It is almost unheard of for a court to leave in place a criminal conviction after the prosecutor has confessed error. But the Supreme Court appears ready to take the plunge in an Oklahoma capital case where the defendant has been on death row for more than 26 years.
The defendant, Richard Glossip, is 61 years old. He has lived through nine execution dates and eaten his “last meal” three times. The waiting time alone may be deemed “cruel and unusual” by some. Or maybe, with our creaky justice system when it comes to death penalty cases, not so unusual — and, considering the alternative, not so cruel.
A jury convicted Glossip in 1998 of a murder for hire of his employer. Jurors sentenced him to death. The confessed murderer, Justin Sneed, who allegedly received $10,000 for the job, was the principal witness against him. Sneed was sentenced to life imprisonment. Glossip denied involvement in the murder and steadfastly maintained his innocence.
Glossip’s lawyer, Seth Waxman, told the justices that Glossip was “convicted on the word of one man.” Paul Clement, representing the Oklahoma attorney general called Sneed an “indispensable witness” for the state. Both lawyers are former solicitors general.
The first conviction was reversed because an appellate court decided that Glossip’s lawyer was not prepared. He was tried again in 2004, and another jury convicted him.
The new Oklahoma attorney general, Republican Gentner Drummond, conducted a thorough investigation of the case. Buttressed by a report of independent counsel, he concluded that Oklahoma had procured the conviction by unconstitutional means.
It had emerged in 2022 that a key item of exculpatory evidence had not been turned over to the defense. The suppressed evidence, consisting of some handwritten notes, indicated that Sneed had severe bipolar disorder, and that prosecutors had knowingly allowed him to testify that he did not suffer from this malady. It is well established that the knowing presentation of perjured evidence is a prosecutorial no-no.
So Drummond filed a brief with the state’s highest court asking for a new trial. In an extraordinary ruling, the court declined, affirming a conviction that Oklahoma’s highest law enforcement official had concluded was unconstitutional.
The oral argument in the Supreme Court last Wednesday came nearly a decade after the defendant challenged the state’s method of execution, and after the Supreme Court intervened to stop his execution twice before.
The most recent reprieve came last year, when the court agreed to block Glossip’s death by lethal injection. Months later, the justices took up his bid for a new trial after Drummond’s submission that the defendant’s conviction and sentence should not stand.
At oral argument before the Supreme Court, Drummond and Glossip urged the justices to reverse the conviction on the grounds that Glossip’s due process rights had been violated. The court appointed an outside lawyer, Christopher Michel, a former clerk to Chief Justice John Roberts and Justice Brett Kavanaugh, to argue in favor of putting Glossip to death.
The justices dueled with the lawyers over whether the undisclosed evidence would have been sufficient to affect the jury’s guilty verdict, and whether the Supreme Court should even be deciding the case at all. The rule of law required justices to divine what would have impressed a jury in Oklahoma.
Roberts asked the key question: “Do you really think it would make that much of a difference to a jury?” Or as Kavanaugh skeptically put it to Drummond’s lawyer, explain how the outcome of Glossip’s trial would’ve been different. Later, Kavanaugh told Michel he was struggling with his argument that it wouldn’t have mattered to the jury had they known that Sneed was bipolar and lied on the stand. Really?
Much of the discussion before the justices focused on whether they should be hearing the case at all, or whether the Supreme Court lacked jurisdiction because the Oklahoma Court of Criminal Appeals based its decision denying Glossip relief on “adequate and independent” state law grounds.
Michel told the justices that the state court correctly rejected Glossip’s claims. Justice Samuel Alito appeared skeptical of the idea that the case raised an issue of federal law for the Supreme Court to decide.
Justice Clarence Thomas questioned lawyers for both sides about the prosecutors’ notes from a discussion with Sneed, and whether the lawmen were ever interviewed about what they meant in referencing “lithium” and “Dr. Trumpet,” a misidentification of jail psychiatrist Dr. Lawrence Trombka.
Thomas noted that one of the prosecutors had explained that the notes were about a conversation Sneed had with the defense. If the defense knew everything about Sneed’s psychiatric history anyway, game over. “Why wouldn’t they be interviewed?” Thomas asked Paul Clement, who argued for Drummond.
Alito piled on, highlighting the brief from the victim’s family, saying it provided a “pretty compelling counter-reading” to Glossip’s narrative.
On the other side was Justice Elena Kagan, who told Michel “your one witness has been exposed as a liar….The critical question that a jury is asking is…do I believe him when he points the finger at the accused?” she said.
The case has divided state attorneys general and local and federal prosecutors. Attorneys general from seven states are calling for Glossip’s conviction to be upheld. They said that Oklahoma’s court of last resort for criminal matters, based its ruling on state law, and that should be respected by the federal courts. This is Thomas’s position, that Drummond is trying to make a federal case where there is none — a mountain out of a lamb.
But a group of prosecutors argued that Glossip is at “imminent risk” of being wrongfully executed. “Prosecutions must be premised upon an honest and completely transparent record to protect societal confidence in the verdict and the death sentence,” they said in support of Glossip. The prosecution’s interest in a criminal prosecution, the Supreme Court declared some 90 years ago, “is not that it shall win a case, but that justice shall be done.”
A decision is expected by June 2025. Meanwhile, Glossip waits on death row.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.