Did Glossip and the Oklahoma Lawyer Normal Collusively Conceal Proof to Win Their U.S. Supreme Court docket Case?
Immediately the U.S. Supreme Court docket dominated in favor of dying row inmate Richard Glossip. By a 5-3 majority, the Court docket discovered that the prosecutors within the case “knowingly” didn’t right false testimony from an vital state witness at Glossip’s homicide trial. However in reaching this conclusion, the bulk refused to contemplate extremely related proof that I offered for the sufferer’s household disproving this discovering. The bulk concluded that my proof constituted “extra-record supplies not correctly earlier than the Court docket.” However as Justice Thomas identified in his highly effective dissenting opinion, the events within the case (Glossip and the Oklahoma Lawyer Normal’s Workplace) “collusively excluded this extremely related proof” from the file. The events’ doubtful maneuver raises critical questions concerning the justice of immediately’s ruling—and about our nation’s remedy of crime victims’ households.
VC readers will recall that I blogged about this case earlier, explaining the story behind how dying row inmate Glossip concocted a phantom “Brady violation” and obtained Supreme Court docket overview. See Half I, Half II, and Half III.) To rapidly summarize, Glossip was convicted of the 1997 homicide of Barry Van Treese in 1998. After a reversal for ineffective help of counsel, Glossip was convicted once more in 2004. The principle state witness was Justin Sneed, who confessed that he (Sneed) had murdered Van Treese after Glossip had commissioned the homicide.
In 2007, the Oklahoma Court docket of Felony Appeals (“OCCA”) affirmed Glossip’s conviction and sentence, rejecting Glossip’s declare that the proof proved solely that he was an accessory-after-the-fact. Within the years since, courts have rejected a number of challenges by Glossip to his conviction and dying sentence.
Almost twenty years later, Oklahoma was getting ready to execute Glossip when a brand new Lawyer Normal, Gentner Drummond, was elected. Shortly after assuming workplace in January 2023, and apparently sensing political alternative, the brand new Lawyer Normal unexpectedly commissioned an “unbiased” overview of Glossip’s conviction. Conveniently, Normal Drummond employed Rex Duncan, his lifelong pal and a political supporter who possessed restricted expertise in capital litigation. Duncan all of a sudden found “new” proof the prosecution had purportedly hid from the protection.
As the story was advised in Glossip’s and Oklahoma’s briefs earlier than the Oklahoma courts and, in the end, the Supreme Court docket, the trial prosecutors hid from Glossip’s protection group details about Sneed’s lithium utilization and associated psychiatric care. This story rested on an interpretation of notes the prosecutors took throughout a pretrial interview of Sneed. Particularly, Normal Drummond asserted that the handwritten notes indicated that Sneed advised the prosecutors “that he was ‘on lithium’ not by mistake, however in reference to a ‘Dr. Trumpet.'”
The OCCA rejected the argument and, after relisting the case twelve occasions, the Supreme Court docket granted cert. I filed a movement to take part in oral argument for the household. However, as a substitute, the Court docket appointed an amicus to argue for affirming the judgment under.
I filed an amicus transient within the case, explaining that the prosecutors’ handwritten notes didn’t by some means reveal that prosecutors knew about Sneed’s alleged lithium prescription and utilization, however quite merely confirmed the prosecutors have been recording Sneed recounting what Glossip’s protection lawyer’s have been asking about. Particularly, I defined that the notes from one of many prosecutors contained query marks—as proven by the references marked with the black arrows under:
Stepping again to look at the encompassing context of those two notes clarifies that the prosecutor was merely recording Sneed recounting what Glossip’s protection group was questioning him (Sneed) about—therefore, the 2 query marks reflecting questions being requested. The prosecutor’s adjoining notes replicate two visits (“2X”) by protection representatives—with notes concerning the two visits separated by a curving line.
