The justices’ 6-2 ruling in Glossip v. Oklahoma does not seriously alter the trajectory of the Roberts Court’s approach to capital punishment. Glossip’s challenge hinged entirely on the unusual facts of his case and will have little to no bearing on other death-row prisoners’ litigation. At the same time, the decision is a telling barometer of how far each of the court’s conservative members will go to defend death sentences.
Justice Clarence Thomas, joined only by Justice Samuel Alito, accused the court of throwing out a legitimate death sentence on flimsy and fictitious grounds. “The Court’s decision distorts our jurisdiction, imagines a constitutional violation where none occurred, and abandons basic principles governing the disposition of state-court appeals,” he wrote. “I respectfully dissent.”
When Glossip saw Sneed the next day and asked him how he got a black eye, for example, Sneed replied that he had killed Van Treese. Glossip chalked up that “flippant” remark as a bad joke at first and didn’t begin to think he was serious until later. The Intercept’s Liliana Segura and Jordan Smith, who followed the case for the last decade, reported in 2022 that police took Glossip’s slow response as a sign that he was involved. They soon developed a theory that he had orchestrated the murder and Sneed had merely carried it out. Segura and Smith reported that Sneed’s filmed interrogation shows officers pressuring him to claim Glossip was involved.
An Oklahoma jury found Glossip guilty and sentenced him to death in 1998. That verdict was unanimously thrown out by the Oklahoma Court of Criminal Appeals, the state’s highest court for criminal cases, on inefficient-assistance-of-counsel grounds because his defense lawyer did not cross-examine Sneed effectively enough. During Glossip’s second trial, prosecutors also asked Sneed whether he had ever been prescribed medication. He replied that he had been prescribed lithium while in jail “for some reason, I don’t know why” and that he had “never seen no psychiatrist or anything.” Glossip was convicted a second time and sentenced to death in 2004.
Glossip’s modest role in that legal battle drew more attention to the circumstances of his own death sentence. Segura and Smith began covering the weaknesses in the prosecution’s case that year; documentary filmmakers and local activists pressured the state to review it further. In 2021, a bipartisan group of state lawmakers hired the law firm Reed Smith to conduct an independent investigation of Glossip’s case. The firm’s report in 2022 said it had found multiple flaws that gave it “grave doubt” about the integrity of Glossip’s second conviction: destroyed evidence, misleading portrayals of Sneed’s actions by prosecutors to the jury, and unreliable testimony from a former police officer who was later convicted of making false statements.
The implications of this revelation were significant. Had Glossip’s lawyers known of Sneed’s bipolar diagnosis during the trial, they could have used it to undermine the prosecution’s claims that Sneed was as harmless as a “Rottweiler puppy” without Glossip as his metaphorical “trainer.” Had prosecutors disclosed that evidence to Glossip’s lawyers, it could have also been used to impeach Sneed’s credibility on the witness stand. Smothermon’s nondisclosure had constitutional implications as well. Prosecutors are required under Brady v. Maryland to turn over potentially exculpatory evidence to the defense; as Sotomayor noted in her ruling, they are also subject to the aforementioned ruling in Napue v. Illinois.
Despite both sides calling for a new trial, however, the OCCA rejected Glossip’s lawsuit. It concluded that Oklahoma law forbade further post-conviction challenges by Glossip, and additionally found that the new evidence presented by the prosecution and defense did not rise to the level of a Napue error. Glossip and Drummond both asked the Supreme Court to intervene in 2023; the justices agreed to hear the case and halted Glossip’s scheduled execution until it could.
“Had the prosecution corrected Sneed on the stand, his credibility plainly would have suffered,” she continued. “That correction would have revealed to the jury not just that Sneed was untrustworthy (as amicus points out, the jury already knew he repeatedly lied to the police), but also that Sneed was willing to lie to them under oath.” Based on the constitutional violations, the high court ordered a new trial to be held.
The two dissenting votes came from Thomas and Justice Samuel Alito. In his dissent, Thomas uncritically accepted the version of events offered by Sneed and the prosecution. He opened by describing Glossip solely as a “convicted murderer twice sentenced to death by Oklahoma juries,” which is accurate in the same way that one might summarize O.J. Simpson only as a “former Buffalo Bills running back.”
Thomas disagreed with the majority on various legal and constitutional grounds, which Sotomayor rejected point by point. But the general spirit of his opinion is a strong aversion to legal challenges to death sentences in general, no matter how flimsy the underlying case or how unreliable the prosecutors or police turn out to be. He leaned heavily on a friend-of-the-court brief by Van Treese’s family members, for example, that sought to dispute Glossip’s and Drummond’s interpretation of events.
In a footnote, Sotomayor pointed out that Thomas himself was now the one who was inventing new law. “The family has not requested an evidentiary hearing (or participation in one) at any stage before the OCCA and does not request that relief before this Court,” she noted. “Nor has the OCCA ever extended Oklahoma victims’ right to participate in criminal proceedings to state post-conviction hearings. The request to do so here is the dissent’s alone.”
It was in Glossip’s lethal-injection case ten years ago that Alito, during oral arguments, asked whether the Supreme Court should countenance a “guerrilla war against the death penalty.” It would be far too much to read the outcome of this fact-dependent case as a reversal of the Roberts Court’s resistance to curbing capital punishment. At the same time, Tuesday’s ruling gives Americans a clearer sense of the outer bounds of what the court’s conservative majority will tolerate when prosecutors, police, and juries try to execute their fellow Americans.
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