"Three years ago, I honestly did not think it was even possible to have somebody innocent on death row," McDugle, a Republican, told Law360.
Then he looked into the case of Richard Glossip.
Glossip is currently scheduled to be executed on Feb. 16, even as attorneys and supporters call attention to a lack of physical evidence tying him to the murder he was convicted of, the constantly shifting testimony of the actual killer, and accusations of prosecutorial misconduct, among other concerns.
3 years ago, I honestly did not think it was even possible to have somebody innocent on death row.
"And that has got me to think more about the death penalty and whether or not we should even have it," McDugle said.
McDugle isn't alone. State lawmakers, an independent commission and the public all seem to be rethinking Oklahoma's use of capital punishment, in part because of Glossip's and similar cases.
While some experts say their questions could lead to changes in how, or even if, the state imposes the death penalty, others insist that such change is unlikely. But lawmakers like McDugle are starting to consider it.
"Cases like the Glossip case, where there's real doubt about 'Do we have the right person,' those kinds of cases help change minds," said Austin D. Sarat, professor of law, jurisprudence and political science at Amherst College. "That leads people to think, maybe this isn't worth it."
'Red Flags of Innocence'
No one disputes that Justin Sneed — not Richard Glossip — murdered Barry Van Treese in an Oklahoma City motel in 1997.
But when Sneed was arrested, he told police that Glossip, the motel's manager, had offered him money to kill Van Treese, an accusation Glossip denies.
Glossip was twice convicted of murder and sentenced to death — his first conviction was overturned — after Sneed testified against him in exchange for avoiding the death penalty.
Glossip has been on death row since 1998, where he's seen his execution date scheduled 8 separate times. 7 times it's been stayed, most recently to allow the state's Court of Criminal Appeals to consider his latest petition for post-conviction relief.
The court rejected that petition in November, ruling that the issues with his case that Glossip pointed out either had been raised or could have been raised in earlier appeals. Evidence Glossip claims the state withheld also didn't rise to the level of exculpatory material prosecutors must disclose, the court said.
That decision "was clearly wrong," according to Glossip's attorney, Donald R. Knight, who says doubts about the investigation and prosecution of Glossip warrant an evidentiary hearing at the trial court.
An independent investigation conducted by law firm Reed Smith LLP at the request of Oklahoma state legislators, for instance, found that detectives interviewed only six motel guests even though 19 rooms were occupied at the time of the murder.
Police also failed to both follow up on leads and to collect or process evidence from the crime scene, and lost a surveillance video from the night of the murder, according to Reed Smith's report, which called the investigation "deficient," "haphazard" and "error-ridden."
Sneed's testimony, which is the primary evidence against Glossip, has proven problematic as well, and not just because it was given in exchange for leniency, say Glossip's supporters.
According to Reed Smith's report, Sneed never mentioned Glossip during his interrogation until after detectives repeatedly brought him up themselves and implied that Sneed should incriminate him.
His entire case is problematic. The red flags of innocence are all over the place.
Sneed then changed his testimony multiple times. Knight says he's found "many" witnesses who can testify that Sneed told them a different story than the one he told police, and there are indications that Sneed may have even tried to recant his testimony.
Accusations that prosecutors destroyed evidence, orchestrated or altered witness testimony, and distorted facts to fit their theory have also dogged the case.
"His entire case is problematic," said Robert Dunham, executive director of the Death Penalty Information Center, which takes no overall position on the use of capital punishment but criticizes how it's administered. "The red flags of innocence are all over the place."
The Oklahoma Attorney General's Office declined to comment on the case, and the Oklahoma County District Attorney's Office did not respond to interview requests.
But in an August filing with the state's Pardon and Parole Board, the Attorney General's Office rebutted all criticisms of the case, insisting that Glossip is guilty and that the "frenzy" surrounding his case is the result of "manipulated" and "slanted" portrayals in the media.
"With the assistance of his defense team, he has manipulated the narrative around his crime to portray himself as the victim of what he himself instigated," the Attorney General's Office wrote.
Exemplary, but Not Unique
Concerns about Glossip's case, and the state's efforts to execute him despite those concerns, aren't surprising given where he was convicted, according to Dunham.
Over the last 50 years, as executions have slowed in much of the nation, Oklahoma County has sentenced more people to death than any other county its size. The number of people it has put to death per capita is triple that of the second-ranking similarly sized county, according to the Death Penalty Information Center.
