence and admitted false testimony, leading to a wrongful conviction. Oklahoma Attorney General Gentner F. Drummond agrees and supports Glossip’s request for a new trial. But the far-right Oklahoma Court of Criminal Appeals ruled against him and sought to shield his verdict from SCOTUS review by asserting that state law barred further appeals. Now the Supreme Court must decide whether the lower court successfully thwarted the federal reversal — and if not, whether Glossip deserves a new trial consistent with the Constitution.

The arguments were complicated, and a slim majority of the justices may have leaned in Glossip’s favor. But they were dominated by two justices who clearly held opposing views on the case: Justice Clarence Thomas, a staunch supporter of speedy executions, and Sonia Sotomayor, a death penalty skeptic. Thomas stood up for prosecutors accused of misconduct and persistently defended their honor with deep empathy and concern for their reputations. In contrast, Sotomayor emphasized strong evidence that these prosecutors intentionally violated Glossip’s due process rights. The question now is whether either of them will win over Justices Brett Kavanaugh and Amy Coney Barrett, who have the tie-breaking votes. If both justices choose Sotomayor’s reality-based position over Thomas’s fantastic defense of prosecutors, it will be an easy matter.

A strange feature of Glossip is that everyone agrees that Richard Glossip did not personally kill the victim, Barry Van Treese. Rather, it was Justin Sneed who killed Van Treese. Sneed then made a deal with prosecutors to avoid a death sentence by testifying that Glossip had ordered him to carry out the murder. Sneed’s testimony was central to the state’s case against Glossip, and prosecutors sought to prove that he could be trusted. At one point, lead prosecutor Connie Smothermon asked Sneed if he was taking medication; He told the jury that he had once been prescribed lithium for a “cold” but had “never seen a psychiatrist or anything like that.”

Here’s the problem: Contemporary notes uncovered years later reflect prosecutors’ knowledge that Sneed lied. These notes, made by Smothermon, state that Sneed was “on lithium” and in the care of a “Dr. Trumpet.” The prison psychiatrist who treated Sneed was named “Dr. Trombka.” Glossip’s lawyers believe Smothermon was referring to that doctor. They believe these notes show that Smothermon and her co-counsel Gary Ackley knew Dr. Trombka treated Sneed with lithium for a psychiatric disorder – but refused to share that information with Glossip.

These omissions are no small matter. The due process clause requires prosecutors to turn over potentially favorable evidence to the defense and forces them to correct false statements. Smothermon and Ackley did neither. Had they done so, Glossip’s lawyers might have undermined Sneed’s credibility by proving he lied on the witness stand. They may also have portrayed him more convincingly as the lone murderer, since Trombka believed Sneed was capable of violent “manic episodes.” Because prosecutors chose to remain silent, Glossip’s lawyers were unable to make the most convincing arguments on their client’s behalf.

But during Wednesday’s arguments, Thomas tried to portray Smothermon and Ackley as innocent victims of a smear campaign. He immediately asked Seth Waxman, Glossip’s attorney, “Have you received a statement from any of the prosecutors at any point?” Waxman told him that he had indeed received a sworn statement from Ackley and that Smothermon had received a deposition from an independent appointed by Drummond lawyer had been questioned. So yes: both prosecutors made statements. But Thomas persisted as if they hadn’t. “It appears that questioning of these two prosecutors would be crucial because not only is their reputation at stake, but they also play a central role in this case.” Waxman protested that both prosecutors were again given the opportunity to testify to express your point of view. And again Thomas refused to accept it: “They indicate,” said the judge, “that they were not visited and were not given the opportunity to report in detail what these notes meant.”

In fact, Smothermon and Ackley had plenty of opportunity to speak their minds. Oklahoma Attorney General Drummond commissioned a thorough investigation that included interviews with both prosecutors. But as Paul Clement – who represents Drummond – continued to defend Glossip, Thomas made the same baseless accusation. “Shouldn’t these two prosecutors – it seems like their reputations are being questioned,” Thomas told Clement, “and according to them, they haven’t had an opportunity to comment in detail.” Clement replied, “That’s with this one Balance sheet difficult to reconcile.” He noted that in addition to Drummond’s investigation, the Oklahoma Legislature commissioned it his own Investigation of the case, during which Smothermon and Ackley were interviewed.

