Oklahoma is begging the Supreme Court not to make it kill a man

The case against Richard Glossip fell apart. Even the state’s Republican attorney general says he should not be executed. The Supreme Court may not care.

The Supreme Court announced on Monday that it will hear Glossip v. Oklahoma, a long-simmering death penalty case where the state’s Republican attorney general is urging the justices not to make his state kill a man after the prosecution’s case completely fell apart.

Last May, the Court temporarily blocked Richard Glossip’s execution, after Oklahoma Attorney General Gentner Drummond informed the Court that “the State of Oklahoma recently made the difficult decision to confess error and support vacating the conviction of Richard Glossip.”

Among other things, a committee of state lawmakers commissioned a law firm to investigate whether Glossip, who was convicted for allegedly hiring a coworker to kill his boss in 1997, received a fair trial. The firm released a 343-page report laying out many errors in the process that ended in Glossip being sentenced to die:

The State’s destruction and loss of key evidence before Glossip’s retrial deprived the defense from using the evidence at trial (and has deprived the defense today of the ability to perform forensic testing using DNA and technology advancements), the tunnel‐vision and deficient police investigation, the prosecution’s failure to vet evidence and further distortion of it to fit its flawed narrative, and a cascade of errors and missed opportunities by defense attorneys, fundamentally call into question the fairness of the proceedings and the ultimate reliability of the guilty verdict against Glossip for murder.

Meanwhile a separate investigation, commissioned by Drummond and led by Rex Duncan, a former district attorney and Republican state lawmaker, determined that “Glossip was deprived of a fair trial in which the State can have confidence in the process and result.”

Yet while Drummond is now supporting Glossip’s request to be given a new trial, the attorney general has been unable to convince three in-state institutions that actually have the power to vacate Glossip’s death sentence to do so.

Oklahoma’s highest criminal court denied the request to toss out Glossip’s execution, claiming a crucial piece of new evidence undermining his conviction “does not create a reasonable probability that the result of the proceeding would have been different.” The state parole board split 2-2 on whether to grant relief to Glossip, with one member recused because his wife helped prosecute Glossip.

Meanwhile, while Gov. Kevin Stitt (R) twice postponed Glossip’s execution, he’s more recently signaled that he intends to defer to the courts’ determination of whether this man should be executed.

It’s worth noting that, while the two state-commissioned investigations into Glossip’s trial suggest a comprehensive failure to provide him with a fair trial, the specific questions before the Supreme Court are quite narrow, and involve only one of the many flaws investigators found in his trial. That’s most likely because the Court’s Republican-appointed majority’s death penalty decisions frequently emphasize the need for finality in court proceedings, and they generally reject the proposition that a death row inmate should be freed because they are innocent.

That said, even this Supreme Court sometimes allows a state prisoner to receive a new trial if their previous trial violated the Constitution, and Glossip and Drummond raise two narrow but plausible arguments that such a violation occurred here.

Glossip’s trial likely violated the Constitution in two ways

In 1997, Justin Sneed, a maintenance worker at a motel owned by Barry Van Treese, beat Van Treese to death with a baseball bat. At the time, Glossip was the manager at this motel.

Although Glossip was not present for the murder, he was nonetheless convicted of murder in 2004 on the theory that he hired Sneed to kill Van Treese. (Glossip was initially convicted in a 1998 trial, but that conviction was tossed out due to ineffective assistance of counsel, and he was tried and convicted again in 2004.)

There are several reasons to doubt this theory, however. According to Drummond, the state’s conviction of Glossip turned entirely on Sneed’s testimony against the motel manager. “Justin Sneed was the indispensable witness for the State,” Drummond tells the justices.” He adds that “without Sneed’s testimony, it is difficult to imagine a capital case being brought against Glossip at all; Glossip was only formally charged with capital murder after Sneed implicated him.”

As the law firm investigation into Glossip’s conviction found, Sneed testified against Glossip after prosecutors agreed to take the death penalty off the table for Sneed in return for such testimony. Transcripts of a police interrogation also suggest that detectives, and not Sneed, planted the idea of a murder-for-hire in Sneed’s head, and that these detectives encouraged Sneed to echo this theory.

Police also lost or destroyed several pieces of physical evidence in 1999 that could have helped exonerate Glossip.

