Thomas and Alito sound eager to push for execution despite prosecutor’s objection
Jordan Rubin
Wed, October 9, 2024
Even Oklahoma’s Republican attorney general thinks death row prisoner Richard Glossip should get a new trial. You might think that automatically means he wouldn’t be executed, but it’s not that simple with this Supreme Court.
Indeed, the court appointed a third party to defend the state court ruling that, if upheld by the justices, would send Glossip to the execution chamber. That’s despite the state’s admission that prosecutorial misconduct tainted his trial.
All this led to a strange high court hearing in Washington on Wednesday, where three lawyers presented arguments to the justices. One represented Glossip, another represented Oklahoma, and the third defended the Oklahoma Court of Criminal Appeals’ ruling against Glossip.
It’s not unheard of for the justices to appoint third parties to defend abandoned positions, but the practice made for an unusual outing in this capital case. Former U.S. solicitors general represented Glossip (Seth Waxman) and Oklahoma (top conservative lawyer Paul Clement). The appointed lawyer, Christopher Michel, also previously worked in the solicitor general’s office, and he clerked for Chief Justice John Roberts as well as Justice Brett Kavanaugh when the latter was a federal appeals court judge.
But despite the state’s confession of error, Justices Clarence Thomas and Samuel Alito in particular quizzed the lawyers in ways that suggested those justices want Glossip’s execution to go forward. That’s not surprising, given that they and Justice Neil Gorsuch have split from even their Republican-appointed colleagues to vote against death row prisoners.
So what about Gorsuch, then? In another twist, he’s recused. He didn’t explain why, but it’s probably because he sat on prior Glossip-related litigation when he was a federal appellate judge on the court that covers Oklahoma.
But even in Gorsuch’s absence, it’s not guaranteed that Glossip and Oklahoma will succeed in getting a new trial. Because a 4-4 tie would uphold the state court ruling, they need to convince a majority of this eight-justice court. Wednesday’s hearing reflected that the court’s three Democratic appointees are (as expected) prepared to side with Glossip, who maintains his innocence. That leaves the open question of Roberts and Justices Kavanaugh and Amy Coney Barrett, whose votes can be decisive at the court these days. This life-or-death appeal is no different.
How the court will ultimately rule, in a decision expected by late June, is further complicated by the fact that there are multiple legal issues in play. There’s a threshold issue (added by the court when it took up the case) about whether the justices even have jurisdiction to review the Oklahoma state court ruling. It’s the sort of procedural hurdle that the high court likes to employ, to avoid having to deal with potential injustices lurking in the actual merits of cases.
The merits of Glossip’s appeal deal with due process, including whether that constitutional mandate was violated when prosecutors suppressed their key witness’s admission that he was under the care of a psychiatrist and failed to correct the witness’s false testimony about that care and related diagnosis.
With the caveat that questions at oral argument don’t necessarily signal how a justice will vote, Kavanaugh at one point asked the appointed lawyer, Michel, a question that could be seen as hopeful for Glossip:
I think you had said earlier ..., if you get past all the procedural bars and you get to the point where the prosecutors didn't comply with their obligations, that it still wouldn't have made a difference to the jury had they known that Sneed [the key state witness] was bipolar and that he had lied on the stand. And I'm having some trouble on that last piece of the argument, if we get there, ... when the whole case depended on his credibility.
Thomas, meanwhile, seemed to take offense at the notion that there was prosecutorial misconduct in this case. At least he thought the prosecutors didn’t get to fully explain themselves. “[I]t would seem that because not only, you know, their reputations are being impugned, but they are central to this case, it would seem that ... an interview of these two prosecutors would be central,” Thomas said, in a theme that he pressed throughout the hearing.
Lawyers for Glossip and Oklahoma contested that the prosecutors were given short shrift. But on the subject of factual discrepancies in the case, some justices’ questions raised the prospect of the court sending the case back for a hearing to get more information. While that could obviously be better for Glossip (and Oklahoma) than the justices upholding the state court ruling against him right now, his lawyer said on Wednesday that “[n]o evidentiary hearing could alter the conclusion that Mr. Glossip was denied due process.”
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This article was originally published on MSNBC.com
US Supreme Court signals concern over Glossip death penalty decision
Updated Wed, October 9, 2024
By John Kruzel, Andrew Chung
WASHINGTON (Reuters) -U.S. Supreme Court justices raised concerns on Wednesday about a judicial decision that would let Richard Glossip's execution move forward as they wrestled with the Oklahoma death row inmate's appeal of his conviction for a 1997 murder-for-hire.
The justices during arguments in the case probed whether an Oklahoma court properly weighed newly revealed information that Glossip's lawyers said would have aided his defense and which the state's Republican attorney general, Gentner Drummond, called wrongly withheld by prosecutors.
Glossip asked the justices to throw out his conviction and grant him a new trial after the Oklahoma Court of Criminal Appeals upheld his death sentence despite potentially exculpatory evidence being found in an independent investigation ordered last year by Drummond, who supports Glossip's appeal.
Glossip, now 61, was convicted of commissioning the murder of Barry Van Treese, owner of the Best Budget Inn motel in Oklahoma City where Glossip was a manager. All parties agree Van Treese was fatally beaten with a baseball bat by maintenance worker Justin Sneed. Sneed confessed to the murder but avoided capital punishment by accepting a plea deal that involved testifying that Glossip paid him $10,000 to do it.
Securing a murder conviction against Glossip hinged on the testimony of Sneed, who was a methamphetamine addict. Glossip admitted to helping Sneed cover up the murder after it occurred, but denied knowing Sneed planned to kill Van Treese or encouraging him to do so.
The Supreme Court last year halted Glossip's scheduled execution while his appeal proceeded.
The evidence disclosed last year by Drummond - including a prosecutor's hand-written notes from a meeting with Sneed - cast doubt on Sneed's credibility, according to Glossip's lawyers. They contend they were kept in the dark about Sneed receiving psychiatric treatment for bipolar disorder immediately after his arrest, and that prosecutors failed to correct Sneed's false statement about his prescription for the medication lithium.
Former U.S. Solicitor General Seth Waxman, representing Glossip, said Glossip was "convicted on the word of one man," referring to Sneed, and that his conviction violated the U.S. Constitution's right to due process.
"He (Sneed) lied to the jury about his history of psychiatric treatment, including the fact that a prison psychiatrist prescribed lithium to treat his previously undiagnosed bipolar disorder," Waxman added.
"The prosecution suppressed that evidence and then failed to correct Mr. Sneed's perjured denial," Waxman added.
'FALSE IS FALSE'
Because Oklahoma's attorney general is supporting Glossip's appeal, the Supreme Court tapped an outside lawyer, private attorney Christopher Michel, to argue to uphold Glossip's conviction.
Michel sought to rebut Waxman concerning the meaning and significance of the newly disclosed information.
"Your one witness has been exposed as a liar," liberal Justice Elena Kagan told Michel, adding, "False is false."
Michel said that "it still wouldn't have made a difference to the jury had they known that Sneed was bipolar and that he lied on the stand."
"I'm having some trouble ... understanding that," conservative Justice Brett Kavanaugh told Michel, "when the whole case depended on his credibility."
Liberal Justice Ketanji Brown Jackson and conservative Justice Samuel Alito suggested that the justices could return the case to a lower court for an evidentiary hearing to assess the information made available by Drummond.
Drummond became an unlikely ally of Glossip after the investigation he commissioned led him to conclude prosecutors hid evidence that might have led to an acquittal. Although Drummond said he believes Glossip's role in covering up Van Treese's murder makes him at least an "accessory after the fact," justifying a long prison sentence, Glossip's murder conviction was too flawed for him to defend.
Michel urged the justices to dismiss the case, leaving Glossip "free to pursue state law clemency or other available relief." If the Supreme Court decides the case's legal merits, Michel urged it to defer to the Oklahoma court's ruling upholding Glossip's conviction based on a state law limiting on post-conviction legal efforts.
Kagan raised concerns about the Oklahoma court's ruling, calling its review of the legal merits and complex procedural issues "very confusing."
"I mean everything was intertwined with everything else," Kagan said.
"You've issued, you know, a strong legal writing critique of this opinion," Michel told Kagan.
"I haven't even started," Kagan responded, eliciting laughter from the courtroom.
Conservative Justice Clarence Thomas questioned why Waxman had not interviewed two prosecutors involved in the case.
"Not only because their reputations are being impugned but (because) they are central to this case, it would seem that an interview of these two prosecutors would be central," Thomas said.
The justices are expected to issue their ruling by the end of June. Justice Neil Gorsuch did not participate in considering Glossip's appeal, apparently because he earlier dealt with the case while serving on a lower court.
(Reporting by John Kruzel; Editing by Will Dunham)
Supreme Court’s conservatives wrestle with case of death row inmate Richard Glossip, who prosecutors want spared
John Fritze and Devan Cole, CNN
Wed, October 9, 2024
The Supreme Court grappled Wednesday with an appeal from an Oklahoma death row inmate who even the state’s conservative attorney general believes should not be executed, with some justices signaling a willingness to let state courts further review allegations that prosecutors withheld evidence in the case.
After nearly two hours of oral argument, it was clear the court’s three-justice liberal wing would side with Richard Glossip, 61, who was convicted of arranging the murder of Barry Van Treese in 1997. At least two of the court’s conservatives — Justices Clarence Thomas and Samuel Alito — signaled deep reservations with Glossip’s appeal and indicated they would oppose him.
Of the conservatives, Justice Brett Kavanaugh seemed the most sympathetic to Glossip, who has been scheduled for execution nine times and has eaten his last meal three times only to have his execution stayed.
That means the high court’s majority decision will likely come down to how Chief Justice John Roberts and Justice Amy Coney Barrett view his case.
Glossip’s conviction rests on the testimony of Justin Sneed, the man who killed Van Treese with a baseball bat in a hotel.
In exchange for avoiding the death sentence himself, Sneed implicated Glossip as the mastermind of the crime. But years after Glossip’s conviction, the state disclosed evidence that Sneed was treated for a serious psychiatric condition — a revelation Glossip’s attorneys say prosecutors withheld from the jury.