Turning to the primary go to, as proven by the be aware flagged with a crimson arrow above, Sneed’s guests have been “girls.” As proven by the notes flagged with a blue arrow, that go to concerned an investigator (“make investments.”) who might have been heavy set (“heavy set?”). As proven by the notes flagged by the inexperienced arrow, the protection representatives might have been concerned in Glossip’s earlier direct “enchantment.” And, lastly, as proven by the notes flagged by the 2 black arrows, the ladies questioned Sneed about (1) whether or not he was “on lithium?” and (2) a “Dr[.] Trumpet?”—i.e., questioned by the ladies representing Glossip. Thus, learn in context, the important thing phrases within the prosecutor’s notes reveal that Sneed was recounting not what the prosecutor had independently discovered (a lot much less confirmed and knew) however quite questions Glossip’s protection group was asking Sneed.
Throughout oral argument in October, Glossip and the Oklahoma Lawyer Normal each argued for setting Glossip’s homicide conviction apart. Immediately, the Supreme Court docket agreed, discovering that the OCCA had misinterpreted federal regulation. The Court docket held that the Oklahoma courts had misinterpreted Napue v. Illinois, which interpreted the Brady rule and defined that due course of forbids prosecutors from “the realizing use of false proof.” However then immediately’s opinion continues to make new factual findings the case for the primary time on enchantment. Very surprisingly, the Court docket held that treatment was not the usual remand for additional proceedings however quite an automated new trial for Glossip. The Court docket obtained it fallacious—or, much more clearly, the Court docket dominated based mostly on distorted file the place the events collusively hid vital data.
Within the majority opinion, Justice Sotomayor particularly mentioned the problems raised by my interpretation of the prosecutor’s notes:
In an amicus transient, the Van Treese household argues that it was Glossip’s counsel who requested Sneed about his lithium prescription, and that [the prosecutor’s] notes reveal solely that Sneed relayed these inquiries to [the prosecutor]. See Transient for Sufferer Household Members as Amici Curiae 7–22. That argument depends closely on extra-record supplies not correctly earlier than the Court docket, together with a current unsworn assertion from [the prosecutor] adopting the household’s interpretation of the notes. (The dissent, which criticizes the unbiased counsel for “impugning” the trial prosecutors’ fame, submit, at 15, justifies its reliance on these supplies by accusing the Oklahoma lawyer common of “collusively exclud[ing]” them from the file, see submit, at 42.) Nor would accepting the household’s account change the Napue evaluation. Regardless of the impetus for the dialog, the household agrees that Sneed and [the prosecutor] mentioned Dr. Trombka and lithium. The pure inference is that Sneed defined to [the prosecutor] the circumstances that led to his lithium use.
A number of observations on this passage. First, and most notably, Justice Sotomayor merely flagged the dissent’s place accusing the Oklahoma lawyer common of “collusively exclud[ing] … extremely related proof from the file.” Justice Sotomayor didn’t dispute that characterization’s accuracy.
Second, Justice Sotomayor concluded that the supplies I supplied from the household wouldn’t “change” the Napue evaluation, based mostly on what she believes is the “pure inference” a couple of “dialog” that then ensued between the prosecutors and the witness (a dialog that’s not memorialized within the prosecutor’s notes).
It is a gobsmackingly inaccurate description of the supplies that I offered. As recounted in a letter from each prosecutors within the case hooked up to my transient, what occurred throughout the Sneed interview was that he recounted that Glossip’s protection attorneys “requested him questions on lithium and Dr. Trumpet. The query marks after these two phrases point out that the ladies requested him these questions.” Van Treese Br. at 10a (reprinting letter from prosecutors). Opposite to the alleged “pure inference” from the notes, the notes’ authors clarify that Sneed was no discussing the “circumstances” surrounding Sneed’s prescribed use of lithium—solely the truth that the protection attorneys have been asking about it.
