The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Glossip v. Oklahoma: The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom "Brady Violation" and Got Supreme Court Review (Part III)
Courts must be cautious in death penalty and other criminal cases when presented with a prosecutor's confession of "error"—such the Oklahoma A.G.'s dubious confession in this case.
The past two days, I have blogged (here and here) about Glossip v. Oklahoma, a death penalty case that the Supreme Court will hear next Wednesday. I explained in my two earlier posts how Glossip and Oklahoma (through Attorney General Gertner Drummond) have concocted a phantom Brady violation where none exists. Simply put, Glossip's prosecutors never withheld evidence. In this third and last post in the series, I discuss how courts should respond to confessions of "error" by prosecutors in possibly politically motivated circumstances. The Glossip case is a cautionary tale suggesting that courts should not blindly accept such confessions but rather should independently review the underlying record to determine the truth.
The Glossip case revolves around Glossip's claim that prosecutors' notes reveal evidence withheld from the defense team concerning a prosecution witness (Justin Sneed). The State of Oklahoma, through Attorney General Gertner Drummond, has confessed "error" and agrees with Glossip's claim.
My amicus brief for the family of Barry Van Treese, the murder victim, responds to these claims. In my first post, I explained that Glossip and General Drummond misinterpret the prosecutors' notes and fail to provide the Supreme Court with important context about the notes' meaning. In my second post, I discussed Glossip's and Drummond's failure to address these concerns in their reply briefs. Today, I review the issue of what weight the Supreme Court should give to General Drummond confession of "error" in resolving the case. As with my two earlier posts, today's post draws on and summarizes my more detailed amicus brief and its incorporated appendix.
The issue of what weight to give to a confession of error is important in Glossip. Ultimately, lacking anything meaningful in the text of the prosecutors' notes, the parties' joint argument for overturning Glossip's conviction rests on Attorney General Drummond's confession of error. But the Supreme Court should give that confession no weight.
First, General Drummond is not confessing his own error. Instead, he "confessing" (if that is the right term) that the experienced local prosecutors suppressed evidence. But General Drummond can no more validly opine that the prosecutors agreed to hide evidence than he could that they conspired to rob a liquor store. Without supporting evidence, his unfounded opinion is entitled to little weight.
Second, it is not really clear that General Drummond is offering his own opinion. He has essentially outsourced the project of evaluating a potential error. Drumond released the prosecutors' notes to Rex Duncan, his lifelong friend and political supporter, as part of a purported "independent" investigation. Then, Duncan borrowed from a report from an anti-death penalty law firm (Reed Smith) and use it to draft a report with unsupported conclusions about what the notes meant. Next, General Drummond accepted those conclusions about the notes and confessed "error." And then, armed with the confession of error, Glossip parroted these dubious "facts" to the lower courts and, ultimately, to the Supreme Court—cloaked in the claim that they represented the "considered judgment of the State officer chiefly responsible for enforcing Oklahoma's laws …."
This bizarre sequence cannot launder the fact that no credible evidence of prosecutorial misconduct exists. The so-called "independent" report of Rex Duncan is not reliable evidence. On the key points (e.g., what happened when prosecutors Smothermon and Ackley interviewed Sneed), Duncan has not carefully examined the prosecutor's notes. Indeed, Duncan's acclamatory tone reveals the true, political nature of his project. He writes in his report to Drummond that "[y]our decision to seek a stay of execution and more thoroughly examine this case may be the bravest leadership decision I've ever witnessed." Cert. Pet., App. 66a
Third, potential political motivations might underlie confessions of error like the one in this case. In speaking to a possible motivation, I want to be cautious. Of course, I do not have first-hand knowledge of what motivated Drummond to ask for the conviction to be overturnned. Nor do I know why (as I have explained in my previous posts) Drummond is remaining willfully blind to the facts of the case. But I do know that politics surrounding his position are much more complicated than some have suggested.
For example, Malika (a VC commentor to my post yesterday) asked whether it could be politically advantagous for a Republican A.G. in Oklahoma to block an execution. That answer is, "yes." Glossip has become something of a cause célèbre in Oklahoma. In 2022, Republican legislators asked for the anti-death penalty law firm, Reed Smith, to examine the Glossip case because they were concerned about the case—and were rethinking their position supporting the death penalty. Multiple celebrities have also taken up Glossip's cause, including socialite Kim Kardashian, Catholic Nun Helen Prejean, and television personality Phil McGraw.
