Supreme Court closely divided on new trial for Oklahoma death row inmate

Oklahoma’s top criminal court nevertheless upheld the death sentence for Glossip, 61, leading to the Supreme Court case known as Glossip v. Oklahoma.

At oral argument Wednesday, a majority of justices — conservatives as well as liberals — expressed concerns about the state court ruling and about whether Glossip received a fair trial. But it was unclear after nearly two hours of discussion whether at least five justices were open to giving him another do-over. Some floated the possibility of ordering a hearing to resolve factual disputes such as the meaning of a prosecutor’s cryptic notes and what was known about the key witness’s mental health.

In one of the more animated moments, Justice Elena Kagan told the lawyer arguing to uphold Glossip’s conviction that the jury would probably have reached a different outcome had the prosecutor called out the star witness for lying on the stand.

“False is false,” Kagan said, adding that “the critical question that a jury is asking is, do I believe this guy and everything he says and particularly, do I believe him when he points the finger at the accused?”

Justice Brett M. Kavanaugh said he too was troubled by the possibility that the witness’s false testimony could have changed the verdict because “the whole case depended on his credibility.”

Throughout the morning, Justices Clarence Thomas and Samuel A. Alito Jr. appeared unreceptive to arguments that Glossip, a former motel manager, is entitled to a new trial. Thomas repeatedly asked the lawyers about the potential for harm to the reputation of the prosecutors accused of misconduct, suggesting that they had not been given a full opportunity to explain their actions.

Glossip did not swing the bat that bludgeoned Barry Van Treese to death at the Best Budget Inn in Oklahoma City, which Van Treese owned and where Glossip worked. Those blows came from Justin Sneed, a drug-addled handyman whose testimony against Glossip was the only direct evidence connecting him to the killing.

Glossip was found guilty of murder for commissioning Sneed to kill Van Treese and was first sentenced to death in 1998. That sentence was overturned due to what a state court deemed ineffective legal counsel. He was again sentenced to die in 2004.

Nearly 20 years later, independent investigations commissioned by Oklahoma lawmakers and the state’s attorney general reached the same conclusion — that Glossip’s prosecution was riddled with misconduct, errors and omissions, including a deficient police investigation, the destruction of critical physical evidence and the suppression of other evidence.

Prosecutors did not disclose, according to the parties, that Sneed — a methamphetamine addict who testified in exchange for a sentence of life in prison — also suffered from a serious psychiatric disorder and was prescribed lithium. The investigations found prosecutors allowed Sneed to falsely testify that he had never seen a psychiatrist, concealing information that could have cast doubt on his credibility.

The case quickly became a focal point in the national debate over the death penalty, which critics say is unjust or unfairly applied.

Last year, however, the Oklahoma Court of Criminal Appeals unanimously refused to accept the “confession of error” by newly elected Attorney General Gentner F. Drummond (R) and order a new trial. The court said that the prosecutorial misconduct did not rise to the level of a constitutional violation of Glossip’s rights and that Glossip had not shown that a jury would have reached a different conclusion had prosecutors disclosed the evidence in advance of his trial.

Glossip has been scheduled for execution nine times. He was hours from being executed in 2015 when prison officials discovered they had received the wrong lethal drug, a mistake that led in part to a six-year moratorium on executions in the state.

The case before the Supreme Court was argued Wednesday by experienced lawyers well-known to the justices. Glossip’s lawyer is Seth Waxman, who served as solicitor general during Bill Clinton’s administration. Paul Clement, the former solicitor general appointed by George W. Bush, represented Drummond, who sat next to him at the front of the ornate courtroom.

Because Drummond disagrees with the Oklahoma state court ruling, the Supreme Court appointed attorney Christopher Michel, a former law clerk to Chief Justice John G. Roberts Jr., to argue in support of that decision allowing the execution to proceed.

Clement acknowledged his unusual position at the outset: “General Drummond has not only confessed error, but he’s made it clear that he’s not going to drop this prosecution or doesn’t accept that this is, you know, the poster child for an actual innocence case and he intends to reinitiate criminal process,” he told the justices.

