Waiting Is Not Easy!

One of my toddler's favorite books is Mo Willems' Waiting Is Not Easy. The book brilliantly builds to a big surprise, with one of the two characters increasingly unable to wait for it. Even my two-year-old can feel it. I strongly recommend it in full.

I've been reminded of Waiting Is Not Easy every day the Supreme Court of the United States (SCOTUS) issues its orders since Friday, May 5, 2023. On May 5, the Supreme Court paused, or "stayed," our client's execution, which was then scheduled for May 18, 2023. Here's the full text of the order halting Richard Glossip's execution:

Application (22A941 for stay of execution of sentence death presented to Justice Kavanaugh and by him referred to the Court is granted pending the disposition of the petitions for writs of certiorari, Nos. 22-6500 and 22-7466. Should both petitions for writs of certiorari be denied, this stay shall terminate automatically. In the event either petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court. Justice Gorsuch took no[] part in the consideration or decision of this application. 

SCOTUS issues its decision on a schedule, sort of. When the Court is in session, it meets on Fridays. The Justices gather without their clerks and decide which cases to hear. This is called their "conference." Anyone can check out when the Court's conferences are on its website. On its website, the Court also notes when it will issue orders, usually the Monday following its conference. But the Court does not advertise that it also often issues orders granting review on the same day as its conference. 

Yaaaaaawn. Why care about when nine justices announce their plans? Because my client's life depends on it. 

Richard Glossip has maintained his innocence for two-and-a-half decades. He has had nine execution dates. He has had what he thought was his last meal three times. In May, he thought he was saying goodbye to those closest with him when the Court issued the above order. 

The Court's May 5 order was on the heels of a request to pause the case while the Court considered claims that Rich's trial was unfair because the prosecution knew its key witness was lying. Rich's case is incredibly troubling, but here I want to focus on the SCOTUS process.

Each Friday, as Rich's lawyer, I am reduced to pressing "refresh" on the Court's website to see if it has granted review. And then each Monday at 6:30 a.m. PT (when the Court releases its orders), I do the same thing. Waiting for the page to load is excruciating. Will the Court save his life? Will they side-step the major issues in his case? 

No one feels sorry for lawyers. Except maybe for other lawyers and their loved ones. And this is not really an effort to engender you personal sympathy. But I do think the insanity of this particular aspect of the death penalty speaks to its cruelty. If I'm freaking out, how must my clients feel?

On more than a few occasions, I've been involved in last-minute litigation challenging a conviction or death sentence while a client faces imminent execution. I'm sorry to say that very often the outcome of that process occurs over a relatively short period of time. Handling a case while facing an execution date is rightly referred to as related to an "emergency," and it is handled at a pace you might expect. 

Only twice have I been in a position of waiting for months on end after a court has stopped an execution at the last minute. For Rich Glossip, the wait is all about whether an innocent person will be executed. 

What will SCOTUS say? Will they or won't they? If we lose, Rich will likely face imminent execution. If we win, he may go home in time for Christmas. Refresh. Refresh. Refresh. 

I'll look again tomorrow morning. And if there's no news, I'll check the calendar and prepare to refresh again. 

Nov. 20 UPDATE: The Court again did not act on our petitions. The next conference is on December 1.