Even Oklahoma’s Republican attorney general believes death row prisoner Richard Glossip should be retried. You might think that automatically means he wouldn’t be executed, but in this Supreme Court it’s not that simple.

In fact, the court appointed a third party to defend the state court’s ruling, which, if upheld by the justices, would send Glossip to the execution chamber. This is despite the state’s admission that prosecutorial misconduct marred his trial.

All of this led to a strange Washington Supreme Court hearing on Wednesday, where three lawyers presented arguments to the justices. One represented Glossip, another represented Oklahoma, and the third defended the Oklahoma Court of Appeals ruling against Glossip.

It is not uncommon for judges to hire third parties to defend abandoned positions, but that practice created an unusual occurrence in this capital case. Former U.S. attorneys general represented Glossip (Seth Waxman) and Oklahoma (leading conservative attorney Paul Clement). Appointed attorney Christopher Michel also previously worked in the attorney general’s office and clerked for Chief Justice John Roberts and Justice Brett Kavanaugh when he was a federal appeals court judge.

But despite the state’s admission that it had made a mistake, Justices Clarence Thomas and Samuel Alito, in particular, questioned the lawyers in a way that suggested those justices wanted to move forward with Glossip’s execution. That’s not surprising, considering that she and Justice Neil Gorsuch even broke with their Republican-appointed colleagues to vote against death row inmates.

So what about Gorsuch? In another twist, he is pulled back. He didn’t explain why, but it’s likely because he was involved in previous Glossip-related litigation when he was a federal appeals judge for the Oklahoma Court.

But even in Gorsuch’s absence, it’s not guaranteed that Glossip and Oklahoma will get a new trial. Since a 4-4 tie would uphold the state court’s ruling, they must convince the majority of that eight-judge court. Wednesday’s hearing showed that the court’s three Democratic nominees are (as expected) willing to side with Glossip, who maintains his innocence. That leaves the question of Roberts and Justices Kavanaugh and Amy Coney Barrett, whose votes can be crucial on the court these days. This appeal to life and death is no different.

How the court will ultimately decide, in a ruling expected in late June, is made even more complicated by the fact that there are several legal issues at play. There is a threshold question (which the court added when it took the case) as to whether the justices even have jurisdiction to review the Oklahoma state court’s ruling. It’s the kind of procedural hurdle the Supreme Court likes to use to avoid having to deal with potential injustices lurking in the very merits of cases.

The merits of Glossip’s appeal revolve around due process, including whether that constitutional mandate was violated when prosecutors suppressed their key witness’s admission that he was under psychiatric care and failed to test the false testimony of Mr To correct witnesses about this treatment and the associated diagnosis.

With the caveat that questions at oral argument do not necessarily indicate how a justice will vote, Kavanaugh once asked appointed attorney Michel a question that might be considered hopeful for Glossip:

Thomas, meanwhile, seemed to resent the idea that there was prosecutorial misconduct in this case. At least he believed that prosecutors couldn’t fully explain themselves. “It appears that an interview with these two prosecutors is crucial because not only is their reputation in question, but they also play a central role in this case,” Thomas said. in a theme he emphasized repeatedly throughout the hearing.

Lawyers for Glossip and Oklahoma disputed that prosecutors fell short. However, when it comes to the factual discrepancies in the case, questions from some justices raised the prospect that the court would send the case back for hearing for more information. While this obviously could be better for Glossip (and Oklahoma) than the justices currently upholding the state court ruling against him, his attorney said Wednesday that “no evidentiary hearing could change the conclusion that Mr. Glossip was denied due process.” “ .”

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