“He lied on the stand,” said Justice Elena Kagan, a liberal, noting that Sneed testified that he never saw a psychiatrist when, in fact, it was a prison psychiatrist who had prescribed him lithium to treat bipolar disorder. “Your one witness has been exposed as a liar.”
Thomas, who, along with Alito, led the questioning opposing Glossip, repeatedly asked why investigators looking into the case years later didn’t more thoroughly question the prosecutors involved at the time about notes they had taken indicating they knew about Sneed’s diagnosis and treatment.
“They are central to this case,” Thomas said of the prosecutors. “It would seem an interview of these two prosecutors would be central.”
That could open a potential solution for the court. Several members, including liberal Justice Ketanji Brown Jackson, discussed the possibility of sending the case back to state court to further review the meaning of the notes prosecutors took at the time.
“Why wouldn’t we send it back for an evidentiary hearing?” Jackson said at one point. “It’s my understanding that there’s never been a court determination of any of these facts.”
Death penalty cases are getting more attention at SCOTUS
The case has landed at the Supreme Court at a moment when the death penalty — and the court’s approach to it — is the focus of unusual attention and scrutiny.
A divided decision last month allowing Missouri to execute Marcellus Williams — despite the objection of prosecutors — drew sharp criticism from groups opposed to the death penalty.
Several other death penalty appeals, meanwhile, are pending on the Supreme Court’s docket. On Friday, the court granted an appeal from Ruben Gutierrez, a death row inmate in Texas who was denied an opportunity to seek post-conviction DNA testing. The case will likely be up for oral argument early next year.
The justices will also be deciding whether to hear arguments in other death row cases when they convene on Friday for their weekly, closed-door conference meeting. One involves an Oklahoma woman convicted of killing her husband who says prosecutors sex-shamed her during her trial, referring to her in court as a “slut puppy” and holding up her underwear for the jury. Another involves an Alabama man who claims he is intellectually disabled and therefore ineligible for execution under Supreme Court precedent.
The Glossip case is arguably the highest profile to reach the court in years, and it drew two of the most experienced Supreme Court lawyers in the nation. Seth Waxman, a former solicitor general, is arguing on Glossip’s behalf. Oklahoma Attorney General Gentner Drummond, a Republican who supports sparing Glossip, was represented by Paul Clement, also a former solicitor general.
Even though Drummond called for a new trial, the Court of Criminal Appeals of Oklahoma upheld Glossip’s sentence, ruling that the evidence at issue wouldn’t have changed the outcome of the case and that Glossip’s attorneys knew that Sneed was taking lithium.
Kavanaugh, who could prove to be a key vote, raised a concern with that position. Kavanaugh said he was having “some trouble” with the idea that “it still wouldn’t have made a difference to the jury had they known that Sneed was bipolar and that he had lied on the stand.”
Justice Neil Gorsuch was recused, meaning that only eight justices will decide Glossip’s fate.
Before the justices can even reach the merits of Glossip’s appeal, they must first resolve a procedural hurdle: Whether the state court erred in ignoring Drummond’s admission of error. Defending the conviction and sentence, attorney Christopher Michel argued that the state court decided the case in a way that leaves the Supreme Court little room to rule in favor of Glossip.
Glossip has filed many appeals during his more than 25 years behind bars. In 2015, the Supreme Court rejected his challenge to a new lethal injection protocol the state had adopted.
Supreme Court could give convicted Oklahoma killer Glossip another shot at avoiding execution
DEVIN DWYER
Wed, October 9, 2024
Despite decades of failed death row appeals, Oklahoma inmate Richard Glossip may get another shot in court at overturning his conviction after a majority of U.S. Supreme Court justices indicated Wednesday that he might not have gotten a fair trial.
While the court's conservative majority rarely agrees to hear capital cases, much less grant relief, Glossip's plea has drawn unique attention from the justices because the state's Republican Attorney General agrees that the trial was "deeply flawed."
The state's highest court, by contrast, has ruled that all of Glossip's appeals have been exhausted and that claims of prosecutorial misconduct would not have changed the outcome.
PHOTO: This photo provided by the Oklahoma Department of Corrections shows death row inmate Richard Glossip on Feb. 19, 2021. (Oklahoma Department of Corrections via AP, FILE)
During oral arguments, the justices wrestled first with whether the court even had jurisdiction to intervene in the state case. They also grappled with whether suppression of evidence and the allowing of a key witness to lie on the stand violated Glossip's civil rights.
MORE: Supreme Court to hear 'remarkable' Oklahoma death penalty appeal from Richard Glossip
Glossip, 61, was convicted in 1998 for ordering the killing of his then-boss Barry Van Treese. The actual killer, Justin Sneed, testified in exchange for a life sentence that Glossip had paid him $10,000 to do it. Glossip has maintained his innocence, but no court has granted his appeal.
It was discovered after trial that Sneed had been taking lithium to treat bipolar disorder, even though on the stand he denied mental illness. Several independent reviews suggest the prosecutor may have known Sneed was lying but did not correct the testimony.
Several justices suggested they were uncomfortable with backing an execution under the circumstances.
"The whole case depended on [Sneed's] credibility," noted Justice Brett Kavanaugh, who said he was "having some trouble" with the idea that the mental illness revelations wouldn't have affected the jury.
Justice Sonia Sotomayor suggested that acknowledgment of a bipolar condition could have raised the possibility "that [Sneed's] use of drugs would have led to impulsive and violent behavior."
"If you can show that he lied on the stand when he said 'I never saw a psychiatrist and I didn't get a prescription from the psychiatrist,'" said Justice Elena Kagan, "that seems pretty material to me. I mean, it's just your one witness has been exposed as a liar."
At the same time, several of the court's conservatives -- most notably Justices Clarence Thomas and Samuel Alito – sharply disagreed.
"Do you really think it would make that much of a difference to the jury?" asked Chief Justice John Roberts about details of Sneed's psychiatric condition.
"It very well could have made a significant difference in the outcome of the case," replied Glossip attorney and former U.S. Solicitor General Seth Waxman.
Justice Ketanji Brown Jackson, the court's junior justice and a member of the liberal wing, hinted at a middle ground approach: ordering an Oklahoma court to more closely examine evidence of alleged prosecutorial misconduct before ruling on a new trial.
"It's my understanding that there's never been a court determination of any of these facts," Jackson said. "Why we wouldn't, at the minimum, have some sort of requirement that a court make a finding about these things?"
Only eight justices heard arguments on Wednesday after Justice Neil Gorsuch -- a former appeals court judge who had connection to the case -- recused himself. They can vote to overturn Glossip's conviction, uphold it, or return the case to a state court for further proceedings. A 4-4 tie would let the Oklahoma decision stand and clear the way for an execution.
PHOTO: Oklahoma Attorney General Gentner Drummond testifies during a House Homeland Security Committee hearing on Capitol Hill in Washington, Jan. 10, 2024. (Nathan Howard/Reuters, FILE)
Oklahoma Attorney General Gentner Drummond has said he does not believe Glossip is innocent but that a new trial is imperative to upholding the credibility of the judicial system.
"The death penalty doesn't turn on, you know, ideology or politics. It should turn on the rule of law," he told ABC News in an interview. "This has been a wildly unpopular position for me to take, but it's the right thing to do."
Glossip was first convicted in 1998 and again in 2004 after a state appeals court ordered a new trial. He has lost appeals at the state clemency board and also had clemency denied by the governor.
In a separate Supreme Court case in 2015, Glossip unsuccessfully challenged Oklahoma's lethal injection drug protocol. He has been scheduled for execution nine times and served his "last meal" three times.
The Van Treese family told the high court in a friend-of-the-court filing that it wants Glossip's conviction and sentence upheld.
A decision in the case is expected by early 2025.
The Lesson We Should Take From Glossip v. Oklahoma
Dana Bazelon
Wed, October 9, 2024
On Wednesday, the Supreme Court will hear argument on whether Richard Glossip should be executed for a crime that even the people who originally prosecuted him are not confident he committed. His case, along with the high court’s recent refusal to stay the execution of Marcellus Williams, sheds light on a troubling trend. As the wrongful conviction movement has succeeded in persuading many prosecutors to revisit and even concede relief in past cases, prosecutors—and the courts—who weren’t involved in the original trial are doubling down on flawed convictions.
Glossip has spent the past 27 years in prison awaiting execution, convicted of murdering his boss at the Best Budget Inn in Oklahoma City based solely on the uncorroborated testimony of his co-defendant Justin Sneed, who testified as part of his own plea deal to avoid the death penalty. Everyone agrees that it was Sneed, not Glossip, who bludgeoned the victim to death with a bat, but Sneed later claimed that Glossip had put him up to it. Glossip would likely have been executed already, but in 2023, the Oklahoma City district attorney’s office that had prosecuted him turned over evidence showing that Sneed had been diagnosed with serious mental illness and had attempted to recant his testimony, facts the office was aware of at Glossip’s trial but did not disclose.
After this evidence came to light, the Oklahoma City DA agreed that Glossip was entitled to a new trial, acknowledging that the credibility of the only witness against him had crumbled and that Glossip had been denied a fair trial. But Glossip is still awaiting execution, even as official after official (the DA, the Oklahoma attorney general, 62 Oklahoma state legislators, and two independent investigators) has opined that Glossip deserves a new trial.
None of this was enough for the Oklahoma Criminal Court of Appeals, which refused to overturn his conviction last year. Instead, the court instructed the state to set an execution date because, in its view, Glossip had failed to prove his innocence by clear and convincing evidence. In January, the Supreme Court agreed to hear the case, staying Glossip’s execution for the ninth time.
Advocates for the innocent have spent decades persuading prosecutors’ offices to take on the important work of honestly and openly revisiting past convictions in which defendants allege that the offices committed serious errors—most commonly withholding evidence that the defendant was entitled to. In many jurisdictions, these efforts have been a success. Prosecutors in at least 120 jurisdictions have created conviction integrity units, which investigate the office’s past errors and, when appropriate, work to overturn convictions of the wrongfully incarcerated. In 2021 alone, CIUs helped secure 60 percent of all exonerations.