Justice Sotomayor tried to assist her “pure inference” with a reference to a jail medical file, which appeared to incorporate details about Sneed’s lithium prescription. However, as famous above, for prosecutors to violate Napue, they have to “knowingly” use false proof. Even assuming that the jail medical file confirmed that Sneed was prescribed lithium, that file didn’t present prosecutors “knowingly” used false testimony on the contrary. As the 2 prosecutors defined in a letter included in my transient to the courtroom: “The 2 of us, in a mixed over fifty-five years of prosecuting circumstances, have by no means seen a transport order like this doc. The primary time we noticed this particular doc was when it was hooked up to a protection submitting in 2022,” which (after all) was almost twenty years after Glossip’s trial. The prosecutors couldn’t have knowingly used testimony opposite to a file that that they had by no means seen.
Justice Sotomayor additionally famous that Justice Thomas’ dissent argued for a remand to the Oklahoma courts to offer “the Van Treese household [with] the chance to current its case.” However, for Justice Sotomayor, this was not sufficient as a result of “[t]he household has not requested an evidentiary listening to (or participation in a single) at any stage earlier than the OCCA and doesn’t request that aid earlier than this Court docket.” (Op. at 27 n.11.) Her conclusion is clearly disappointing, significantly provided that I filed a movement to take part in oral argument earlier than the Court docket—a movement that the Court docket denied (with out clarification) in favor of as a substitute giving a Court docket-appointed amicus the chance to defend the judgment under. Furthermore, the household’s transient clearly requested the Court docket to easily affirm the judgment under. As soon as the Supreme Court docket rejected the household’s overarching place, the household would clearly have most well-liked to have their factual arguments thought-about by the Oklahoma courts—quite than merely ignored as “extra-record” by the Supreme Court docket in its haste to command a brand new state courtroom trial.
Justice Thomas’ dissent (joined in full by Justice Alito and partially by Justice Barrett) highlighted quite a few flaws within the majority’s opinion. On this submit, I’ll highlight Justice Thomas’ vital dialogue of my amicus transient for the sufferer’s household. Justice Thomas explains how my transient superior a wonderfully believable different studying of the notes in query:
Concluding that no new factual improvement is required is especially inappropriate given the choice studying of the notes superior by the Van Treese household on this Court docket. As mentioned above, the household has argued that the supposed “smoking gun”—the notes from Field 8—in reality displays Sneed’s recollection of what protection counsel had requested him at two prior conferences. [Prosecutors] Smothermon and Ackley have likewise endorsed this interpretation, which casts critical doubt on Glossip’s and the State’s idea. If Sneed merely reported that he was requested about Dr. Trombka with out admitting Dr. Trombka prescribed him lithium, Smothermon and Ackley would have had no motive to know that Dr. Trombka prescribed him lithium. And, the indication in Ackley’s notes that Sneed apparently talked about his “‘tooth'” being “‘pulled'” means that Sneed stood by his earlier story that he was mistakenly prescribed lithium when his tooth was pulled. (citations omitted).
For Justice Thomas, as a substitute of the Supreme Court docket participating in appellate fact-finding on a distorted file, the correct end result would have been to ship the case again to the Oklahoma courts for additional consideration. Justice Thomas highlighted the “collusive” distortion of the file that the events orchestrated on this case:
To the extent the Court docket insists it can not endorse the household’s idea as a result of it depends on “extra-record supplies not correctly earlier than the Court docket,” ante, at 25, … that’s as a result of the events collusively excluded this extremely related proof from the file so as to attain a predetermined end result. The bulk rewards this gamesmanship, and in so doing denies the sufferer’s household the chance to current opposite proof. (Dissent at 42 (emphasis added)).
