The Unsubstantiated Allegations Against the Oklahoma AG in the Glossip Case
On Tuesday, the Supreme Court, in an opinion by Justice Sotomayor, invalidated the murder conviction (and thus also the death sentence) of Richard Glossip and sent his case back to the Oklahoma courts so that they can either release Glossip or retry him (for what would be his third trial on this charge).
The Court first held that the reliance by the Oklahoma Court of Criminal Appeals (OCCA) on the state's Post-Conviction Procedures Act (PCPA) to bar Glossip's effort to have his conviction reversed was not an independent state law ground that deprives SCOTUS of the power to review the decision because the OCCA's PCPA ruling was itself based on an evaluation of the strength of Glossip's underlying federal claims. Thus, the PCPA ruling was ultimately based on federal grounds. Notably, this was not the possible ground for lifting the procedural bar that received the most attention during the oral argument; I blogged about that and more back in October.
Second, and on the merits, SCOTUS held that Glossip had shown prosecutorial misconduct justifying a new trial: recently revealed evidence showed that the prosecution knowingly elicited false testimony and then failed to correct the record in violation of Napue v. Illinois. Glossip had also argued that the prosecution did not turn over exculpatory evidence in violation of Brady v. Maryland, but SCOTUS did not rely on the alleged Brady violation for its ruling.
The majority opinion spoke for five Justices: CJ Roberts and Justices Kagan, Kavanaugh, and Jackson joined Justice Sotomayor's opinion in full. Justice Barrett joined the parts of the majority opinion finding that the Court had jurisdiction and finding a Napue error but dissented from the grant of a new trial. She would have remanded to the OCCA to decide on a remedy based on its review of the record. Thus, Justice Barrett joined the dissent on that point. The dissent was by Justice Thomas, joined in full by Justice Alito. Justice Gorsuch was recused.
The dissent took issue with the majority on various points, including disputing the majority's interpretation of the recently disclosed evidence. That evidence, the majority said, showed that Glossip's accuser, a man named Sneed who committed the murder but claimed that he did so as Glossip's hit-man, falsely testified that the lithium he was taking at the time of the murder had not been prescribed to treat a mental illness. Moreover, the majority concluded based on the recently disclosed evidence, the prosecution knew that Sneed's testimony was false.
According to the dissent, Glossip and the state Attorney General--who agreed that Glossip was entitled to a new trial--colluded to exclude evidence from the record tending to show that the prosecutor at the time did not in fact conceal or mischaracterize evidence regarding Sneed's mental health history. The dissent based this account on material provided by Professor Paul Cassell, who filed a brief on behalf of the surviving family members of the victim. Professor Cassell further expounded his view in an essay this week on the Volokh Conspiracy.
Putting aside the merits, there is a mystery that neither Professor Cassell nor Justice Thomas has solved. Each of them accuses Oklahoma State Attorney General Gentner Drummond of colluding with Glossip to present the Supreme Court with an inaccurate picture of the facts and the record. But they don't explain why Drummond would do such a thing. Indeed, in his brief, Professor Cassell admits that the reasons why Drummond "personally believes that a new trial is warranted" for Glossip are "unclear." Quoting Justice Thomas's dissent in his Volokh essay, Cassell then says that Attorney "General Drummond still has no explanation for why he 'collusively excluded … highly relevant evidence from the record.'"
There is, however, an obvious innocent explanation. There was no "collusion," only agreement. Perhaps Drummond simply reviewed the record and concluded that Glossip's rights were violated. Having reached that conclusion, he may well have also concluded that the account of the prosecutor's notes Cassell offered was not credible and thus not worth airing. Drummond could be mistaken in those conclusions; maybe Cassell has the better view of the underlying material; but there's no reason to insinuate, as Cassell does, that Drummond is acting in bad faith.
Justice Thomas goes beyond insinuation. He first impugns the integrity of lawyers hired by "a group of legislators opposed to" Glossip's execution by noting that the lawyers so hired work for a firm that is "publicly committed to 'fighting the death penalty.'" (It appears that Justice Thomas thinks this is discrediting in the way that a commitment to public defecation would be. But I digress.) Drummond's predecessor as Oklahoma AG did not credit the lawyers' work, but when Drummond took office, he apparently did.
Justice Thomas then impugns the integrity of another lawyer. He recounts that Drummond "appointed Rex Duncan, a personal friend and campaign donor, as independent counsel to reexamine the legitimacy of Glossip’s conviction." (It's so very heartening that Justice Thomas is concerned about appearances of impropriety when government officials accept largesse from personal friends. But I digress again.)
Presumably, Justice Thomas expects the reader to think that Drummond appointed his friend and campaign donor Duncan because Drummond wanted an investigator who would reach a pre-determined conclusion that Glossip's trial was marred by constitutional errors that cast doubt on his guilt. But, again, why? So far as I can tell, neither Professor Cassell, Justice Thomas, nor anyone else has offered any remotely plausible explanation for why Drummond would deliberately help a murderer escape justice.
Drummond and Duncan are both Republicans. Each has had political differences with some other Oklahoma Republicans, but that's hardly a reason to doubt their integrity. Meanwhile, Drummond has announced his intention to run for Governor of Oklahoma. Based on his official bio page, he appears to be quite conservative on immigration, industry regulation, and various other issues. Taking a high-profile stance on behalf of a person convicted of murder is hardly going to benefit him politically. Drummond would thus be likely to do so only if he had some really good reason to take such a stance.
The obvious good reason is that Drummond has integrity and, based on his reading of the record, has concluded that Glossip didn't get a fair trial and could be innocent. Again, he could be mistaken. But there's no reason--in logic or any evidence provided by Professor Cassell, Justice Thomas, or anyone else--to think that Drummond has some illicit ulterior motive.
It is, however, a sign of the times--and very much on brand for hardcore conservatives in the age of Trump--to characterize honest disagreement, indeed, a somewhat courageous act of integrity, as corrupt.