"Oklahoma County is a national outlier in the pursuit of the death penalty," Dunham said.
It also has among the highest rates of prosecutorial misconduct in capital cases and among the most exonerations of death row prisoners, he added. Malfeasance on the part of prosecutors has resulted in reversal or exoneration in at least 11 Oklahoma County death penalty cases, according to the center.
Advocates say it's the same with Glossip's case, as they allege that prosecutors instructed police to destroy evidence before Glossip's second trial. Reed Smith's report concluded that the destruction "was not merely an accident" but was "expressly intended."
Prosecutors have also been accused of reaching out to Sneed's attorney before trial to get him to change his testimony, and of withholding information that could have helped Glossip's defense.
These concerns don't make Glossip's case unique — they make it "exemplary," according to Sarat at Amherst College, who says the case illustrates many of the problems with capital punishment.
In fact, a 2017 report by the Oklahoma Death Penalty Review Commission recommended continuing a moratorium on executions, which had been put in place as a result of several "botched" executions and the state's difficulty obtaining approved drugs for executions, after "disturbing" findings "led commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death."
Despite the commission's recommendations, that moratorium was lifted in the fall of 2021, when the state executed its first prisoner in 6 years.
"The death penalty system is broken in several ways. It's notoriously unreliable in distinguishing the innocent from the guilty," Sarat said. "The Glossip case is a good example."
The Shifting Politics of the Death Penalty
That example may be leading people to rethink capital punishment in Oklahoma, some activists hope.
Nearly three dozen state lawmakers, mostly Republicans and some who have been supportive of the death penalty, have voiced concerns with Glossip's execution. One of them is McDugle, who said the case has affected his views on the death penalty "in a huge way."
The death penalty system is broken in several ways. It's notoriously unreliable in distinguishing the innocent from the guilty. The Glossip case is a good example.
Among other potential legislative changes, McDugle is now considering rewriting the law so decisions by the state's Court of Criminal Appeals can be appealed to the Oklahoma Supreme Court, which they currently cannot be.
He and other lawmakers could go even further.
"I think it is possible that Oklahoma does away with the death penalty," McDugle said.
That's because Glossip's case, along with several high-profile "botched" executions, have also affected how the public sees the death penalty, according to McDugle. A recently conducted survey found that only 35% of Oklahomans adamantly demand to keep capital punishment, he said.
"I've been on the news for the last two years talking about Richard Glossip and all the issues we're having, and I think people hearing that have now said, 'You know, is it really worth it?'" McDugle explained.
But changes in how or even whether Oklahoma implements the death penalty are very unlikely, according to Susan F. Sharp, professor of sociology at the University of Oklahoma.
She noted that while many legislators had opposed specific death sentences in the past, including Glossip's, that opposition hasn't led to legislative changes. And problems with cases like Glossip's don't seem to have swayed Oklahoma voters either, Sharp said.
Nearly 2/3 of them voted in 2016 to amend the state constitution to maintain capital punishment, according to the Oklahoma Attorney General's Office.
And Oklahoma's Court of Criminal Appeals this summer gave the go-ahead for 25 executions, scheduling nearly 1 a month from August 2022 through December 2024, according to the Death Penalty Information Center. The 1st of this year's was carried out Jan. 12.
"I would be dumbstruck if Oklahoma had a change," Sharp said.
The Fate of Richard Glossip
If Oklahoma eventually does change its use of the death penalty, any change is unlikely to affect Glossip, who is scheduled to be put to death on Feb. 16.
But it's unclear if that execution will actually happen.
Glossip's attorneys have petitioned the U.S. Supreme Court to consider his case, according to Knight, who plans to pursue other avenues in the Tenth Circuit if that petition doesn't succeed.
Personnel changes could also affect the case. The state's Pardon and Parole Board is due to get several new members. And the state has a new attorney general while Oklahoma County has a new district attorney, both of whom may reexamine the case, according to McDugle.
In fact, that new attorney general filed a motion on Jan. 17 to push back Glossip's and several other executions by 60 days.
But whether Glossip's execution takes place in February, later, or not at all, it has already affected how legislators and citizens view the death penalty, both in Oklahoma and nationally, according to Dunham.
"Glossip's case has been eye-opening," Dunham said. "They have seen things that they cannot believe the justice system would permit, and their loss of confidence in the trustworthiness of the system to carry out the death penalty fairly is causing them to move away from the death penalty."
Source: law360.com, Jack Karp, January 20, 2023
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde