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What is the Significance of an Attorney General's Confession of Error in a State Capital Case?
In my Supreme Court amicus brief for the victim's family in Oklahoma v. Richard Glossip, I argue that the Oklahoma Attorney General's unfounded confession of "error" should not dictate the case's outcome.
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.
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Any further delay would inflict enormous suffering on the Van Treese family.
As opposed to hanging an innocent man, which inflicts no suffering at all?
He’s not innocent. So rest easy.
I don’t know that, but I do know that the evidence of his guilt is essentially nonexistent.
“essentially ”
Well, other than the co-conspirator’s testimony.
No reason to question the testimony of a guy who saved his own neck by naming Glossip, right? Obviously, you know more about the case than the Oklahoma AG and a commission that recommended a new, honest trial.
You and Cassel are bloodthirsty assholes. If your precious death penalty is so goddam important that you’re willing to execute the innocent, why don’t y’all volunteer for a gurney?
Obviously, you know more about the case than two juries.
“why don’t y’all volunteer for a gurney?”
We shouldn’t use such methods, hanging or shooting works fine.
Yeah, man, juries are never wrong. That’s why the number of exonerations is in the four digits and constantly claiming.
Even better that you don’t waste a gurney. Just drive over to the closest prison and have them shoot you.
I didn’t realize from your posts that you’re such a believer in government competence. You should be more clear in what you sa because the impression you give is the opposite of what you think.
No inconsistency – their flag clearly states “Don’t tread on ME.” Them using state power to tread on others is not included.
Bob when the government wants to raise the tax on capital gains by 0.003%: “This is government oppression just like Stalin’s gulags.”
Bob when the government wants to kill someone: “hanging or shooting works fine.”
Lets be clear, juries are not the government, they are a check on the government.
Sure they are. Thousands of exonerations proves that, don’t they.
Juries are generally a rubber stamp. The voice of a community who are tired of crime and have the opportunity to express their anger at a target and – hey, look!! – here’s a target that our hero cops and hard working DA have provided.
After all, if they weren’t guilty they would never have been charged, right? And generally they’re not good people anyway, so if not this crime they probably did something else anyway.
Ok beria
His co-conspirator’s testimoyn was reinforced by Glossip’s own words.
https://reason.com/2015/09/15/oklahoma-is-going-to-execute-a-likely-in/?comments=true#comment-5591311
Ah, yes, this meme that Glossip was convicted with no evidence.
Here was what I commented eight years ago.
https://reason.com/2015/09/15/oklahoma-is-going-to-execute-a-likely-in/?comments=true#comment-5591311
The State presented an enormous amount of evidence that Glossip concealed Van Treese’s body from investigators all day long and he lied about the broken window. He admitted knowing that Sneed killed Van Treese in room 102. ? He knew about the broken glass. ? However, he never told anyone that he thought Sneed was involved in the murder, until after he was taken into custody that night, after Van Treese’s body was found. ? Glossip intentionally lied by telling people that Van Treese had left early that morning to get supplies. ? In fact, Van Treese was killed hours before Glossip claimed to have seen Van Treese that morning. ? Glossip’s stories about when he last saw Van Treese were inconsistent. ? He first said that he last saw him at 7:00 a.m.; ? later he said he saw him at 4:30 a.m. ? Finally, he said he last saw him at 8:00 p.m. the night before Van Treese’s death, and he denied making other statements regarding the time he last saw Van Treese.
emphases added
all of the above, which is testimony about Glossip’s own speech and conduct, show that he is guiltier than Daniel Perry.
The problem is the cops thought – no they KNEW – that Glossip was guilty before the other guy named him. They pressured a low-IQ guy with potential mental problems to implicate him. Took six tries, if I recall correctly.
Confirmation bias on the part of the cops is a huge problem in convictions of innocent people.
They did not have to try at all for Glossip to conceal the body from investigators, to lie about the broken window.
