The Supreme Court May Force Oklahoma to Kill Richard Glossip

At the U.S. Supreme Court on Wednesday morning, the only thing Chief Justice John Roberts seemed to want to know was whether Richard Glossip would have been convicted and sent to death row if the jury had known that the star witness against him lied on the stand. 

“Do you really think it would make that much difference to the jury?” Roberts asked Seth Waxman, a former U.S. solicitor general who was representing Glossip before the court.

That question was at the heart of nearly two hours of oral arguments in Glossip v. Oklahoma, in which the court is being asked by both Glossip’s attorneys and Oklahoma Attorney General Gentner Drummond to overturn Glossip’s conviction and send the case back to Oklahoma City for a new trial.

Drummond — a conservative Republican who has defended Oklahoma’s death penalty and pushed to carry out seven executions since taking office — has fought to spare Glossip’s life, arguing that the false testimony played a key role in sending Glossip to death row and therefore his conviction cannot stand.

At Glossip’s 2004 trial, the state’s star witness Justin Sneed, who claimed Glossip coerced him into bludgeoning a man to death, testified that while locked up in the county jail he’d been given lithium to treat a cold, but “I never seen no psychiatrist or anything.”

In fact, Sneed had been seen by a psychiatrist who prescribed the powerful mood stabilizer to treat his bipolar disorder. Sneed’s lie, about the reason he was prescribed lithium, and the trial prosecutor’s failure to correct it, violated Glossip’s constitutional rights.

With the state and Glossip’s lawyers in agreement, the Supreme Court appointed an outside lawyer, Christopher Michel — a former law clerk to both Roberts and Justice Brett Kavanaugh when he was a jurist on the U.S. Court of Appeals for the D.C. Circuit — to argue in favor of upholding Glossip’s conviction. Michel rejected the idea that Sneed’s testimony was false, but even if it was, he argued, it was a lie that would not have made any difference to the jury at Glossip’s trial.

“False is false,” Justice Elena Kagan interjected. “The critical question that a jury is asking is, ‘Do I believe this guy and everything he says, and particularly, do I believe him when he points the finger at the accused?’”

Sneed’s lie might’ve made a difference in some other case, Michel said, one where “the witness is presumed to be credible.” But Sneed was not. “In this case, the witness admitted that he beat a man to death with a baseball bat. The witness admitted that he was testifying in exchange for avoiding the death penalty. The jury already had significant credibility questions about Justin Sneed.”

“I have to say, I find that an odd argument, Mr. Michel,” Kagan replied. “It’s like, ‘This witness was so not credible anyway that we don’t have to consider any further lies that he tells’?”

Kagan was not alone in this concern. Kavanaugh told Michel he “was having some trouble” with his argument about Sneed. “The whole case depended on his credibility.” But Kavanaugh was also open to the possibility that the court had no business reviewing the question of Sneed’s testimony in the first place. The justices took Glossip’s case after the Oklahoma Court of Criminal Appeals rejected Drummond’s request to overturn his conviction; in reviewing the case, the justices assigned themselves an additional question to decide: whether the state court’s decision was rooted in an “independent and adequate state-law ground” and should thus be allowed to stand.

If that happens, the court would effectively be green-lighting Glossip’s execution.

Richard Glossip gives an interview from death row in the 2017 documentary “Killing Richard Glossip.” Credit: Courtesy of Joe Berlinger; Screenshot: The Intercept

Confession of Error

Richard Glossip was twice convicted and sentenced to die for the 1997 murder of Barry Van Treese, inside a motel Van Treese owned on the outskirts of Oklahoma City. No physical evidence linked Glossip, the motel’s live-in manager, to the crime. The case against Glossip was based almost entirely on the testimony of 19-year-old Justin Sneed, who did maintenance work at the motel. Sneed admitted killing Van Treese inside Room 102, but claimed Glossip put him up to it. In exchange for his testimony, Sneed escaped the death penalty and was sentenced to life without parole. 

Glossip has maintained his innocence in the face of nine execution dates. In the meantime, evidence of his wrongful conviction has continued to mount. An exhaustive series of investigative reports by the law firm Reed Smith unearthed explosive new evidence, including a letter written by Sneed to his public defender asking if he might be able to recant his testimony. And a number of new witnesses have come forward to dispute the prosecution’s characterization of Sneed as a gullible follower who acted under Glossip’s control. They instead described Sneed as violent and often volatile as a result of chronic illegal drug use.

The Oklahoma Court of Criminal Appeals has repeatedly dismissed these revelations and has refused to grant Glossip’s lawyers an evidentiary hearing. In 2023, after commissioning his own independent investigation, Drummond took the unprecedented step of asking the court to vacate Glossip’s conviction. In a motion to the court, he made what’s known as a confession of error, a move that is rare — and in this case signals that the top law enforcement officer in the state has lost all faith in the conviction. Nonetheless, the court refused Drummond’s request.

At the heart of Drummond’s effort — and key to the current dispute before the Supreme Court — are handwritten notes that prosecutors previously failed to disclose to Glossip’s defense. The notes come from a meeting between Sneed and prosecutor Connie Smothermon that took place not long before Glossip’s 2004 retrial. Smothermon wrote the name of a doctor — “Dr. Trumpet?” — and a reference to lithium — “on lithium?”