But the tortured history of Glossip’s case brings into sharp relief a larger problem plaguing the wrongful conviction movement: As the concessions have become more common, they are meeting resistance from the courts and from other prosecutors.
When one prosecutor agrees that a conviction should be overturned, it has become common for another prosecutor (typically the state’s attorney general) to step forward and render a separate opinion. This happened to Glossip, and it worked in his favor, but usually that is not the case. Many wrongfully convicted defendants’ chances at freedom are either delayed or denied because even when the prosecutor who put them in jail is ready to acknowledge that the conviction cannot stand, there is a second prosecutor standing behind the first one, saying the opposite.
Attorneys general become parties in these postconviction proceedings either by their own request or at the behest of the court. Getting a second opinion may sound like a sensible “belt and suspenders” sort of approach to take when making a serious decision like overturning a conviction, but the reality is much more complicated. At its least harmful, these additional advocates cost time and government resources. But often these extra prosecutors stand in opposition to the relief that defendants are due, leading to further injustice. There is no legal reason to require a second set of prosecutors to review a case, just to be sure, and doing so may not lead to fairer outcomes.
Just last month, the state of Missouri executed Marcellus Williams, despite the fact that the St. Louis prosecuting attorney Wesley Bell, whose office convicted Williams back in 2001, had petitioned the court to overturn the conviction and stop the execution. By the time Williams was executed, most of the evidence against him had been called into question. The two witnesses against him had been paid for their testimony, and their stories didn’t match the other evidence in the case. Bloody footprints and hairs left at the scene did not belong to Williams, and the DNA samples recovered from the murder weapon could not be conclusively tested, due to likely mishandling by prosecutors and a state investigator.
Additionally, the trial prosecutor struck at least one of the potential jurors because he claimed that the juror and Williams “looked like brothers,” a not-so-subtle nod to the fact that both Williams and the juror were Black men. (It is unconstitutional to exclude a juror based on race). The case against Williams had become so muddled that the victim’s family favored commuting his death sentence and allowing him to serve life without the possibility of parole.
It was under these circumstances that Williams and the DA reached a deal: Williams would agree to an Alford plea, whereby he would maintain his innocence but agree to serve a life sentence. The judge reviewed all the pleadings, spoke to the victim’s family, and agreed that the negotiation was “a proper remedy” under the circumstances.
But then the Missouri AG inserted himself into the process, appealing to the state Supreme Court and scuttling a deal between Bell and Williams. The court sided with the AG. A set of hearings followed to determine whether Williams’ conviction should be overturned altogether, during which the attorney general repeatedly urged the court to allow the execution to go forward. The Missouri Supreme Court again sided with the AG, ruling that “there is no clear and convincing evidence that Williams is actually innocent,” and Williams was put to death.
After a prosecutor has agreed to overturn a conviction, courts often welcome the intervention of another prosecutor to argue for the conviction; they believe that this will allow them to hear both sides of the argument. The adversarial system—in which two parties with opposing interests argue against each other—is hailed from the first year of law school as the ultimate way to ascertain the truth.
In reality, however, there is no reason to believe that the court must hear from someone defending a conviction that both sides have agreed is wrongful. Assigning more lawyers to a problem can cause a paradoxical decrease in the accuracy of the outcome. It can lead to unnecessary complexity and escalated disputes and waste government resources.
The desire to hear from a second set of prosecutors ignores the reality that many hearings in criminal court proceed by agreement, the outcome negotiated in advance by both parties. Plea agreements are perhaps the most obvious example: Typically, a prosecutor and a defendant will agree on the terms of the plea—what charges the defendant will plead to and what sentence they will serve. They then go before a judge, who decides whether to agree to the negotiation or reject it. As in a postconviction hearing, judges can ask questions, plumb the record for details, and, when they see fit, refuse to accept the deal negotiated by the parties. The presence of a third party, arguing that the defendant should be convicted of the top charge and be sentenced to the longest possible term of incarceration, would serve only to muddle the proceedings and cause delay. Similarly, a prosecutor popping up to defend a conviction that they had nothing to do with usually serves only to impede the process, not to promote a more just outcome.
The pressure to have someone defend the conviction is all the more potent when victims’ families oppose the relief that the prosecutor has agreed to. Some of the tension here could be eased if DAs did a better job communicating with families far in advance of conceding relief and did more to explain their reasons and the proceedings. Having a conviction overturned can be deeply traumatizing, and victims’ families need support at every stage of the process. But regardless of the reasons victims oppose relief, they have a right to be heard and should be welcome to participate in the proceedings, as amici (friends of the court), given the opportunity to speak and tell their stories. At the same time, they do not have the last word as to whether a conviction should be overturned, and we do not need attorneys general stepping in to speak for them in every case.
A case currently before the Pennsylvania Supreme Court shows just how far some attorneys general will go to be heard when DAs concede and how personal these battles can become. The Pennsylvania AG has asked the Supreme Court to “invite or appoint” another prosecutor (presumably the AG) to intervene in cases when local DAs have conceded relief and when there is a “pattern of problematic concessions” from that DA in the past. The petition is aimed squarely at a former boss of mine, progressive prosecutor Larry Krasner, whose record of investigating and working to overturn wrongful convictions has been a centerpiece of his administration. (I worked as his director of policy for six years, but I did not do conviction integrity work. My current employer, the Quattrone Center for the Fair Administration of Justice, has filed an amicus brief in this case, raising concerns about the AG’s position.)
Shortly after he took office, Krasner took the step of opening prosecutorial and police files up to defense lawyers in postconviction proceedings so that they could see for themselves if the office had held back relevant information. This step, combined with the robust CIU at the Philly DA’s office has led to 49 exonerations to date—not because Krasner has lost his mind, but because Philadelphia has a long and sad history of convicting the wrong people.
Without pointing to a single case in which a defendant was set free improperly, the state attorney general is inviting the court to appoint another prosecutor to intervene in all of the cases in which Philadelphia prosecutors concede relief, because they don’t think the courts can trust Larry Krasner. If the court sides with the AG, it will almost certainly be making it more difficult for wrongfully convicted Philadelphians to secure the relief they deserve.
Recent events in Missouri show the potential problems with an attorney general’s involvement in cases when local DAs concede relief. In 2021 Missouri passed a law that allows prosecutors to reopen cases for which they believe that the defendant was wrongfully convicted. The bill also gave the attorney general the right to participate, review documents, question witnesses, and make arguments.
Since then, the AG’s office has been actively involved in these cases, often fighting against giving the defendant a hearing at all and raising a host of challenges from the jurisdiction where the case should be heard to the name under which the case is docketed. (The AG wants the case to bear the name of the prosecutor who is agreeing to relief, not the name of the defendant.) One DA’s office said that it felt as if it had been “bombed” with motions and demands from the AG’s office, designed to keep the case from being heard and the defendant behind bars.
All of this brings us back to Richard Glossip, whose life will hang in the balance during Wednesday’s oral argument before the Supreme Court. Glossip has been scheduled for execution nine times and been served his final meal three times, only to find his life grudgingly restored to him at the last moment.
Glossip’s case shows us just how hard it is and how long it takes for a potentially innocent man to have his conviction overturned, even when the DA, the attorney general, state legislators, and two independent investigators have all been convinced that this is the only just outcome. Even if SCOTUS rules in Glossip’s favor, his case sets the bar impossibly high: How can the average wrongfully convicted defendant, who cannot dream of receiving the attention and resources that Glossip has garnered, hope to prevail?
It should not be so hard for wrongfully convicted people to win their freedom. One way to ameliorate this problem is to trust prosecutors when they concede errors, in the same way we trust them when they negotiate plea agreements or withdraw cases that they do not have the evidence to prove. Prosecutors do not agree to exonerations lightly or easily—quite the opposite—and a court’s fear of error can be assuaged with a careful review of the record. Every additional layer of process that courts and attorneys general demand in these cases is likely to be an impediment to justice being done.
An `unusual lineup'
Maureen Groppe, USA TODAY
Updated Wed, October 9, 2024
WASHINGTON − Oklahoma death row inmate Richard Glossip, whose request for a new trial will be heard at the Supreme Court on Wednesday, has received nine execution dates and eaten his “last meal” three times.
He’s made multiple appeals to the high court, including in 2015 when he lost his challenge to Oklahoma’s lethal injection protocol.
This time, however, Glossip and Oklahoma are on the same side.
The state agrees that evidence uncovered after recent investigations show Glossip, 61, did not get a fair trial when juries found him complicit in the 1997 murder of his boss at an Oklahoma City budget motel. The state's key witness was diagnosed with bipolar disorder, which he lied about on the stand, prosecutors now say.
But the Oklahoma Court of Criminal Appeals last year said the state attorney general’s request to set aside Glossip’s conviction was not sufficient reason to halt the execution.
Now Oklahoma – the state with the highest per capita execution rate – is joining Glossip in asking the Supreme Court to overturn that decision and set a new trial. Because the state agrees with Glossip, the court appointed an attorney to argue the other side.
“That is a very unusual lineup,” said Robin Maher, executive director of the Death Penalty Information Center, which does not take a position on the death penalty but is critical of problems in its application.
But what advocates say is distressingly not unusual is the role that the type of prosecutorial misconduct the state acknowledges in Glossip’s case – not disclosing evidence that would have undercut the prosecution and allowing false testimony about the evidence – plays in wrongful convictions.
Studies of exonerations have found prosecutors concealed important evidence in 44% of the cases reviewed, and found concealed evidence contributed to 61% of wrongful convictions of murder, the Innocence Project told the Supreme Court in a filing.
Victim's family says no more delay
But family members of Barry Van Treese, the man Glossip has been convicted of helping murder in 1997, say there was no prosecutorial error in this case.
“Today – 10,047 days later – the Van Treese family has an interest in seeing Oklahoma’s duly imposed sentence on Glossip carried out without further delay,” their lawyer told the court in a filing.
