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September 13, 2015

New gossip about claim of innocence in Glossip

As reported in this New York Times article, the condemned murderer whose name was atop the case in which the Supreme Court recently upheld Oklahoma's approach to lethal injection now has supporters raising questions anew about his factual guilt.  The piece is headlined "Oklahoma Inmate the Focus of Renewed Attention as Execution Date Nears," and here are excerpts:

Richard E. Glossip was at the center of a major Supreme Court case this year, arguing along with two other men on Oklahoma’s death row that the state’s choice of lethal injection drugs could cause unconstitutional suffering. The court rejected that claim in a 5­4 decision in June, clearing the way for Oklahoma to resume executions. Mr. Glossip’s is the first; he is scheduled to die on Wednesday.

Now Mr. Glossip, 52, is again a focus of attention, this time over whether he is guilty of the arranged murder in 1997 of the owner of a run­down motel he was managing. Mr. Glossip’s supporters call his case a striking example of a repeating pattern in American capital punishment, in which a defendant receives inadequate legal representation early on and then, many years later, only as execution nears, higher­powered lawyers and civil rights groups become involved, raising important new issues at the 11th hour, when it may be too late.

Mr. Glossip has won the fervent backing of Sister Helen Prejean, the antideath­penalty campaigner; the actress Susan Sarandon, who played Sister Helen in the film “Dead Man Walking”; and a new legal team, working pro bono, which says his conviction was marred by poor lawyering and unreliable, police-­coached testimony.

In a drumbeat of media appearances, Mr. Glossip’s supporters are calling on Gov. Mary Fallin of Oklahoma to delay his execution for 60 days while they explore what they say is important new evidence that they released on Friday and will discuss in a news conference in Oklahoma City on Monday.

The victim, Barry Van Treese, was beaten to death with a baseball bat in a room at the Best Budget Inn in Oklahoma City, a motel that he owned and Mr. Glossip managed. Justin Sneed, a 19-­year-­old drifter with an eighth­grade education whom Mr. Glossip allowed to stay at the motel in return for maintenance work, admitted to the murder and is serving life without parole.

Mr. Sneed testified that Mr. Glossip had told him to kill Mr. Van Treese in return for thousands of dollars in motel receipts. Prosecutors said Mr. Glossip was a cunning figure who feared he was about to be fired for mismanagement and stealing motel revenues, and persuaded Mr. Sneed to commit the crime....

Mr. Glossip’s appeals to the state and federal Supreme Court have been exhausted. His last hope is for Governor Fallin, a Republican, to stay his execution while his lawyers work to persuade a judge, or the state board of pardon and parole, that significant new evidence warrants a new hearing or clemency. “We are seriously racing against time, as you can imagine,” said one of those lawyers, Donald R. Knight, from Colorado. “We’re trying to do work that should have been done by trial lawyers a long time ago.”

But Governor Fallin has rejected calls to intervene. “His actions directly led to the brutal murder of a husband and a father of seven children,” she said last month in a statement about Mr. Glossip, stressing that he had been convicted in two jury trials and lost multiple appeals. “The state of Oklahoma is prepared to hold him accountable for his crimes and move forward with his scheduled execution.”

Barry C. Scheck, co­director of the Innocence Project in New York, said there were serious “residual doubts” about Mr. Glossip’s guilt. A number of cases in which those sentenced to death were later exonerated, he said, had similarly relied on witnesses who benefited from testimony.

Mr. Glossip was first found guilty and sentenced to death in 1998, but a state appeals court ordered a retrial because his defense lawyers had failed to cross­-examine or investigate witnesses effectively. He was again convicted and condemned in 2004, and the courts did not find evidence of deficiencies that would require a new appeal. But Mr. Knight said the new team had identified weaknesses with that second defense as well. By all accounts, Mr. Glossip’s behavior on the day after the murder hurt his case....

The Glossip case reflects a common problem in capital punishment, Mr. Scheck said: a poor defense in the initial trial, which then limits the legal options in later appeals. “What frequently happens in these capital cases is that the really good lawyers only get involved at the end, when it’s too late,” Mr. Scheck said.

Mr. Van Treese’s family is convinced of Mr. Glossip’s guilt and has thanked the governor for standing firm. “Execution of Richard Glossip will not bring Barry back or lessen the empty hole left in the lives of those who loved Barry,” family members said in a statement this week to The Tulsa World. “What it does provide is a sense that justice has been served.”

I use the term gossip in the title of this post in part because I find less than compelling the development of new contentions about innocence a full two decades after the crime was committed given that the defendant was convicted and sentenced to death twice by two different juries. I certainly recognize that juries can get guilt/innocence determinations wrong, but I am ever hopeful it is highly unlikely that a two different juries would both get this critical determination unanimously wrong.

In addition, Mr. Glossip's supporters had to reasonably expect he would have a serious execution date in 2015, and he has not had his death sentence carried out already only because of Oklahoma's difficulties with its lethal injection plans. And, based on the tenor of the the Supreme Court oral argument in Glossip back in April, it should have been especially obvious that Oklahoma would likely have its machinery of death up and running again pretty soon. I find it troublesome that, despite all this extra time to conduct whatever additional investigation might now unearth new concerns about guilt, defense attorneys now assert they need another 60 days to make a more forceful showing of innocence.