To Glossip’s attorneys and Drummond, the name was an obvious reference to Lawrence Trombka, the lone psychiatrist working in the county jail at the time Sneed was incarcerated there, who would have been the only person authorized to treat Sneed. The notes made clear that Sneed had, at best, misrepresented the situation under oath. When he testified that he hadn’t seen a psychiatrist, Smothermon not only failed to correct the testimony, but instead doubled down. “So you don’t know why they gave that to you?” she asked.

“No,” Sneed replied. 

During oral arguments, Justice Clarence Thomas was solely preoccupied with the allegations against the prosecutors — not because their actions may have tainted Glossip’s trial but because their reputations were being “impugned.” He seemed less concerned with Smothermon’s shifting explanations for the notes, including an absurd claim that the reference to “Dr. Trumpet” was just a personal note-to-self about a jazz musician.

Instead, Thomas fixated on Smothermon’s insistence that she was never given an adequate chance to defend herself against the allegations of misconduct. That claim was made in a friend-of-the-court brief filed on behalf of the Van Treese family, who is angry Drummond is not defending Glossip’s conviction, but it is not part of the official court record that the Supreme Court is supposed to be relying on. Both Waxman and Paul Clement, also a former U.S. solicitor general and who was representing Drummond, reminded Thomas that Smothermon’s allegations come in an “unsworn” affidavit, which, Waxman noted, was “appended at the last very minute for the very first time” in the case.

Justice Samuel Alito sat through most of the oral arguments with his eyes closed, his head resting on his left hand, as if he was sleeping, a posture that seemed designed to signal disinterest if not utter disdain for the entire case. To him, it seemed certain that the Oklahoma court’s decision was grounded in state law that barred any further appeals of Glossip’s conviction. This should be the last word, Alito said, which he found “clear” and “unambiguous.” 

But to several of his colleagues, the Oklahoma court’s decision was a mess: invoking a confusing mix of state and federal law to justify a decision that would force the state to execute Glossip. Kagan was especially critical of the court’s opinion, which she likened to “throwing everything in the kitchen sink.” 

“Justice Kagan, you’ve issued a strong legal writing critique of this opinion,” Michel said. 

“I haven’t even started,” she replied.

Justice Ketanji Brown Jackson repeatedly asked why the court should not send the case back to Oklahoma for an evidentiary hearing. “I guess I don’t understand why we wouldn’t, at the minimum, have some sort of requirement that a court make a finding about these things?”

“It seems like there’s some pretty significant factual questions that have been debated. What did counsel know? What do these notes, markings mean?” she asked. “Was Sneed’s statement that he never saw a psychiatrist true or false?”

Whether there is an appetite for Jackson’s seeming compromise is unclear. The court is hearing the case with just eight justices. Justice Neil Gorsuch, who considered one of Glossip’s previous appeals while sitting on the 10th U.S. Circuit Court of Appeals, has recused himself from the case. If the Supreme Court were to deadlock with a 4-4 ruling in the current case, the Oklahoma Court of Criminal Appeals ruling would stand.

A protester outside the U.S. Supreme Court as justices heard oral arguments in the Glossip v. Oklahoma case. Photo: Liliana Segura / The Intercept

A Killer Court

With the arguments underway, a lone protester stood in front of the barricades that had been set up in front of the court’s marble staircase. She brought a huge spray-painted banner that read “Supreme Coup of the United States” and a rolling display of flags and homemade signs warning of the dangers of Project 2025. A speaker blared a “Schoolhouse Rock”-inspired song laying out the project’s agenda and urging people to vote. 

One of the signs read “Project 2025 Will Increase the Death Penalty.” She was acutely aware of what was happening in the courtroom. “Six Catholics who took away our right to bodily autonomy, allowed Marcellus Williams to die,” she said. She saw Williams’s case, in which a Missouri prosecutor sought to do the same thing Drummond has tried to do — overturn a conviction tainted by prosecutorial misconduct — as part of the continued radicalization of the Supreme Court. 

Alito has become the poster child of the court’s authoritarian creep. He has sought to push through executions no matter what, including in cases where there are significant questions of innocence. It was Alito who wrote the opinion the last time Glossip came before the court, as the named plaintiff in a challenge to Oklahoma’s lethal injection protocol. Despite evidence that the state’s chosen drug combination posed a risk of torturing prisoners to death, Alito reasoned that “because capital punishment is constitutional, there must be a constitutional means of carrying it out.” That decision gave way to Oklahoma’s disastrous attempt to kill Glossip in 2015, which was only called off at the last minute when officials realized they were about to use the wrong drug.

Almost a decade later, Don Knight, Glossip’s longtime attorney, was nonetheless cautiously optimistic after the oral arguments. “We were really gratified that the Supreme Court would give us the opportunity to present this case,” Knight said. “We believe in the concept of a fair trial for everyone in this country. And we certainly believe Mr. Glossip has the right to a fair trial, and we hope the court goes ahead and gives him a new, fair trial.”

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