A screenshot of Richard Glossip as he speaks via video to the Oklahoma Pardon and Parole Board during his clemency hearing on Wed. April 26, 2023.
Van Treese, the owner of an Oklahoma City Best Budget Inn, was bludgeoned to death with a baseball bat in one of the motel’s guest rooms.
Justin Sneed, the motel’s maintenance man, confessed to killing Van Treese. But he said Glossip pressured him into doing it, offering him $10,000. Sneed’s testimony against Glossip allowed him – but not Glossip −to avoid a death sentence.
Glossip was first convicted and sentenced to death in 1998. Three years later, the Oklahoma Court of Criminal Appeals ruled he deserved a new trial because his defense attorney was inadequate.
A second jury found Glossip guilty in 2004.
First `last meal' was in 2015
Glossip had his first “last meal” in January of 2015, before the Supreme Court temporarily halted the execution to hear his challenge to Oklahoma’s lethal injection protocol.
The court ruled against Glossip who − twice − was hours away from being executed before Oklahoma began a six-year moratorium on the death penalty. That came after the attorney general expressed concern about the Oklahoma's ability to properly carry out an execution. The state had received the wrong drug for Glossip's scheduled lethal injection.
The delays allowed Glossip's attorney – Don Knight – to continue investigating, resulting in recently getting to see information the state previously hadn’t shared with the defense.
“It’s taken this long to get that evidence,” Knight said of the boxes of documents he received in the past two years.
`Troubling evidence of grave prosecutorial misconduct'
Buried inside the final box turned over last year was a page of notes handwritten by the prosecutor from a pre-trial interview with Sneed.
Oklahoma now says the notes show Sneed – the “one indispensable witness against Glossip” – lied on the stand about whether he had been diagnosed with bipolar disorder. Prosecutors knowingly elicited Sneed’s false testimony about why he had received lithium and failed to correct the record, the state says.
Because of that "troubling evidence of grave prosecutorial misconduct," the attorney general launched an outside investigation and "made the difficult but necessary decision to confess error," Paul Clement, a former U.S. solicitor general during George W. Bush administration who is representing Oklahoma before the Supreme Court, wrote in a filing.
Glossip is being represented at the high court by Seth Waxman, who served as solicitor general during the Clinton administration. He says Glossip was denied the chance to show the jury Sneed’s memory was unreliable and that he was willing to lie on the stand.
Oklahoma is not arguing that Glossip is innocent. But that “the death penalty should be reserved for defendants found guilty beyond reasonable doubt after a fair trial free from prosecutorial misconduct.”
The American Civil Liberties Union told the court that while it’s difficult to determine how often prosecutors withhold evidence, “even the number of known violations in Oklahoma is shocking.”
`Potential political motivations'
But members of the Van Treese family say the prosecutor’s notes are being misread and no evidence was concealed, suggesting there are “potential political motivations” behind Oklahoma Attorney General Gentner Drummond’s confession of error.
“It would not be surprising to find that one politically elected official might view the facts of a case one way, while another might go in a different direction,” Paul Cassell, the attorney representing the family, told the court. “But if officials are free to simply confess `error’ because they disagree with the case’s outcome, trust in the criminal justice system becomes the casualty.”
Attorney General Gentner Drummond listens to a panel at the Sovereignty Symposium at the Skirvin Hilton Oklahoma City in Oklahoma City, Wednesday, June, 14, 2023.
Clement said any suggestion that Oklahoma has joined forces with death-penalty opponents is “divorced from reality.” The state carried out four executions last year alone, all with the support of Drummond, he noted.
“Public confidence in the death penalty requires that these cases receive the highest standard of reliability,” Drummond said last year after the Oklahoma Pardon and Parole Board voted against recommending clemency for Glossip. “While the State has not questioned the integrity of previous death penalty cases, the Glossip conviction is very different. I believe it would be a grave injustice to execute an individual whose trial conviction was beset by a litany of errors.”
Drummond began looking into the case − which he called "shrouded in controversy" −shortly after taking office in 2023.
Knight, Glossip’s attorney, said it took a lot of courage for the top law enforcement official of a state “where the politics are so pro-death penalty” to argue Glossip didn’t get a fair trial.
“For an attorney general in Oklahoma to stand up for that right means he’s standing up for all of us and saying, `Not on my watch,’” Knight said. “And I give him a lot of credit for that.”
This article originally appeared on USA TODAY: Oklahoma joins death row inmate Glossip in Supreme Court appeal
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U.S. Supreme Court hears arguments on Oklahoma capital conviction of Richard Glossip
Nuria Martinez-Keel
Wed, October 9, 2024
A law enforcement officer patrols in front of the U.S. Supreme Court on Wednesday during oral arguments about a due process death penalty case involving Oklahoma defendant Richard Glossip. (Photo by Jane Norman/States Newsroom)
OKLAHOMA CITY — An appeal from Oklahoma death-row inmate Richard Glossip came before the nation’s highest court on Wednesday, as he and Attorney General Gentner Drummond formed an unusual union arguing for his murder conviction to be vacated.
Attorneys representing Glossip and Drummond both asked the U.S. Supreme Court to return the case to district court for a retrial. They contend prosecutorial misconduct marred Glossip’s previous conviction and prevented him from receiving a fair trial.
The Supreme Court’s three liberal justices heavily questioned the Oklahoma Court of Criminal Appeals’ reasoning when it upheld Glossip’s conviction and death sentence, despite the attorney general reporting prosecutorial errors. Responses appeared to be mixed from the Court’s conservative justices, with some appearing to side with the Oklahoma appeals court and another saying it was “unusual” the way Drummond’s complaints were dismissed.
The Supreme Court is expected to rule on the case by June.
Glossip, 61, was found guilty of plotting the 1997 murder of his boss, Oklahoma City motel owner Barry Van Treese, and was sentenced to death. Another employee at the motel, Justin Sneed, testified that Glossip paid him to carry out the killing.
However, Glossip and Drummond both contend the prosecution allowed Sneed to lie on the stand about his psychiatric condition and failed to turn over evidence to the defense that would have revealed the star witness was being treated for a mental illness.
When Sneed lied that he didn’t know why he was given lithium, prosecutors made no attempt to correct the record and withheld information from the defense that would have shown the witness was untruthful, legal counsel for Glossip and Drummond said.
They contended Glossip’s trial might have had a different result had the defense and the jury been aware of this information. The prosecutors’ case hinged on Sneed’s testimony.
The state Court of Criminal Appeals, though, said Glossip’s attorneys during the trial either knew or should have known about Sneed’s mental illness and chose not to question him about it. The Oklahoma appeals court also doubted that a correction of Sneed’s testimony mid-trial would have changed the outcome.
Justice Elena Kagan disagreed. Kagan, nominated to the Supreme Court in 2010 by President Barack Obama, said the jury might have found Sneed’s lie discrediting.
“The critical question that a jury is asking is, ‘Do I believe this guy in everything he says, and particularly, do I believe him when he points the finger at the accused?’” she said during oral arguments. “If he’s lying, if he’s trying to cover up something about his own behavior, I’m going to take that into account in deciding whether, when he accuses the defendant, he’s telling the truth.”
The more important issue, according to the Court of Criminal Appeals, is that these issues were not raised in earlier appeals. Even with the attorney general on his side, Glossip’s latest appeal falls short of procedural requirements to be seriously considered, the Oklahoma court decided.
Kagan and the Court’s other two liberal justices, Sonia Sotomayor and Ketanji Brown Jackson, appeared to reject the Oklahoma court’s procedural gripes when it denied Drummond’s request for a new trial.
An attorney representing Drummond in the oral arguments, Paul Clement, said years of common practice and precedent in Oklahoma allow the state to set aside procedural hurdles when alleged due process violations have been discovered.
Even a member of the Court’s conservative majority, Justice Amy Coney Barrett, acknowledged that it was “unusual” for the appeals court not to grant Drummond’s request to waive the procedural matters.
But, conservative Justice Samuel Alito pointed out that even with the other issues set aside, the appeals court said it still didn’t see enough reason to vacate Glossip’s conviction.
“I don’t see what’s unclear or even ambiguous about that,” Alito said.
Justice Clarence Thomas, nominated in 1991 by President George H.W. Bush, repeatedly asked why the original prosecutors weren’t interviewed at length.
“These two prosecutors, it seems as though their reputations are being impugned, and according to them, they did not receive an opportunity to explain in depth,” Thomas said.
Drummond shortly after taking office last year initiated an independent investigation of the Glossip case. The investigator found “multiple instances of error that cast doubt on the conviction,” according to the Attorney General’s Office.
That prompted Drummond to ask the state Court of Criminal Appeals in April 2023 to remand Glossip back to district court for another trial.
The appeals court ruling put Glossip back on track toward execution until the U.S. Supreme Court intervened days before his scheduled death in May 2023. The Court then agreed in January to review his case.
So far, Glossip has been scheduled for execution nine times and eaten three “last meals.” He is imprisoned in the Oklahoma State Penitentiary in McAlester.
Drummond has not said he believes Glossip is innocent but rather argued that the defendant cannot be convicted and executed without receiving due process.
“Oklahomans deserve to have absolute faith that the death penalty is administered fairly and with certainty,” Drummond said in a statement after the Supreme Court hearing. “Considering everything we know about this case, justice is not served by executing a man based on the testimony of a compromised witness.”
Family members of the murder victim, Van Treese, urged the Supreme Court to reject Glossip’s appeal and called for the execution to move forward. They and the Oklahoma District Attorneys Association filed a joint friend-of-the-court brief, which Alito said provided a “pretty compelling counter reading” on some of Glossip’s arguments.
The brief included remarks the victim’s son, Derek Van Treese, gave to the Oklahoma Pardon and Parole Board, which voted 2-2 against clemency for Glossip.
Derek Van Treese said multiple juries and courts have come to the same conclusion of Glossip’s guilt.
“The time is now, I urge you, I beg you to allow justice to finally be served through the word of law and the will of the people. Enough is enough,” Derek Van Treese said, according to his family’s brief.