General Drummond's press release announcing his Supreme Court brief paints him (perhaps unsurprisingly) as someone who is "seeking answers" to a "case long mired in controversy." Drummond has not said that Glossip is innocent. Instead, in his briefing and elsewhere, Drummond has said only that the case needs a "fresh review."
More broadly, death penalty cases and other high-profile criminal prosecutions can evoke strong feelings and even a tendency to distort the factual record. Cf. Stephen J. Markman & Paul G. Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988) (discussing false claims of "innocent" persons being executed used to support abolition of the death penalty). It would hardly be surprising to find that one politically elected official views the facts of a case one way, while another goes in a different direction. If public officials who disagree with a case's outcome are free to change that outcome simply by confessing a dubious procedural "error," then trust in the criminal justice system becomes the casualty.
In Glossip, the Supreme Court need not determine General Drummond's motive. Instead, it should simply take a position against the possibility of politically calculated maneuvering. The Court has long held that "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). And "it is the uniform practice of [the] Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained." Sibron v. New York, 392 U.S. 40, 58 (1968). The rationale underlying these long-settled holdings is that the outcome in a criminal case must ultimately reflect not the transient views of one individual but rather the underlying facts—in short, the truth. The truth here is that no evidence was suppressed … and Glossip commissioned the death of Barry Van Treese.
Closely examining confessions of error is particularly important in violent crime cases, where victims (and, in homicide cases, their families) have vital interests at stake. In this case, the Van Treese family has waited patiently for justice for more 10,000 days. And yet they are now witnessing the spectacle of their case being stalled by the Attorney General for their home state confessing an error where none exists.
The Third Circuit recently confronted a similar situation, where an anti-death penalty prosecutor attempted to undo a capital sentence by confessing "error." I helped represent the victim's family there and blogged about that case here. The Third Circuit explained why a heightened duty of candor must apply when both sides of a legal issue are not being presented:
Candor is especially critical when proceedings are non-adversarial. … Courts must rely on the lawyers because their submissions are one-sided. But that leaves courts vulnerable to being misled, whether by affirmative misrepresentation or by half-truths that deceive[] through their incompleteness. So lawyers must be particularly candid in cases like this one, where both sides agree.
Wharton v. Superintendent Graterford SCI, 95 F.4th 140, 149 (3d Cir. 2024) (rejecting confession of error in death penalty case) (citation omitted). The Third Circuit then affirmed sanctions against the prosecutor for misleading the trial court.
The Third Circuit's heightened-standard-of-candor approach is a good one that the Supreme Court should adopt in non-adversarial cases. Also, as a prophylactic safeguard, in future cases involving prosecutorial confessions of "error," courts should require prosecutors to "marshal the evidence" on the other side so that all evidence is available. Such a general rule would have the benefit of ensuring that courts make fully informed decisions in evaluating allegedly defective criminal convictions.
The State of Texas has filed an amicus brief in Glossip, echoing the need for careful judicial review of prosecutors' confessions of error. Texas explains:
The Texas Court of Criminal Appeals (CCA), Texas's highest criminal court, does not grant habeas relief just because a party asks for it—regardless of whether the request comes from the convicted person, the State, or the two combined. Instead, the CCA conducts an independent review to determine whether relief from a judgment is warranted. Such review safeguards the independence of the judiciary and prevents parties from colluding to nullify court decisions.
Nor is Texas alone in this. Other state courts also refuse to "rubber stamp[]" a prosecutor's confession of error. Commonwealth v. Brown, 196 A.3d 130, 149 (Pa. 2018). After all, "if the 'power' of a court amounts to nothing more than the power to do exactly what the parties tell it to do, simply because they said so and without any actual merits review, it is not judicial power at all." Id. (quotation marks omitted). A contrary rule would also "impinge" on a State's exclusive decision of where to place the State's "power over executive clemency." Copeland v. Commonwealth, 664 S.E.2d 528, 530 (Va. Ct. App. 2008).
