Innocence question cuts at Glossip’s death penalty appeal

There is no physical or forensic evidence connecting Glossip to Van Treese’s murder. Oklahoma also had no other witnesses connecting Glossip to the crime. Sneed’s testimony was the only factor linking Glossip to the crime. 

A jury convicted Glossip of murder-for-hire in 1998, and the Oklahoma Court of Criminal Appeals affirmed in a 3-2 vote. 

In his 25 years on death row, Glossip has never wavered in his claims of innocence, despite coming within hours of execution not once but three times. He was successful in proving that his first attorney failed to provide him with a minimal defense in 2000. But before his second trial could begin, Glossip’s case was being undermined by the police department. 

An independent investigation into Glossip’s case found that the district attorney’s office directed the police department to destroy key pieces of evidence, including potentially exculpatory financial documents. The investigation found the destruction of the evidence by a 28-year veteran on the force was deliberate. 

Sneed testified at Glossip’s second trial, resulting in another death penalty conviction. Decades would pass before a memo would be disclosed to Glossip’s attorneys suggesting Sneed’s testimony was altered by prosecutors because it contradicted the facts of the state’s case against Glossip. The evidence turned over to Glossip’s defense team also included a statement indicating Sneed wanted to recant his testimony. 

In recent months, Glossip’s attorneys were given a final box of evidence from the state containing a memo that proved Sneed was being treated for a serious psychiatric disorder when he testified against Glossip. He was prescribed lithium at the time. This directly contradicts Sneed’s statements that he was not seeing a psychiatrist at the time. 

In April Oklahoma’s attorney general filed a motion to vacate Glossip’s conviction in light of the independent investigation into his case. Attorney General Gentner Drummond said he could no longer stand behind the conviction. Members of the state Legislature have also come out against Glossip’s conviction. 

“It’s incredibly rare that two out of three branches of government say that there has been a wrong here that needs to be righted,” John Mills, an attorney with Phillips Black representing Glossip, said in a phone call. 

The Oklahoma Court of Criminal Appeals nevertheless upheld Glossip’s conviction. The state pardon and parole board then rejected his clemency request. 

“The one branch tasked with actually righting the wrong is refusing to do it,” Mills said. “That's just not the way accountability generally works. If the parties are in agreement about there being a wrong, courts will enforce those agreements. That's the way our judicial system works, but it's not happening.” 

Death penalty experts say the courts’ rulings against Glossip are, in part, a function of how the U.S. legal system operates. 

“It goes back to the very structure of our justice system, and that is that innocence and guilt are determined as a kind of a factual matter by the jury who vote unanimously and beyond a reasonable doubt that the facts say the person's guilty,” Dieter said. “What you bring up on appeal are legal issues.” 

Glossip has in the past and is currently bringing legal issues on appeal, but they can be rejected as not sufficient to overturn a conviction. 

In the time between when a death sentence is handed down and carried out, however, a lot can happen. New evidence can be uncovered, possibly with evolving technological innovations. Witnesses can recant testimony. These factors complicate death penalty appeals that may have already exhausted presentable legal issues when the new evidence is uncovered. 

“So many things now can require that a case be looked at, not just for legal problems but for the actual factual case of innocence,” Dieter said. 

Dieter contends that this problem extends past just Glossip’s case and has never been resolved by the courts. 

“It's a fundamental problem for the death penalty system, and it's come up occasionally before but never been completely resolved,” Dieter said. 

In some ways, Glossip represents one of the lucky innocence appeals. The independent review of his case involved a team of more than 30 attorneys, three investigators and two paralegals. They spent over 3,000 hours pouring over tens of thousands of documents and interviewing 36 witnesses. And even with that advantage, it’s still not clear Glossip’s conviction can be overturned. 

“The courts typically don't give defendants access to this evidence,” Dunham said. “That's one of the reasons the courts are so ineffective at protecting people who are innocent.” 

Just last term, the Supreme Court said when, considering ineffective-assistance claims, federal courts cannot consider new evidence outside of what is presented in state courts. 

“The only place to get the evidence presented and your claims heard is federal court, but last year, the U.S. Supreme Court in Shinn vs. Ramirez said that you're stuck if you're a state court prisoner with the evidence that was presented in state court,” Dunham said. “If you've been given incompetent lawyers, how on earth can you prevail in federal court if you're stuck with the evidence that they never investigated or never presented? So what we really have are words saying that there are heightened procedural safeguards, but the Supreme Court has closed the courthouse door.” 

Glossip is scheduled to be executed on May 18. He has asked the Supreme Court in a rare unopposed emergency application to block his execution. He is also asking the Supreme Court to review the merits of his legal claims in the hopes that his convictions can be reconsidered in light of the evidence supporting his innocence claims. 

Follow @KelseyReichmann

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