United States Supreme Court Will Consider Significance of Prosecutor’s Confession of Error in Glossip v. Oklahoma

On October 9, 2024, the United States Supreme Court will hear oral argu­ments in Glossip v. Oklahoma, when the Court will con­sid­er mul­ti­ple ques­tions relat­ed to Richard Glossip’s con­vic­tion and death sen­tence. This is Mr. Glossip’s sec­ond trip to the Supreme Court; the first occurred in 2015 in con­nec­tion with his method of exe­cu­tion chal­lenge. Mr. Glossip has always main­tained his inno­cence of the 1997 ​“mur­der for hire” crime that sent him to death row. In the inter­ven­ing years, he has endured nine exe­cu­tion dates and eat­en three ​“last meals.” The Supreme Court stayed his most recent exe­cu­tion date, set for May 18, 2023. He is the only pris­on­er who received a stay of exe­cu­tion from the Court in between October 2022 and October 2023. 

The ques­tions before the Court include whether the prosecution’s deci­sion to sup­press mate­r­i­al infor­ma­tion about their star wit­ness — who actu­al­ly com­mit­ted the mur­der — and per­mit him to false­ly tes­ti­fy in exchange for a plea deal vio­lat­ed due process. Oklahoma’s Attorney General Gentner Drummond has already answered this ques­tion in the affir­ma­tive, con­fess­ing con­sti­tu­tion­al error and sup­port­ing a new tri­al for Mr. Glossip. He is sup­port­ing Mr. Glossip’s peti­tion for relief at the Supreme Court, which will con­sid­er 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 peti­tion seeks a rever­sal of the deci­sion by the Oklahoma’s court of crim­i­nal appeals, which denied Mr. Glossip the relief he and AG Drummond sought. The Supreme Court also instruct­ed the par­ties to address a juris­dic­tion­al ques­tion regard­ing the Supreme Court’s abil­i­ty to con­sid­er the case at all.

The case is notable in sev­er­al respects: first, there is the unprece­dent­ed sup­port of Attorney General Drummond, sid­ing with a death-sen­tenced pris­on­er against the courts in his own state. Second, there is sup­port for Mr. Glossip from unusu­al indi­vid­u­als, includ­ing a group of Oklahoma leg­is­la­tors who sup­port the death penal­ty, and for­mer Virginia Attorney General Kenneth Cuccinelli, who over­saw five exe­cu­tions while in office. Three for­mer United States Solicitor Generals are also involved in this case, rep­re­sent­ing Mr. Glossip, AG Drummond, and the group of Oklahoma leg­is­la­tors. And final­ly, there is the under­ly­ing impor­tance of Mr. Glossip’s inno­cence. His is anoth­er recent high-pro­file case of inno­cence, along with Marcellus Williams, who was exe­cut­ed on September 24^th, and Robert Roberson, who has an October 17^th execution date. 

In sup­port of Mr. Glossip, AG Drummond told the Court that ​“ensur­ing that jus­tice is done in this case requires a retri­al.” AG Drummond added that 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.” 

Background: In March 2023, AG Drummond and attor­neys for Mr. Glossip filed a Joint Motion for a Stay of Execution, ask­ing the OCCA to delay Mr. Glossip’s May 2023 exe­cu­tion date to August 2023. A week after the joint motion was filed, AG Drummond for­mal­ly con­ced­ed error in Mr. Glossip’s case. He asked the OCCA to vacate Mr. Glossip’s con­vic­tion because of ​“mate­r­i­al mis­state­ments” made by Justin Sneed, the prosecution’s star wit­ness, and a report by an inde­pen­dent coun­sel doc­u­ment­ing errors that cast doubt on the valid­i­ty of Mr. Glossip’s con­vic­tion and death sen­tence. On April 20, 2023, the OCCA denied these requests. 

Less than a week after the OCCA denied their requests, attor­neys for Mr. Glossip filed a motion for a stay of exe­cu­tion with the U.S. Supreme Court, and days lat­er, AG Drummond filed a Response, not­ing that he did not oppose the stay of exe­cu­tion. In the Response, for­mer U.S. Solicitor General Paul Clement argues that ​“absent this Court’s inter­ven­tion, an exe­cu­tion will move for­ward under cir­cum­stances where the Attorney General has already con­fessed error — a result that would be unthink­able. In those unprece­dent­ed cir­cum­stances, this Court should grant the appli­ca­tion for a stay of execution.” 

On May 4, 2023, Mr. Glossip’s attor­neys filed a peti­tion assert­ing that his cap­i­tal con­vic­tion should be over­turned due to sig­nif­i­cant errors. They argued that the con­vic­tion is so flawed that even the State has refused to defend it, requir­ing a rever­sal to uphold due process of law. The peti­tion argued that the state sup­pressed knowl­edge that Mr. Sneed was under the care of a psy­chi­a­trist and failed to cor­rect his false tes­ti­mo­ny, due process vio­la­tions under Brady v. Maryland and Napue v. Illinois, which require the pros­e­cu­tion over­turn evi­dence favor­able to the defense and to cor­rect know­ing­ly false state­ments from their own wit­ness­es. On May 5, 2023, the U.S. Court grant­ed a stay of exe­cu­tion for Mr. Glossip.

An inde­pen­dent inves­ti­ga­tion car­ried out by the law firm Reed Smith pre­vi­ous­ly found that Mr. Sneed, the state’s key wit­ness, dis­cussed recant­i­ng his tes­ti­mo­ny over the course of a decade, both before and after Mr. Glossip’s sec­ond tri­al. A hand­writ­ten note from Mr. Sneed to his attor­neys, states, ​“Do I have the choice of recant­i­ng at any time dur­ing my life?” Another hand­writ­ten note indi­cates that Mr. Sneed thought his tes­ti­mo­ny was ​“a mis­take.” These notes were nev­er shared with Mr. Glossip’s defense team. The inves­ti­ga­tion also doc­u­ment­ed con­ver­sa­tions with Mr. Sneed and Reed Smith lawyers in which he agreed that he talked with his moth­er and daugh­ter about recant­i­ng his tes­ti­mo­ny, some­thing he previously denied.

For more infor­ma­tion on Mr. Glossip’s case his­to­ry, see the inter­ac­tive timeline below.