Justices Told Error Admission Merits Respect In Capital Case

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Attorneys general from across the country implored the U.S. Supreme Court on Tuesday to give the "utmost" deference to Oklahoma's confession that prosecutorial misconduct led to the wrongful conviction of a death row inmate and to overturn a state court ruling that rebuffed the admission and upheld the conviction.

Washington, D.C., Attorney General Brian L. Schwalb and his counterparts in 10 states asked the justices in an amicus brief to throw out the conviction of Richard Eugene Glossip, 61, for the 1997 murder-for-hire of Barry Van Treese, which Oklahoma admitted in 2022 was based on the elicitation of false testimony and suppression of evidence, but that was upheld by the state's highest criminal court.

The Oklahoma Court of Criminal Appeals, referred to in court filings as OCCA, failed to give the state's attorney general, Gentner F. Drummond, and his confession the deference they deserved – which D.C. and the states described as "significant," "especially great," "extra" and "utmost" at various points in their 24-page brief. Instead, the appellate court gave them no weight at all and held that Glossip was likely aware of the withheld evidence and false testimony at the time of his trial.

"Confessing error is a momentous step, one that attorneys general never take lightly," Schwalb and the attorneys general said. "When they do so, then, courts should give the confession of error great weight."

Drummond's admission should've acted as an "extra-strength waiver" of issues that left the OCCA with no other option but to order a new trial, Schwalb and the attorneys general contended. Such statements are similar to traditional exercises of prosecutorial discretion and should be treated with similar respect, they said.

Kenneth T. Cuccinelli II, onetime Virginia attorney general and former deputy secretary of Homeland Security under President Donald Trump, added in a separately filed brief that confessions of prosecutorial error "ought to be exceptionally persuasive" and given "maximum" deference in cases like Glossip's where the misconduct violates fundamental principles of criminal law.

Drummond, who still asserts Glossip is guilty of murder but is seeking a retrial, admitted the state committed several violations of the Supreme Court's 1963 ruling in Brady v. Maryland requiring prosecutors to turn over exculpatory or mitigant evidence and the court's 1959 decision in Napue v. Illinois, which found that a prosecutor's presentation of knowingly false testimony violates the 14th Amendment's due process clause.

"Deference should have been 'at its zenith' because the state's chief law enforcement officer confessed Brady, Napue, and other constitutional errors in a capital case after a thorough investigation," Cuccinelli wrote. "By according that confession no respect, the OCCA threatens to force the state to execute an individual whose conviction was infected by admitted constitutional violations."

Glossip, who maintains his innocence, was twice convicted – in 1998 and 2004 – of orchestrating the January 1997 murder of Van Treese, the owner of an Oklahoma City motel where Glossip worked as a manager. The OCCA threw out his first conviction in 2001 after finding he had received unconstitutionally ineffective assistance of counsel.

His 2004 conviction "hinged almost entirely" on the testimony of Justin Sneed, a then-19-year-old handyman at the motel who confessed to beating and stabbing Van Treese to death in a guest room after Glossip offered to pay him for the murder.

Sneed blamed Glossip for the killing after detectives suggested Glossip's name several times during interviews and told Sneed he would face the death penalty for Van Treese's murder, according to court documents. Sneed is currently serving a life sentence without the possibility of parole.

Two investigations into Glossip's prosecution, one by Reed Smith LLP attorneys in 2022 and another by former Osage County, Oklahoma, prosecutor Rex Duncan, concluded that prosecutors failed to notify defense attorneys that Sneed had a history of mental illness and was being treated for bipolar disorder at the time of his testimony, withheld information about Sneed's desire to recant his confession, and lost 10 boxes of evidence ahead of Glossip's second trial.

New evidence also includes notes showing the lead prosecutor coordinated with Sneed's attorney to alter his testimony so it would better align with forensic evidence and then lied to the trial court by denying he had advanced knowledge that Sneed would change his testimony, Drummond wrote in an April 23 brief.

However, the OCCA denied Glossip's petition for post-conviction relief despite no state objections to the request after finding he hadn't presented any new evidence to support his innocence claim.

"By refusing to accept the attorney general's decision to waive any procedural obstacles, the OCCA reinforced the troubling message that it will cling to its past decisions even in the rare situation in which a state's chief law officer concludes that a fresh review is needed," Drummond wrote in his brief supporting reversal. "That message has no valid place in our system of justice, least of all in a capital case."