Not did they have to try at all for other people to tell them thart Glossip told them that Van Treese left in the morning to purchase supplies.
Nor did they have to try for Glossip to give them three inconsistent tuimes as to when he last saw Van Treese. (The first two times were after Van Treese died)
Glossip is guiltier than Daniel Perry.
I’m sure he was only ever interviewed with an attorney present, with careful records of every interview?
The appellate courts did not find the statements to be invalid on Fifth Amendment grounds.
Also, part of the evidence was testimony from others saying that Glossip told them that Van Treese left the morning after the murder to purchase supplies.
Do you how many horrible acts by prosecutors have been dismissed by appellate courts as “harmless error”. Once you are convicted the burden of proof shifts to you to prove a negative to a system that is obsessed with finality. Finality was the doctrine that Scalia used to opine that execution of innocent people wasn’t a constitutional violation.
Glossip is guilty.
So was Michael Morton. And Anthony Graves. You know, until they weren’t.
Conviced 18 years ago? Why the F isn’t he dead yet?
By the way – the ‘Innocence Project’ is a lie. They don’t care about innocence or guilt. If they personally saw the crime happened, they’d still do the same things.
…in fact, why even bother with appeals? Why not just lead the convict off to be executed at the end of his first trial? They must have been guilty, else why would they have been convicted?
In his first trial, glossip had ineffecitve counsel, and as such, the appellate court overturned his first conviction.
By the way, you don’t care about guilt or innocence. Just state powered vengeance on whatever unlucky bastard an incompetent justice system chooses to kill.
Maybe we should toss out the courts and just start having Stalin-style show trials, with immediate execution within 30 minutes of the verdict.
So you joined the Glossip bandwagon.
https://reason.com/2015/09/15/oklahoma-is-going-to-execute-a-likely-in/?comments=true#comment-5591311
I don’t give that many shits about Glossip. I’ll defer to the OK AG.
But I do think that our bumbling, corrupt governments should not be trusted with the power to kill people.
They can’t deliver the goddam mail competently but it’s fine if the execute anyone they choose to prosecute.
If you read my comment, I summarized the evidence against Glossip.
He is guiltier than Daniel Perry.
Fine. Grant that he is.
The rules that allow Glossip’s execution also allow the execution of clearly innocent guys like Carlos de Luna and Ruben Cantù. I don’t trust the government with that power.
Prof Cassell evidently lives in a world where the pernicious idea, that judges sometimes prefer to support the institutions of justice than admit that those institutions have erred even if the preference leads to the occasional execution of an innocent, is utterly inconceivable.
In the real world, we have evidence in support of that idea.
Here is Lord Denning, possibly the most famous British judge of the 20th century, and definitely the one most willing to ruffle feathers, in denying a retrial for the Birmingham Six (who were ultimately found innocent a few years later):
Yup. I was thinking of him as well as of some US judges. Denning, who for a long time was inclined to the liberal side, definitely went more conservative in old age. FWIW I have a photo of the annual dinner of my college’s law society where I am sitting next to him.
Glossip intentionally lied by telling people that Van Treese had left early that morning to get supplies.
I think prosecutorial discretion applies here.
Our constitution is constructed, by design, so that punishment for crime generally, and certainly capital crime in particular, requires the active agreement and participation of all 3 branches of government, the legislature to enact the laws, the executive to prosecute, a jury to decide guilt or innocence.
If one of the branches opts out, then prosecution cannot go forward. The legislature, the executive, and the jury all have considerable discretion. This too is by design.
Whether it was a wise or an unwise decision for the Attorney General to opt out in this case is a matter for the state’s voters. But the constitution permits such a decision.
The AG’s discretion applied many years ago. It’s no longer relevant now that speaks have been settled.
…appeals have been settled
First off, if the OK legal establishment can’t get its story straight on whether this guy got a fair trial, then just to be on the safe side, there ought to be some way to send the case to a new jury. I don’t know if the U. S. Supreme Court has the power to do that, but if they do, let them so act.