Jordan Rubin
Wed, October 9, 2024
Even Oklahoma’s Republican attorney general thinks death row prisoner Richard Glossip should get a new trial. You might think that automatically means he wouldn’t be executed, but it’s not that simple with this Supreme Court.
Indeed, the court appointed a third party to defend the state court ruling that, if upheld by the justices, would send Glossip to the execution chamber. That’s despite the state’s admission that prosecutorial misconduct tainted his trial.
All this led to a strange high court hearing in Washington on Wednesday, where three lawyers presented arguments to the justices. One represented Glossip, another represented Oklahoma, and the third defended the Oklahoma Court of Criminal Appeals’ ruling against Glossip.
It’s not unheard of for the justices to appoint third parties to defend abandoned positions, but the practice made for an unusual outing in this capital case. Former U.S. solicitors general represented Glossip (Seth Waxman) and Oklahoma (top conservative lawyer Paul Clement). The appointed lawyer, Christopher Michel, also previously worked in the solicitor general’s office, and he clerked for Chief Justice John Roberts as well as Justice Brett Kavanaugh when the latter was a federal appeals court judge.
But despite the state’s confession of error, Justices Clarence Thomas and Samuel Alito in particular quizzed the lawyers in ways that suggested those justices want Glossip’s execution to go forward. That’s not surprising, given that they and Justice Neil Gorsuch have split from even their Republican-appointed colleagues to vote against death row prisoners.
So what about Gorsuch, then? In another twist, he’s recused. He didn’t explain why, but it’s probably because he sat on prior Glossip-related litigation when he was a federal appellate judge on the court that covers Oklahoma.
But even in Gorsuch’s absence, it’s not guaranteed that Glossip and Oklahoma will succeed in getting a new trial. Because a 4-4 tie would uphold the state court ruling, they need to convince a majority of this eight-justice court. Wednesday’s hearing reflected that the court’s three Democratic appointees are (as expected) prepared to side with Glossip, who maintains his innocence. That leaves the open question of Roberts and Justices Kavanaugh and Amy Coney Barrett, whose votes can be decisive at the court these days. This life-or-death appeal is no different.
How the court will ultimately rule, in a decision expected by late June, is further complicated by the fact that there are multiple legal issues in play. There’s a threshold issue (added by the court when it took up the case) about whether the justices even have jurisdiction to review the Oklahoma state court ruling. It’s the sort of procedural hurdle that the high court likes to employ, to avoid having to deal with potential injustices lurking in the actual merits of cases.
The merits of Glossip’s appeal deal with due process, including whether that constitutional mandate was violated when prosecutors suppressed their key witness’s admission that he was under the care of a psychiatrist and failed to correct the witness’s false testimony about that care and related diagnosis.
With the caveat that questions at oral argument don’t necessarily signal how a justice will vote, Kavanaugh at one point asked the appointed lawyer, Michel, a question that could be seen as hopeful for Glossip:
I think you had said earlier ..., if you get past all the procedural bars and you get to the point where the prosecutors didn't comply with their obligations, that it still wouldn't have made a difference to the jury had they known that Sneed [the key state witness] was bipolar and that he had lied on the stand. And I'm having some trouble on that last piece of the argument, if we get there, ... when the whole case depended on his credibility.
Thomas, meanwhile, seemed to take offense at the notion that there was prosecutorial misconduct in this case. At least he thought the prosecutors didn’t get to fully explain themselves. “[I]t would seem that because not only, you know, their reputations are being impugned, but they are central to this case, it would seem that ... an interview of these two prosecutors would be central,” Thomas said, in a theme that he pressed throughout the hearing.
Lawyers for Glossip and Oklahoma contested that the prosecutors were given short shrift. But on the subject of factual discrepancies in the case, some justices’ questions raised the prospect of the court sending the case back for a hearing to get more information. While that could obviously be better for Glossip (and Oklahoma) than the justices upholding the state court ruling against him right now, his lawyer said on Wednesday that “[n]o evidentiary hearing could alter the conclusion that Mr. Glossip was denied due process.”
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This article was originally published on MSNBC.com
US Supreme Court signals concern over Glossip death penalty decision
Updated Wed, October 9, 2024
By John Kruzel, Andrew Chung
WASHINGTON (Reuters) -U.S. Supreme Court justices raised concerns on Wednesday about a judicial decision that would let Richard Glossip's execution move forward as they wrestled with the Oklahoma death row inmate's appeal of his conviction for a 1997 murder-for-hire.
The justices during arguments in the case probed whether an Oklahoma court properly weighed newly revealed information that Glossip's lawyers said would have aided his defense and which the state's Republican attorney general, Gentner Drummond, called wrongly withheld by prosecutors.
Glossip asked the justices to throw out his conviction and grant him a new trial after the Oklahoma Court of Criminal Appeals upheld his death sentence despite potentially exculpatory evidence being found in an independent investigation ordered last year by Drummond, who supports Glossip's appeal.
Glossip, now 61, was convicted of commissioning the murder of Barry Van Treese, owner of the Best Budget Inn motel in Oklahoma City where Glossip was a manager. All parties agree Van Treese was fatally beaten with a baseball bat by maintenance worker Justin Sneed. Sneed confessed to the murder but avoided capital punishment by accepting a plea deal that involved testifying that Glossip paid him $10,000 to do it.
Securing a murder conviction against Glossip hinged on the testimony of Sneed, who was a methamphetamine addict. Glossip admitted to helping Sneed cover up the murder after it occurred, but denied knowing Sneed planned to kill Van Treese or encouraging him to do so.
The Supreme Court last year halted Glossip's scheduled execution while his appeal proceeded.
The evidence disclosed last year by Drummond - including a prosecutor's hand-written notes from a meeting with Sneed - cast doubt on Sneed's credibility, according to Glossip's lawyers. They contend they were kept in the dark about Sneed receiving psychiatric treatment for bipolar disorder immediately after his arrest, and that prosecutors failed to correct Sneed's false statement about his prescription for the medication lithium.
Former U.S. Solicitor General Seth Waxman, representing Glossip, said Glossip was "convicted on the word of one man," referring to Sneed, and that his conviction violated the U.S. Constitution's right to due process.
"He (Sneed) lied to the jury about his history of psychiatric treatment, including the fact that a prison psychiatrist prescribed lithium to treat his previously undiagnosed bipolar disorder," Waxman added.
"The prosecution suppressed that evidence and then failed to correct Mr. Sneed's perjured denial," Waxman added.
'FALSE IS FALSE'
Because Oklahoma's attorney general is supporting Glossip's appeal, the Supreme Court tapped an outside lawyer, private attorney Christopher Michel, to argue to uphold Glossip's conviction.
Michel sought to rebut Waxman concerning the meaning and significance of the newly disclosed information.
"Your one witness has been exposed as a liar," liberal Justice Elena Kagan told Michel, adding, "False is false."
Michel said that "it still wouldn't have made a difference to the jury had they known that Sneed was bipolar and that he lied on the stand."
"I'm having some trouble ... understanding that," conservative Justice Brett Kavanaugh told Michel, "when the whole case depended on his credibility."
Liberal Justice Ketanji Brown Jackson and conservative Justice Samuel Alito suggested that the justices could return the case to a lower court for an evidentiary hearing to assess the information made available by Drummond.
Drummond became an unlikely ally of Glossip after the investigation he commissioned led him to conclude prosecutors hid evidence that might have led to an acquittal. Although Drummond said he believes Glossip's role in covering up Van Treese's murder makes him at least an "accessory after the fact," justifying a long prison sentence, Glossip's murder conviction was too flawed for him to defend.
Michel urged the justices to dismiss the case, leaving Glossip "free to pursue state law clemency or other available relief." If the Supreme Court decides the case's legal merits, Michel urged it to defer to the Oklahoma court's ruling upholding Glossip's conviction based on a state law limiting on post-conviction legal efforts.
Kagan raised concerns about the Oklahoma court's ruling, calling its review of the legal merits and complex procedural issues "very confusing."
"I mean everything was intertwined with everything else," Kagan said.
"You've issued, you know, a strong legal writing critique of this opinion," Michel told Kagan.
"I haven't even started," Kagan responded, eliciting laughter from the courtroom.
Conservative Justice Clarence Thomas questioned why Waxman had not interviewed two prosecutors involved in the case.
"Not only because their reputations are being impugned but (because) they are central to this case, it would seem that an interview of these two prosecutors would be central," Thomas said.
The justices are expected to issue their ruling by the end of June. Justice Neil Gorsuch did not participate in considering Glossip's appeal, apparently because he earlier dealt with the case while serving on a lower court.
(Reporting by John Kruzel; Editing by Will Dunham)
Supreme Court’s conservatives wrestle with case of death row inmate Richard Glossip, who prosecutors want spared
John Fritze and Devan Cole, CNN
Wed, October 9, 2024
The Supreme Court grappled Wednesday with an appeal from an Oklahoma death row inmate who even the state’s conservative attorney general believes should not be executed, with some justices signaling a willingness to let state courts further review allegations that prosecutors withheld evidence in the case.
After nearly two hours of oral argument, it was clear the court’s three-justice liberal wing would side with Richard Glossip, 61, who was convicted of arranging the murder of Barry Van Treese in 1997. At least two of the court’s conservatives — Justices Clarence Thomas and Samuel Alito — signaled deep reservations with Glossip’s appeal and indicated they would oppose him.
Of the conservatives, Justice Brett Kavanaugh seemed the most sympathetic to Glossip, who has been scheduled for execution nine times and has eaten his last meal three times only to have his execution stayed.
That means the high court’s majority decision will likely come down to how Chief Justice John Roberts and Justice Amy Coney Barrett view his case.
Glossip’s conviction rests on the testimony of Justin Sneed, the man who killed Van Treese with a baseball bat in a hotel.
In exchange for avoiding the death sentence himself, Sneed implicated Glossip as the mastermind of the crime. But years after Glossip’s conviction, the state disclosed evidence that Sneed was treated for a serious psychiatric condition — a revelation Glossip’s attorneys say prosecutors withheld from the jury.
