Glossip Case in SCOTUS Tomorrow

The notorious case of Richard Glossip will be heard in the U.S. Supreme Court tomorrow. With the Oklahoma Attorney General supporting Glossip, the court appointed an amicus, Christopher Michel, to defend the decision of the Oklahoma Court of Criminal Appeals. CJLF’s amicus brief in the case is here. Our press release is here. Utah law professor Paul Cassell has a three-part series of posts at the Volokh Conspiracy titled 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 here, here, and here.

Professor Cassell represents the victim’s family. His brief in the case is here. At the petition stage, we collaborated on a brief for the victim’s family and the Oklahoma District Attorneys Association, here.

As Professor Cassell explains, the predominant narrative that Glossip is an innocent man, railroaded by unethical prosecutors who concealed critical exonerating evidence, is a tanker truck of hogwash. See his three-part series, linked above, for the truth.

CJLF’s merits stage brief is devoted to the jurisdictional issue. This is Glossip’s fifth collateral attack on his conviction and sentence in state court. Oklahoma has a successive petition statute patterned on the federal law, 28 U.S.C. § 2244(b). Both statutes were enacted in the wake of the bombing of the Oklahoma City federal courthouse.

Both statutes have two prongs, both of which must be met for a successive petition to go forward: (1) there is newly discovered evidence that could not have been discovered earlier with reasonable diligence, and (2) that evidence makes a powerful case that the defendant is not guilty of the crime. The Oklahoma statute also allows the second prong to be that “no reasonable fact finder … would have rendered the penalty of death.”

The Oklahoma Court of Criminal Appeals (OCCA) found that the criteria of this statute were not met. That is a holding of state law. The U.S. Supreme Court has no jurisdiction to review it. And no, federal law does not require the OCCA to accept the Attorney General’s confession of error. That, too, is a question of state law.

The arguments that this holding of state law is not “independent” or not “adequate” are both without merit, as explained in our brief.