An `unusual lineup': Oklahoma joins death row inmate in asking Supreme Court to set aside conviction

( This story has been updated to correct the description of the Death Penalty Information Center )

WASHINGTON − Oklahoma death row inmate Richard Glossip, whose request for a new trial will be heard at the Supreme Court on Wednesday, has received nine execution dates and eaten his “last meal” three times.

He’s made multiple appeals to the high court, including in 2015 when he lost his challenge to Oklahoma’s lethal injection protocol.

This time, however, Glossip and Oklahoma are on the same side.

The state agrees that evidence uncovered after recent investigations show Glossip, 61, did not get a fair trial when juries found him complicit in the 1997 murder of his boss at an Oklahoma City budget motel. The state's key witness was diagnosed with bipolar disorder, which he lied about on the stand, prosecutors now say.

But the Oklahoma Court of Criminal Appeals last year said the state attorney general’s request to set aside Glossip’s conviction was not sufficient reason to halt the execution.

Now Oklahoma – the state with the highest per capita execution rate – is joining Glossip in asking the Supreme Court to overturn that decision and set a new trial. Because the state agrees with Glossip, the court appointed an attorney to argue the other side.

“That is a very unusual lineup,” said Robin Maher, executive director of the Death Penalty Information Center, which does not take a position on the death penalty but is critical of problems in its application.

But what advocates say is distressingly not unusual is the role that the type of prosecutorial misconduct the state acknowledges in Glossip’s case – not disclosing evidence that would have undercut the prosecution and allowing false testimony about the evidence – plays in wrongful convictions.

Studies of exonerations have found prosecutors concealed important evidence in 44% of the cases reviewed, and found concealed evidence contributed to 61% of wrongful convictions of murder, the Innocence Project told the Supreme Court in a filing .

Victim's family says no more delay

But family members of Barry Van Treese, the man Glossip has been convicted of helping murder in 1997, say there was no prosecutorial error in this case.

“Today – 10,047 days later – the Van Treese family has an interest in seeing Oklahoma’s duly imposed sentence on Glossip carried out without further delay,” their lawyer told the court in a filing .

Van Treese, the owner of an Oklahoma City Best Budget Inn, was bludgeoned to death with a baseball bat in one of the motel’s guest rooms.

Justin Sneed, the motel’s maintenance man, confessed to killing Van Treese. But he said Glossip pressured him into doing it, offering him $10,000. Sneed’s testimony against Glossip allowed him – but not Glossip −to avoid a death sentence.

Glossip was first convicted and sentenced to death in 1998. Three years later, the Oklahoma Court of Criminal Appeals ruled he deserved a new trial because his defense attorney was inadequate.

A second jury found Glossip guilty in 2004.

First `last meal' was in 2015

Glossip had his first “last meal” in January of 2015, before the Supreme Court temporarily halted the execution to hear his challenge to Oklahoma’s lethal injection protocol.

The court ruled against Glossip who − twice − was hours away from being executed before Oklahoma began a six-year moratorium on the death penalty . That came after the attorney general expressed concern about the Oklahoma's ability to properly carry out an execution. The state had received the wrong drug for Glossip's scheduled lethal injection.

The delays allowed Glossip's attorney – Don Knight – to continue investigating, resulting in recently getting to see information the state previously hadn’t shared with the defense.

“It’s taken this long to get that evidence,” Knight said of the boxes of documents he received in the past two years.

`Troubling evidence of grave prosecutorial misconduct'

Buried inside the final box turned over last year was a page of notes handwritten by the prosecutor from a pre-trial interview with Sneed.

Oklahoma now says the notes show Sneed – the “one indispensable witness against Glossip” – lied on the stand about whether he had been diagnosed with bipolar disorder. Prosecutors knowingly elicited Sneed’s false testimony about why he had received lithium and failed to correct the record, the state says.

Because of that "troubling evidence of grave prosecutorial misconduct," the attorney general launched an outside investigation and "made the difficult but necessary decision to confess error," Paul Clement, a former U.S. solicitor general during George W. Bush administration who is representing Oklahoma before the Supreme Court, wrote in a filing .

Glossip is being represented at the high court by Seth Waxman, who served as solicitor general during the Clinton administration . He says Glossip was denied the chance to show the jury Sneed’s memory was unreliable and that he was willing to lie on the stand.

Oklahoma is not arguing that Glossip is innocent. But that “the death penalty should be reserved for defendants found guilty beyond reasonable doubt after a fair trial free from prosecutorial misconduct.”

The American Civil Liberties Union told the court that while it’s difficult to determine how often prosecutors withhold evidence, “even the number of known violations in Oklahoma is shocking.”

`Potential political motivations'

But members of the Van Treese family say the prosecutor’s notes are being misread and no evidence was concealed, suggesting there are “potential political motivations” behind Oklahoma Attorney General Gentner Drummond’s confession of error.

“It would not be surprising to find that one politically elected official might view the facts of a case one way, while another might go in a different direction,” Paul Cassell, the attorney representing the family, told the court . “But if officials are free to simply confess `error’ because they disagree with the case’s outcome, trust in the criminal justice system becomes the casualty.”

Clement said any suggestion that Oklahoma has joined forces with death-penalty opponents is “divorced from reality.” The state carried out four executions last year alone, all with the support of Drummond, he noted.

“Public confidence in the death penalty requires that these cases receive the highest standard of reliability,” Drummond said last yea r after the Oklahoma Pardon and Parole Board voted against recommending clemency for Glossip.  “While the State has not questioned the integrity of previous death penalty cases, the Glossip conviction is very different. I believe it would be a grave injustice to execute an individual whose trial conviction was beset by a litany of errors.”

Drummond began looking into the case − which he called "shrouded in controversy" −shortly after taking office in 2023.

Knight, Glossip’s attorney, said it took a lot of courage for the top law enforcement official of a state “where the politics are so pro-death penalty” to argue Glossip didn’t get a fair trial.

“For an attorney general in Oklahoma to stand up for that right means he’s standing up for all of us and saying, `Not on my watch,’” Knight said. “And I give him a lot of credit for that.”

This article originally appeared on USA TODAY: An `unusual lineup': Oklahoma joins death row inmate in asking Supreme Court to set aside conviction