These alleged errors, however, are largely not before the Supreme Court. Instead, Glossip’s case primarily turns on a recently discovered piece of evidence which reveals that Sneed was treated for a serious mental illness that may have undermined his credibility as a witness.

During Glossip’s 2004 trial, Sneed falsely testified that he “never seen no psychiatrist or anything.” In reality, Sneed was diagnosed with bipolar affective disorder in 1997, while he was in jail for the murder, and he was prescribed lithium to treat this condition by Dr. Lawrence Trombka, an Oklahoma County jail psychiatrist.

Prosecutors failed to turn over, until fairly recently, an interview between Sneed and a prosecutor, where the convicted murderer said that he’d previously been treated by a “Dr. Trumpet.”

This failure to turn over this piece of evidence potentially violates the Constitution in two ways. In Brady v. Maryland (1963), the Supreme Court held that prosecutors must turn over evidence that is “favorable to an accused” if the “evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Additionally, in Napue v. Illinois (1959), the Court held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” This rule applies, moreover, “when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” So, under Napue, the prosecution should have corrected Sneed when he falsely testified that he’d never seen a psychiatrist.

Had prosecutors turned this information over to Glossip’s lawyers in a timely manner, those lawyers could have used it to expose Sneed’s false testimony and undermine his credibility.

Glossip’s lawyers, moreover, could have raised Sneed’s mental illness as an alternative explanation for why Sneed killed Van Treese — undercutting the prosecution’s murder-for-hire theory. As Drummond recently told the Supreme Court, Sneed’s “serious psychiatric condition that combined with his known methamphetamine use would have had an impact on his credibility and memory recall in addition to causing him to become potentially violent or suffer from paranoia.”

Similarly, according to Glossip’s lawyers, Dr. Trombka now says that Sneed could have experienced a “manic episode” that may have caused him “to be more paranoid or potentially violent,” and that Sneed’s condition was “exacerbated by illicit drug use, such as methamphetamine.”

Of course, the fact that Sneed has a mental illness does not make him inherently violent or untrustworthy. But in US criminal trials, the prosecution always has the burden to prove that the defendant is guilty beyond a reasonable doubt. And there are serious doubts about whether a jury would have convicted Glossip if it had known that the state’s key witness, in the opinion of that witness’s psychiatrist, might experience episodes in which he became paranoid or violent — and that he made at least one false statement on the witness stand.

Why is this case so focused on such a narrow issue?

Given the comprehensive failures laid out in the two state-commissioned investigations into Glossip’s conviction, it’s a bit odd that the Supreme Court’s hearing is likely to focus on a single statement where Sneed briefly revealed that he’d been treated by a doctor whose name he didn’t even get right.

One explanation is that the Supreme Court’s current majority has made it extraordinarily difficult for state prisoners to challenge their convictions, even when there is considerable evidence that those convictions were unjust. In Shinn v. Ramirez (2022), for example, the Court’s GOP-appointed majority held that Arizona may execute Barry Jones, despite the fact that Jones’s lawyers failed to present evidence that the prosecution's theory against Jones is medically impossible.

Prosecutors in Jones’s case claimed that he fatally beat his girlfriend’s daughter, inflicting injuries that supposedly killed her 12 hours later. But medical examiners determined that the girl died from injuries that would have killed her much more slowly, and that they “could not possibly have been inflicted on the day prior to her death.”

Nevertheless, the Supreme Court allowed this execution to move forward in order to avoid disturbing “the State’s significant interest in repose for concluded litigation.” (After the Supreme Court ruled against Jones, Arizona prosecutors reached a deal with Jones’s lawyers to free him in return for a guilty plea to a second-degree murder charge.)

In the Glossip case, Oklahoma’s Court of Criminal Appeals relied on a state law which generally forbids inmates from challenging their convictions more than once, unless they rely on an argument that “could have been previously raised.” Glossip has made several previous attacks on his conviction, raising some of the tainted evidence against him, but to no avail.

That said, the evidence that Sneed saw a psychiatrist was not revealed to Glossip’s legal team until January 2023, so he now wants the Supreme Court to consider this piece of new evidence that might provide a basis to undermine his conviction.

In any event, it should be obvious that this entire process bears only a cursory relationship to a search for truth. The state court treated Glossip’s 2004 conviction as if it was a virtually immovable object. And Glossip’s Supreme Court hearing is likely to focus on only a tiny portion of the evidence against his conviction.