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On Monday, Oklahoma Attorney General Gentner Drummond, a Republican, filed a truly remarkable document in the Supreme Court.
“The State of Oklahoma recently made the difficult decision to confess error and support vacating the conviction of Richard Glossip,” the document reads, referring to a death row inmate scheduled to be executed on May 18. But because other parts of the state government don’t agree, and Oklahoma’s attorney general does not have the power to lift Glossip’s death sentence on his own, Drummond is now begging the Supreme Court of the United States to save Glossip’s life.
It’s a bizarre case, where the state’s top prosecutor, who is also the official empowered to speak on behalf of the state in court, can’t actually stop an execution. But he can use the state’s voice to urge the justices to stop that same state from committing a massive injustice.
The case against Glossip, who was convicted for allegedly hiring a coworker to kill his boss in 1997, now lies in shambles. In 2022, Reed Smith LLP, a law firm commissioned by a committee of state lawmakers, released a 343-page report detailing its investigation into Glossip’s conviction and the many errors that led to Glossip being sentenced to die. Its conclusion is scathing:
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.
This report is bolstered by a separate investigation, conducted at Drummond’s request by Rex Duncan, a former district attorney and Republican state lawmaker. Duncan concluded that “Glossip was deprived of a fair trial in which the State can have confidence in the process and result.”
Nevertheless, Drummond has struggled to find someone — anyone — with the power to cure this injustice who is willing to do so. Oklahoma’s Court of Criminal Appeals denied his request to toss out Glossip’s execution, claiming that a crucial piece of new evidence undermining Glossip’s conviction “does not create a reasonable probability that the result of the proceeding would have been different.” Then the state parole board split 2-2 on whether to grant clemency to Glossip, with one member recused because his wife was one of the prosecutors at Glossip’s trial.
Oklahoma Gov. Kevin Stitt has twice postponed Glossip’s execution, but he recently signaled that he will allow the execution to happen on May 18 “unless the courts act or there’s new evidence brought before the courts.”
And so now it is up to the Supreme Court — a Supreme Court dominated by justices with a history of allowing death penalty sentences to proceed despite overwhelming evidence of their innocence — to decide whether Richard Glossip should receive a fair trial before the state is allowed to kill him.
The case against Richard Glossip has completely fallen apart
In 1997, Barry Van Treese was beaten to death with a baseball bat by Justin Sneed, a maintenance man at the motel owned by Van Treese and his wife. At the time, Glossip worked as the manager at the same motel.
Glossip was not present for the murder, but he was nonetheless convicted 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.)
But, as the Reed Smith report explains, there are considerable reasons to doubt the theory that Glossip was the mastermind behind Van Treese’s death. Glossip was convicted based on Sneed’s testimony against him, but prosecutors struck a deal with Sneed to take the death penalty off the table for him if he agreed to testify against Glossip. Meanwhile, transcripts of a police interrogation of Sneed suggest that detectives planted the idea that Glossip hired Sneed in Sneed’s head during that interrogation, and that they encouraged him to echo this theory.
Additionally, in 1999, between Glossip’s two murder trials, police lost or destroyed several pieces of physical evidence that might have helped exonerate Glossip.
Few of these errors are before the Supreme Court, which has held that federal courts should be reluctant to disturb state convictions, even when there is considerable evidence of innocence, because federal decisions upending convictions override “the State’s sovereign power to enforce ‘societal norms through criminal law,’” and “disturbs the State’s significant interest in repose for concluded litigation.”
Instead, Drummond points to a separate constitutional violation by prosecutors which could form the basis for a Supreme Court decision vacating Glossip’s conviction, because the Supreme Court still sometimes permits an unlawful conviction to be tossed out if it was obtained through a constitutional violation.
Glossip’s lawyers and Oklahoma point to two possible constitutional violations that could undermine his conviction
The prosecution’s entire case against Glossip turned on Sneed’s testimony — it was Sneed who told the jury that Glossip enlisted him to commit the murder. This raises obvious concern, given the interview transcripts’ indication that the investigators may have planted this theory in Sneed’s mind, and given that Sneed ultimately traded his own testimony against Glossip in return for a reduced sentence. The prosecution’s reliance on this one witness, moreover, potentially makes Glossip’s conviction vulnerable to an appellate court’s review if there were any constitutional issues with that one witness’s testimony.
During his testimony in 2004, Sneed made at least one statement that is verifiably false, claiming 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 1997 murder, and he was prescribed lithium to treat this condition by a psychiatrist named Dr. Lawrence Trombka, who treated prisoners in the Oklahoma County Jail.
Prosecutors withheld evidence of this treatment, which was only recently turned over to Glossip’s attorneys. Specifically, during an interview with Sneed, the convicted murderer revealed to a prosecutor that he’d been treated by a “Dr. Trumpet.” But the prosecutor’s notes from this interview were not turned over to Glossip’s legal team until last January.
In his brief to the Supreme Court, Attorney General Drummond argues that this error by prosecutors should void Glossip’s conviction. The Supreme Court held in Napue v. Illinois (1959), that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” The same rule applies, moreover, “when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.”
And so the state argues that its own failure to correct Sneed’s false testimony that he never saw a psychiatrist violates the Constitution.
Glossip’s attorneys, for their part, also point to a separate potential constitutional violation that arose from this failure to disclose Sneed’s treatment. Under Brady v. Maryland (1963), prosecutors may not suppress information 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.” So prosecutors had an obligation to turn over their evidence that Sneed received psychiatric treatment before Glossip could be tried for murder.
Had Glossip’s defense lawyers known about Sneed’s diagnosis, they could have seriously undercut the credibility of the state’s crucial witness. For starters, defense attorneys could have caught Sneed in a lie when he claimed to have never been treated by a psychiatrist.
Moreover, the state now argues in its brief that 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.” This claim is bolstered by a statement from Dr. Trombka, who, according to Glossip’s brief, said 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.”
The mere fact that Sneed has a mental illness of course does not mean that he is either violent or untrustworthy. But the full weight of the evidence in this case raises serious doubts that Sneed was a credible witness. And, to prevail at trial, Glossip should not have needed to prove definitively that Sneed acted alone. To the contrary, the law requires the prosecution to prove, beyond a reasonable doubt, that Glossip hired Sneed to commit murder.
It is difficult to imagine that any jury would have convicted Glossip if they’d known about all of the reasons to doubt Sneed’s testimony.