“He lied on the stand,” said Justice Elena Kagan, a liberal, noting that Sneed testified that he never saw a psychiatrist when, in fact, it was a prison psychiatrist who had prescribed him lithium to treat bipolar disorder. “Your one witness has been exposed as a liar.”
Thomas, who, along with Alito, led the questioning opposing Glossip, repeatedly asked why investigators looking into the case years later didn’t more thoroughly question the prosecutors involved at the time about notes they had taken indicating they knew about Sneed’s diagnosis and treatment.
“They are central to this case,” Thomas said of the prosecutors. “It would seem an interview of these two prosecutors would be central.”
That could open a potential solution for the court. Several members, including liberal Justice Ketanji Brown Jackson, discussed the possibility of sending the case back to state court to further review the meaning of the notes prosecutors took at the time.
“Why wouldn’t we send it back for an evidentiary hearing?” Jackson said at one point. “It’s my understanding that there’s never been a court determination of any of these facts.”
Death penalty cases are getting more attention at SCOTUS
The case has landed at the Supreme Court at a moment when the death penalty — and the court’s approach to it — is the focus of unusual attention and scrutiny.
A divided decision last month allowing Missouri to execute Marcellus Williams — despite the objection of prosecutors — drew sharp criticism from groups opposed to the death penalty.
Several other death penalty appeals, meanwhile, are pending on the Supreme Court’s docket. On Friday, the court granted an appeal from Ruben Gutierrez, a death row inmate in Texas who was denied an opportunity to seek post-conviction DNA testing. The case will likely be up for oral argument early next year.
The justices will also be deciding whether to hear arguments in other death row cases when they convene on Friday for their weekly, closed-door conference meeting. One involves an Oklahoma woman convicted of killing her husband who says prosecutors sex-shamed her during her trial, referring to her in court as a “slut puppy” and holding up her underwear for the jury. Another involves an Alabama man who claims he is intellectually disabled and therefore ineligible for execution under Supreme Court precedent.
The Glossip case is arguably the highest profile to reach the court in years, and it drew two of the most experienced Supreme Court lawyers in the nation. Seth Waxman, a former solicitor general, is arguing on Glossip’s behalf. Oklahoma Attorney General Gentner Drummond, a Republican who supports sparing Glossip, was represented by Paul Clement, also a former solicitor general.
Even though Drummond called for a new trial, the Court of Criminal Appeals of Oklahoma upheld Glossip’s sentence, ruling that the evidence at issue wouldn’t have changed the outcome of the case and that Glossip’s attorneys knew that Sneed was taking lithium.
Kavanaugh, who could prove to be a key vote, raised a concern with that position. Kavanaugh said he was having “some trouble” with the idea that “it still wouldn’t have made a difference to the jury had they known that Sneed was bipolar and that he had lied on the stand.”
Justice Neil Gorsuch was recused, meaning that only eight justices will decide Glossip’s fate.
Before the justices can even reach the merits of Glossip’s appeal, they must first resolve a procedural hurdle: Whether the state court erred in ignoring Drummond’s admission of error. Defending the conviction and sentence, attorney Christopher Michel argued that the state court decided the case in a way that leaves the Supreme Court little room to rule in favor of Glossip.
Glossip has filed many appeals during his more than 25 years behind bars. In 2015, the Supreme Court rejected his challenge to a new lethal injection protocol the state had adopted.
Supreme Court could give convicted Oklahoma killer Glossip another shot at avoiding execution
DEVIN DWYER
Wed, October 9, 2024
Despite decades of failed death row appeals, Oklahoma inmate Richard Glossip may get another shot in court at overturning his conviction after a majority of U.S. Supreme Court justices indicated Wednesday that he might not have gotten a fair trial.
While the court's conservative majority rarely agrees to hear capital cases, much less grant relief, Glossip's plea has drawn unique attention from the justices because the state's Republican Attorney General agrees that the trial was "deeply flawed."
The state's highest court, by contrast, has ruled that all of Glossip's appeals have been exhausted and that claims of prosecutorial misconduct would not have changed the outcome.
PHOTO: This photo provided by the Oklahoma Department of Corrections shows death row inmate Richard Glossip on Feb. 19, 2021. (Oklahoma Department of Corrections via AP, FILE)
During oral arguments, the justices wrestled first with whether the court even had jurisdiction to intervene in the state case. They also grappled with whether suppression of evidence and the allowing of a key witness to lie on the stand violated Glossip's civil rights.
MORE: Supreme Court to hear 'remarkable' Oklahoma death penalty appeal from Richard Glossip
Glossip, 61, was convicted in 1998 for ordering the killing of his then-boss Barry Van Treese. The actual killer, Justin Sneed, testified in exchange for a life sentence that Glossip had paid him $10,000 to do it. Glossip has maintained his innocence, but no court has granted his appeal.
It was discovered after trial that Sneed had been taking lithium to treat bipolar disorder, even though on the stand he denied mental illness. Several independent reviews suggest the prosecutor may have known Sneed was lying but did not correct the testimony.
Several justices suggested they were uncomfortable with backing an execution under the circumstances.
"The whole case depended on [Sneed's] credibility," noted Justice Brett Kavanaugh, who said he was "having some trouble" with the idea that the mental illness revelations wouldn't have affected the jury.
Justice Sonia Sotomayor suggested that acknowledgment of a bipolar condition could have raised the possibility "that [Sneed's] use of drugs would have led to impulsive and violent behavior."
"If you can show that he lied on the stand when he said 'I never saw a psychiatrist and I didn't get a prescription from the psychiatrist,'" said Justice Elena Kagan, "that seems pretty material to me. I mean, it's just your one witness has been exposed as a liar."
At the same time, several of the court's conservatives -- most notably Justices Clarence Thomas and Samuel Alito – sharply disagreed.
"Do you really think it would make that much of a difference to the jury?" asked Chief Justice John Roberts about details of Sneed's psychiatric condition.
"It very well could have made a significant difference in the outcome of the case," replied Glossip attorney and former U.S. Solicitor General Seth Waxman.
Justice Ketanji Brown Jackson, the court's junior justice and a member of the liberal wing, hinted at a middle ground approach: ordering an Oklahoma court to more closely examine evidence of alleged prosecutorial misconduct before ruling on a new trial.
"It's my understanding that there's never been a court determination of any of these facts," Jackson said. "Why we wouldn't, at the minimum, have some sort of requirement that a court make a finding about these things?"
Only eight justices heard arguments on Wednesday after Justice Neil Gorsuch -- a former appeals court judge who had connection to the case -- recused himself. They can vote to overturn Glossip's conviction, uphold it, or return the case to a state court for further proceedings. A 4-4 tie would let the Oklahoma decision stand and clear the way for an execution.
PHOTO: Oklahoma Attorney General Gentner Drummond testifies during a House Homeland Security Committee hearing on Capitol Hill in Washington, Jan. 10, 2024. (Nathan Howard/Reuters, FILE)
Oklahoma Attorney General Gentner Drummond has said he does not believe Glossip is innocent but that a new trial is imperative to upholding the credibility of the judicial system.
"The death penalty doesn't turn on, you know, ideology or politics. It should turn on the rule of law," he told ABC News in an interview. "This has been a wildly unpopular position for me to take, but it's the right thing to do."
Glossip was first convicted in 1998 and again in 2004 after a state appeals court ordered a new trial. He has lost appeals at the state clemency board and also had clemency denied by the governor.
In a separate Supreme Court case in 2015, Glossip unsuccessfully challenged Oklahoma's lethal injection drug protocol. He has been scheduled for execution nine times and served his "last meal" three times.
The Van Treese family told the high court in a friend-of-the-court filing that it wants Glossip's conviction and sentence upheld.
A decision in the case is expected by early 2025.
The Lesson We Should Take From Glossip v. Oklahoma
Dana Bazelon
Wed, October 9, 2024
On Wednesday, the Supreme Court will hear argument on whether Richard Glossip should be executed for a crime that even the people who originally prosecuted him are not confident he committed. His case, along with the high court’s recent refusal to stay the execution of Marcellus Williams, sheds light on a troubling trend. As the wrongful conviction movement has succeeded in persuading many prosecutors to revisit and even concede relief in past cases, prosecutors—and the courts—who weren’t involved in the original trial are doubling down on flawed convictions.
Glossip has spent the past 27 years in prison awaiting execution, convicted of murdering his boss at the Best Budget Inn in Oklahoma City based solely on the uncorroborated testimony of his co-defendant Justin Sneed, who testified as part of his own plea deal to avoid the death penalty. Everyone agrees that it was Sneed, not Glossip, who bludgeoned the victim to death with a bat, but Sneed later claimed that Glossip had put him up to it. Glossip would likely have been executed already, but in 2023, the Oklahoma City district attorney’s office that had prosecuted him turned over evidence showing that Sneed had been diagnosed with serious mental illness and had attempted to recant his testimony, facts the office was aware of at Glossip’s trial but did not disclose.
After this evidence came to light, the Oklahoma City DA agreed that Glossip was entitled to a new trial, acknowledging that the credibility of the only witness against him had crumbled and that Glossip had been denied a fair trial. But Glossip is still awaiting execution, even as official after official (the DA, the Oklahoma attorney general, 62 Oklahoma state legislators, and two independent investigators) has opined that Glossip deserves a new trial.
None of this was enough for the Oklahoma Criminal Court of Appeals, which refused to overturn his conviction last year. Instead, the court instructed the state to set an execution date because, in its view, Glossip had failed to prove his innocence by clear and convincing evidence. In January, the Supreme Court agreed to hear the case, staying Glossip’s execution for the ninth time.
Advocates for the innocent have spent decades persuading prosecutors’ offices to take on the important work of honestly and openly revisiting past convictions in which defendants allege that the offices committed serious errors—most commonly withholding evidence that the defendant was entitled to. In many jurisdictions, these efforts have been a success. Prosecutors in at least 120 jurisdictions have created conviction integrity units, which investigate the office’s past errors and, when appropriate, work to overturn convictions of the wrongfully incarcerated. In 2021 alone, CIUs helped secure 60 percent of all exonerations.