Justice Thomas noticed that the sufferer’s household deserved its “day in courtroom”:
The “Authorities ought to flip sq. corners in coping with the individuals.” That command extends not solely to felony defendants, but additionally to their victims. “[C]onducting retrials years later inflicts substantial ache on crime victims,” who should “relive their trauma and testify once more,” on this case 28 “years after the crim[e] occurred.” The Oklahoma Structure acknowledges this curiosity by giving crime victims just like the Van Treese household the correct—”which shall be protected by regulation in a way no much less vigorous than the rights afforded to the accused”—”to be heard in any continuing involving launch, plea, sentencing, disposition, parole and any continuing throughout which a proper of the sufferer is implicated.” Artwork. II, §34(A). Glossip, then again, would endure no prejudice from an evidentiary listening to through which the Van Treese household had the chance to current its case. If the proof is as decisive as the bulk believes, Glossip would nonetheless obtain a brand new trial. There isn’t a excuse for denying the Van Treese household its day in courtroom. (citations omitted).
Justice Thomas decried how unfair it’s for the Court docket to determine this case based mostly on a collusively crafted and distorted set of information:
After having bent the regulation at each flip to grant aid to Glossip, the Court docket all of a sudden retreats to fake formalism when coping with the sufferer’s household. The Court docket concludes that it needn’t honor the household’s proper to be heard as a result of the household didn’t request an evidentiary listening to earlier within the proceedings. However, the household had no want to take action, since Glossip had conceded that “a listening to is critical” for his declare to rise above the extent of “hypothesis.” And, earlier than this Court docket, the Van Treese household has vigorously asserted its pursuits. The household filed the one transient opposing certiorari on this case. It filed a deserves transient highlighting vital proof that the events sought to comb beneath the rug. And, it filed a movement to take part in oral argument, which this Court docket denied. The bulk’s assertion that the household has sat on its rights is groundless. (Dissent at 43 (citations omitted).
Justice Thomas concluded his highly effective dissent by chastising the bulk for failing to contemplate the sufferer’s household’s pursuits: “[E]ven if the household had no formal proper to be heard, any affordable factfinder plainly might think about the account of the proof that the household has dropped at mild, making the bulk’s procedural objections irrelevant. Make no mistake: The bulk is selecting to forged apart the household’s pursuits. I’d not.”
Within the back-and-forth between the bulk and Justice Thomas, it won’t be misplaced on the reader that almost all has no response to his remark that the events (i.e., Glossip and the Oklahoma Lawyer Normal) have “collusively excluded this extremely related proof from the file [about what the prosecutor’s notes mean] so as to attain a predetermined end result.” Because of this, for individuals who would cite this case for instance of trial prosecutors knowingly counting on false proof, the case extra precisely stands for the proposition that the Oklahoma Lawyer Normal’s Workplace and the defendant have succeeded, by “gamesmanship,” in collusively distorting the file.
Commenting in a press launch immediately on the “victory” he had obtained earlier than the U.S. Supreme Court docket, Lawyer Normal Drummond asserted that “[o]ur justice system is vastly diminished when a person is convicted with out a honest trial, however immediately we are able to rejoice that an awesome injustice has been swept away. I’m happy the excessive courtroom has validated my grave considerations with how this prosecution was dealt with, and I’m grateful we now have a contemporary alternative to see that justice is finished.”
From what I can see, Normal Drummond nonetheless has no clarification for why he “collusively excluded … extremely related proof from the file” to acquire his victory. Sadly, whereas the Lawyer Normal is crowing about “justice being performed,” the sufferer’s household could be left with no treatment for his deceitful maneuver. It is a unhappy day for justice on this nation when an lawyer common can exclude extremely related proof after which win his case on a distorted file—leaving the sufferer’s household to marvel why related information a couple of homicide trial held greater than twenty years in the past can deceptively be swept beneath the rug.
One last be aware: The Court docket has despatched the case again for a retrial. The proof on this case is overwhelming. The household stays assured that when that new trial is held, the jury will return the identical verdict as within the first two trials: responsible of first diploma homicide.
Replace: For extra authorized evaluation vital of immediately’s ruling, see Kent Scheidegger’s submit right here.
