WASHINGTON (CN) — The Supreme Court handed Richard Glossip one loss in 2015 — and if not for a corrections department blunder, he’d be dead. Almost a decade later, Glossip returns to the high court a second time, bringing the justices mountains of support for another trial and hoping a procedural hurdle doesn’t end his case for innocence before it can begin.
Even though the Oklahoma attorney general admitted prosecutorial misconduct tainted Glossip’s conviction and advocated against his execution, a state court refused to grant a new trial to review his innocence claim. Glossip and Oklahoma want the Supreme Court to overturn the ruling, but it’s possible the justices will decide they can’t intervene in his case.
“What most Americans would want is for the courts to look at the evidence and if he's innocent, free him. If he received an unreliable trial and might be innocent, give him a new trial,” Robert Dunham, the director at the Death Penalty Policy Project and special counsel at Phillips Black, said in an interview.
“They don't want courts inventing procedural rules that say, we don't care if he's innocent, we're more interested in Byzantine legal procedures that could stop us from ever looking at his case.”
The Oklahoma Court of Criminal Appeals — where the challenged ruling stems from — is the state’s highest court of criminal jurisdiction. Since the Supreme Court only reviews federal questions, the justices need to know if the criminal court’s ruling was based solely on state law, putting it outside the Supreme Court’s jurisdiction.
Justin Sneed pleaded guilty to murdering hotel owner Barry Van Treese in 1996 but avoided the death penalty by testifying that Glossip — who was the hotel’s manager — hired Sneed to murder Van Treese.
Glossip’s conviction hinged on Sneed, without him there’s no direct link between Glossip and Van Treese’s murder.
When Don Knight joined Glossip’s legal team in 2015, he began poking holes in Sneed’s testimony. Knight said the theory was that Glossip had money that Van Treese picked up, but Glossip wanted to keep the money so he ordered Sneed to murder Van Treese so the two of them could split the funds.
“I think anybody looking at that would say, well, why didn't he just take all the money if he wanted to,” Knight said in an interview. “He could have skipped the murder part and had twice the money.”
Knight later found out that Sneed was a habitual methamphetamine user and needed drug money. He also discovered that the police fed information to Sneed about Glossip’s involvement. Knight said the problems with Glossip’s conviction stretched from hidden evidence to prosecutorial misconduct.
Glossip’s trial attorney never presented the information Knight found to a jury.
As more evidence emerged, more people became interested in Glossip’s case. Oklahoma state Representative Justin J. Humphrey called Knight at the behest of one of his constituents. A Republican, Humphrey was skeptical but saw some immediate red flags.
“[Knight] mentioned the guy's attorney, and I actually knew this attorney, and I was like, you know what, if that guy had that attorney and that prosecutor, he is lucky he didn't get hung on the courthouse lawn,” Humphrey said in an interview. “And I said, just because I know he didn't get much of a defense, I'll look at the case.”
Humphrey and other lawmakers discovered that one of the detectives on Glossip’s case was instructed by prosecutors to destroy evidence. Lawmakers’ investigation through the law firm Reed Smith uncovered a letter from prosecutors to a witness, asking him to change his testimony to line up with the medical examiner’s findings.
“We have destroying evidence. We have witness tampering. We have perjury, supporting perjury. We have withholding evidence,” Humphrey said. “Any one of those by themselves, you would think would be sufficient for a new trial.”
Then Oklahoma Attorney General Gentner Drummond uncovered boxes of never-before-seen evidence. He commissioned his own independent investigation led by former District Attorney Rex Duncan.
In a report, Duncan said, “the cumulative effect of errors, omissions, lost evidence, and possible misconduct cannot be underestimated.” The investigation found that Glossip was deprived of a fair trial and that a new trial was necessary to restore integrity to the process.
Drummond said the state could no longer support Glossip’s conviction and let his request for a new trial go unopposed. The Oklahoma Court of Criminal Appeals rejected the petition.
At the Supreme Court, Glossip’s attorneys argue that prosecutors ignored Glossip’s rights enshrined in Brady v. Maryland and Napue v. Illinois.
In the boxes of evidence uncovered by Drummond, attorneys found notes from trial prosecutor Connie Smothermon. The notes show Smothermon knew Sneed had been diagnosed with bipolar disorder and prescribed lithium but never disclosed that information to Glossip’s defense team.
Sneed testified that he was on medication for a cold.
“That was the information that went to the jury because the defense lawyers did not have those notes and did not have access to this diagnosis,” Knight said. “They couldn't properly cross-examine Sneed on that lie. Furthermore, Smothermon knew his testimony to be a lie, and she went ahead and let it go anyway.”
Glossip’s attorneys say Smothermon violated
Brady by not turning over impeachable evidence to the defense and
Napue by knowingly using false testimony. Knight said the state criminal court ruling on the Oklahoma Post Conviction Procedure Act was derived from its misunderstanding and misapplication of those federal constitutional privileges, giving the Supreme Court jurisdiction to review the appeal.
“The attorney general of the state of Oklahoma has said this man did not receive a fair trial,” Knight said. “It's one thing for the Supreme Court to say well if a person got a fair trial, we can't be second-guessing everybody about the evidence that was presented. If the process was good, we have to uphold the conviction. In this case, let's not even go to the evidence, the process was foul. The attorney general has said this doesn't work.”
Oklahoma will argue in favor of Glossip at the Supreme Court. The state said the criminal court ruling incorrectly dismissed Glossip’s claims by suggesting he knew prosecutors were withholding evidence and that Sneed’s testimony wasn’t false because he was in denial of his mental health disorders.
Critically, Oklahoma said the court didn’t give weight to the state’s confession of error.
“The net result was a decision ordering the state to move forward with an execution that all parties agree was the product of serious constitutional violations and prosecutorial misconduct,” Oklahoma said in its brief to the Supreme Court. “That decision cannot stand.”
An amicus was appointed to argue against Glossip since the state wouldn’t. The court chose Christopher Michel, an attorney with Quinn Emanuel who previously clerked with Chief Justice John Roberts and Justice Brett Kavanaugh.
Michel undercuts Smothermon’s notes cited by Glossip and Oklahoma, stating that the reference to Oklahoma County jail psychiatrist Lawrence Trombka is far from a definitive statement of what prosecutors knew about Sneed’s mental diagnosis and not enough to overturn the conviction.
“Nothing in the Constitution compels a state court to provide a particular measure of deference to a state official’s confession of error,” Michel wrote. “And in any event, the OCCA here considered the substance of the confession but reached a different conclusion based on its reading of the ‘law’ and ‘fact[s].’”
Glossip was prosecuted in Oklahoma County, which is tied for the second-most death row exonerations of any county in the U.S. Six of the state’s 11 death row exonerations came from the county.
Humphrey, a former law enforcement officer, called for an execution moratorium because of the conduct in Glossip’s case.
“Have I changed my views on the death penalty? No, but have I changed my views on the people that we have in place to carry out these huge, huge responsibilities? Absolutely,” Humphrey said.
The moratorium was passed out of committee but couldn’t get a hearing on the floor.
“I can tell you that my district will be a pro-death penalty district, and I'm willing to sit down and have this conversation,” Humphrey said. “And what I don't understand is why anybody that looks at what's being done wouldn't. I think any reasonable person seeing what I've seen and seeing the problems in our court system ought to be willing to say, hey, let's, let's look at how we fix these problems.”
In the two decades Glossip has been challenging his conviction, he has faced nine execution orders and three last meals. The Supreme Court stayed his execution in May 2023 to hear this case.
The court will hear arguments in Glossip v. Oklahoma on Oct. 9.