But the tortured history of Glossip’s case brings into sharp relief a larger problem plaguing the wrongful conviction movement: As the concessions have become more common, they are meeting resistance from the courts and from other prosecutors.
When one prosecutor agrees that a conviction should be overturned, it has become common for another prosecutor (typically the state’s attorney general) to step forward and render a separate opinion. This happened to Glossip, and it worked in his favor, but usually that is not the case. Many wrongfully convicted defendants’ chances at freedom are either delayed or denied because even when the prosecutor who put them in jail is ready to acknowledge that the conviction cannot stand, there is a second prosecutor standing behind the first one, saying the opposite.
Attorneys general become parties in these postconviction proceedings either by their own request or at the behest of the court. Getting a second opinion may sound like a sensible “belt and suspenders” sort of approach to take when making a serious decision like overturning a conviction, but the reality is much more complicated. At its least harmful, these additional advocates cost time and government resources. But often these extra prosecutors stand in opposition to the relief that defendants are due, leading to further injustice. There is no legal reason to require a second set of prosecutors to review a case, just to be sure, and doing so may not lead to fairer outcomes.
Just last month, the state of Missouri executed Marcellus Williams, despite the fact that the St. Louis prosecuting attorney Wesley Bell, whose office convicted Williams back in 2001, had petitioned the court to overturn the conviction and stop the execution. By the time Williams was executed, most of the evidence against him had been called into question. The two witnesses against him had been paid for their testimony, and their stories didn’t match the other evidence in the case. Bloody footprints and hairs left at the scene did not belong to Williams, and the DNA samples recovered from the murder weapon could not be conclusively tested, due to likely mishandling by prosecutors and a state investigator.
Additionally, the trial prosecutor struck at least one of the potential jurors because he claimed that the juror and Williams “looked like brothers,” a not-so-subtle nod to the fact that both Williams and the juror were Black men. (It is unconstitutional to exclude a juror based on race). The case against Williams had become so muddled that the victim’s family favored commuting his death sentence and allowing him to serve life without the possibility of parole.
It was under these circumstances that Williams and the DA reached a deal: Williams would agree to an Alford plea, whereby he would maintain his innocence but agree to serve a life sentence. The judge reviewed all the pleadings, spoke to the victim’s family, and agreed that the negotiation was “a proper remedy” under the circumstances.
But then the Missouri AG inserted himself into the process, appealing to the state Supreme Court and scuttling a deal between Bell and Williams. The court sided with the AG. A set of hearings followed to determine whether Williams’ conviction should be overturned altogether, during which the attorney general repeatedly urged the court to allow the execution to go forward. The Missouri Supreme Court again sided with the AG, ruling that “there is no clear and convincing evidence that Williams is actually innocent,” and Williams was put to death.
After a prosecutor has agreed to overturn a conviction, courts often welcome the intervention of another prosecutor to argue for the conviction; they believe that this will allow them to hear both sides of the argument. The adversarial system—in which two parties with opposing interests argue against each other—is hailed from the first year of law school as the ultimate way to ascertain the truth.
In reality, however, there is no reason to believe that the court must hear from someone defending a conviction that both sides have agreed is wrongful. Assigning more lawyers to a problem can cause a paradoxical decrease in the accuracy of the outcome. It can lead to unnecessary complexity and escalated disputes and waste government resources.
The desire to hear from a second set of prosecutors ignores the reality that many hearings in criminal court proceed by agreement, the outcome negotiated in advance by both parties. Plea agreements are perhaps the most obvious example: Typically, a prosecutor and a defendant will agree on the terms of the plea—what charges the defendant will plead to and what sentence they will serve. They then go before a judge, who decides whether to agree to the negotiation or reject it. As in a postconviction hearing, judges can ask questions, plumb the record for details, and, when they see fit, refuse to accept the deal negotiated by the parties. The presence of a third party, arguing that the defendant should be convicted of the top charge and be sentenced to the longest possible term of incarceration, would serve only to muddle the proceedings and cause delay. Similarly, a prosecutor popping up to defend a conviction that they had nothing to do with usually serves only to impede the process, not to promote a more just outcome.
The pressure to have someone defend the conviction is all the more potent when victims’ families oppose the relief that the prosecutor has agreed to. Some of the tension here could be eased if DAs did a better job communicating with families far in advance of conceding relief and did more to explain their reasons and the proceedings. Having a conviction overturned can be deeply traumatizing, and victims’ families need support at every stage of the process. But regardless of the reasons victims oppose relief, they have a right to be heard and should be welcome to participate in the proceedings, as amici (friends of the court), given the opportunity to speak and tell their stories. At the same time, they do not have the last word as to whether a conviction should be overturned, and we do not need attorneys general stepping in to speak for them in every case.
A case currently before the Pennsylvania Supreme Court shows just how far some attorneys general will go to be heard when DAs concede and how personal these battles can become. The Pennsylvania AG has asked the Supreme Court to “invite or appoint” another prosecutor (presumably the AG) to intervene in cases when local DAs have conceded relief and when there is a “pattern of problematic concessions” from that DA in the past. The petition is aimed squarely at a former boss of mine, progressive prosecutor Larry Krasner, whose record of investigating and working to overturn wrongful convictions has been a centerpiece of his administration. (I worked as his director of policy for six years, but I did not do conviction integrity work. My current employer, the Quattrone Center for the Fair Administration of Justice, has filed an amicus brief in this case, raising concerns about the AG’s position.)
Shortly after he took office, Krasner took the step of opening prosecutorial and police files up to defense lawyers in postconviction proceedings so that they could see for themselves if the office had held back relevant information. This step, combined with the robust CIU at the Philly DA’s office has led to 49 exonerations to date—not because Krasner has lost his mind, but because Philadelphia has a long and sad history of convicting the wrong people.
Without pointing to a single case in which a defendant was set free improperly, the state attorney general is inviting the court to appoint another prosecutor to intervene in all of the cases in which Philadelphia prosecutors concede relief, because they don’t think the courts can trust Larry Krasner. If the court sides with the AG, it will almost certainly be making it more difficult for wrongfully convicted Philadelphians to secure the relief they deserve.
Recent events in Missouri show the potential problems with an attorney general’s involvement in cases when local DAs concede relief. In 2021 Missouri passed a law that allows prosecutors to reopen cases for which they believe that the defendant was wrongfully convicted. The bill also gave the attorney general the right to participate, review documents, question witnesses, and make arguments.
Since then, the AG’s office has been actively involved in these cases, often fighting against giving the defendant a hearing at all and raising a host of challenges from the jurisdiction where the case should be heard to the name under which the case is docketed. (The AG wants the case to bear the name of the prosecutor who is agreeing to relief, not the name of the defendant.) One DA’s office said that it felt as if it had been “bombed” with motions and demands from the AG’s office, designed to keep the case from being heard and the defendant behind bars.
All of this brings us back to Richard Glossip, whose life will hang in the balance during Wednesday’s oral argument before the Supreme Court. Glossip has been scheduled for execution nine times and been served his final meal three times, only to find his life grudgingly restored to him at the last moment.
Glossip’s case shows us just how hard it is and how long it takes for a potentially innocent man to have his conviction overturned, even when the DA, the attorney general, state legislators, and two independent investigators have all been convinced that this is the only just outcome. Even if SCOTUS rules in Glossip’s favor, his case sets the bar impossibly high: How can the average wrongfully convicted defendant, who cannot dream of receiving the attention and resources that Glossip has garnered, hope to prevail?
It should not be so hard for wrongfully convicted people to win their freedom. One way to ameliorate this problem is to trust prosecutors when they concede errors, in the same way we trust them when they negotiate plea agreements or withdraw cases that they do not have the evidence to prove. Prosecutors do not agree to exonerations lightly or easily—quite the opposite—and a court’s fear of error can be assuaged with a careful review of the record. Every additional layer of process that courts and attorneys general demand in these cases is likely to be an impediment to justice being done.
An `unusual lineup'
Maureen Groppe, USA TODAY
Updated Wed, October 9, 2024
WASHINGTON − Oklahoma death row inmate Richard Glossip, whose request for a new trial will be heard at the Supreme Court on Wednesday, has received nine execution dates and eaten his “last meal” three times.
He’s made multiple appeals to the high court, including in 2015 when he lost his challenge to Oklahoma’s lethal injection protocol.
This time, however, Glossip and Oklahoma are on the same side.
The state agrees that evidence uncovered after recent investigations show Glossip, 61, did not get a fair trial when juries found him complicit in the 1997 murder of his boss at an Oklahoma City budget motel. The state's key witness was diagnosed with bipolar disorder, which he lied about on the stand, prosecutors now say.
But the Oklahoma Court of Criminal Appeals last year said the state attorney general’s request to set aside Glossip’s conviction was not sufficient reason to halt the execution.
Now Oklahoma – the state with the highest per capita execution rate – is joining Glossip in asking the Supreme Court to overturn that decision and set a new trial. Because the state agrees with Glossip, the court appointed an attorney to argue the other side.
“That is a very unusual lineup,” said Robin Maher, executive director of the Death Penalty Information Center, which does not take a position on the death penalty but is critical of problems in its application.
But what advocates say is distressingly not unusual is the role that the type of prosecutorial misconduct the state acknowledges in Glossip’s case – not disclosing evidence that would have undercut the prosecution and allowing false testimony about the evidence – plays in wrongful convictions.
Studies of exonerations have found prosecutors concealed important evidence in 44% of the cases reviewed, and found concealed evidence contributed to 61% of wrongful convictions of murder, the Innocence Project told the Supreme Court in a filing.
Victim's family says no more delay
But family members of Barry Van Treese, the man Glossip has been convicted of helping murder in 1997, say there was no prosecutorial error in this case.
“Today – 10,047 days later – the Van Treese family has an interest in seeing Oklahoma’s duly imposed sentence on Glossip carried out without further delay,” their lawyer told the court in a filing.
