Glossip v. Gross - Oral Argument - April 29, 2015

Glossip v. Gross

Media for Glossip v. Gross

Audio Transcription for Opinion Announcement - June 29, 2015 (Part 1) in Glossip v. Gross
Audio Transcription for Opinion Announcement - June 29, 2015 (Part 2) in Glossip v. Gross
Audio Transcription for Opinion Announcement - June 29, 2015 (Part 3) in Glossip v. Gross
Audio Transcription for Opinion Announcement - June 29, 2015 (Part 4) in Glossip v. Gross

Audio Transcription for Oral Argument - April 29, 2015 in Glossip v. Gross

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 14-7955, Glossip v. Gross. Ms. Konrad.

Robin C. Konrad:

Mr. Chief Justice, and may it please the Court: Oklahoma chooses to execute our clients with a three-drug formula that includes a paralytic and potassium chloride, drugs that cause intense pain and suffering.

The second and third drugs are constitutional only if a prisoner will not feel the pain and be aware of the suffocation caused by those drugs. The district court erred as a matter of law and as a matter of fact when it found that midazolam as the first drug is constitutionally tolerable.

Antonin Scalia:

Why is that a matter of law? I mean, as I see it, it's just -- just a fact question, and -- and the district court found that it -- it did eliminate the pain.

And you're asking us to find that the district court was clearly erroneous in that determination? Do we usually do that kind of thing?

Robin C. Konrad:

Justice Scalia, the -- there's a question of law and there's a question of fact.

Antonin Scalia:

What's the question of law?

Robin C. Konrad:

The question of law includes the -- the fact that the district court found that this three-drug formula was constitutionally tolerable in spite of two facts, the first one being that there is a medical consensus that this drug cannot be used as the sole drug --

Antonin Scalia:

It's a question of fact. That's a question of fact.

Robin C. Konrad:

That --

Antonin Scalia:

You're saying the question of law is that the -- the district court ignored two facts.

Ignoring two facts does not make it a question of law; it's still a question of fact.

Robin C. Konrad:

The -- if -- if I can, Justice Scalia, the second point is the question of law also involves that the district court found that this drug creates a greater risk of harm than sodium thiopental, but that it could not quantify.

So it found that this drug that creates a greater risk of harm that it could not quantify and it also had before it evidence that this drug is not used for the purpose that -- which the State intends it to be used.

Sonia Sotomayor:

Could you -- the way I've thought of this -- and I know that in your brief you think de novo review goes to everything.

If I disagree with you, if I think that I have to give deference to the district court's factual finding on how this drug works, the -- how do you call it -- the --

Robin C. Konrad:

The midazolam.

Sonia Sotomayor:

Midazolam, but that it's a legal question of whether how that drug works creates a risk of harm that's constitutionally intolerable.

Is that how you divide up the legal end?

Robin C. Konrad:

Yes, Justice Sotomayor, and --

Sonia Sotomayor:

So the facts are now. Now let's go to my real question, okay? That a judge ignores evidence is not necessarily an abuse of discretion or a clear error.

But -- so what are the clear errors in terms of the reasoning that the district court used?

Robin C. Konrad:

So the clear errors in this case, we have to look at what this case is about.

And this case is about known information and undisputed facts that were before the court.

This drug, midazolam, is in a different class than barbiturates, this drug is not known, it's not a pain reliever.

The district court recognized these two facts at 76 of the Joint Appendix. It's known that this drug has a ceiling effect, so there's a certain point at which giving more of the drug is not going to matter.

The district court recognized that at 78.

The State's expert recognized that.

The Petitioners' experts recognized that.

John G. Roberts, Jr.:

Well, but what the district court determined is that it was -- was not able to tell precisely when the ceiling effect kicked in, precisely when they hit the ceiling, right?