Issues
Does due process require the reversal of a conviction where the state suppressed evidence that a key witness was under psychiatric care and failed to correct false testimony about that care?
This case asks the Supreme Court to determine when a prosecutor’s nondisclosure of information requires retrial of a death row case. Richard Eugene Glossip, a death row inmate, asserts that the state hid information that a key witness in the case was under psychiatric care and failed to correct that witness’s lies about his psychiatric care. He argues that these actions, along with other failures to turn over information, violate his due process rights under Brady v. Maryland and Napue v. Illinois. Christopher G. Michel, the court-appointed amicus curiae arguing in support of the judgment in the lower court, argues that the undisclosed information was too unclear to vindicate Petitioner or affect the jury. He also argues that the court cannot hear this case, as held by the lower court on an adequate and independent state ground. The outcome of this case has significant implications for public confidence in the criminal justice system and the role of prosecutors.
Questions as Framed for the Court by the Parties
(1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it; and (4) whether the Oklahoma Court of Criminal Appeals’ holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.
Facts
On January 14, 1997, Justin Sneed bludgeoned Barry Van Treese to death. Glossip v. State at 223. Sneed pled guilty to this murder, for which he received a sentence of life without parole, and agreed to testify regarding the involvement of Richard Glossip in the crime. Id. Sneed told investigators, and later testified in court, that Glossip offered him $10,000 to kill Van Treese. Id. Glossip was convicted by a jury for the murder of Van Treese in 2004 and sentenced to death. Id. at 222.
In September 2022 and January 2023, the Oklahoma Attorney General turned over eight boxes of “prosecutors notes.” Id. at 224. These boxes included three categories of information that Glossip contends are exculpatory. Brief for Petitioner, Richard Eugene Glossip at 8. First, a note by lead prosecutor Connie Pope Smothermon indicating that Sneed was “on lithium” and discussing “Dr. Trumpet,” who Glossip contends to be a Dr. Lawrence Trombka, the only psychiatrist working at the Oklahoma County jail while Sneed was there. Id. at 9–10. At trial, Sneed had testified that he was on lithium, but that he didn’t know why, and that he had never seen a psychiatrist. Id. at 9. Second, a series of memos and notes that, according to Glossip, show that Smothermon worked to alter Sneed’s testimony regarding the killing. Id. at 12–14. Third, a series of notes from Smothermon’s pretrial interview with Cliff Everhart that Glossip claims contradict Everhart’s trial testimony in support of the prosecution’s theory of the murder. Id. at 15–16. The State of Oklahoma subsequently requested that Glossip’s conviction be vacated. Glossip v. State at 223.
Glossip appealed to the Oklahoma Court of Criminal Appeals (“OCCA”) for post-conviction relief, arguing that the prosecutor’s actions violated his right to due process under Brady v. Maryland and Napue v. Illinois. Glossip v. State at 226–27. The court denied this application. Id. at 228. The court first noted that its review was limited by the Oklahoma Post-Conviction Procedure Act (“PCPA”), which restricted the scope to “errors which would have changed the outcome and claims of factual innocence.” Id. at 224. The state attempted to waive this procedural issue, but the OCCA rejected this waiver. Brief for Respondent in Support of Petitioner at 14. The court found that the prosecution’s actions did not violate Brady because the newly discovered information was not demonstrated to be material and could have been discovered previously. Glossip v. State at 226. The court similarly found that the prosecution’s actions did not violate Napue because Sneed’s testimony was not “clearly false” and the defense “should have been aware” of the facts behind Sneed’s testimony. Id. at 226–27.
On May 4, 2023, Glossip petitioned the Supreme Court of the United States to hear this case. Petition for Writ of Certiorari. The Supreme Court granted certiorari on January 22, 2024. SCOTUS Blog. As the State of Oklahoma supports Glossip’s request for relief, the Supreme Court invited Christopher G. Michel to brief and argue in favor of the judgment below, as amicus curiae. Id.