September 13, 2015 at 04:04 PM | Permalink


You might be 'hopeful' and these facts here are a lot less troubling than other cases, but there were various cases where at least one jury, prosecutors, various layers of judges, the governor etc. thought something was slam dunk in this context and it was not. Why another jury suddenly makes this "gossip" is unclear. Defense attorneys etc. probably, since you thought it so compelling that you put it in bold, can find cases where two juries -- perhaps a second necessary since some procedural issue etc. required it -- were wrong. Why not just use wordplay (Glossip/gossip)?

The extra time is a usual device for lawyers of various types, to be taken with a grain of salt generally speaking. But, I gather it might be noted that before everything was focused on the use of the drug issue and now they can be sure everyone would focus on this. What "new" evidence they have is unclear. I'll grant for the sake of argument that how the system is set up encourages delays, but repeatedly blame is spread around. This was covered in various accounts, including opinions by Breyer.

Posted by: Joe | Sep 13, 2015 10:09:45 PM

The skepticism of possible actual innocence and the assumption that two juries cannot get a decision wrong, is at the heart of what is entirely wrong in the US regarding the fundamental basis of sentencing policy and the judicial due process. Anyone who has the slightest knowledge of the process of post conviction "review" knows full well that guilt is assumed unless compelling new evidence to the contrary is presented to the courts. The bar for this is set so high (and made even higher as the process proceeds) that quite exceptional efforts often have to be made by very determined defense attorneys and/or pro bono third parties. Whether this is available to a defendant is very much a lottery, and in places rare. Judicial "review" is concerned primarily with the legality of process. Juries, whether one, two or more, make their judgments on the evidence presented - they are not psychic and privy to a truth that is not made available to them. And as in the original trial, such evidence may be suggestive of innocence but inconclusive - often as a result of the length of time it has taken to unearth it. A skilled and determined prosecution has every advantage to paint a picture of skepticism sufficient to sway a jury to uphold an earlier verdict. Presumption of guilt in the face of suggestive innocence is clearly totally inappropriate where the death penalty will be the outcome. 60 days grace to firm up evidence is barely giving lip service to the importance of truth.

Posted by: peter | Sep 14, 2015 5:05:57 AM

I guess Amanda Knox is guilty, then.

Posted by: Anderson | Sep 14, 2015 8:00:22 AM

For the record, I recognize it is possible two juries could get the guilt decision wrong, but I think it more unlikely than that just one jury would get it wrong. And I would especially hope that, with the Glossip case near the center of the abolitionist universe for the last 8 months, some time would have been spent earlier trying to more effectively demonstrate Glossip's innocence. That is my main point in my comments.

Posted by: Doug B. | Sep 14, 2015 11:20:59 AM

I would think if there were anything to this claim that it would have been pushed in preference to the drug issue, his lawyers had to know that the drug claim was going to b very much a long shot. The odds against demonstrating actual innocence are also quite long, of course, but at least there is some recognition by the courts (including SCOTUS) that there are some condemned out there who can thread that needle.

And yes, I would also say that if there were anything to this claim that his lawyers and other supporters should have been working it hard during the reprieve given by SCOTUS review of the drug question. Instead they appear to simply be latching onto the next thing in line. Certainly they could not have expected SCOTUS to rule in their favor (hope is another matter).

Posted by: Soronel Haetir | Sep 14, 2015 11:34:16 AM

The pushback was helped by noting "I use the term gossip in the title of this post in part" and then the use of bold. "Main" point or not, that point was in effect underlined. The reference seemed a bit gratuitous. If something else was the 'main point' as compared to something "in addition," fine, but some confusion seems reasonable.

I think it is debatable that an "actual innocence" claim was less a long shot than the drug claim, at least before the April oral argument. Baze v. Rees was 7-2, I'd note, with two liberals joining the majority. This, even with that as precedent, was 5-4. I assume that they were working on the innocence claim too. The article notes a report was released on Friday -- this means time was spent to investigate the claims etc. For instance, on July 13, his lawyer spoke out -- https://www.youtube.com/watch?v=HQeYiqj_LBA&feature=youtu.be ... concerns about his guilt was flagged a week before -- http://balkin.blogspot.com/2015/07/richard-glossip.html -- and that's just two I found. Perhaps, again, this last minute stuff is not just one sided.

Posted by: Joe | Sep 14, 2015 1:56:36 PM

(there were signs before the oral argument, but I flag that since it was already flagged)

Posted by: Joe | Sep 14, 2015 1:59:05 PM

Joe, once again, a lot of gobbledygook not saying a whole lot. Doug's point is fairly simple---defense counsel has had a long time to gin up whatever innocence case there is to be made---they shouldn't need an extra 60 days. Maybe, he should get his 60 days, and the attorneys should face professional discipline.

Posted by: federalist | Sep 15, 2015 7:33:56 AM

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