Oklahoma’s Republican attorney general says Richard Glossip’s conviction and death sentence for his role in a 1997 murder in the state cannot stand because it resulted from multiple constitutional violations — based, the attorney general concluded, on the fact that the pivotal witness lied at trial.

Oklahoma’s top criminal court rejected Oklahoma Attorney General Gentner Drummond’s arguments, leading the U.S. Supreme Court to hold nearly two hours of its own arguments on Wednesday over whether the conviction and death sentence will stand. At the end of the arguments, moreover, it still wasn’t clear where the court would wind up in the case — a reality that stands as its own crisis, as was illustrated at various points by all three of the Democratic appointees on the court.

When the lawyer defending the Oklahoma court ruling told Justice Elena Kagan that the testimony in question, even if it was a lie, would not have helped Glossip’s “theory of the case,” an exasperated Kagan responded, “False is false,” adding that “the critical question that a jury is asking is, do I believe this guy and everything he says and, particularly, do I believe him when he points the finger at the accused?”

If this all sounds like there’s a problem with the system, you’re right. In fact, the case highlights a number of overlapping problems with the death penalty and the broader criminal legal system — exacerbated by this judicial moment.

What’s more, the court was also down a member. Justice Neil Gorsuch — having sat on the U.S. Court of Appeals for the Tenth Circuit, which hears cases out of Oklahoma, before being appointed to the Supreme Court — has recused himself from the case. He previously sat on at least one appeals court case considering one of Glossip’s appeals.

As such, the case started Wednesday from a lopsided position. If the court votes 4-4, then the Oklahoma court’s ruling stands — keeping Glossip’s conviction and death sentence in place. In other words, despite being down a member, Glossip still needs five votes to succeed.

Ultimately, the case will come down to whether two of the Republican appointees on the high court will agree with the Democratic appointees that the state court opinion did not rest on “independent and adequate” state grounds. A decision that it did would preclude Supreme Court review of the decision.

If the Supreme Court decides that their review is allowed, then the question will be whether any of Glossip’s constitutional rights were violated, whether the case needs to go back down to the state courts for an evidentiary hearing on that, or whether his rights were not violated.

All of that — it is important to remember — is merely aimed at providing Glossip with a new trial.

The case

Oklahoma’s Court of Criminal Appeals ruled last year that it “found no credible claims to prevent the carrying out of Glossip's sentence on the scheduled date.“

To do so, the state’s top court for criminal cases essentially had to ignore Drummond’s concessions — after he commissioned an independent review — that the state violated multiple of Glossip’s constitutional rights as a part of his conviction in connection with the January 1997 murder of Barry Van Treese.

In the case, Justin Sneed admitted to the killing, but also served as the key witness against Glossip — testifying that Glossip told him to kill Van Treese.

After the review that Drummond commissioned, the state’s attorney general conceded that Glossip’s due process rights were violated under Brady v. Maryland, which requires prosecutors to turn over favorable evidence, and Napue v. Illinois, which requires prosecutors to correct false testimony, by withholding evidence that Sneed was treated for bipolar disorder by a prison psychiatrist — which contradicted his testimony.

Drummond is not alone in opposing Glossip’s sentence. Many people, including many Republicans, agree that Glossip’s trial was a bad one. Republican Gov. Kevin Stitt has granted Glossip multiple reprieves of execution due to the significant concerns. And, Glossip has maintained his innocence.

The appeals court, however, rejected Drummond’s argument, holding that “the facts do not rise to the level of a Brady violation” and the case “does not create a Napue error.” The court also held that Drummond’s “concession alone cannot overcome the limitations on successive post-conviction review” under state law.

That ruling led Glossip, with an execution date pending, to ask the U.S. Supreme Court to stop his execution and review the case — and for Drummond to agree with him. The U.S. Supreme Court stopped the execution in May 2023. Then, in late January of this year, the court granted the case for review — a delay that put the case into this term.

In taking the case, however, the court also took two additional steps. It added a question for the parties to address about whether the state court provided “an adequate and independent state-law ground” for its judgment — the standard for protecting a state-court decision from federal review. And, the court appointed Christopher Michel, a Quinn Emanuel partner who previously clerked for Chief Justice John Roberts and then-Judge Brett Kavanaugh, to brief and argue in support of the Oklahoma court’s decision.

