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.”