The Supreme Court routinely rejects death row claims, but on Monday the justices took up an appeal that even they couldn’t ignore. They agreed to review the long-running case of Richard Glossip, who has maintained his innocence and whose high court petition was supported — remarkably — by the state of Oklahoma, which secured his death sentence decades ago.
Glossip was convicted based on testimony from the state’s key witness, Justin Sneed, who murdered Barry Van Treese in 1997 and testified that Glossip was also involved. But it later emerged that the state hid from the jury that Sneed had seen a psychiatrist who diagnosed him with a condition that rendered him potentially violent, and the state let Sneed tell the jury he hadn’t seen a psychiatrist. Sneed received a life sentence while Glossip has been fighting off execution dates.
After years of litigation — including a 5-4 Supreme Court ruling against Glossip in 2015 — the state admitted its error to the Oklahoma Court of Criminal Appeals and said he should get a new trial. But despite that concession, the state court refused last year to stop his execution, reasoning that the government’s concession alone “cannot overcome the limitations on successive post-conviction review.”
Naturally, Glossip petitioned the Supreme Court, a move that’s often reflexively opposed by prosecutors no matter the circumstances when convictions and sentences are at stake. But here, the Oklahoma attorney general wrote to the justices in support of Glossip’s petition last summer. “Regrettably,” the state’s brief said, “the Oklahoma Court of Criminal Appeals refused to accept the State’s confession of error, instead reaching the extraordinary conclusion that Glossip’s execution must go forward notwithstanding the State’s determination that his conviction is unsustainable.”
So now that the Supreme Court has granted review, does that mean Glossip will prevail — especially given the state’s remarkable agreement?
Not necessarily.
It’s true that the justices halted his execution while litigation continues. But they also could have just summarily reversed the state court ruling, as Oklahoma suggested in its brief. Instead, the justices will receive briefs and hold argument before issuing a decision. Plus, in granting Glossip’s petition, the justices didn’t agree to consider only the due process issues he raised; rather, they also told the parties to brief and argue the question of “Whether the Oklahoma Court of Criminal Appeals’ holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.” That is, at least some of the justices are considering a point that could greenlight the Oklahoma court’s decision to allow Glossip’s execution anyway, despite the state’s concession. Another part of the high court’s order noted something that should be encouraging to any death row inmate’s claim: Justice Neil Gorsuch is recused. The Trump appointee didn’t explain why (a recurring theme from the Republican appointees), but presumably that’s because Gorsuch previously sat on the U.S. Court of Appeals for the 10th Circuit, which covers Oklahoma and thus some of Glossip’s prior litigation. So the tribunal deciding this life-or-death matter will be down a justice who has tended toward the “death” side of things in capital cases. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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