Supreme Court to Weigh Death Sentence Oklahoma Says Was Wrong

Oklahoma and death row inmate Richard Glossip agree that his murder conviction and capital sentence should be undone. The US Supreme Court may rule that the state must kill him anyway.

Glossip was convicted in the 1997 murder-for-hire of his boss, Barry Van Treese. Since then, the state, through its Republican attorney general, issued what’s known as a “confession of error.”

Citing multiple constitutional flaws, Oklahoma Attorney General Gentner Drummond said in 2023 that he “cannot stand behind the murder conviction and death sentence.”

The state’s highest criminal court rejected that confession though, along with Glossip’s request for a new trial.

The justices earlier this year put Glossip’s execution on hold while they considered his case, which is set to be argued on Wednesday.

It was the ninth time Glossip’s execution had been blocked, either by judges or state officials. But it was a rare move for the conservative-majority Supreme Court.

“This is not a court that is particularly friendly to capital defendants,” said former US Solicitor General Gregory Garre.

Even with the extraordinary agreement between Glossip and the state, “nothing can be taken as given,” he said.

Garre, who is now a partner at Latham & Watkins, filed an amicus brief on behalf of the state legislators involved in launching the initial investigation into Glossip’s conviction.

Late-Breaking Evidence

Glossip knows all too well it’s an uphill battle for capital defendants at the Supreme Court.

He was the named plaintiff in a challenge brought by a group of Oklahoma death row inmates who challenged the state’s lethal injection procedure. A 5-4 court rejected their claims in its 2015 ruling Glossip v. Gross.

Now an eight-member Supreme Court will consider another appeal from Glossip, this one going to the heart of his murder conviction.

Richard Glossip consults with his attorney, Don Knight.

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Justice Neil Gorsuch has recused himself from the case because he was involved in an earlier version of it while a judge on the US Court of Appeals for the Tenth Circuit. Glossip can only afford to lose three votes this time around, as an evenly divided court will affirm the Oklahoma court’s ruling against him.

Glossip’s current case argues that prosecutors withheld evidence that undercut the credibility of the state’s star witness, Justin Sneed. It was Sneed who beat Van Treese to death with a baseball bat. But he claimed at trial that Glossip paid him to do it.

Glossip points largely to evidence released in 2022 that showed Sneed had been treated by a psychiatrist after his arrest and prescribed lithium for mental illness. Prosecutors failed to correct Sneed when he later lied about it on the stand, Glossip said.

That “late-breaking evidence” undermined the credibility of the state’s key witness, which was the difference between guilt and innocence, said David Cole, a Georgetown law professor. Cole, who was then at the ACLU, filed a friend-of-the-court brief supporting Glossip.

Because Oklahoma agrees that Glossip should get a new trial, the Supreme Court appointed Quinn Emanuel partner Christopher Michel to argue in support of the state court’s decision.

Michel’s brief downplays the significance of the evidence, saying that the “cryptic notes” upon which Glossip primarily relies “would not likely have changed the jury’s verdict.”

University of Utah law professor Paul Cassell, who wrote an amicus brief on behalf of the Van Treese family, went further, calling Glossip’s claim a phantom one. “The gobsmacking thing about the case,” he said, is that it’s based on “four words in the notes.”

Confession of Error

That evidence, though, isn’t the only flaw in Glossip’s case, said attorney Carl Cecere, who filed an amicus brief in a case out of Texas where prosecutors similarly confessed error.

“There are really two levels of error,” Cecere said—the constitutional errors committed by the prosecution and a separate one committed by the appeals court when it declined to properly consider the state’s confession.

“The State’s concession is not based in law or fact,” the state court said in refusing to order a new trial.

The Supreme Court in 1941 said that courts have a judicial obligation to independently examine the errors. But it also said that confessions are entitled to “great weight.”

What that looks like in practice is unclear.

Confessions of error in general are rare and only happen when the circumstances are pretty extreme, Cecere said.

“The state has an obligation to convict the bad guys, so I think it takes them a lot to go all the way to conviction and then say, ‘Oh, you know what? I think there might be something wrong here,’” Cecere said.

So, those confessions should be nearly controlling, he said.

Cassell agreed that confessions of error should be taken seriously by judges, in that they flag issues for the court to investigate. He said that’s likely why the Supreme Court agreed to hear this case despite turning away the vast majority of capital cases.

Beyond that, public confidence in the judicial system demands that the court examine the facts underlying the alleged constitutional errors, Cassell said. That’s because confessions of error can be politically motivated, he said, suggesting that that’s what happened in the Glossip case.

The administration of justice must depend on the facts of the case, not the transient opinions of some public officials, Cassell said.

That argument is an odd fit given that the attorney general and many of the legislators behind the initial look into Glossip’s case, generally support capital punishment, Cecere said.

If the justices are to consider politics at all, Cecere said, it should be that the state officials who are on his side are “Republicans who are traditionally pro-death penalty.”

The case is Glossip v. Oklahoma, U.S., No. 22-7466, to be argued 10/9/24.