Twice in the past decade the Supreme Court has blocked Oklahoma from executing Richard Glossip. Now the state has joined Glossip to argue that newly uncovered evidence shows prosecutors violated his rights at trial. But even with the Oklahoma’s rare confession of error, both the state’s highest court for criminal cases and the state’s pardon and parole board turned down Glossip’s pleas for relief. On Oct. 9, two former U.S. solicitors general – Seth Waxman, representing Glossip, and Paul Clement, representing Oklahoma’s attorney general – will appear before the justices, seeking to persuade them to set aside Glossip’s conviction and death sentence and order a new trial.

Oklahoma Attorney General Gentner Drummond told the court that the state is not looking for an exoneration “by fiat (or at all)” but that “justice would not be served by moving forward with a capital sentence that the State can no longer defend.”

In 1997, Barry Van Treese was bludgeoned to death with a baseball bat in the room he was staying in at his Oklahoma City motel, where Glossip worked as a manager. Another one of Van Treese’s employees, Justin Sneed, confessed to killing him while on meth. He is serving a life sentence. Glossip has maintained he had no part in the murder and is innocent over the decades he has been on death row.

The only evidence implicating Glossip in Van Treese’s death was testimony from Sneed, who worked as a handyman at the hotel. Sneed told jurors that Glossip paid him up to $10,000 to kill Van Treese. In exchange for his testimony, prosecutors promised Sneed that he would not face the death penalty.

In 2015, the Supreme Court put Glossip’s execution (as well as those of two other men) on hold while it considered their challenge to the state’s lethal injection protocol. But by a vote of 5-4, the justices rejected that challenge.

In June 2022, a law firm hired by Oklahoma legislators issued a 259-page report in which it found “grave doubt as to the integrity of Glossip’s murder conviction and death sentence.” The firm pointed to (among other things) prosecutors’ “deliberate” destruction of “key physical evidence” and the “deficient and curtailed police investigation.”

Glossip asked an Oklahoma court to set aside his conviction and sentence last year. In January 2023, he said, he had received for the first time files from the state indicating that prosecutors knew, but had not disclosed to Glossip or his lawyers, that Sneed had been prescribed lithium for bipolar disorder after his arrest. Sneed had said that he was accidentally prescribed the drug for a cold. Prosecutors also allowed Sneed to testify falsely that he had never been treated by a psychiatrist.

During the same month, Drummond appointed a former district attorney and Republican legislator, Rex Duncan, as an independent counsel to review Glossip’s case. In April 2023, after 600 hours of work, Duncan reported that he believed a new trial was necessary because Glossip had been deprived of a fair trial.

Based on that report, Drummond joined Glossip’s request for the Oklahoma Court of Criminal Appeals, the state’s highest court for criminal cases, to set aside his conviction, as well as his plea for clemency from the state’s Pardon and Parole Board.

Both of those efforts to seek relief in Oklahoma were denied, prompting Glossip (again, with Drummond’s support) to go to the Supreme Court, asking the justices to put his execution, scheduled for May 18, 2023, on hold to give them more time to consider his appeals.

The justices granted that request, and in January 2024 they agreed to take up Glossip’s case. With the state siding with Glossip, a few weeks later the Supreme Court appointed Christopher Michel, a former clerk to Chief Justice John Roberts, to defend the decision by the Oklahoma Court of Criminal Appeals leaving Glossip’s conviction and death sentence in place.

In granting the case, the justices added a question for the parties to address: Whether the Supreme Court has the power to review the decision by the Oklahoma Court of Criminal Appeals at all, or whether it is instead barred from doing so because the decision rests on an “adequate and independent state ground.” The Van Treese family, who believe Glossip should be executed, support this theory that the case is outside the court’s jurisdiction.

Michel contends that the Supreme Court cannot consider Glossip’s claims because the state court resolved them on a “paradigmatic” adequate and independent state ground: It held that Glossip’s claims were barred by a state law that prohibits courts in capital cases from reviewing issues that a prisoner could have raised earlier. In doing so, he writes, the state court applied that law “essentially verbatim” in its opinion, without referring to federal law.

