At Supreme Court arguments Wednesday, it was not clear that there were five votes for a new trial for a man who has spent 25 years on death row. It may well be that his chance to avoid execution is in the hands of Justice Brett Kavanaugh.
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Kevin Dietsch/Getty Images/Getty Images North America
The U.S. Supreme Court heard arguments Wednesday in a remarkable true-crime drama that pits Oklahoma’s attorney general against the state’s highest court for criminal appeals. At issue is whether the state court wrongly refused to accept the attorney general’s findings that Richard Glossip, a death row inmate, is entitled to a new trial.
Glossip has been on death row for more than 25 years. In that time, he has been tried and convicted twice and has lost multiple appeals, including one at the Supreme Court. The only witness to directly tie Glossip to the murder of motel owner Barry Van Treese was Justin Sneed, a handyman at the motel where Glossip was the manager. Sneed confessed to murdering Van Treese and, in exchange for testifying against Glossip, got life in prison instead of the death penalty.
Prosecutors never claimed Glossip had actually participated in the murder itself. They said he had organized it to either avoid being fired, or in a different theory of the crime at the second trial, to steal money from Van Treese. But in 2023, one year after a large bipartisan group of state legislators had commissioned an outside law firm to investigate the Glossip case, Oklahoma Attorney General Gentner Drummond commissioned a second independent investigation. The subsequent special counsel report found, as the earlier investigation did, that Glossip had been denied a fair trial.
Drummond, a Republican and death penalty supporter, then took a rare step. He asked the state Court of Criminal Appeals to order a new trial because he said that Glossip had been convicted with evidence tainted by prosecutorial misconduct. Namely, that prosecutors had hidden evidence helpful to the defense, and elicited what they knew was false testimony from Sneed at trial. He did not maintain that Glossip was innocent, just that he was entitled to a new trial. Indeed, as lawyer Paul Clement, representing the state of Oklahoma, made clear at the Supreme Court Wednesday, Drummond expects Glossip to be convicted, but not of a capital crime.
The Oklahoma Court of Criminal Appeals, however, refused Drummond’s request for a new trial, and the attorney general appealed to the Supreme Court, contending that the appeals court ruling should be reversed.
Clement told the justices that Drummond’s formal confession that the trial had been unfair “demanded respect” but instead the state court “essentially treated the confession of error as unfounded.”
Where the justices stood
At arguments on Wednesday, it was not clear that there were five justices who would vote for a new trial. Indeed, It may well be that Glossip’s chance to avoid execution is in the hands of Justice Brett Kavanaugh, or Justice Amy Coney Barrett, or both.
Chief Justice John Roberts, echoing the Oklahoma court’s position, asked whether “it would make that much of a difference to a jury” that they didn’t know the star witness was suffering from bipolar disorder and was being treated by a psychiatrist with lithium.
Justice Kavanaugh seemed troubled nonetheless, positing that if the jury knew that not only did Sneed “have an incentive to lie, but he’s lied on the stand and he’s bipolar,” that would create “all sorts of avenues to question [Sneed’s] credibility.”
Justice Barrett focused largely on procedural concerns, noting that for Oklahoma’s highest criminal court it “is unusual not to accept: the attorney general’s request for a new trial.
Justice Clarence Thomas had an entirely different view, focusing not on Justin Sneed, the star witness, but instead on whether the prosecutors in Glossip’s second trial had been unfairly maligned. He repeatedly asked the two lawyers seeking a new trial if they had interviewed the prosecutors. Clement and Glossip’s lawyer Seth Waxman, both replied that the prosecutors had been interviewed by two independent counsels, and that the prosecutors themselves had submitted “unsworn statements” for a friend-of-the-court brief filed by the victim’s family in the Supreme Court.
Justice Samuel Alito, perhaps the court’s most vocal supporter of the death penalty, made clear his displeasure that the Glossip case was back at the high court yet again.
In contrast, the court’s liberals were openly appalled. Justice Sonia Sotomayor noted that the prosecutors knew their star witness had lied, and did nothing to correct the lie, as required by multiple Supreme Court rulings.
Justice Elena Kagan was even more blunt. “In a case where the entire case rested on the testimony of one person… your one witness has just been exposed as a liar,” she said pointedly. Those lies are particularly important, she said, because “the critical question the jury is asking is ‘Do I believe this guy and do I believe him when he’s pointed the finger at the accused.'”
Justice Gorsuch’s recusal
Counting the votes in Wednesday’s case is particularly tricky because Justice Neil Gorsuch is recused; he was on the Tenth Circuit Court of Appeals during one of Glossip’s earlier appeals. That means there are only eight justices voting in the case, and a 4-4 tie would mean that the Oklahoma Criminal Court of Appeals ruling would be upheld, and Glossip would once again be headed for execution.
At Wednesday’s argument, Christopher Michel, the lawyer appointed to represent the Oklahoma court, told the justices that in that event, Glossip can seek clemency from the state Pardon and Parole Board. The last time Glossip appealed to the board for clemency, it was deadlocked 2-to-2, because the fifth member had a conflict of interest. His wife was the lead prosecutor in the second Glossip trial.
On Wednesday, lawyer Michel assured the court that there are new members of the board, so all five could participate, avoiding a repeat of the deadlock.