FAST DOWNLOAD
WASHINGTON – In an odd twist, Oklahoma – the state with the highest per capita execution rate – asked the Supreme Court on Wednesday to give a convicted murder on death row another chance to prove his innocence.
The oral arguments featured the rare lineup of the defendant and the prosecution on the same side, both arguing that Richard Glossip deserves a new trial.
“To be clear, I’m in an unusual position here,” Paul Clement, the former U.S. solicitor general who represented Oklahoma, told the court.
Glossip is not “a poster child for an actual innocence case,” Clement said. But because the state’s “indispensable witness” lied on the stand about being treated by a psychiatrist, he added, “this is not a conviction that can stand.”
Glossip, 61, was convicted and sentenced to death – twice − for the 1997 murder of his boss¸ Barry Van Treese, at an Oklahoma City budget motel.
The first conviction was set aside by an Oklahoma court which said his defense was inadequate.
As with his first trial, his 2004 conviction depended heavily on the testimony of Justin Sneed, the motel’s maintenance man. Sneed confessed to killing Van Treese but said Glossip pressured him into doing it. Sneed’s testimony against Glossip allowed him – but not Glossip −to avoid a death sentence.
Independent investigations initiated first by a group of state legislators and then by Oklahoma Attorney General Gentner Drummond led Drummond to conclude that prosecutors hid evidence that might have led to an acquittal.
Evidence of Sneed’s bipolar disorder was withheld from the defense, the state says, and prosecutors allowed Sneed to falsely testify about his medical record and his reason for having been given lithium.
Chief Justice John Roberts asked what difference it would make if the jury knew Sneed had sought psychiatric treatment since jurors knew he was taking lithium.
Seth Waxman, the former U.S. solicitor general who was representing Glossip, said knowing that Sneed was willing to lie under oath “very well could have made a significant difference.”
But Christopher Michel, the attorney appointed by the Supreme Court to argue the other side since the state agrees with Glossip, said the defense choose not to delve into Sneed’s mental health because it would have helped the prosecution make their argument that Sneed was vulnerable to Glossip’s manipulation.
Justice Elena Kagan pushed back.
“False is false,” she said. “The critical question a jury is asking is, do I believe this guy and everything he says?”
Evidence prosecutors knew Sneed was lying includes a page of notes handwritten by the prosecutor from a pre-trial interview with Sneed, according to the defense and the attorney general.
Justice Amy Coney Barrett said there are multiple possible interpretations of the notes.
Justice Clarence Thomas said he “couldn’t make heads or tails of it.” He repeatedly questioned whether the prosecutors have adequately gotten to defend themselves through the independent investigations.
“What are we to do with the point that they make that they were frozen out of the process,” he asked.
Clement disputed that premise and said that the “ultimate process that matters” is Glossip’s trial which was “fundamentally distorted” by Sneed’s false testimony.
Justice Ketanji Brown Jackson asked why the court wouldn’t send the case back to Oklahoma for a hearing about what prosecution’s notes and other disputed facts.
Clement said Oklahoma would be satisfied with that but believes the preponderance of evidence shows Glossip’s rights were violated.
“The attorney general just wants to get to the bottom of this,” Clement said. “But he also…has to make his own judgment about whether the prosecutors have elicited perjured testimony and failed to correct it.”
The Oklahoma Court of Criminal Appeals last year declined the attorney general’s request to set aside Glossip’s conviction.
Glossip, who has received nine execution dates, had his most recent scheduled execution halted by the Supreme Court while they consider his case.
