Publications

In Glossip v. Oklahoma (No. 22-7466), the Supreme Court ordered a new trial for Petitioner Richard Glossip, an inmate on Oklahoma’s death row for over twenty years who has steadfastly maintained his innocence. By a vote of 5-3 (with Justice Gorsuch not taking part in the case), the Court concluded that Glossip’s conviction violated Napue v. Illinois (1959) because the prosecution allowed testimony it knew was false to go uncorrected at trial. 

Glossip’s case has a long and complex history, including a prior trip to the Supreme Court over the constitutionality of Oklahoma’s lethal-injunction protocol. To simplify things a bit, Justin Sneed, a handyman at a hotel, killed the hotel’s owner, Barry Van Treese, with a baseball bat. Sneed claimed that Glossip, the hotel’s manager, put him up to it, and Sneed avoided the death penalty by agreeing to testify against Glossip at trial. That testimony was essentially the only evidence connecting Glossip to the murder. Glossip’s first conviction was unanimously vacated by the Oklahoma Court of Criminal Appeals (“OCCA”), which concluded that the evidence corroborating Sneed’s testimony “was extremely weak” and that Glossip’s counsel’s failure to cross-examine Sneed on his many inconsistent statements amounted to ineffective assistance of counsel. In the second trial, Glossip’s counsel established that Van Treese had been attacked with a knife as well as a baseball bat, that Sneed had been given lithium after his arrest in response to a request for cold medicine, and that Sneed used marijuana and methamphetamine twice a week prior to his arrest. But Glossip was nonetheless convicted, and the OCCA affirmed his second conviction. Questions regarding Glossip’s guilt have nonetheless lingered for decades. 

In 2021, a group of Oklahoma legislators requested an independent investigation into Glossip’s case. The investigation yielded several conclusions, all of which undermined the integrity of the conviction and death sentence. Perhaps the most significant was the discovery that the prosecution had destroyed key physical evidence that might have supported Glossip’s defense, that the prosecution had falsely portrayed Sneed as non-violent, and that a police officer who provided testimony about Glossip’s alleged motive was later jailed for making false statements. After this independent investigation concluded, Oklahoma disclosed eight boxes of previously withheld documents. The boxes contained notes from the lead prosecutor, which indicated that she spoke to Sneed while he was supposed to be sequestered and that Sneed had been prescribed lithium to treat bipolar disorder. The boxes also contained letters from Sneed expressing a desire to recant his testimony prior to Glossip’s second trial. 

Oklahoma’s Attorney General retained independent counsel to conduct another review of Glossip’s conviction. That independent counsel ultimately concluded that the prosecutor’s failure to correct Sneed’s false testimony that he had been given lithium after asking for cold medicine violated Napue and recommended that the State vacate Glossip’s conviction. Napue held that it violates due process for the Government to secure a conviction through the presentation of knowingly false testimony or by allowing testimony it knows to be false to go uncorrected, so long as that false testimony “may have had an effect on the outcome of the trial.”  

Following the independent counsel’s investigation, Glossip filed a state habeas petition before the OCCA, asserting claims based on Napue and actual innocence. Oklahoma’s Attorney General confessed error on Napue grounds. But the OCCA denied Glossip’s petition, concluding that his claims were procedurally barred under Oklahoma’s Post-Conviction Procedures Act (“PCPA”) and that even if the claim were procedurally proper, the evidence did not “create a Napue error.” The Court granted cert, but because Oklahoma’s executive branch supported Glossip, the Court appointed an amicus curiae to defend the OCCA’s judgment.  

A 5-3 Court reversed the OCCA and vacated Glossip’s conviction in an opinion written by Justice Sotomayor and joined by the Chief Justice and Justices Kagan, Kavanaugh, and Jackson. She began with the Court’s jurisdiction to review the OCCA’s judgment. Ordinarily, the Supreme Court will not review a state court’s decision that rests on a state-law ground independent of the federal question and adequate to support the judgment. Amicus and the dissent argued that the Court lacked jurisdiction because the OCCA’s conclusion that Glossip’s claims were barred under the PCPA was a “paradigmatic” independent and adequate state-court ground. But the OCCA only reached that PCPA question after concluding that the Attorney General’s confession of error under Napue lacked a basis in law or fact, a conclusion that turned on federal law. Because the OCCA made its state-law ground dependent on an antecedent ruling of federal law, the Court had jurisdiction to reach the merits of Glossip’s federal-law claim.  

On the merits, Justice Sotomayor concluded that Glossip established a Napue violation based on the prosecutor’s failure to correct Sneed’s testimony about being prescribed lithium and that this error affected the outcome of the trial. Because Sneed’s testimony was the only direct evidence of Glossip’s involvement in the murder, the jury’s assessment of Sneed’s credibility was determinative. In other words, “the jury could convict Glossip only if it believed Sneed.” As Sotomayor pointed out, had the prosecutor corrected Sneed’s testimony, his credibility would have suffered, establishing not only that Sneed was untrustworthy but also that he was willing to lie under oath. It also would have been important for the defense to know that Sneed had been prescribed lithium to treat bipolar disorder, the symptoms of which can be exacerbated by methamphetamine and can lead one to become more violent. This would have undermined the prosecution’s theme at trial that Sneed was harmless on his own but for Glossip’s supposed encouragement to commit the murder. Concluding that the conviction was secured in violation of Napue, the Court vacated Glossip’s conviction, allowing Oklahoma to retry him for a third time if it wishes.    

Justice Barrett concurred in part and dissented in part in a short opinion. She agreed that the Court had jurisdiction to take up the case because the OCCA had misunderstood and misapplied Napue in reaching its PCPA holding. But she dissented in going further than that: Instead, she would’ve remanded to the OCCA to make its own factual findings about whether the evidence was sufficient to support Glossip’s constitutional claims under a proper understanding of Napue. 

Justice Thomas dissented, joined in full by Justice Alito and in part by Justice Barrett. As is his wont in habeas cases, he began his lengthy dissent with a long discussion of the evidence at trial presented in the light most favorable to upholding Glossip’s guilt. He then accused the majority of “misreading the decision below” in order to “concoct federal jurisdiction.” In his view, nothing in the OCCA’s state-law reasoning depended on the federal-law question of whether Glossip’s conviction violated Napue. He then took issue with the majority’s merits holding, finding that the evidence about Sneed’s medical conditions was “patently immaterial testimony” that fell far short of the standard required to vacate the conviction under Napue. He also argued that evidence of Sneed’s lithium use was already before the jury and available to defense counsel at the time of Glossip’s second conviction. Finally, in the part of the dissent joined by Barrett, he argued that even if the majority were right that the OCCA had misapplied Napue, the appropriate remedy was to remand so the OCCA could decide the case in the first instance under the right standard, rather than the Court itself considering the evidence and granting Glossip relief.