Then came the Supreme Court briefing. Leading Glossip’s brief was Seth Waxman, the WilmerHale partner who served as solicitor general in the Clinton administration. Leading Drummond’s team was Paul Clement, the Clement & Murphy founding partner who served as solicitor general in the George W. Bush administration.

That wasn’t all. Among the amicus briefs filed in support of Glossip’s case was one by Ken Cuccinelli, the far-right former attorney general of Virginia. He was represented by Emmet Flood, a Williams & Connolly partner who served briefly as White House counsel during the Trump administration.

In short, one of the only peopel defending this death sentence was a person appointed to do so. There also was an amicus brief filed by Van Treese’s family, which figured into Wednesday’s arguments.

The arguments

In hearing Glossip’s case on Wednesday, at issue, essentially, are two questions. First, was there an adequate and independent state ground for the Oklahoma Court of Criminal Appeals decision. And, if not, are Glossip and Drummond right that Glossip’s due process rights were violated under Brady or Napue.

Waxman and Clement made the case, respectively, for Glossip and Drummond’s positions — with strong support from Justices Sonia Sotomayor, Kagan, and Ketanji Brown Jackson.

Justice Sam Alito served as the prime justice fighting for the adequate and independent state grounds question, while Justice Clarence Thomas asked questions about the underlying evidence at issue — expressing skepticism with the Brady and Napue claims and relying on outside-the-record statements from the original prosecutors submitted as part of the Van Treese family amicus brief.

Chief Justice John Roberts asked Waxman early in the morning’s argument whether the jury knowing the allegedly withheld evidence “would make that much of a difference to the jury” — a point that Justice Brett Kavanaugh asked Clement and Michel about later. After Waxman gave a partial answer and then Sotomayor took over, spending a significant amount of time during Waxman’s initial argument laying out her problems with the case.

Addressing the “adequate and independent state ground” discussion, Sotomayor told Waxman, “I'm not even sure why we're doing all that when … the court below seemed to confuse the merits with the procedural bar” on state review — which would make the state ground not independent.

Eventually, Roberts took the unusual step of cutting off her questioning, telling Sotomayor that she would be able to continue during the seriatim section — when the justices get a chance to go one-by-one questioning a lawyer at the end of their time at the podium. (A chance she took.)

For her part, Kagan was unusually exercised in the arguments. Referring to the relevant part of the Oklahoma court’s opinion, she echoed Sotomayor, telling Michel, “I've read it a dozen times and I'm still not sure what each paragraph is doing exactly —you know — what or where or why.” Or, as she later put it, “[E]verything was intertwined with everything else here.”

In what became an extensive debate on the “adequate” part of the question, Sotomayor also noted in her early discussion with Waxman, “[I]t's very clear that a procedural bar is always waivable under Oklahoma law.“ Or, it had been until Glossip’s case, when the Oklahoma court rejected the attorney general’s waiver.

When Jackson tried to get Michel to discuss this point, he responded by talking about an earlier Glossip challenge where the court rejected such a waiver. “Do you have a case that does not involve a person named Glossip?” Jackson pushed back.

When Michel responded that “[u]sually, being able to cite a case that involves the same litigant seems relatively on point,” Kagan jumped in: “I think, Mr. Michel, you are avoiding the question. It was a pretty simple question. One case not involving this defendant in which a waiver has been rejected.”

He ultimately said that he “ha[d] not canvassed Oklahoma law for all non-jurisdictional procedural waivers” and tried to focus the discussion just on the specific state law at issue here — a point that garnered some interest from Justice Amy Coney Barrett.

Again, all of this was just fighting to get to the substance of the Brady and Napue claims — which includes the question of its “materiality,” or, whether it could have mattered to the jury.

Despite the amount of argument time spent on the “adequate and independent state ground“ questions on Wednesday, however, the fact that two of the Republican appointees — including Roberts right off the bat — were focused on the importance of the questioned testimony is a sign that they are at least considering getting to that stage.

Although Barrett, Kavanaugh, and Roberts did not give strong signs of where they will land, it was clear that they will be the pivotal votes on both aspects of the case.

Throughout the nearly two hours of arguments, it was perhaps a comment from Clement to Barrett that summed up both why we were in court on Wednesday morning — and why it was so disturbing that we were in court on Wednesday morning.

“I think you want [prosecutors] to confess Napue errors. You want them to confess Brady errors,” Clement said. “I think you want them to say straight up, if we blew it and there's a Napue violation here, we should confess it.”

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