But as far as “prosecutorial discretion” is concerned, this is a question of whether the guy did it or not, I don’t see where discretion comes into it (except for a pardon, I suppose).
Another point – if “jury nullification” represents the end of the world and the destruction of the rule of law (an argument I’ve heard here), what about prosecutorial nullification?
“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. ”
What garbage.
From the OK AG’s petition.
“However, the State was troubled by a Napue violation
concerning the central witness at Glossip’s trial—specifically, the fact that recently released prosecution notes appear to identify a psychiatrist, Dr. Lawrence Trombka, who treated the State’s indispensable witness, Justin Sneed (“Sneed”), for a serious
psychiatric condition. Resp.App.33a–37a. Despite this knowledge, the State permitted Sneed to effectively hide his psychiatric condition and the reason for his prior lithium prescription through materially false testimony to the jury.”
I can’t remark on the merits of this claim but it’s not some pulled-out-of-his ass, see-what-sticks-to-the-wall BS.
Cassell’s point is that this bit of info has already been adjudicated.
Have you read the opinion? The rules for adjudicating info on PCR differ from the usual rules. I think what clearly troubles the AG is that take away all the rules that fritter away the evidence that has come out since trial and you’re left thinking that trial was rigged for death. I don’t fault the judges here, just the laws/rules that we rely on to ensure a defendant had a fair trial. They failed here. Justice Lumpkin can yell to the heavens that we’re a country of laws and not men and this is law, but if the laws are bad, you still get a bad outcome.
The State presented an enormous amount of evidence that Glossip concealed Van Treese’s body from investigators all day long and he lied about the broken window. He admitted knowing that Sneed killed Van Treese in room 102. He knew about the broken glass. However, he never told anyone that he thought Sneed was involved in the murder, until after he was taken into custody that night, after Van Treese’s body was found. Glossip intentionally lied by telling people that Van Treese had left early that morning to get supplies. In fact, Van Treese was killed hours before Glossip claimed to have seen Van Treese that morning. Glossip’s stories about when he last saw Van Treese were inconsistent. He first said that he last saw him at 7:00 a.m.; later he said he saw him at 4:30 a.m. Finally, he said he last saw him at 8:00 p.m. the night before Van Treese’s death, and he denied making other statements regarding the time he last saw Van Treese.
The problem is that Paul Cassell believes the putative victim’s family should be “judge, jury and executioner.”
The “victim”, their relatives, and any attorney who represents them should be held civilly liable in cases where a conviction was overturned.
Any case where a witness testifies subsequent to a plea agreement should be reversed. The only evidence against Glossip was the confession of the guy who did it so he would not get the death penalty. That in inherently incredible evidence.
I would be interested for Professor Cassell to explain what actual evidence of guilt there was. Testimony has been proven to be inherently unreliable. What DNA evidence was there to link him to the crime scene? Cell phone location data? GPS data?
The even more fundamental problem with prof. Cassell is that he believes that the criminal justice system exists in order to seek vengeance for the victims, as opposed to seeking the best (and most just) outcomes for society in general.
Right and that is the point of the OK AG’s opening paragraph.
This Court has long held that “the prosecutor’s role transcends that of an adversary: he ‘is the representative not of an ordinary party to a controversy, but of a sovereignty … whose interest … in a criminal prosecution is not that it shall win a case, but that justice shall be done.’” United States v. Bagley, 473 U.S. 667, 675 n.6 (1985) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). As Solicitor General Frederick Lehmann famously put the point, the government “wins its point whenever justice is done [to] its citizens in the courts.”
“the government “wins its point whenever justice is done [to] its citizens in the courts.””
A convenient dodge if the government loses a case – by the time justice is done contrary to the government’s wishes, the intended target of the government has probably incurred great expense and smearing of his good name. Justice involves more than the prosecution going after someone, turning out to be wrong, and then saying “oh, well, we won anyway because justice was done.”
