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September 16, 2015

Does Glossip case reveal Oklahoma's prosecutors as immoral and its judges lacking in moral fiber?

The qustion in the title of this post is prompted by this provocative Slate commentary authored by Robert J. Smith and G. Ben Cohen which is headlined "Groundhog Day Nightmare: Oklahoma is about to execute a man who is probably innocent." Here are excerpts from the piece, including sections with the forceful rhetoric parroted in the title of this post:

Oklahoma is set to execute Richard Glossip, despite grave doubts about his guilt. A chorus of people that includes Republican former Sen. Tom Coburn; Virgin Group CEO Richard Branson; and Barry Switzer, the beloved former Oklahoma Sooners football coach, has called for Oklahoma Gov. Mary Fallin to grant a stay of execution. If she does not, and if the Supreme Court does not step in, Glossip will be put to death Wednesday....

In 1997, Justin Sneed killed Barry Van Treese, a motel owner for whom both Sneed and Glossip worked. The police found Sneed’s fingerprints all over the bloody crime scene and in the victim’s vehicle. Sneed later confessed to the killing. The prosecution’s theory at Glossip’s trial was that Glossip pressured Sneed into murdering Van Treese. What evidence supported the state’s theory? Not much....

The prosecution gave him a sweetheart deal: In exchange for his testimony against Glossip, the state waived the death penalty. The problem is that the substance of Sneed’s testimony at trial was invented by the state....

It is bad enough that Sneed received a deal in exchange for his testimony. It is worse that the detective “educated” Sneed about Glossip being the mastermind. But what’s not only unforgivable, but downright immoral, is that the prosecution put forward the Glossip-as-mastermind theory in a capital case, with a man’s life on the line, when Sneed couldn’t even keep his story straight....

If Oklahoma proceeds with this execution, Glossip will not, unfortunately, be the only plausibly innocent man put to death....

Did Georgia execute an innocent man when it killed Troy Anthony Davis? Did Texas execute innocent men when it put Cameron Todd Willingham and Lester Bower to death? Will Oklahoma add to this tragic list if neither Gov. Fallin nor the Supreme Court stops the execution of Richard Glossip? We honestly do not know. And that’s the problem. How do we preserve the integrity of our justice system and our courts if we send condemned inmates to the lethal injection chamber with no more certainty of their guilt than a coin flip?

Given all that is known today about wrongful convictions, the fallibility of our criminal justice institutions, and their fallibility in identifying these potentially fatal errors, the question should not be Is this person innocent? but rather: Is this a case of uncertain guilt? Whatever principles the state seeks to uphold, whether it is the finality of its judgments or deference to juries or state courts, nothing trumps the risk of executing a person where there is some serious doubt as to his or her guilt.

In Richard Glossip’s case, there is more than “some” doubt.  There is lots of it. No physical evidence ties him to the crime.  There is no motive that withstands scrutiny. The detectives in the case engaged in tactics known to increase the likelihood of witnesses providing false statements.  And the state’s chief witness, Justin Sneed, was unreliable at best, with clear motives for lying. Few of us would buy a used car from Justin Sneed.  Are we prepared to stake the moral fiber of our justice system on his word?  If our answer is no, we must stop the execution of Richard Glossip. His life depends upon it, and so does the soul of our nation’s justice system.

I was a bit dismissive in this prior post of eleventh-hour innocence claims here given that Glossip was twice convicted and sentenced to death (his first conviction was reversed for procedural error). But I cannot help but wonder if my eagerness to question claims of innocence here is a result of my own desire to believe that Oklahoma prosecutors would not be immorally eager to condemn to death (twice) a man based on very weak evidence and that Oklahoma and federal courts would have had the moral fiber to intervene if there was real substance to the innocence claims.

That all said, absent "smoking gun" evidence to provide some more confidence in Glossip's guilt, I can understand why the abolitionist crowd has now garnered broad support for their claim that the Glossip execution should not go forward.  Still, I continue to be deeply troubled that a case which produced two jury convictions well over a decade ago, and which has been at the center of the national death penalty debate for nearly all of 2015, is  only now struggling at the very minute with what is the most fundamental and basic question in any and every criminal case.

Prior related post:

September 16, 2015 at 12:00 AM | Permalink


Troubling yes, but late evidence or the late development of evidence is not at all unusual for all sorts of reasons - eg. a change of attorney with a better grasp of the case, a late third party funds provider for investigation previously denied, top class pro bono assistance, a new witness, technological developments (eg re dna, fingerprints, other forensics etc), evidence discovered previously withheld by the prosecution. In fact the list is endless. Yes, this all reflects badly on the provisions around the original trial and post trial reviews to sometimes a large extent, but not always so. It does reflect badly on the existence of the death penalty itself. Certainty of guilt or degree of culpability is far less possible than many folk would like to believe.

Posted by: peter | Sep 16, 2015 5:38:58 AM

Perhaps some of the delay is the belated availability of resources and qualified counsel. Despite the federal courts' obsession with federalism, state post-conviction proceedings, even in capital cases, are often poorly funded and poorly presented affairs.

Posted by: John | Sep 16, 2015 8:39:59 AM

"only now" struggling?

I cited last time an analysis at Balkanization in early July -- two months ago -- going past the use of the drug to question the death sentence itself. Also, one of his lawyers discussing problems with the sentence, not merely procedural issues. Third party analysis like on Balkanization is a sign something was out there for a while building up.

It might be unsurprising the "abolitionist crowd" is using something if Tom Coburn, a strongly conservative former member of Congress, is taking notice. I think the first two comments here are sound. Don't think we need to rely on "immorality" or "lacking moral fiber" to reference basic aspects of the justice system, including a certain bias to not take certain concerns seriously. The system works fairly well but sometimes there are troublesome cases, even when TWO juries convict on the evidence presented.

Posted by: Joe | Sep 16, 2015 10:49:35 AM

I don't know what sixty more days will bring but concerns were out there for years ... the Slate article cites this long article from July:


It covers the TWO juries including problems with each case. Such accounts are by now familiar. Same with prosecutors honestly thinking someone is guilty but cutting corners, in certain cases it later determined the defendants were innocent. It comes off as naive to be shocked that prosecutors would act this way. It is not that they KNEW the person was innocent in each case or something.

Anyway, the stuff was out there, but I believe the system -- and it is troubling -- is set up to encourage long extended focus on procedural matters, guilt assumed, so once all the procedural stuff (including something that broke the Court 5-4 & addressed something that people like John McCain felt was an issue in another execution), we get what appears to be last minute push to address innocence claims.

Posted by: Joe | Sep 16, 2015 11:01:45 AM

¿ Multiple convictions AND death sentence ?

Easy ‼

The Scottsboro cases •

Posted by: Docile Jim Brady in Oregon | Sep 17, 2015 3:57:08 AM

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