But, he added, “given the centrality of Sneed’s testimony in this perjury, this is not a conviction that can stand.”

Michel said the Supreme Court does not have jurisdiction to decide the state matter, noting that the governor has the power to grant clemency. He and a lawyer for the victim’s family — retired federal judge Paul Cassell — disagreed with the attorney general’s interpretation of the recently disclosed prosecutors’ notes about Sneed, the key witness, that referred to lithium and a doctor.

Michel said Glossip has known since 1997 that Sneed took lithium and had a mental illness, but his lawyers chose not to question Sneed about it at trial because it could have bolstered the prosecution’s theory that Sneed was vulnerable to Glossip’s manipulation.

“Nothing in the note would have changed that decision or the jury’s,” Michel said.

Those arguments seemed convincing to Alito and to Thomas as they expressed concern about the trial prosecutors.

“What are we to do with the point that they make that they were frozen out of the process?” Thomas asked.

In response, Clement said the prosecutors had been interviewed and in one instance gave shifting responses to questions about the notes at issue.

“The ultimate process that I think matters here is the process in Glossip’s trial, and that was fundamentally distorted,” he said, noting that Sneed was not corrected by the prosecutor, for instance, when he said he was taking lithium for a common cold and not to treat bipolar disorder.

Alito suggested Glossip and the attorney general were relying too heavily on their own interpretation of the prosecutors’ scribbled notes captured in photos in court filings. He pointed out that the victim’s family had filed a brief detailing a different explanation.

“You want to say, well, just pretend it doesn’t exist and read those notes the way we think they should be read,” Alito said, asking whether the court should just send the disputed issues back to a lower court to resolve.

Justice Ketanji Brown Jackson also raised the possibility of an evidentiary hearing as a next step.

“I don’t understand why we wouldn’t, at the minimum, have some sort of requirement that a court make a finding about these things,” she said.

All of three of the lawyers arguing before the justices appeared to agree, however, that such a hearing is not necessary.

Oklahoma’s pardon and parole board initially split 2-2 on Drummond’s request for intervention; a vote in Glossip’s favor would have been necessary to recommend that Gov. Kevin Stitt (R) commute his sentence to life without parole. One member of the board recused himself because his wife prosecuted the case.

Michel told the justices Wednesday that the composition of the board has since changed and that a new clemency hearing could be held for Glossip.

The high court’s conservative majority has generally been skeptical of pleas for intervention from death row inmates and reluctant to review state court decisions — although the three liberal justices, joined by Roberts and Kavanaugh, last year reversed an Arizona state court to grant a death row inmate a new sentencing hearing.

The Supreme Court has said it will not undo lower-court rulings that are based on “adequate and independent state grounds,” and specifically asked the lawyers in Glossip’s case to address whether the justices can review the Oklahoma court’s ruling.

On Wednesday, the justices expressed differing views of that ruling, with Alito suggesting there was nothing ambiguous about its explanation for affirming Glossip’s conviction. In contrast, Kagan and Justice Sonia Sotomayor, both liberals, were sharply critical of the substance and structure of the opinion.

Michel conceded that the opinion could have been written more clearly and joked with Kagan that she had made a strong legal writing critique, but emphasized that the question for the court is “not how well written the opinion is.”

“Totally right, it’s not how well written it is,” Kagan responded, “But it’s a high bar to say that something is independent, you know, if there’s ambiguity, if there’s uncertainty.”

Glossip’s appeal is being reviewed at a time when the number of executions and death sentences in the United States has significantly declined compared with the late 1990s. But while some states have paused executions or abandoned capital punishment outright, it is still consistently used in other places — including Texas and Oklahoma, the two states that have carried out the most executions since 1976, according to the Death Penalty Information Center, a Washington-based group.

Justice Neil M. Gorsuch did not participate Wednesday, most likely because he dealt with the case as a lower-court judge.

Mark Berman contributed to this report.