“The “victim”, their relatives, and any attorney who represents them should be held civilly liable in cases where a conviction was overturned.”
For a second I thought you were referring to the prosecutor, but that would involve getting rid of their immunity.
Hey everybody Paul’s back with his latest shit take! What utterly moronic opinion is it this time! Oh, it’s just let’s kill innocent people. That’s an old one Paul we’ve all heard you say that before.
It takes a special kind of degenerate to angle for a job while allegedly representing actual clients. On the other hand, maybe your work this time will be of the same caliber as it was in Dickerson. (See footnote 8 of the amicus brief).
This opinion states the case against Glossip.
https://casetext.com/case/glossip-v-state
Could anyone suggest a libertarian blog that addresses issues such as this? All this blog seems to provide is a steady stream of authoritarian, result-driven, faux libertarian content sponsored by Libertarians For Government Killings.
Here is the case against Glossip.
https://casetext.com/case/glossip-v-state
The State presented an enormous amount of evidence that Glossip concealed Van Treese’s body from investigators all day long and he lied about the broken window. He admitted knowing that Sneed killed Van Treese in room 102. He knew about the broken glass. However, he never told anyone that he thought Sneed was involved in the murder, until after he was taken into custody that night, after Van Treese’s body was found. Glossip intentionally lied by telling people that Van Treese had left early that morning to get supplies. In fact, Van Treese was killed hours before Glossip claimed to have seen Van Treese that morning. Glossip’s stories about when he last saw Van Treese were inconsistent. He first said that he last saw him at 7:00 a.m.; later he said he saw him at 4:30 a.m. Finally, he said he last saw him at 8:00 p.m. the night before Van Treese’s death, and he denied making other statements regarding the time he last saw Van Treese.
“He admitted knowing that Sneed killed Van Treese in room 102”
Sounds like pretty damning testimony . . . against Sneed.
I assume that means the government’s theory was that Glossip was a co-conspirator or otherwise vicariously liable? Is there any evidence to support that finding?
Yes. Two trials’ worth.
It’s worth pointing out here that Professor Cassell appears to be speaking in his capacity as an attorney for the murder victims’ families. He is therefore speaking as a party advocate, a lawyer hired by clients with an interest in advancing a particular position. The fact that he is also a law professor does not make him a neutral legal commentator here.
Gentner Drummond was elected as a conservative anti-crime Republican in a conservative Republican state. He probably doesn’t tend to side with defendants on whims. It is entirely possible that the rationale for this petition is not quite as arbitrary or baseless as Professor Cassell is vigorously representing in his capacity as a party advocate. It is even possible that it actually has some merit. Perhaps considerably more merit than the very able advocate for the opposing side’s position would have one believe.
The State presented an enormous amount of evidence that Glossip concealed Van Treese’s body from investigators all day long and he lied about the broken window. He admitted knowing that Sneed killed Van Treese in room 102. He knew about the broken glass. However, he never told anyone that he thought Sneed was involved in the murder, until after he was taken into custody that night, after Van Treese’s body was found. Glossip intentionally lied by telling people that Van Treese had left early that morning to get supplies. In fact, Van Treese was killed hours before Glossip claimed to have seen Van Treese that morning. Glossip’s stories about when he last saw Van Treese were inconsistent. He first said that he last saw him at 7:00 a.m.; later he said he saw him at 4:30 a.m. Finally, he said he last saw him at 8:00 p.m. the night before Van Treese’s death, and he denied making other statements regarding the time he last saw Van Treese.
If they had such an enormous amount of evidence that made them certain that he was guilty, why did they feel the need to cheat?
How does a pro-death penalty conservative Republican DA come to the conclusion that the trial wasn’t fair in the face of a mountain of evidence?
Leaving aside what’s happening, I do tend to agree that something like a change in who happens to be the elected official at the top of the food chain should not lead to changes in trial results (especially from so long ago).
But this line is really tone-deaf – “the Attorney General does not have the power of judge, jury, and executioner.”