The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Currently pending before the Supreme Court is a certiorari petition filed by Richard Glossip, who was convicted eighteen years ago of commissioning the murder of Barry Van Treese in 1997. Glossip was sentenced to death for his crime. Glossip's petition seeks review of an issue related to his purported discovery of "new" evidence, which he alleges was "concealed" by the prosecution.
The newly-elected Oklahoma Attorney General supports Glossip's petition, as indicated by his support of Glossip's earlier-filed motion for a stay of execution.
Yesterday, along with Kent Scheidegger of the Criminal Justice Legal Foundation, I filed an amicus brief for the Van Treese family and the Oklahoma District Attorneys Association. The brief urges the Court to deny further review. Here is the introduction from the brief:
This case involves Glossip's effort to overturn an aggravated murder conviction that is nearly two decades old. The Oklahoma state courts have carefully reviewed that conviction and resulting death sentence. They have concluded that Glossip is guilty and his sentence is proper.
But in the last few months, a new Oklahoma Attorney General has arrived on the scene. For reasons that are unclear, he personally believes that a new trial is warranted—an opinion unanimously rejected by the Oklahoma Court of Criminal Appeals (OCCA) below as "not based in law or fact."
The Attorney General's opinion does not provide a basis for reviewing the decision below, which is fully supported by multiple independent and adequate state grounds. Any further delay would inflict enormous suffering on the Van Treese family. The Court should deny certiorari.
Our amicus brief goes on to argue:
The "new" evidence issue Glossip asks this Court to review was carefully considered by Oklahoma's highest court for criminal cases. The OCCA reached the fact-bound conclusion that there was no "new" evidence—and thus no reason to doubt the integrity of Glossip's convictions and sentence. No federal legal issue exists warranting further review. Such review is barred by adequate and independent state grounds for the OCCA's decision.
In addition, the OCCA's factual conclusions below were entirely correct. The purported concealment of evidence never occurred. And the dispute pertains to evidence that was not material to Glossip's aggravated murder conviction.
At bottom, Glossip asks this Court to adopt the novel theory that, when a state Attorney General personally disagrees with a decision below, that unhappiness trumps all other procedural requirements. But "the proper administration of the criminal law cannot be left merely to the stipulation of parties." Young v. United States, 315 U. S. 257, 259 (1942). This Court has no authority to give decisive weight to the Attorney General's views over the OCCA's—and there is no reason to do so given the trauma that any further delay would inflict on the victim's family.
Two other amicus briefs were filed yesterday, both supporting Glossip's petition. A brief filed by law professors Nora Freeman Engstrom et al. argues that the Court should review the issue of a prosecutor's obligations in connection with correcting false testimony at trial. A brief filed by the Innocence Project argues that the OCCA failed to properly defer to the opinion of the Oklahoma Attorney General about this case.
Next month, response briefs will be filed by the Oklahoma Attorney General on July 5 and shortly thereafter by Glossip. The Court will decide whether to review the case in the fall.
My pro bono clients, the Van Treese family, released the following statement as we filed the brief yesterday:
While the Office of Attorney General is the highest law enforcement position in the state, this isn't the wild west, and the Attorney General does not have the power of judge, jury, and executioner. My family hopes and prays that the U.S. Supreme Court will deny the petition and bring this case to a conclusion after 26 long years.