Supreme Court may be headed for deadlock in case of Oklahoma death row inmate

The U.S. Supreme Court has heard oral arguments in the appeal of Richard Glossip, the Oklahoma death row inmate whose execution has been rescheduled nine times.

The case has created an unusual battle between Oklahoma’s Republican attorney general and its highest court that now rests in the hands of eight Supreme Court justices — all but Justice Neil Gorsuch, who is recused.

Glossip, 60, was convicted in 1998 for the murder of his motel owner boss, Barry Van Treese, then sentenced to death. Justin Sneed was the person who actually killed Van Treese, but prosecutors maintained that Glossip paid Sneed to carry out the killing. Sneed had a history of drug abuse and psychiatric problems that was not disclosed to Glossip’s lawyers by prosecutors.

Sneed also told fellow inmates that he acted alone to rob Van Treese with the plan that he and his girlfriend would use the robbery funds to buy drugs. Glossip’s conviction was overturned in 2001 due to ineffective defense counsel, but he was later convicted again — and again sentenced to death.

Glossip was set to be executed in 2015, but the execution was halted after prison officials realized they received the wrong lethal drug for the execution. Later, an investigation revealed that the same incorrect drug had been used to execute another inmate earlier the same year.

In 2022, the same year that Oklahoma resumed executions after a six-year hiatus, a review of Glossip’s case revealed “significant evidence of government misconduct and destruction of evidence,” and that Glossip was likely innocent. Glossip then filed an appeal of his conviction.

Gov. Kevin Stitt temporarily stayed Glossip’s execution to allow time for the appeal to proceed. In April 2023, the Oklahoma Court of Criminal Appeals upheld Glossip’s conviction, but a few months later, Oklahoma Attorney General Gentner Drummond petitioned the Supreme Court asking that Glossip be given a retrial. Drummond’s petition came over the objection of both the victim’s family and the Oklahoma District Attorneys Association.

The justices considered primarily procedural issues in Glossip’s most recent appeal, such as whether the evidence that the prosecutors suppressed violated Glossip’s due process rights and whether the post-conviction relief Glossip seeks is appropriate under Oklahoma state law. The Van Treese family has argued that the justices should reject Glossip’s current appeal on the ground that they are prohibited from reviewing a state court decision that rests on an “adequate and independent state ground.”

Justice Sonia Sotomayor appeared to agree with former U.S. Solicitor General Paul Clement, who argued on behalf of Drummond that Oklahoma waived any right to raise its argument against Glossip’s appeal.

Christopher Michel, also a former assistant to the U.S. solicitor general as well as a former law clerk to Chief Justice John Roberts, was appointed by the court to argue on behalf of Oklahoma’s ruling despite Drummond’s contrary position in the appeal. Michel argued that there is insufficient precedent for the court to accept any waiver of the state’s right.

Justices Ketanji Brown Jackson and Elena Kagan appeared to reject Michel’s argument and seemed inclined to side with Glossip on the procedural issues. Justice Amy Coney Barrett, though, was not convinced that the lack of precedent was fatal to Michel’s argument and asked whether courts should look to precedent about all waivers, or more specifically to those relating to the law at issue in Glossip’s appeal.

Justice Samuel Alito also seemed receptive to Michel’s position, and noted that the Van Treese family’s provided “a pretty compelling” argument in their brief about the possible interpretation of Sneed’s statements to his fellow inmates. Alito also said that Glossip would likely still lose his appeal even if he were successful on one of the procedural issues.

Justice Brett Kavanaugh told Michel during arguments that he was “having some trouble” with the contention that the jury’s knowledge of Sneed’s bipolar disorder would not have made a meaningful difference, because “the whole case depended on his credibility.”

Justice Neil Gorsuch recused from the case because he was involved with some of Glossip’s earlier appeals. As a result, the case runs the risk of a 4-4 deadlock, which would leave Oklahoma’s ruling against Glossip as the final decision in the case.

You can read the full transcript of oral arguments here and listen to the full oral arguments here.

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