A screenshot of Richard Glossip as he speaks via video to the Oklahoma Pardon and Parole Board during his clemency hearing on Wed. April 26, 2023.
Van Treese, the owner of an Oklahoma City Best Budget Inn, was bludgeoned to death with a baseball bat in one of the motel’s guest rooms.
Justin Sneed, the motel’s maintenance man, confessed to killing Van Treese. But he said Glossip pressured him into doing it, offering him $10,000. Sneed’s testimony against Glossip allowed him – but not Glossip −to avoid a death sentence.
Glossip was first convicted and sentenced to death in 1998. Three years later, the Oklahoma Court of Criminal Appeals ruled he deserved a new trial because his defense attorney was inadequate.
A second jury found Glossip guilty in 2004.
First `last meal' was in 2015
Glossip had his first “last meal” in January of 2015, before the Supreme Court temporarily halted the execution to hear his challenge to Oklahoma’s lethal injection protocol.
The court ruled against Glossip who − twice − was hours away from being executed before Oklahoma began a six-year moratorium on the death penalty. That came after the attorney general expressed concern about the Oklahoma's ability to properly carry out an execution. The state had received the wrong drug for Glossip's scheduled lethal injection.
The delays allowed Glossip's attorney – Don Knight – to continue investigating, resulting in recently getting to see information the state previously hadn’t shared with the defense.
“It’s taken this long to get that evidence,” Knight said of the boxes of documents he received in the past two years.
`Troubling evidence of grave prosecutorial misconduct'
Buried inside the final box turned over last year was a page of notes handwritten by the prosecutor from a pre-trial interview with Sneed.
Oklahoma now says the notes show Sneed – the “one indispensable witness against Glossip” – lied on the stand about whether he had been diagnosed with bipolar disorder. Prosecutors knowingly elicited Sneed’s false testimony about why he had received lithium and failed to correct the record, the state says.
Because of that "troubling evidence of grave prosecutorial misconduct," the attorney general launched an outside investigation and "made the difficult but necessary decision to confess error," Paul Clement, a former U.S. solicitor general during George W. Bush administration who is representing Oklahoma before the Supreme Court, wrote in a filing.
Glossip is being represented at the high court by Seth Waxman, who served as solicitor general during the Clinton administration. He says Glossip was denied the chance to show the jury Sneed’s memory was unreliable and that he was willing to lie on the stand.
Oklahoma is not arguing that Glossip is innocent. But that “the death penalty should be reserved for defendants found guilty beyond reasonable doubt after a fair trial free from prosecutorial misconduct.”
The American Civil Liberties Union told the court that while it’s difficult to determine how often prosecutors withhold evidence, “even the number of known violations in Oklahoma is shocking.”
`Potential political motivations'
But members of the Van Treese family say the prosecutor’s notes are being misread and no evidence was concealed, suggesting there are “potential political motivations” behind Oklahoma Attorney General Gentner Drummond’s confession of error.
“It would not be surprising to find that one politically elected official might view the facts of a case one way, while another might go in a different direction,” Paul Cassell, the attorney representing the family, told the court. “But if officials are free to simply confess `error’ because they disagree with the case’s outcome, trust in the criminal justice system becomes the casualty.”
Attorney General Gentner Drummond listens to a panel at the Sovereignty Symposium at the Skirvin Hilton Oklahoma City in Oklahoma City, Wednesday, June, 14, 2023.
Clement said any suggestion that Oklahoma has joined forces with death-penalty opponents is “divorced from reality.” The state carried out four executions last year alone, all with the support of Drummond, he noted.
“Public confidence in the death penalty requires that these cases receive the highest standard of reliability,” Drummond said last year after the Oklahoma Pardon and Parole Board voted against recommending clemency for Glossip. “While the State has not questioned the integrity of previous death penalty cases, the Glossip conviction is very different. I believe it would be a grave injustice to execute an individual whose trial conviction was beset by a litany of errors.”
Drummond began looking into the case − which he called "shrouded in controversy" −shortly after taking office in 2023.
Knight, Glossip’s attorney, said it took a lot of courage for the top law enforcement official of a state “where the politics are so pro-death penalty” to argue Glossip didn’t get a fair trial.
“For an attorney general in Oklahoma to stand up for that right means he’s standing up for all of us and saying, `Not on my watch,’” Knight said. “And I give him a lot of credit for that.”
This article originally appeared on USA TODAY: Oklahoma joins death row inmate Glossip in Supreme Court appeal
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U.S. Supreme Court hears arguments on Oklahoma capital conviction of Richard Glossip
Nuria Martinez-Keel
Wed, October 9, 2024
A law enforcement officer patrols in front of the U.S. Supreme Court on Wednesday during oral arguments about a due process death penalty case involving Oklahoma defendant Richard Glossip. (Photo by Jane Norman/States Newsroom)
OKLAHOMA CITY — An appeal from Oklahoma death-row inmate Richard Glossip came before the nation’s highest court on Wednesday, as he and Attorney General Gentner Drummond formed an unusual union arguing for his murder conviction to be vacated.
Attorneys representing Glossip and Drummond both asked the U.S. Supreme Court to return the case to district court for a retrial. They contend prosecutorial misconduct marred Glossip’s previous conviction and prevented him from receiving a fair trial.
The Supreme Court’s three liberal justices heavily questioned the Oklahoma Court of Criminal Appeals’ reasoning when it upheld Glossip’s conviction and death sentence, despite the attorney general reporting prosecutorial errors. Responses appeared to be mixed from the Court’s conservative justices, with some appearing to side with the Oklahoma appeals court and another saying it was “unusual” the way Drummond’s complaints were dismissed.
The Supreme Court is expected to rule on the case by June.
Glossip, 61, was found guilty of plotting the 1997 murder of his boss, Oklahoma City motel owner Barry Van Treese, and was sentenced to death. Another employee at the motel, Justin Sneed, testified that Glossip paid him to carry out the killing.
However, Glossip and Drummond both contend the prosecution allowed Sneed to lie on the stand about his psychiatric condition and failed to turn over evidence to the defense that would have revealed the star witness was being treated for a mental illness.
When Sneed lied that he didn’t know why he was given lithium, prosecutors made no attempt to correct the record and withheld information from the defense that would have shown the witness was untruthful, legal counsel for Glossip and Drummond said.
They contended Glossip’s trial might have had a different result had the defense and the jury been aware of this information. The prosecutors’ case hinged on Sneed’s testimony.
The state Court of Criminal Appeals, though, said Glossip’s attorneys during the trial either knew or should have known about Sneed’s mental illness and chose not to question him about it. The Oklahoma appeals court also doubted that a correction of Sneed’s testimony mid-trial would have changed the outcome.
Justice Elena Kagan disagreed. Kagan, nominated to the Supreme Court in 2010 by President Barack Obama, said the jury might have found Sneed’s lie discrediting.
“The critical question that a jury is asking is, ‘Do I believe this guy in everything he says, and particularly, do I believe him when he points the finger at the accused?’” she said during oral arguments. “If he’s lying, if he’s trying to cover up something about his own behavior, I’m going to take that into account in deciding whether, when he accuses the defendant, he’s telling the truth.”
The more important issue, according to the Court of Criminal Appeals, is that these issues were not raised in earlier appeals. Even with the attorney general on his side, Glossip’s latest appeal falls short of procedural requirements to be seriously considered, the Oklahoma court decided.
Kagan and the Court’s other two liberal justices, Sonia Sotomayor and Ketanji Brown Jackson, appeared to reject the Oklahoma court’s procedural gripes when it denied Drummond’s request for a new trial.
An attorney representing Drummond in the oral arguments, Paul Clement, said years of common practice and precedent in Oklahoma allow the state to set aside procedural hurdles when alleged due process violations have been discovered.
Even a member of the Court’s conservative majority, Justice Amy Coney Barrett, acknowledged that it was “unusual” for the appeals court not to grant Drummond’s request to waive the procedural matters.
But, conservative Justice Samuel Alito pointed out that even with the other issues set aside, the appeals court said it still didn’t see enough reason to vacate Glossip’s conviction.
“I don’t see what’s unclear or even ambiguous about that,” Alito said.
Justice Clarence Thomas, nominated in 1991 by President George H.W. Bush, repeatedly asked why the original prosecutors weren’t interviewed at length.
“These two prosecutors, it seems as though their reputations are being impugned, and according to them, they did not receive an opportunity to explain in depth,” Thomas said.
Drummond shortly after taking office last year initiated an independent investigation of the Glossip case. The investigator found “multiple instances of error that cast doubt on the conviction,” according to the Attorney General’s Office.
That prompted Drummond to ask the state Court of Criminal Appeals in April 2023 to remand Glossip back to district court for another trial.
The appeals court ruling put Glossip back on track toward execution until the U.S. Supreme Court intervened days before his scheduled death in May 2023. The Court then agreed in January to review his case.
So far, Glossip has been scheduled for execution nine times and eaten three “last meals.” He is imprisoned in the Oklahoma State Penitentiary in McAlester.
Drummond has not said he believes Glossip is innocent but rather argued that the defendant cannot be convicted and executed without receiving due process.
“Oklahomans deserve to have absolute faith that the death penalty is administered fairly and with certainty,” Drummond said in a statement after the Supreme Court hearing. “Considering everything we know about this case, justice is not served by executing a man based on the testimony of a compromised witness.”
Family members of the murder victim, Van Treese, urged the Supreme Court to reject Glossip’s appeal and called for the execution to move forward. They and the Oklahoma District Attorneys Association filed a joint friend-of-the-court brief, which Alito said provided a “pretty compelling counter reading” on some of Glossip’s arguments.
The brief included remarks the victim’s son, Derek Van Treese, gave to the Oklahoma Pardon and Parole Board, which voted 2-2 against clemency for Glossip.
Derek Van Treese said multiple juries and courts have come to the same conclusion of Glossip’s guilt.
“The time is now, I urge you, I beg you to allow justice to finally be served through the word of law and the will of the people. Enough is enough,” Derek Van Treese said, according to his family’s brief.
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