Richard Glossip was convicted of plotting the 1997 murder of Barry Van Treese, the owner of an Oklahoma City motel where Glossip worked as a manager, but has maintained his innocence. A motel handyman, Justin Sneed, confessed to being the actual killer but said Glossip hired him to carry out the murder.
Sneed testified at Glossp's trial that "I never seen no psychiatrist or anything" while he actually suffered from bipolar disorder and had been prescribed lithium. Prosecutors never disclosed that information, which if shown to a jury could have tainted Sneed's reliability as a witness. It wasn't made public until this January after investigations into the case.
Last month, Oklahoma Attorney General Gentner Drummond acknowledged that the disclosure failure could have resulted in a different verdict for Glossip, who argued his due process rights were violated in two separate Supreme Court petitions.
In a friend-of-the-court brief filed Monday, the ethicists urged the high court to reverse a decision by the Oklahoma Court of Criminal Appeals, the state's top criminal court, that held that due process was not jeopardized by the prosecution's failure to correct Sneed's testimony.
The scholars — Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, W. Bradley Wendel, Ronald F. Wright and Ellen C. Yaroshefsky — said the state court assumed that prosecutors are not obligated to correct a witness' false testimony when the statement was not deliberate, may not change the outcome of a trial, or when defense attorneys failed to expose the falsehood in cross-examination.
"The state court's decision was wrong," their brief says. "The decision below countenances a constitutional violation that draws into question the integrity of the verdict in this case. Further, it misdirects prosecutors about their responsibilities under the Constitution and the rules of professional conduct that derive from it, to the detriment of fair and reliable verdicts in future cases."
The brief's authors said the Oklahoma court's decision fails to consider the precedent set in 1959 by the U.S. Supreme Court in Napue v. Illinois
, where the high court held that the Constitution requires prosecutors to rectify their witnesses' false testimony. If left uncorrected, they wrote, the decision in the Glossip case will erode prosecutorial obligations and exacerbate confusion among the lower courts about the scope of the Supreme Court ruling.Two independent investigations into Glossip's criminal prosecution, one last year led by a team of attorneys from Reed Smith LLP and one this year by Rex Duncan, a former state prosecutor, concluded that prosecutors committed several violations under Brady v. Maryland
, the 1963 U.S. Supreme Court decision mandating that prosecutors in a criminal case turn over all exculpatory, mitigating and impeachment evidence to defense lawyers.The probes unearthed several materials Glossip's defense attorneys never saw, including notes stored in "Box 8" of the district attorney's case file that pointed to Sneed's bipolar diagnosis and medication regimen.
The legal scholars pointed out in their brief that Sneed's mental conditions were not disclosed before trial, during trial or during appeals, effectively denying Glossip's defense counsel the opportunity to correct the witness' false testimony.
"The jury was thus left with the false impression that Sneed was placed on lithium as a mistake and that he had no mental health issues that could have contributed to the murder or affected his testimony or his recollection of events," they said. "The jury was misled about why Sneed was administered lithium and kept in the dark about his lie on the stand."
Glossip's case captured the attention of the nation, in part because a group of vocal elected officials across the political spectrum, including Oklahoma conservatives who support the death penalty, have expressed serious doubts on his guilt and said he should not be executed.
In a controversial 2-to-2 vote in April, the Oklahoma Pardon and Parole Board declined to recommend clemency for Glossip. A fifth board member who had recused himself because of a conflict of interest was not replaced. Bound by that decision under state law, Gov. J. Kevin Stitt, a Republican, cannot consider a pardon. Stitt has put off Glossip's execution twice by issuing 60-day stays, but has said he is not willing to do so again.
On May 5, the U.S. Supreme Court stayed Glossip's execution, which was scheduled less than two weeks later, while it considered his certiorari petitions.
More amicus curiae are expected to file briefs with the high court in the case.
The Innocence Project, a nonprofit that represents incarcerated people believed to be wrongly convicted, filed its own brief on Monday arguing that Glossip's case "implicates many of the hallmarks of a wrongful conviction — including an acknowledgment by the State itself that it committed prosecutorial misconduct that renders Richard Glossip's capital conviction fundamentally unreliable."
The organization wrote that in more than 30 years since its inception, it has found that prosecutorial doubt about a defendant's guilt or the reliability of a conviction is a strong indication that a person might have been wrongfully convicted. In Glossip's case, the Innocence Project noted, state officials expressed not only doubt, but a firm belief that the man's conviction was obtained through misstatements to the jury.
"It is virtually unthinkable that the conviction could be allowed to stand," the nonprofit said.
The State of Oklahoma, represented by Paul Clement, a Bush-era U.S. solicitor general, is expected to file a brief in July in support of reversing the decision of the Oklahoma Court of Criminal Appeals in Glossip's case.
On Monday, Van Treese's widow and son joined the Oklahoma District Attorneys Association in a brief asking the high court justices to deny review, saying state courts have concluded that "Glossip is guilty and his sentence is proper."
"In the last few months, a new Oklahoma Attorney General has arrived on the scene. For reasons that are unclear, he personally believes that a new trial is warranted," the amici said in the brief. "The Attorney General's opinion does not provide a basis for reviewing the decision below, which is fully supported by multiple independent and adequate state grounds. Any further delay would inflict enormous suffering on the Van Treese family."
Glossip is represented by Amy P. Knight, Joseph J. Perkovich and John Robert Mills of Phillips Black Inc., Warren Gotcher of Gotcher & Beaver and Donald R. Knight.
The State of Oklahoma is represented by Jennifer L. Crabb of the Office of the Attorney General of Oklahoma.
The case is Richard Eugene Glossip v. Oklahoma, case number 22-7466, in the Supreme Court of the United States.
--Editing by Jill Coffey.