When prosecutors ‘jump into the water’: the alleged ‘mistake’ in the Richard Glossip case

Earlier this month, Amherst College professor Austin Sarat criticized Supreme Court Justices Clarence Thomas and Samuel Alito for asking pointed questions about death row inmate Richard Glossip’s claim that his 2004 murder conviction should be overturned. After all, Oklahoma’s new attorney general, Gentner Drummond, supports Glossip’s claim that trial prosecutors withheld evidence.

This popular narrative, however, is a false and fabricated claim. Prosecutors never withheld evidence. The real lesson of the case is about the emerging dangers of prosecutors confessing to phantom “mistakes” and sometimes even purposely dropping cases.

In 1988An Oklahoma jury convicted Glossip of hiring his friend, Justin Sneed, to murder Barry Van Treese. Following a reversal for ineffective assistance of counsel, a jury re-convicted Glossip in 2004. He was again sentenced to death.

After nearly two decades of appeals, Glossip now argues that trial prosecutors withheld evidence that Sneed was taking lithium for a mental disorder under the direction of a psychiatrist, evidence that his attorneys could have used to impeach Sneed as a witness.

Glossip’s argument is based on just four words in a prosecutor’s notes during an interview before Sneed’s trial. The words say: “about lithium?” And “Dr. Trumpet?”

Drummond joined Glossip in concluding that these four words mean the prosecutor knew of Sneed’s possible psychiatric prescription. But this ignores the important context surrounding these few words. In truth, the prosecutor was simply writing down what Sneed said in recounting his interrogation by defense investigators. Hence the two question marks and the surrounding information about the defense team listed in the notes.

Surprisingly, Drummond never directly asked the prosecutor what his notes meant. Even more surprising is that Drummond did not reveal to the Supreme Court the other prosecutor’s notes about the same interview.

Those notes directly record Sneed recounting being “visited by two women who said they represented (resented) Glossip.” So, as I explained in my amicus curiae brief On behalf of the Van Treese family, prosecutors’ notes cannot reflect information hidden from the defense. Rather, the notes show them writing down information about what the defense team had asked Sneed.

in a letter Along with my brief, both prosecutors specifically state that their notes simply reflected that Sneed was recounting information that the defense already possessed. Contrary to Sarat’s claim that prosecutors “hid evidence” from the defense, prosecutors only noted evidence that the defense already had.

The Glossip case reflects an unfortunate trend. Recently, other prosecutors have also confessed to phantom or illusory “errors.” Earlier this year, the Third Circuit unanimously rejected Philadelphia District Attorney Larry Krasner’s Confession of Error in Death Penalty Case. The circuit upheld a trial court order sanctioning the Prosecutor’s Office for failing to fully investigate the alleged error and for misrepresenting that the office had adequately informed the victim’s family of what was happening.

Another example comes from a death penalty case in Texas, in which a new Travis County prosecutor was elected on an anti-death penalty platform. Just a few days later, the Prosecutor’s Office confessed error regarding Areli Escobar’s capital sentence for the rape and murder of Bianca Maldonado, her 17-year-old neighbor. The importance of that local prosecutor’s office dubious admission It remains pending resolution before the Supreme Court, after it decides the Glossip case.

A final example comes from Los Angeles, where George Gascón was elected district attorney with the help of significant outside campaign funds. He then dedicated himself to overturning capital sentences in the county by systematically granting error regardless of the facts of particular cases. Gascón is running for re-election in November.

What seems to motivate prosecutors to “swoop in” on these cases is that, at least in their jurisdictions, it is good policy. But involving victims’ families in baseless litigation based on false mistakes is cruel. And the biggest casualty is public trust in the criminal justice system. The public sees headlines about prosecutors admitting errors and mistakenly assumes that the system cannot be trusted to achieve accurate results.

Fortunately, there is at least a partial remedy in Glossip and other cases subject to judicial review. The Supreme Court of the United States has sustained for a long time that “it is the uniform practice of this court to conduct its own review of the record in all cases in which the federal government or a state confesses that a wrongful conviction has been obtained.” Far from being reprehensible, Justices Thomas and Alito were simply taking their obligation to review the facts seriously when they asked difficult questions.

The Supreme Court and, more broadly, courts across the country should closely examine prosecutors’ confessions of “error” to ensure they are true. And in the Glossip case, where the alleged error is simply fabricated, the court should uphold Glossip’s ruling. The victim’s family deserves a little closure, more than 10,139 days after the murder of Barry Van Treese.

Paul Cassell is a former federal judge and professor of criminal law at the University of Utah SJ Quinney School of Law. He represents the Van Treese family pro bono in the Glossip case.

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