The Supreme Court seems to be divided on the issue of a new death row trial

The Trial of Richard Glossip: A True-crime Case Before the Highest Court for Penalties and Detention in Oklahoma

The U.S. Supreme Court heard arguments Wednesday in a remarkable true-crime drama that pits Oklahoma’s attorney general against the state’s highest court for criminal appeals. The issue is whether the court wrongly refused to accept the attorney general’s findings and give Richard a new trial.

At arguments on Wednesday, it was not clear that there were five justices who would vote for a new trial. It’s possible that Justice Kavanaugh or Justice ConeyBarrett will have the ability to prevent the death penalty for Glossip.

At Wednesday’s argument, Christopher Michel, the lawyer appointed to represent the Oklahoma court, told the justices that in that event, Glossip can seek clemency from the state Pardon and Parole Board. The last time Glossip appealed to the board for clemency, it was deadlocked 2-to-2, because the fifth member had a conflict of interest. The lead prosecutor in the second trial was his wife.

The prosecution was of the opinion that Barry Van Treese, the owner of the motel, was killed by a handyman because he was about to be fired.

For years, Glossip’s lawyers have argued that the prosecution’s theory made little sense, and that the prosecutors concealed, and even destroyed, exculpatory evidence.

In the case files, he knew that there were eight trial boxes and that seven had been produced for the defendants. So I was curious about number eight.”

A note in box eight showed that the prosecutor knew about evidence that would have helped the defense, but failed to give it to the defense, and that she tried to present false testimony at the trial.

Despite the state’s questions about the fairness of Glossip’s trial, Attorney General Drummond thinks that Glossip is at least guilty of aiding and abetting a crime after the fact. Glossip initially told police he knew nothing about the crime, but quickly reversed himself and admitted he had helped Sneed afterward. Still, that is not a crime punishable by death, and ultimately Drummond took the rare step of “confessing error.” He formally admitted that prosecutors had hidden critical and exculpatory evidence from the defense, and that Glossip was entitled to a new trial.

The state appealed the case to the Supreme Court. The high court had to find a lawyer to argue for the other side of the case after the state and the defendants were both on the same side. That lawyer is Christopher Michel, a veteran of the U.S. Solicitor general’s office who is now in private practice.

Clement says it is not the number of trials or the number of petitions that matters. Instead, “what matters is whether you’ve got one full and fair trial, with all the information that you were supposed to have access to and with the prosecutors not trying to solicit false testimony.” Clement adds that the Oklahoma court’s reaction was shocking based on the evidence found in the investigation. Thank you very much, but we’re going ahead.'”

The Glossip case has been rattling around the state courts, the federal courts, and even the Supreme Court for 27 years now and it sat on the court’s docket for 12 weeks last term before the justices agreed to hear this case.

If the Supreme Court were to split 4-4, the state court will prevail, and he will be executed unless the Pardon and Parole board grants him a pardon or commutation.

The star witness in the Oklahoma Court of Criminal Appeals whose confession of error was unfairly misrepresented in the case of Justin Sneed

On Wednesday, lawyer Michel assured the court that there are new members of the board, so all five could participate, avoiding a repeat of the deadlock.

The Oklahoma Court of Criminal Appeals, however, refused Drummond’s request for a new trial, and the attorney general appealed to the Supreme Court, contending that the appeals court ruling should be reversed.

Clement told the justices that Drummond’s formal confession that the trial had been unfair “demanded respect” but instead the state court “essentially treated the confession of error as unfounded.”

If there was an incentive for Sneed to lie, and he’s lied on the stand, that would cause all kinds of avenues to question Sneed’s credibility.

Justice Clarence Thomas had an entirely different view, focusing not on Justin Sneed, the star witness, but instead on whether the prosecutors in Glossip’s second trial had been unfairly maligned. He repeatedly asked the two lawyers seeking a new trial if they had interviewed the prosecutors. Clement and Glossip had submitted sworn statements for a friend of the court brief filed by the victim’s family in the Supreme Court, according to Clement and Waxman.

The court’s liberals were appalled. Justice Sonia Sotomayor noted that the prosecutors knew their star witness had lied, and did nothing to correct the lie, as required by multiple Supreme Court rulings.

Justice Elena Kagan was not afraid to speak up. “In a case where the entire case rested on the testimony of one person… your one witness has just been exposed as a liar,” she said pointedly. Those lies are particularly important, she said, because “the critical question the jury is asking is ‘Do I believe this guy and do I believe him when he’s pointed the finger at the accused.'”