One last point: In considering how to resolve the Glossip case, the Supreme Court should consider the effects of further delay on Barry Van Treese's family. The academic literature confirms what the experiences of families like the Van Treeses make painfully clear: long after the immediate loss is over, crime victims and their loved ones continue to suffer from psychological wounds that refuse to heal. It is well known that violent crime inflicts various immediate psychological traumas on victims and those close to them. For example, Post-Traumatic Stress Disorder (PTSD) is commonly documented among violent crime victims. See Otano, Victimizing the Victim Again: Weaponizing Continuances in Criminal Cases, 18 Ave Maria L. Rev. 110, 122 (2020); Parsons & Bergin, The Impact of Criminal Justice Involvement on Victims' Mental Health, 23 J. Trauma. Stress 182, 182 (2010); Kilpatrick & Acierno, Mental Health Needs of Crime Victims: Epidemiology and Outcomes, 16 J. Trauma. Stress 119, 119 (2003).
The harm caused by drawn-out criminal justice proceedings is especially acute in capital cases. Death cases often involve decades of false stops and starts. Delay in death penalty cases means that "[c]hildren who were infants when their loved ones were murdered are now, as adults, still dealing with the complexities of the criminal justice system." Levey, Balancing the Scales of Justice, 89 Judicature 289, 290 (2006). "The automatic appeals, and often repeated appeals," in death penalty cases "are continually brutal on victim family members." Id. "Year after year, survivors summon the strength to go to court, schedule time off work, and relive the murder of their loved ones over and over again …. The years of delay exact an enormous physical, emotional, and financial toll." Id. at 290-91.The delays also keep family members from experiencing a sense of "closure"—the hope that they will be able to put the murder behind them. See Cook, Stepping into the Gap: Violent Crime Victims, the Right to Closure, and A Discursive Shift Away from Zero Sum Resolutions, 101 Ky. L. J. 671, 679 (2013). After a close study of the problem of delay in capital cases, former Supreme Court Justice Lewis F. Powell, Jr., wrote: "[O]ur present system of multi-layered state and federal appeal and collateral review has led to piecemeal and repetitious litigation, and years of delay between sentencing and a judicial resolution as to whether the sentence was permissible under the law. The resulting lack of finality undermines public confidence in our criminal justice system." Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal (1989). In Glossip, the Supreme Court should bring finality—by affirming Glossip's justly imposed death sentence.
In suffering the harm from delay, the Van Treese family does not stand alone. Across the Nation, victims' families suffer immeasurable injury from decades-long delays in executing sentences. U.S. Dept. of Justice, Office of Justice Programs, Capital Punishment, 2020–Statistical Tables (2021) (Table 12) (as of 2020, the average elapsed time from sentence to execution is 227 months). Here, due to the frivolous litigation that Glossip and Drummond have concocted, the Van Treese family is suffering immeasurably injury.
In closing this series of blog posts, I can't improve on the words Derek Van Treese (Barry's son) about the harm to victims' families from decades of delay:
How does a victim's family prepare for yet another hearing in a decades-long legal battle? Unlike the structured legal framework surrounding the case, there's no manual or step-by-step guide to help navigate through this complicated journey. How do you prepare? We have endured years of heartache and frustration, striving to continue to forge ahead and find strength in the process.
We had hoped for continued support from our elected state officials, but the reality has been disappointing. Much like during the clemency hearing in April 2023, we find ourselves having to seek out resources that should have been provided by the Oklahoma Attorney General's office.
The outcome of this case will not only affect our family, but also other victims' families navigating this difficult process in the State of Oklahoma. Our hearts go out to those victims and their loved ones, and we can only hope that no one else has to endure the added pain and frustration we've faced throughout this long journey.
We continue to trust the judicial system to perform its duties in the pursuit of justice. We are hopeful that the United States Supreme Court will find that the appropriate process was followed by the Oklahoma Court of Criminal Appeals—as the Court is revisiting issues that were already fully addressed by the Oklahoma courts. Those court decisions should be respected and upheld by the elected officials of our state—and the Supreme Court.
I hope that Supreme Court considers victims' families' interests as it reviews the Glossip case and others like it.
