Supreme Court Agrees to Hear Richard Glossip’s Appeal: High-Profile Innocence Case Where the State Supports Relief

On January 22, the Supreme Court granted certiorari to Richard Glossip, sentenced to death in Oklahoma, whose innocence case has received international attention. Mr. Glossip’s execution had been scheduled for May 18, 2023, before the Court issued a stay on May 5 pending the outcome of his petitions for certiorari. Mr. Glossip’s case is unusual in that the State of Oklahoma conceded error and supports his request for a new trial. However, Mr. Glossip was forced to petition the Supreme Court when the Oklahoma Court of Criminal Appeals rejected a joint request for relief and ordered Mr. Glossip’s execution to proceed. The Supreme Court will now consider whether Oklahoma’s suppression of prosecution witness testimony violated due process, whether the entirety of the suppressed evidence must be considered when assessing prosecutorial misconduct claims, and whether “due process of law requires reversal…where a capital conviction is so infected with errors that the State no longer seeks to defend it.” 

The Court directed the parties to brief an additional question: whether the Oklahoma Court of Criminal Appeals’ holding that a state law precluded relief is “an adequate and independent state-law ground for the judgment.” When there is an adequate and independent state-law ground for a lower court’s decision, the Supreme Court does not have jurisdiction to review the case.  

Justice Neil Gorsuch recused himself from consideration of Mr. Glossip’s petition, meaning that the case will be decided by the remaining eight members of the Court. Justices do not typically share their reasons for recusal, but Justice Gorsuch has recused himself in several capital cases from Oklahoma, including Sharp v. Murphy (2020) and Crow v. Jones (2021). Justice Gorsuch has participated in other non-capital Oklahoma cases, such as McGirt v. Oklahoma (2020) where he authored the majority opinion. Before his nomination to the Supreme Court, Justice Gorsuch sat as a judge on the U.S. Tenth Circuit Court of Appeals, which includes the Oklahoma district courts.   

Mr. Glossip’s case is a statistical outlier: his was the Court’s only stay of execution in 2023, and the Court distributed his case for consideration 12 times before granting certiorari. The Supreme Court considers thousands of cases each year, and only a few hundred are ever relisted for consideration. According to an analysis by SCOTUSblog, relisted cases have a much higher chance of being granted certiorari—but the effect is strongest for cases relisted once. Based on SCOTUSblog’s data, fewer than 20% of relisted cases are relisted more than four times. This is also the second time that Mr. Glossip’s case will be considered by the U.S. Supreme Court. In Glossip v. Gross (2015), Mr. Glossip and two other death-sentenced prisoners unsuccessfully challenged Oklahoma’s lethal injection protocol. 

Mr. Glossip was convicted and sentenced to death for the 1997 murder of Barry Van Treese, the owner of a motel where Mr. Glossip worked. All parties agreed that Mr. Glossip was not the actual killer: Justin Sneed, another employee, confessed to bludgeoning Mr. Van Treese to death with a baseball bat while high on methamphetamines. However, prosecutors argued that Mr. Glossip had hired Mr. Sneed to commit the killing. The conviction was unanimously thrown out in 2001 by the Oklahoma Court of Criminal Appeals, which called the case “extremely weak.” However, the State took the case to trial and secured another death sentence against Mr. Glossip in 2004. In recent years, evidence emerged that prosecutors had pressured Mr. Sneed to implicate Mr. Glossip and lie on the stand in exchange for a lesser sentence. Prosecutors also suppressed evidence of Mr. Sneed’s psychiatric condition. 

Mr. Glossip’s diverse supporters include the Innocence Project, legal ethics scholars, and a bipartisan group of 62 Oklahoma legislators. “There has never been an execution in the history of this country where the state and the defense agreed that the defendant was not afforded a fair trial,” said Representative Kevin McDugle, a Republican. “Oklahoma cannot become the first.”

Mr. Glossip has received nine execution dates and eaten his “last meal” three times. “[E]nsuring that justice is done in this case requires a retrial,” Oklahoma Attorney General Drummond wrote in the State’s brief in support of Mr. Glossip. The “injustice of allowing a capital sentence to be carried out where the conviction was occasioned by the government’s own admitted failings would be nigh unfathomable.”