The Supreme Court Should Use the Richard Glossip Case To Say That the Constitution Forbids Executing the Innocent

Posted in: Criminal Procedure

Yesterday, the Supreme Court announced that it would hear the appeal of Richard Glossip, now awaiting execution on Oklahoma’s death row. Glossip, who is one of this nation’s best-known death row inmates, was convicted and sentenced in 2004 for his role in an alleged murder-for-hire plot.

Seven years earlier, Glossip supposedly paid his co-defendant, Justin Sneed, to kill Barry Van Treese, who owned the motel where Glossip was the manager. Sneed, a maintenance man at the motel, stabbed and beat Van Treese to death with a baseball bat. He took money from the motel and confessed to the robbery and killing soon after he was arrested.

Sneed would later play a key and troubling role in Glossip’s trial and conviction. Since that time, Glossip has had an odyssey of Kafkaesque proportions.

It includes the fact that he has had a series of nine different execution dates. On several of these occasions, he had his “last” meal and said his goodbyes to his family, only to be spared at the last minute.

Meantime, the many vexing problems in Oklahoma’s handling of Glossip’s case have generated many legal appeals and attracted national and international attention from a wide range of people, including some of Oklahoma’s most conservative Republican legislators, who think that if the state put him to death it would be executing an innocent man. Along the way, there have been two independent investigations, each of which has shone a harsh light on the problems and misconduct that occurred in Glossip’s case.

Those problems and that misconduct give the Supreme Court plenty of reasons to overturn Glossip’s conviction and order a re-trial. But his appeal also gives the justices a chance to say once and for all that the Constitution forbids executing the innocent.

Because it is an appellate court, the Supreme Court cannot on its own say Glossip is innocent. But it can say that, as a matter of law, no one who is in that position should be subject to any punishment, most importantly capital punishment.

It has never before done so. Indeed, in a 1983 case, Herrera v. Collins, it seemed to say the opposite.

In that case, a 6–3 majority concluded that evidence of actual innocence was “not relevant” in a petition for a writ of habeas corpus “absent some [other] constitutional violation.” As Chief Justice William Rehnquist put it, “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.… To conclude otherwise would all but paralyze our system for enforcement of the criminal law.”

And after reviewing the history of the Constitution’s due process clause, Rehnquist concluded that a claim of “‘actual innocence’ is not itself a constitutional claim.” In a concurring opinion, Justice Antonin Scalia agreed that the Constitution does not prevent the government from executing someone with new evidence that indicates that they might be “actually innocent”—someone, which as the Washington Post puts it, “with the potential to legally demonstrate they did not commit the crime for which they were convicted.”

In the last thirty years, courts all over the country have cited Herrera as a reason to deny relief to people raising innocence claims. And in 2022, the Supreme Court seemed to reaffirm that decision and again ruled that appellate courts do not have to consider actual innocence claims.

Not surprisingly, Herrera has generated lots of controversy.

For example, in 2009, Justice John Paul Stevens used a concurrence in another actual innocence case to observe that any statute that “bars relief for a death row inmate who has established his innocence” is “arguably unconstitutional.” He suggested that “decisions of this Court clearly support the proposition that it would be an atrocious violation of our Constitution and the principles upon which it is based to execute an innocent person.”

If any case qualifies as an “atrocious violation” of the Constitution, Glossip’s would be it. His cert. petition to the Court makes that clear.

First, it documents a very troubling pattern of prosecutorial misconduct. As the petition notes, “even at this late stage of his case… new evidence continues to emerge that the state knew full well that the evidence it used to convict [Glossip] and sentenced him to death was false.”

The petition focuses on Sneed, who provided the key evidence against Glossip in return for the state’s agreement that he would not be sentenced to death. The police repeatedly and falsely told Sneed that Glossip was implicating him, ultimately convincing Sneed to point the finger at Glossip and testify against him at trial.

Glossip’s petition notes that Sneed’s “credibility has always been tenuous.” It goes on to point out that on what it calls “seminal questions,” Sneed’s testimony was inconsistent.

Police and prosecutors coached Sneed “to change his testimony on material aspects regarding the manner in which he murdered Van Treese to avoid conflicting with other evidence, coaching he accepted and delivered upon” throughout Glossip’s case.

Furthermore, Sneed also lied on the witness stand when he denied that he was under the care of a psychiatrist and was taking medicine for his bipolar disorder.

None of this was disclosed in advance of Glossip’s trial. This failure violated clearly established Supreme Court precedents.

In addition, Glossip’s petition alleges that the state of Oklahoma destroyed or lost key evidence in the case. And here, as elsewhere, Oklahoma Atty. Gen. Gentner Drummond has conceded that what Glossip alleges is true.

Glossip’s petition rightly points out that the state’s mishandling of his case violates due process of law. And it asks the Court to determine whether due process requires reversal of a conviction where it is “so infected with errors that the state no longer seeks to defend it.”

For a Court that now is generally reluctant to strike down death sentences at all, especially when doing so would establish broad constitutional principles, each of the questions that Glossip is asking it to answer provides a vehicle for reversing his conviction and remanding it for a new trial.

But, the broad question which needs to be revisited is whether the Constitution forbids “the execution of an innocent man who never had a fair trial.” The Supreme Court, Glossip’s petition suggests, “faces a stark choice: whether the state of Oklahoma can execute a person which chief law enforcement officer believes is wrongly convicted because of state misconduct.”

The answer should be an unequivocal no. For the Court to remain silent about that choice, or to avoid facing it squarely, would do an extraordinary disservice not only to Richard Glossip, but to all Americans who believe it is wrong to punish the innocent.

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