A fractured Supreme Court struggled on Wednesday to decide whether to grant a new trial to Richard Glossip, a death row inmate in Oklahoma whose challenge to his conviction gave rise to an extraordinary concession from the state’s attorney general.
Some justices wondered whether they had the power to rule for Mr. Glossip at all in light of a state court ruling against him that was grounded in part in state law. The likeliest outcome, proposed by Justice Ketanji Brown Jackson, was a half-measure that would satisfy neither side: sending the case back to Oklahoma for an evidentiary hearing on the meaning of a prosecutor’s long-suppressed notes.
Mr. Glossip was convicted of arranging the death of his employer, the owner of a motel in Oklahoma City. Two independent investigations cast doubt on his guilt, saying critical evidence had been withheld and major testimony was faulty. State lawmakers from both political parties, along with celebrities like Kim Kardashian, have called for clemency or a new trial.
Paul D. Clement, representing Oklahoma, told the justices that Mr. Glossip’s capital conviction was tainted by prosecutorial misconduct, making a new trial imperative.
“Our prosecutors elicited perjury here, and a man’s going to go to his death,” he said, characterizing the reluctant conclusion of Gentner Drummond, the state’s attorney general, a Republican. “We can’t allow that to happen.”
Mr. Glossip was convicted based almost entirely on the testimony of the state’s star witness, a handyman named Justin Sneed who had pleaded guilty to killing Barry Van Treese, the motel owner, beating him to death in 1997 with a baseball bat.
In exchange for a life sentence, Mr. Sneed agreed to testify against Mr. Glossip, the motel’s manager. Mr. Sneed said Mr. Glossip had instructed him to kill Mr. Van Treese.
Recently disclosed notes appeared to contradict Mr. Sneed’s testimony about whether he had been treated by a psychiatrist, and they seemed to show that he had been diagnosed with bipolar disorder.
“When I was arrested,” Mr. Sneed testified, “I asked for some Sudafed because I had a cold, but then shortly after that somehow they ended up giving me lithium for some reason.”
“I don’t know why,” he added. “I never seen no psychiatrist or anything.”
The prosecutor, Connie Smothermon, emphasized that testimony. “So you don’t know why they gave you that?” she asked. Mr. Sneed said no.
The newly disclosed notes, prepared by Ms. Smothermon, contain two contested phrases. “On Lithium?” one said. “Dr Trumpet?” said another. The second question was an apparent reference to Dr. Lawrence Trombka, who was the sole psychiatrist at the jail where Mr. Sneed was held after the murder.
Lawyers for Mr. Glossip and the state said the phrases showed that Mr. Sneed had testified falsely about how he came to be taking lithium and that Ms. Smothermon had failed to correct him.
That violated, they said, fundamental requirements established in two Supreme Court precedents: Brady v. Maryland, which requires them to turn over potentially exculpatory evidence, and Napue v. Illinois, which forbids them to knowingly present false testimony.
Some justices indicated that they found those issues straightforward. “He lied on the stand,” Justice Elena Kagan told Christopher Michel, a lawyer appointed by the court to defend Mr. Glossip’s conviction after both sides agreed that it should be overturned.
“Your one witness has been exposed as a liar,” Justice Kagan added.
Justice Brett M. Kavanaugh appeared to agree. “The whole case depended on his credibility,” he said.
On the other hand, Justice Samuel A. Alito Jr. called the notes cryptic, telling Seth P. Waxman, a lawyer for Mr. Glossip, that “you read a lot into” them. Justice Clarence Thomas said that he “couldn’t make heads or tails of it.” Justice Amy Coney Barrett added that “there are multiple plausible interpretations of the notes.”
Justice Thomas said that Ms. Smothermon and a colleague should have been given a fuller opportunity to interpret the notes and related documents.
Chief Justice John G. Roberts Jr. said that even Mr. Glossip’s interpretation of the notes added little to the case, as it had long been known that Mr. Sneed had been prescribed lithium by someone. At best, he said, the notes merely established that the someone was a psychiatrist.
“Do you really think it would make that much of a difference to the jury?” the chief justice asked.
Justice Sonia Sotomayor responded that the new information was important, as it indicated that Mr. Sneed was mentally ill.
“The issue wasn’t about him taking lithium,” she said. “The issue was about why he was taking the lithium.”
The notes figured in Mr. Drummond’s decision to support Mr. Glossip’s bid for a new trial. But the Oklahoma Court of Criminal Appeals, the state’s highest court for criminal matters, unanimously rejected his confession of error.
Much of the argument concerned whether the Supreme Court could review that decision, a question that turned on whether it had rested on an “independent and adequate state ground.” The justices spent considerable time quoting from and trying to make sense of the state court’s decision, with little apparent success.
“I’ve read it a dozen times, and I’m still not sure what each paragraph is doing exactly, you know — what or where or why,” Justice Kagan said.
Mr. Glossip’s case was the subject of an earlier Supreme Court appeal, one that yielded a landmark 2015 decision in which the court, by a 5-to-4 vote, endorsed executing condemned inmates with a combination of chemicals that the dissenters said would leave them “exposed to what may well be the chemical equivalent of being burned at the stake.”
The new case, Glossip v. Oklahoma, No. 22-7466, was heard by an eight-member court. Justice Neil M. Gorsuch, who had heard an aspect of the case as an appeals court judge, was recused from it.
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