Ten years ago, the Supreme Court ruled that the state of Oklahoma could use the sedative midazolam to execute Richard Glossip and his fellow death row prisoners, despite serious doubts about the increased risk of botched lethal injections. On Tuesday, the high court held that Glossip’s death sentence should be overturned and a new trial should be held because of constitutional flaws in his conviction.
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 Sonia Sotomayor, writing for the court, concluded that Oklahoma prosecutors had violated Glossip’s right to a fair trial by withholding potentially exculpatory evidence. “Because the prosecution violated its obligations under Napue, we reverse the judgment below and remand the case for a new trial,” she wrote, citing the 1959 case in which the Supreme Court barred prosecutors from using knowingly false testimony from a witness against a defendant.
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.”
The case began on January 7, 1997, when Justin Sneed, a maintenance worker at a local motel, brutally bludgeoned owner Barry Van Treese to death with a baseball bat. Police discovered Van Treese’s body the next day. Though no one disputes that Sneed killed Van Treese, police also grew suspicious of Glossip, the motel’s manager at the time. The investigating officers believed he wasn’t being forthright enough about what he knew about the murder. Glossip admitted to helping Sneed conceal evidence after the fact but denied any role in the murder itself.
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.
Glossip has always insisted that he had no role in the murder. He turned down a plea deal from local prosecutors to testify against Sneed in exchange for taking the death penalty off the table, claiming that he was innocent. By alleging that Glossip was part of a murder-for-hire scheme, prosecutors could charge him with first-degree murder under the felony-murder rule as if he had killed Van Treese himself with the baseball bat.
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.
Over the years that followed, Glossip filed multiple challenges to his conviction in state and federal courts. None were successful. The OCCA upheld his second conviction in 2007 by a narrow 3–2 margin. In the mid-2010s, Glossip joined a group of fellow death row inmates who challenged Oklahoma’s use of the sedative midazolam, which had been linked to botched executions across the country, in its lethal injection protocol. Glossip ultimately became the named plaintiff in Glossip v. Gross, the Supreme Court case in 2015 where the justices rejected an Eighth Amendment challenge to execution methods.
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.
Shortly after the report came out, state officials released multiple boxes of previously undisclosed case documents to Glossip’s lawyers. Among the documents was a 2003 letter from Sneed to his lawyer, where he asked, “Do I have the choice of recanting my testimony at any time during my life,” and is “there … anything you know, on [Glossip’s] court date and about re-canting.” Prosecutors then disclosed another box of trial documents that included, among other things, handwritten pretrial notes of Connie Smothermon, the lead prosecutor at the time. Smothermon wrote that Sneed had actually been prescribed lithium by the jail psychiatrist after he diagnosed Sneed with bipolar disorder, contradicting Sneed’s own testimony.
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.
Glossip filed a new post-conviction challenge to his conviction against the state of Oklahoma based on the new evidence. In an unusual turn of events, Oklahoma Attorney General Gentner Drummond largely agreed with Glossip’s claims. Drummond’s office did not concede that Glossip might be actually innocent of the charges, but it concluded that the “multiple and cumulative errors” justified a new trial.
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.
Writing for the court, Sotomayor concluded that the prosecution’s omissions had fatally injured Glossip’s second conviction. “Besides Sneed, no other witness and no physical evidence established that Glossip orchestrated Van Treese’s murder,” she wrote. “Thus, the jury could convict Glossip only if it believed Sneed.”
“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.
Joining Sotomayor in the majority was Chief Justice John Roberts and Justices Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson. Justice Neil Gorsuch recused himself from the case. (The Tenth Circuit Court of Appeals, on which Gorsuch previously served, handled multiple appeals by Glossip over the years.) Justice Amy Coney Barrett agreed with the majority on most of their conclusions, disagreeing only about the decision to order a new trial. She would have instead remanded the case back to the OCCA for further proceedings.
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.”
Where the majority saw evidence of prosecutorial errors, Thomas and Alito saw an abolitionist plot against a lawful death sentence. Thomas described Reed Smith, the law firm hired by state lawmakers to review the case, as an avowed opponent of the death penalty. He emphasized that the Oklahoma attorney general’s office had long defended the case, then downplayed Drummond’s decision to reverse course. An independent counsel hired by Drummond to review the evidence was described solely as a “personal friend and campaign donor” of Drummond.
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.
By ordering a new trial, Thomas argued, the majority had unfairly spurned those family members’ purported right to be heard. Glossip “would suffer no prejudice from an evidentiary hearing in which the Van Treese family had the opportunity to present its case,” he explained. “If the evidence is as decisive as the majority believes, Glossip would still receive a new trial. There is no excuse for denying the Van Treese family its day in court.”
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 10 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.
