The Supreme Court Cleared Him at Oklahoma's Behest. Now the State Wants to Try Him Again?
Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
Richard Glossip has endured one of the most troubled and complicated death penalty cases in American history. It seemed to be over when, last February, the United States Supreme Court struck down his conviction.
In fact, not only did the court find in his favor, but Gentner Drummond, the Oklahoma attorney general, had sided with Glossip . Drummond told the court that Glossip's original prosecution had been marked by grievous errors, the most important of which was the perjured testimony of the key witness against Glossip, a man named Justin Sneed who committed the actual murder and testified against Glossip as means of convincing authorities not to seek the death penalty against him.
Glossip has been through an experience like few others in the annals of criminal justice. He has had nine different scheduled execution dates and eaten three “last meals” as one or another of those dates approached.
Ten years ago, he was only spared by a last-minute stay of execution when state officials realized they had made a mistake about the drugs that they planned to use to kill him.
After this year's Supreme Court ruling, it would have seemed that enough is enough.
Drummond, so recently Glossip's ally, does not see it that way, however. Last week, he changed his tune and announced that the state would retry Glossip for murder but not seek a new death sentence. He wants a sentence of life in prison without parole for someone who has already spent 27 years on death row for something it seems quite likely that he did not do.
“While it was clear to me and to the US Supreme Court that Mr. Glossip did not receive a fair trial, I have never proclaimed his innocence,” Drummond said . “My office thoroughly reviewed the merits of the case … and concluded that sufficient evidence exists to secure a murder conviction.”
“Unlike past prosecutors,” Drummond continued, “who allowed a key witness to lie on the stand, my office will make sure Mr. Glossip receives a fair trial based on hard facts, solid evidence, and truthful testimony.”
Unfortunately, he did not say what that evidence is or why it should be relied on now. In fact, as the Intercept's Liliana Segura and Jordan Smith report , we now know that:
the state destroyed key evidence before Glossip's 2004 retrial and also hid evidence that Sneed had attempted to recant his testimony implicating Glossip. A slew of new witnesses also came forward… [and] described Sneed as dangerous and unpredictable—and entirely capable of killing on his own. Another said that while Sneed was locked up in the Oklahoma County jail, he had bragged about setting up Glossip to take the fall.
If Drummond goes through with his plan, it would be the third time Glossip has been tried for the same crime. It would subject Glossip to a mockery of justice.
A new trial almost 30 years after a crime, with the same unreliable star witness, would be no better than the previous trials, which the Supreme Court found constitutionally defective. So why put Glossip through it?
Could it be because Drummond is running for governor in a deep-red state and does not want to give his opponents a campaign issue? His campaign website describes him as a supporter of President Donald Trump and a “tough-on-crime Attorney General.”
This would not be the first time that political considerations influenced a prosecutorial decision. It would, however, be one of the most grotesque.
Glossip was convicted of murder in the 1997 slaying of Barry Van Treese, a motel owner for whom he worked. Sneed confessed to beating Van Treese to death but said that Glossip—who had admitted to helping cover up the killing—paid him to do it. Sneed received a sentence of life without parole. But Glossip got a death sentence.
Right from the start, Glossip proclaimed hisinnocence. But he was convicted and sentenced again to death after a second trial.
It took decades, and two separate trips to the Supreme Court, for the truth to come out about the problems in the second trial. As Supreme Court Justice Sonia Sotomayor put it in her February opinion:
Nearly two decades later, the State disclosed eight boxes of previously withheld documents from Glossip's trial. These documents show that … a jail psychiatrist prescribed Sneed lithium to treat that condition, and that the prosecution allowed Sneed falsely to testify at trial that he had never seen a psychiatrist.
Sneed was never a credible witness. He changed his story eight times and only implied Glossip when the police told him that he would be executed if he didn't do so. No physical evidence tied Glossip to the crime.
But there are no statutory limits on the number of times someone can be retried after they succeed in getting previous convictions overturned, and courts have recognized that “the decision to try or retry a case is at the discretion of the prosecutor.”
That doesn't mean that doing so is always wise or just. Trials delayed for decades are notoriously problematic.
They are costly for everyone, and not just in financial terms. Instead of finality, families of victims have to relive the trauma of their loss, and for defendants like Glossip, it means more uncertainty and extreme stress.
Moreover, evidence can be lost, and witnesses' memories fade. Lawyers on both sides adapt their arguments, knowing what their opponents are likely to say.
And this is not merely the kind of thing that defense lawyers or opponents of capital punishment say. In 1993, conservative Chief Justice William Rehnquist wrote : “the passage of time only diminishes the reliability of criminal adjudications.”
The chief justice went on to say that when a retrial occurs long after the crime, courts are placed in the “difficult position of having to weigh the probative value of 'hot' and 'cold' evidence on petitioner's guilt or innocence.”
After the Supreme Court's February ruling, even Drummond himself said it “would be difficult” to retry Glossip after so many years. That is why retrials in cases like his should be very rare. They should only occur where “the evidence that the defendant committed a crime on any fair-minded objective judgment remains very powerful.” That standard has not been put in Glossip's case.
In 1959, the Supreme Court, anticipating what is now unfolding in Oklahoma, said that “at some point the cruelty of harassment by multiple prosecutions by a state would offend due process.” In the Glossip case, we have reached that point.
Sign up for Slate's evening newsletter.