Glossip and Drummond's bid for a new trial received rare bipartisan support Tuesday from Democratic attorneys general, like Schwalb and his counterparts, and Republican government officials, including Cuccinelli and several Oklahoma state lawmakers, as well as various civil rights advocacy organizations.

State Rep. Kevin McDugle and four other legislators who authorized the Reed Smith investigation into Glossip's conviction said the state's execution of him without a new trial would be a "gross departure from fundamental constitutional protections." It would also cast a shadow over the death penalty more generally, they said.

"Imposition of the death penalty in the face of these constitutional violations – and over the state's confession of error – not only would be unthinkable, but would cast serious doubt on the legitimacy of the system that led to the imposition of that punishment," McDugle and his colleagues, who all support the death penalty, said.

The ACLU, along with the ACLU of Oklahoma and the Howard University School of Law's Civil Rights Clinic, also filed a brief in support of a new trial, arguing the Supreme Court must step in to correct what they described as an "endemic" of Brady and Napue violations committed by Oklahoma prosecutors.

The district attorney's office that first prosecuted Glossip in the 1990s has had five of its convictions overturned and the defendants exonerated because of similar prosecutorial misconduct, the groups said.

"Mr. Glossip's case cries out for Brady and Napue relief and a clear message from the court that violations of their core principles will not be tolerated," they said.

The National Association of Criminal Defense Lawyers added that Glossip's conviction is the first of more than 290 cases tried between 1908 and 2022 with confessed error in which the court has denied relief. Eight of those cases included murder and three involved the death penalty, according to the association's amicus brief.

"The OCCA's anomalous decision to depart from established practice in this way cannot stand," the NACDL said.

When the Supreme Court granted review in Glossip's case in January, the justices also asked the parties to brief whether the court could even review the OCCA's decision or if it was based on independent state-law grounds.

Although most of the amici briefs filed Tuesday focused on the prosecutorial misconduct aspect of the case, Glossip and Drummond argued in their opening briefs that the high court is free to reverse the OCCA decision because it relied on concepts of federal law.

A group of 13 law professors who are experts in the relationship between federal and state law agreed, writing in a joint brief that the justices are free to review Glossip's case because the OCCA didn't clearly state its judgment rests on uniquely state-law issues. The lower court's decision discriminated against federal rights, rendering any such bar void, the professors said.

Glossip is represented by Seth P. Waxman, Catherine M.A. Carroll, Julia M. May, Zaki Anwar, Juan M. Ruiz Toro and Dylan S. Reichman of WilmerHale, Amy P. Knight, John R. Mills and Joseph J. Perkovich of Phillips Black Inc. and Donald R. Knight.

D.C. and the states are represented by their respective attorneys general offices. 

Cuccinelli is represented by Emmet T. Flood, James N. Sasso and Dante K. Chambers II of Williams & Connolly LLP

The Oklahoma state lawmakers are represented by Gregory G. Garre and Uriel Hinberg of Latham & Watkins LLP

The ACLU is represented by William R. Weaver, Illyana A. Green and Emanuel Powell III of Jenner & Block LLP, David D. Cole and Brian W. Stull of the ACLU, Randy Alan Bauman and Megan Lambert of the ACLU of Oklahoma and Carmen Iguina González of the Howard University School of Law Civil Rights Clinic.

The NACDL is represented in-house by Barbara E. Bergman and by Stacey K. Grigsby, Sameer Aggarwal, Hassan Ahmad and Bradford McGann of Covington & Burling LLP

The law professors are represented by Melanie L. Bostwick, Thomas M. Bondy, Katherine M. Kopp and Kamilyn Y. Choi of Orrick Herrington & Sutcliffe LLP

Oklahoma is represented by Paul D. Clement, Matthew D. Rowen, Joseph J. DeMott and Zachary J. Lustbader of Clement & Murphy PLLC and Gentner F. Drummond and Garry M. Gaskins II of the Oklahoma Attorney General's Office.

Quinn Emanuel Urquhart & Sullivan LLP partner Christopher G. Michel is the court-appointed amicus arguing in favor of the lower court ruling.

The case is Glossip v. Oklahoma, case number 22-7466, in the Supreme Court of the United States.

--Editing by Janice Carter Brown.

For a reprint of this article, please contact reprints@law360.com.



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