Analysis
ADEQUATE AND INDEPENDENT STATE LAW GROUNDS
The Supreme Court lacks jurisdiction to hear appeals of state law claims that “rest[] on a state law ground that is independent of the federal question and adequate to support the judgment.” Brief for Petitioner, Richard Glossip at 38. Glossip asserts that this jurisdictional limitation does not prevent the Court from hearing his case. Id. First, Glossip argues that the decision was not independent of federal law because the OCCA relied directly on two federal cases, Brady and Napue, in its decision and did not include a plain statement that it used these federal cases only for guidance. Id. at 41. Instead, Glossip contends, the OCCA opinion depended entirely on these federal cases by evaluating the Brady and Napue arguments on their merits. Id. at 41–42. Second, Glossip argues that the OCCA’s decision did not rest on adequate state law ground because the decision was “novel and unforeseeable,” citing Cruz v. Arizona. Id. at 44–46. Glossip contends that the OCCA’s decision was “novel and unforeseeable” because its denial of the state’s waiver of procedural issues went against federal and state precedent. Id. at 46. Glossip points to McCarty v. State and Gray v. Netherland to show that courts normally allow the State to waive procedural default, in particular default under the PCPA. Id. at 46–47. Glossip also contends that the OCCA’s decision was “novel and unforeseeable” because its analysis of Glossip’s diligence did not use a reasonable application of the law. Id. at 47–48. Rather than analyzing Sneed’s lie that he had never seen a psychiatrist, Glossip argues, the OCCA unreasonably held that Sneed’s prior testimony about being on lithium was sufficient to put Glossip on notice about Sneed’s mental health issues. Id.
Michel, arguing in support of the OCCA’s judgment, asserts that the OCCA’s use of procedural bar under the PCPA forms an adequate and independent state ground, thus stripping the Supreme Court of jurisdiction over this case. Brief for Court-Appointed Amicus Curiae in Support of the Judgment Below at 16. First, Michel argues that the OCCA’s decision was independent of federal law because the analysis of the PCPA requires analysis of diligence and innocence, which depends on state, rather than federal, law. Id. at 18. Michel asserts that the OCCA’s analysis of Brady and Napue on the merits was done as an alternative holding that does not diminish the independence of the primary holding based on the PCPA. Id. at 19. Second, Michel argues that the OCCA’s decision rests on adequate state law ground because it relies on a “firmly established and regularly followed” application, citing Cruz v. Arizona. Id. at 23. Michel asserts that the OCCA’s application of the PCPA is a “paradigmatic example” of relying on a “firmly established and regularly followed” procedural rule. Id. Michel also cited Banks v. Workman for the holding that “federal courts have ‘repeatedly held’ that the PCPA ‘meets the adequacy requirement.’” Id. at 24.
DUE PROCESS RIGHTS
Glossip argues that the State’s actions violated his due process rights under Napue and Brady. Brief for Petitioner at 24, 31. Glossip notes that Napue found a denial of due process when the state knowingly allowed false testimony to go uncorrected and required convictions obtained through false testimony to be set aside if there is any reasonable likelihood that the false testimony affected the verdict. Id. at 24–25. Glossip argues that Sneed’s testimony regarding his lithium prescription satisfies all the requirements under Napue. Id. at 25. The materials in the boxes of prosecutor’s notes revealed, according to Glossip, that Sneed’s testimony was false, and that the prosecutor knew it to be false. Id. at 25–26. Additionally, Glossip asserts that the lie affected the verdict because the truth could have caused the jury to question Sneed’s memory and truthfulness. Id. at 26–27. Glossip notes that Brady held that due process requires prosecutors to disclose all material evidence that is favorable to the accused. Id. at 31. Glossip argues that the prosecutor failing to turn over the “Dr. Trumpet” note was a Brady violation. Id. at 31–32. In support of this, Glossip cites Williams v. Taylor, where the Supreme Court recognized that suppression of a witness’ psychiatric records can violate Brady. Id. at 32. Glossip also asserts that, even if this suppression of evidence was not individually material, the cumulative effect of the prosecutor’s suppression of evidence is material and thus forms a Brady violation. Id. at 33–34.
Michel denies that Glossip’s due process rights were violated. Brief for Court-Appointed Amicus Curiae in Support of the Judgment Below at 28–29. Michel first argues that the prosecutor’s actions did not violate Napue. Id. at 30. Michel contends that Sneed’s testimony about never seeing a psychiatrist was not demonstrably false, because the “Dr. Trumpet” note did not necessarily connect Sneed to Dr. Trombka, nor did it demonstrate that the prosecutor knew it to be false for the same reasons. Id. at 30, 34. Michel also contends that Sneed’s testimony was not material because “Sneed was nobody’s idea of a strong witness” and “[he] could not have been impeached any further than he had already been impeached.” Id. at 34, 37. Michel also argues that the parties failed to show a Brady violation. Id. at 37. Michel asserts that the “Dr. Trumpet” note is not material, and furthermore contains no suppressed information as Sneed’s prescription of lithium was known to Glossip, and Glossip could have used that information to locate Dr. Trombka. Id. at 39–40. Michel further contends that the cumulative effect of the evidence in the eight boxes was not material as the additional “Smothermon notes are no clearer or more helpful to petitioner than the others.” Id. at 41–42.
