At the Supreme Court Tuesday, a true crime drama that features a man who has been on death row for more than 25 years, always insisting he is innocent, and a conservative state attorney general in Oklahoma who agrees the prisoner got an unfair trial.
Richard Glossip has had nine execution dates set over the years; he’s eaten his last meal three times. He was tried twice and has had multiple appeals, including one that was heard by the Supreme Court involving the proposed method of execution. When the Supreme Court heard that case in 2015, Justice Samuel Alito made it clear that he viewed the appeal as nothing more than a stalling tactic, asking, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty?”
Glossip lost that appeal and many others over the years. But in 2022, Gentner Drummond, the newly elected Republican attorney general of Oklahoma, took office, and one of the first things he did was review the 28 pending death sentences.
“At the end of that exercise, one jumped out,” he said in an interview with NPR.
The prosecution’s theory was that Glossip, a motel manager, feared that he was about to be fired, and paid the motel handyman to bludgeon the motel’s owner, Barry Van Treese, to death.
For years, Glossip’s lawyers have argued that the prosecution’s theory made little sense, and that the prosecutors concealed, and even destroyed, exculpatory evidence.
The eighth box
In reviewing the case files, Drummond said he knew “there were eight trial boxes, and I knew we had produced seven for the defendant. So I was curious about number eight.”
What he found in box eight were the notes of prosecutor Connie Smothermon — notes that showed that the prosecution knew about evidence that would have helped the defense, and that she not only failed to disclose that evidence, but that she worked at trial to present what she knew was false testimony.
The only direct evidence implicating Glossip came from Justin Sneed, the handyman who confessed to bludgeoning Van Treese to death. According to Attorney General Drummond, “The state relied principally on this murderer to testify against Mr. Glossip.” In exchange for confessing and serving at the state’s star witness, Sneed was given life in prison instead of the death penalty. While reviewing the case documents, Drummond realized that “the state knew that this star witness had suffered a psychiatric condition and was prescribed a drug that would have an effect on his memory.”
At that point, Drummond hired former district attorney Rex Duncan, also a Republican, to review the case as an independent counsel. Duncan found that Glossip had been denied his right to a fair trial. In Duncan’s opinion, the “cumulative effect of errors, omissions, lost evidence and possible misconduct cannot be underestimated.”
Bipartisan support
Attorney General Drummond was not the only Oklahoma official with questions about Glossip’s case. In 2021, a bipartisan group of 65 Oklahoma legislators sent a letter to Gov. Kevin Stitt and the Oklahoma Pardon and Parole Board, calling on them to investigate the case. With similar reasoning to Drummond’s, the legislators said that while many of them supported the death penalty, “we have a moral obligation to make sure that the State of Oklahoma never executes a person for a crime he did not commit.”
Despite the state’s questions about the fairness of Glossip’s trial, Attorney General Drummond thinks that Glossip is at least guilty of aiding and abetting a crime after the fact. Glossip initially told police he knew nothing about the crime, but quickly reversed himself and admitted he had helped Sneed afterward. Still, that is not a crime punishable by death, and ultimately Drummond took the rare step of “confessing error.” He formally admitted that prosecutors had hidden critical and exculpatory evidence from the defense, and that Glossip was entitled to a new trial.
Despite the state’s admission and a second investigation conducted at the behest of the state legislators, the Oklahoma Court of Criminal Appeals, the state’s court of last resort in criminal cases, ruled unanimously that Glossip was not entitled to a new trial under state law because his lawyers “knew or should have known” about the hidden evidence.
Does the Supreme Court have a role?
The state appealed to the U.S. Supreme Court, which hears arguments in the case Wednesday. With the state and the defendant on the same side, the high court Itself had to appoint a lawyer to argue the other side of the case. That lawyer is Christopher Michel, a veteran of the U.S. Solicitor general’s office who is now in private practice.
Michel contends that “when the state courts resolve claims on a purely state law ground,” which is what happened in Oklahoma, “the [U.S.] Supreme Court, as a matter of both jurisdiction and federalism, has no authority to review those claims.”
The Oklahoma Court of Criminal Appeals considered the merits of Glossip’s case seven times over the years, which Michel sees as plenty of due process. In response to the fact that the state of Oklahoma has sided with Glossip, Michel contends that the state doesn’t have the last say and that “once the final judgment of a conviction is in place, the public, the legal system, the victims of crimes, and their families all have strong interests in the finality and integrity of those convictions.”
Representing the state of Oklahoma in the Supreme Court is Paul Clement, who served as solicitor general in the George W. Bush administration. He sees it as a miscarriage of justice for the state court to “cling to a conviction” that is based on false testimony and incomplete evidence.
‘It’s frankly so shocking’
It is not “the number of trials or the number of post-conviction review petitions” that matters, says Clement. Instead, “what matters is whether you’ve got one full and fair trial, with all the information that you were supposed to have access to and with the prosecutors not trying to solicit false testimony.” Based on the evidence uncovered by Drummond’s investigation, Clement adds, “it’s just frankly so shocking that the reaction of the Oklahoma court was ‘no, that’s not really material. Thank you very much, but we’re going ahead.'”
As for Attorney General Drummond, he remains a supporter of the death penalty, and has been in the death chamber for every execution since he took office. But, he says, “where the death penalty is still an option, we need to have absolute confidence that the defendant was given a fair trial,” adding that it’s what he would want if he were a defendant.
The Glossip case has been rattling around the state courts, the federal courts, and even the Supreme Court for 27 years now and it sat on the court’s docket for 12 weeks last term before the justices agreed to hear this case.
So in light of all that, does the Glossip case give Attorney General Drummond pause about the death penalty itself, given that the case has gone on for decades and Richard Glossip has eaten his “last meal” three times? After hesitating a moment, Drummond responded: “It does give me pause, yes.”
One final wrinkle in the Glossip case is that on Wednesday, the arguments will be heard by an eight-justice court. Justice Neil Gorsuch recused himself from the case because he sat on the Tenth Circuit Court of appeals when that court decided one of Glossip’s earlier appeals.
If the Supreme Court were to split 4-4, the state court’s decision would prevail, and barring a commutation or a pardon from the state Pardon and Parole board, which previously rejected Glossip’s application on a tie vote, he will once again be headed for execution.