The Supreme Court heard arguments this month in the high-profile innocence case of Richard Glossip, who was denied a new trial in Oklahoma even though the state’s top prosecutor conceded his conviction and death sentence were tainted by prosecutorial misconduct.
Last year, as Mr. Glossip faced his ninth execution date for a crime he has consistently maintained he did not commit, Oklahoma Attorney General Gentner Drummond made the extraordinary decision to ask the Oklahoma Court of Criminal Appeals to stop the execution.
He insisted that the court order a new trial because new evidence showed that the prosecution had allowed its key witness to lie on the stand and had suppressed evidence that cast doubt on the witness’s credibility.
“The prospect of executing an individual based on a conviction that the State’s chief law enforcement officer believes, after careful scrutiny, was secured by prosecutorial misconduct in violation of due process,” Mr. Drummond later wrote, “is all but unthinkable.”
But in a shocking move, the state court refused to accept the attorney general’s confession of error and denied a new trial, forcing Mr. Glossip to petition the Supreme Court for relief.
The attorney general supported Mr. Glossip’s petition, which asks the Court to consider whether “due process of law requires reversal where a capital conviction is so infected with errors that the State no longer seeks to defend it.”
“[E]nsuring that justice is done in this case requires a retrial,” the attorney general wrote in the State’s brief, adding that the state court’s decision “cries out for correction.”
At oral argument, lawyers for the State and Mr. Glossip both argued that the Supreme Court should reverse the state court’s erroneous decision rejecting the State’s findings that Mr. Glossip is entitled to a new trial.
A lawyer appointed by the Court to represent the Oklahoma Court of Criminal Appeals argued on procedural grounds that the Court lacks jurisdiction to grant relief because the state court’s decision was based on “adequate and independent” state law grounds.
But former U.S. solicitor general Paul Clement, representing the attorney general, told the justices the State has waived procedural bars in this case. The State has acknowledged that prosecutors knowingly elicited false testimony in order to win Mr. Glossip’s conviction.
“Our system of justice places awesome powers and responsibilities in the hands of prosecutors,” the attorney general told the Court in its brief. “When those prosecutors themselves recognize that they have overstepped, that judgment cannot be dismissed as just another litigation position.”
The Court will now consider whether, as the State has already conceded, prosecutors violated Mr. Glossip’s constitutional right to due process when they suppressed evidence that undermined the reliability of a key prosecution witness.
What Justice Requires
The Supreme Court’s decision to hear the case followed its May 5, 2023, order granting a stay of execution. The State had asked the Court to stay Mr. Glossip’s May 18 execution, saying it would be “unthinkable” to allow the execution to move forward where the State has acknowledged that Mr. Glossip did not receive a fair trial.
Mr. Glossip was convicted in 2004 for his alleged role in the 1997 murder of Barry Van Treese, the owner of a motel where Mr. Glossip worked. No physical evidence linked Mr. Glossip to the crime and he has maintained his innocence.
An independent review found that the State repeatedly failed to provide—and even destroyed—substantial evidence in the case.
The State’s case against Mr. Glossip centered around the testimony of then 19-year-old Justin Sneed. The independent review revealed that Mr. Sneed had been diagnosed with bipolar disorder and prescribed lithium while in jail. At trial, he denied ever seeing a psychiatrist and Mr. Glossip’s attorneys were not made aware of his condition.
“The state’s murder case against Glossip was not particularly strong and would have been, in my view, weaker if full discovery had been provided,” wrote Rex Duncan, the former prosecutor appointed to review the case.
Since 2004, Mr. Glossip, who is now 60, has been scheduled for execution nine times and has on more than one occasion come within hours of being put to death only to be granted a temporary stay. He has been served three final meals.
In 2015, the Supreme Court in Glossip v. Gross rejected Mr. Glossip’s challenge to the constitutionality of Oklahoma’s lethal injection protocol, permitting the State to execute him, and his execution was set for May 18, 2023.
But on April 6, 2023, citing the evidence of serious prosecutorial misconduct revealed by the independent review of Mr. Glossip’s case, Mr. Drummond asked the Oklahoma Court of Criminal Appeals to call off Mr. Glossip’s execution, vacate his conviction, and grant him a new trial.
“It is critical that Oklahomans have absolute faith that the death penalty is administered fairly and with certainty,” Mr. Drummond wrote in his motion. “Considering everything I know about this case, I do not believe that justice is served by executing a man based on the testimony of a compromised witness.”
The Court of Criminal Appeals rejected the State’s request just two weeks later, concluding the attorney general’s “‘concession’ does not directly provide statutory or legal grounds for relief in this case.”
“While I respect the Court of Criminal Appeals’ opinion, I am not willing to allow an execution to proceed despite so many doubts,” Mr. Drummond said in a statement. “Ensuring the integrity of the death penalty demands complete certainty. I will thoroughly review the ruling and consider what steps should be taken to ensure justice.”
In addition to the attorney general’s office, a bipartisan group that includes some of Oklahoma’s most conservative lawmakers has joined advocates and legal experts in calling for a new trial for Mr. Glossip.
“There has never been an execution in the history of this country where the state and the defense agreed that the defendant was not afforded a fair trial,” Rep. Kevin McDugle, a Republican, told CNN. “Oklahoma cannot become the first.”