Thomas then moved to downplay the prosecutors’ misconduct, alternately dismissing the notes as obscure and acknowledging Smothermon’s “explanation” of their irrelevance. Clement stated that “the most plausible conclusion” is that the notes reveal an unconstitutional concealment of evidence. Thomas returned to his false claim that Glossip’s lawyers never spoke to prosecutors, saying of Smothermon: “Your point is that you didn’t ask her, you didn’t have a detailed conversation with her about it.” pull it from the note, which she considers to be insufficient information.”

This back and forth dragged on and the judiciary refused to accept reality. “Why shouldn’t they be interviewed?” he asked Clement again. “Why don’t we have materials from them in this case other than in an amicus brief?” Clement could only repeat the fact: “Well, with all due respect, Judge Thomas,” he said, “you have materials from them.” Thomas He simply didn’t want to hear it: “What should we do with the argument that they were excluded from the process?” he asked. An angry Clement went on to refer the judiciary only to prosecutors’ own statements.

And what did prosecutors say to exonerate themselves? Smothermon has argued that Glossip’s defenders made an incorrect extrapolation. They say their note about “Dr. “Trumpet” was a misspelling of Dr. Trombka, Sneed’s psychiatrist. Smothermon disagrees: She told an investigator and later wrote in an email that her note may have referred to “Dr. Trumpet, the jazz musician”. She further hinted that she made “a personal note or something” about this mysterious trumpeter. She did not reveal his true identity, only his alleged stage name. When The New York Times asked for further clarification, Smothermon responded that she generally doesn’t “speak to members of the media.”

Thomas consumed so much discussion time asking about the prosecutors that Sotomayor finally intervened. “I think that under the law, anything in the prosecutor’s possession, including prison records, is imputed to the prosecutor, correct?” she asked. Clement agreed, adding that “only one conclusion can be drawn here.” Sotomayor also asked whether Clement “actually” knew whether Smothermon was interviewed. He confirmed this for the twelfth time. “I have a hard time understanding both of their recent claims: ‘We couldn’t tell our whole story,'” Sotomayor continued. “It wasn’t like they were unpacked?” Clement confirmed that this was not the case.

Why was Thomas fixated on the fantasy that the prosecutors would be kicked out? It reads partly as misguided empathy. In many death penalty cases, Thomas expresses deep compassion for the victim and his family and then uses that compassion to justify the callous disregard for the defendant’s life. In GlossipInstead of pouring his heart out for Van Treese, Thomas sided with prosecutors accused of violating due process. He gave Smothermon and Ackley the presumption of innocence that he so often denies to defendants, including Glossip himself.

Neither Kavanaugh nor Barrett seemed convinced by Thomas’s desire to rehabilitate the prosecutors. Kavanaugh seemed to understand the injustice here; He reflected that Sneed “lied on the witness stand” and “created all sorts of opportunities to question his credibility” that Glossip couldn’t pursue because prosecutors blocked his lawyers from seeing critical evidence. Barrett appeared to be stuck in the procedural quagmire created by the Oklahoma Court of Appeals in its attempt to stop SCOTUS from overruling it. Chief Justice John Roberts suggested that any hidden evidence would be irrelevant to the jury anyway. With Justices Elena Kagan and Ketanji Brown Jackson siding with Sotomayor, the case will likely go before Kavanaugh and Barrett. (Judge Neil Gorsuch is recused from participating in previous lower court proceedings.)

Ultimately, Thomas’ questions Wednesday acted as smoke and mirrors, a feeble attempt to absolve the alleged constitutional violations in the case by portraying prosecutors as victims of a witch hunt. The extensive files in this case do not support this position. And if evidence suggests prosecutors violated due process, they are not entitled to the benefit of the doubt. It shouldn’t be that hard for five judges to see that Glossip received an unfair trial whose flaws cannot be rationalized away Today.