Discussion
RISK OF DIMINISHED CONFIDENCE IN THE CRIMINAL JUSTICE SYSTEM
The American Civil Liberties Union (“ACLU”), in support of Glossip, contends that due process violations of Brady and Napue, such as the violations that Glossip argues occurred in his case, are particularly harmful because such violations are significant contributing factors to wrongful convictions in Oklahoma and other states. See Brief of Amici Curiae The American Civil Liberties Union et al., in Support of Petitioner at 19. The ACLU warns that if prosecutorial departure from the rules in Brady and Napue is allowed, the consequences may be costly, not only for those defendants who may be wrongfully convicted, but also for prosecutors’ credibility and the legitimacy of the criminal process as a whole. See id. at 32. A group of Oklahoma State Legislators, in support of reversing the judgment of the OCCA, argue that if courts excuse prosecutors’ suppression of evidence and failure to correct false evidence, courts effectively condone the of prosecutors’ behavior and thereby encourage impunity. See Brief of Amici Curiae Oklahoma State Legislators Rep. Kevin McDugle et al., in Support of Reversing The Judgment Below at 7. The legislators worry this would also threaten public confidence in the criminal justice system, particularly in instances where the death sentence is sought, by calling into question the fairness of a system that allows convictions and death sentences to be obtained through the suppression of evidence and failure to correct false testimony. See id. at 7.
The Van Treese family (“Family”), relatives of victim Derek Van Treese, counter, in support of affirming the judgment below, that drawn out proceedings, which continue based upon unsupported confessions of error by state officials, are particularly harmful to victims’ families, who experience great emotional, physical, and financial tolls and are denied closure. See Brief of Amici Curiae Victim Family Members Derek Van Treese, et al., in Support of Affirming The Judgment Below at 31, 33–34. The Family further argues that the same drawn-out proceedings, which cause extended delays and “piecemeal and repetitious litigation,” also result in a lack of finality which they assert diminishes public confidence in the criminal justice system. See id. at 34. The Family additionally posits that trust in the criminal justice system will be even further diminished if state officials are permitted to claim error in the prosecution of a case simply because they disagree with the case’s outcome or are motivated by political factors. See id. at 30.
THE IMPLICATIONS FOR PROSECUTORS’ RESPONSIBILITIES AND POWERS
Michael Cassidy and nine other legal academics (“Academics”), in support of Glossip, suggest the Supreme Court’s decision in Glossip’s case will delineate the constitutional rules that prosecutors must abide by and also shape the ethical responsibilities of all lawyers, not just prosecutors. See Brief of Amici Curiae R. Michael Cassidy, et al., in Support of Petitioner at 3. To support their theory that the Court’s holding here will affect ethical responsibilities of all lawyers, the Academics cite to tendencies of state courts and the American Bar Association to be influenced by the Court’s decision when adopting and interpreting their own rules of professional conduct. See id. at 12. The Academics also contend that if the constitutional demand for candor is diminished, the ethical standards may become more lax as well. See id. at 12–13. They argue that it will be difficult for prosecutors to satisfy the ethical obligations of criminal proceedings if the Court does not provide clear and definite guidance as to the prosecutor’s duty to correct false testimony and disclose evidence. See id. at 12–13.
The Criminal Justice Legal Foundation (“CJLF”), in support of the judgment below and dismissal of the case, focuses not on the ethical responsibilities prosecutors will be tasked with but on the power prosecutors will have in conceding error. See Brief of Amicus Curiae Criminal Justice Legal Foundation in Support of Affirmance/Dismissal at 5–6. Using California as an example, the CJLF notes that while even the Governor of California does not have the ability to unilaterally commute the sentence of a repeat felon because he must obtain a majority consent of the California Supreme Court, if prosecutors’ concessions of error are held to be binding on courts, the prosecutors would wield greater power than the governor in their ability to commute sentences. See id. at 6. Texas, in support of the judgment below, argues that the independent judicial review of prosecutorial confessions of error that Young v. United States calls for, protects the public interest and promotes a well-ordered society because it requires courts to carefully consider if a conviction should be overturned rather than yielding to confessions of error by prosecutors without further judicial inquiry. See Brief of Amicus Curiae The State of Texas in Support of the Judgment Below at 9–10.
Conclusion
Acknowledgments
Additional Resources
- Hunter Elyse, Death row inmate Richard Glossip case to go before SCOTUS, Oklahoma’s News 4 (Jan. 22, 2024).
- Dylan Brown, Lawmakers call on Governor to stop Richard Glossip’s Execution, Oklahoma’s News 4 (May 4, 2023).
- Barbara Hoberock, Lawmakers and district attorney tussle over Richard Glossip text messages, Oklahoma Voice (Jan. 8, 2024).
- Brian M. Hoffstadt, Glossip Swirl: Supreme Court will hear criminal discovery obligation case, Daily Journal (May 21, 2024).