Glossip counters that there is a “high hurdle” to overcome the presumption that the Supreme Court can review a state court ruling on an issue of federal law. And in this case, he stresses, the state court’s decision “relied directly” on federal law – specifically, the Supreme Court’s 1963 decision in Brady v. Maryland, which requires prosecutors to turn over any evidence that is favorable to the defendant and could affect the decision about guilt or punishment, and its 1959 decision in Napue v. Illinois, holding that if prosecutors obtain a conviction using what they know is false testimony, the conviction must be set aside if there is “any reasonable likelihood” that the false testimony could have affected the jury’s decision. The state court ruled on the substance of Glossip’s claims related to those cases, he notes, without ever indicating that it was discussing the Supreme Court decisions only for “guidance”

Drummond adds that the state court’s ruling could not have rested on an “adequate and independent state ground” for another reason. As the attorney general, he explains, he can waive the application of the state law on which the Oklahoma Court of Criminal Appeals relied to ensure that justice is done. He did so in this case, he writes, but the state court rejected it – as far as the state is aware, “for the first time ever.” That kind of “unprecedented and unexplained barrier to relief,” Drummond suggests, “is precisely the kind of ‘novel and unfounded’ rule that is inadequate to” bar the Supreme Court from reviewing Glossip’s case.

But Michel disputes whether Drummond had specifically waived the application of the state procedural law to Glossip in this proceeding: His predecessor, Michel notes, did so in an earlier proceeding but only for that proceeding. So even if Drummond incorporated the arguments made by his predecessor in earlier filings, that would not constitute a waiver for purposes of this case.

Glossip and Drummond’s arguments, Michel writes, boils down to an argument “that the OCCA should have explained its holding more thoroughly or that its holding is wrong. But neither of those positions is a valid basis for this Court to review a state-court decision grounded in state law.”

The second question before the court goes to the heart of the case: Whether the justices should invalidate Glossip’s conviction and sentence because prosecutors failed to correct false testimony by Sneed and turn over evidence that might have helped to clear Glossip.

Glossip contends that because the prosecution’s “entire case hinged on Sneed’s credibility,” its failure to correct his false testimony that he had never seen a psychiatrist, and that he didn’t know why he had been prescribed lithium after his arrest (when he had an untreated but serious mental health disorder) was “crucial.” For example, Glossip posits, correcting Sneed’s testimony likely would have undermined his reliability as a witness, particularly when that testimony was the only evidence that directly linked Glossip to Van Treese’s death.

Drummond pushes back against the state court’s suggestion that Sneed’s testimony was “not clearly false” because he may have been “in denial of his mental health disorders.” But “being in denial,” Drummond emphasizes, is not an excuse for lying. And in any event, Drummond writes, regardless of what Sneed may have believed, Napue’s bar on eliciting false testimony applies to prosecutors, not witnesses.

Similarly, Glossip continues, if prosecutors had disclosed that Sneed had been treated by a psychiatrist and had been prescribed lithium, Glossip’s defense attorneys could have investigated Sneed’s mental health issues, highlighted his lies on the stand, and suggested that his memory of the crime was “highly unreliable.” That in turn could have prompted the jury to be skeptical of Sneed’s testimony, Glossip argues.

Michel counters that Glossip’s claims for relief hinge on a “significant overreading” of the prosecutor’s notes. The notes to which Glossip points are so “cryptic” – containing only the phrase “on Lithium?” and a reference to a doctor – that they don’t actually conflict with Sneed’s testimony or help Glossip, he says. But even if Glossip and the state are right that having this information would have indicated to Glossip’s trial lawyers that Sneed had been prescribed lithium by a psychiatrist, he suggests, it is unlikely to have mattered whether the jury had that additional information, rather than simply knowing (as they did) that a health-care provider had prescribed lithium for Sneed.

Finally, Drummond faults the state court for failing to give any weight to his conclusion that Glossip’s conviction and death sentence should be set aside because it is “constitutionally unsupportable.” That decision, he tells the justices, “sends a terrible signal to litigants by suggesting that the courts have a vested interest in preserving their ‘own’ convictions.”

“Nothing in the Constitution compels a state court to provide a particular measure of deference to a state official’s confession of error,” Michel observes. But even if courts were required to give such confessions “respectful consideration,” he adds, the state court satisfied that obligation “by acknowledging the Attorney General’s position but disagreeing with it on the law and facts.” Moreover, he contends, a request like Drummond’s for courts to intervene and invalidate criminal convictions creates “serious” concerns about the division of power between the three branches of government.

Justice Neil Gorsuch has recused himself from the proceedings in Glossip’s case so far, presumably because he participated in one of Glossip’s earlier appeals when he served as a judge on the U.S. Court of Appeals for the 10th Circuit, which includes Oklahoma.

This post is also published on SCOTUSblog.