The Supreme Court appeared split over an Oklahoma death row inmate’s latest bid for freedom during arguments Wednesday, leaving uncertain his fate.
Richard Glossip was convicted and sentenced to death for the 1997 murder of his former boss, motel owner Barry Van Treese. Though all parties agree that Glossip himself did not kill Van Treese, state prosecutors said he orchestrated a murder-for-hire plot and paid a maintenance worker, Justin Sneed, to carry out the act.
But now, Glossip is asking the high court to weigh whether the state denied him due process by keeping evidence from the defense and knowingly letting the jury hear false testimony from Sneed, a key witness. An unlikely ally to Glossip is the state itself, whose Republican attorney general has admitted the inmate received an “unfair and unreliable” trial.
The arguments, which lasted nearly two hours, showed cracks of division between the justices on matters like the importance of new evidence and whether the high court could hear the appeal at all.
Glossip’s looming execution is temporarily paused.
Seth Waxman, former U.S. solicitor general under President Clinton who is representing Glossip, argued Wednesday that Glossip was convicted on the “word of one man.”
When Oklahoma disclosed evidence in 2022 revealing Sneed lied to the jury about being prescribed lithium to treat previously undiagnosed bipolar disorder – which state prosecutors were aware of and left uncorrected – the conviction fell apart, he argued.
Paul Clement, former U.S. solicitor general under President George W. Bush who represented Oklahoma, similarly argued that an independent review commissioned by Oklahoma attorney general Gentner Drummond (R) revealed an obligation to admit his office erred.
“Drummond did not confess error here lightly,” Clement said.
Justices Samuel Alito and Clarence Thomas questioned the importance and accuracy of the new evidence, with Thomas suggesting the Oklahoma prosecutors weren’t given an adequate opportunity to explain themselves and Alito contending the notes revealing the state was aware of Sneed’s condition were too “cryptic” to be trusted.
“You rely very heavily on a note that says ‘lithium, question mark?’ ‘Dr Trumpet, question mark?’ and you read a lot into that,” Alito said, pointing to arguments made by victim Van Treese’s family in a friend-of-the-court brief.
“And you want us to say, ‘Well, just pretend it doesn’t exist and read those notes the way we think they should be read – those cryptic notes, the way we think they should be read – because the material that the Van Treese brief relies on is not in the record of the case?”
Justice Elena Kagan took an opposite perspective.
“(Sneed) lied on the stand,” Kagan said. “And in a case where the entire case rested on the testimony of one person and his credibility, if you can show that he lied on the stand … and then the prosecutor says, ‘Well, that was a lie. I better correct that’ … and doesn’t – that seems pretty material to me.
“I mean, it’s just your one witness has been exposed as a liar,” she said.
With Oklahoma in Glossip’s corner, the justices appointed lawyer Christopher Michel, a former law clerk to Chief Justice John Roberts and to Justice Brett Kavanaugh when he served on an appeals court, to make the argument that Glossip’s conviction should stand, and his execution go forward.
In addition to weighing whether Oklahoma prosecutors denied Glossip due process, the justices must also determine whether the high court has the power to review a ruling by Oklahoma’s highest criminal appeals court. It affirmed Glossip’s conviction.
Michel told the justices Wednesday that they “lack jurisdiction” to review the state court’s ruling, which several liberal justices forcefully pushed back against.
In a testy back-and-forth with Justice Sonia Sotomayor, Michel reiterated his position that the case should be dismissed over jurisdiction; Sotomayor interjected that he’d “already lost” on that argument, which drew a pointed glare from Roberts and chuckles from other justices.
Glossip’s case has already reached the Supreme Court before. In 2015, he and two other Oklahoma death row inmates challenged the state’s lethal injection protocol, and the justices put their executions on hold.
The inmates contended that the state’s use of midazolam, a sedative, violated the Eighth Amendment’s prohibition on cruel and unusual punishment because it does not entirely block feeling the effects of two other drugs injected to cause death.
The justices ultimately ruled 5-4 against the inmates that the drug states could continue use of the drug, with Alito writing for the majority that Glossip and the other inmates did not identify a less painful alternative.
Glossip’s latest appeal to the Supreme Court has seen support in amicus briefs from scores of states, civil liberties groups and current and former state and federal prosecutors.
Van Treese’s family strongly opposes the derailment of Glossip’s execution; they asked to participate in arguments before the court but were denied.
Justice Neil Gorsuch did not participate in Glossip’s appeal, likely because he participated in one of the death row inmate’s earlier appeals while serving on a lower court.
A decision is expected next summer.
