Opinion | The Supreme Court Should Stop the Glossip Execution

Nearly 90 years ago, in a case involving prosecutorial misconduct, the Supreme Court laid down its view of a prosecutor’s duty, one that has been widely repeated in court decisions ever since. The prosecution’s interest in a criminal prosecution, the court wrote succinctly, “is not that it shall win a case, but that justice shall be done.”

Elaborating on that proposition, the court went on to say that while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

As the Supreme Court begins its October term, it will have an important opportunity to demonstrate whether that basic principle of fairness still holds.

When I served as Virginia’s attorney general, I tried hard to live up to that principle. In two cases in which I concluded that mistakes were made in the course of obtaining convictions, I admitted to the missteps. And when I did that, the Virginia courts set aside the tainted convictions and declared the defendants innocent.

A case now before the court, Glossip v. Oklahoma, asks the justices to decide whether a man on Oklahoma’s death row deserves a new trial after the state’s attorney general admitted errors that deprived him of a fair trial.

Richard Glossip was convicted in 1998 of arranging the murder of his employer, the owner of a motel in Oklahoma City, and sentenced to death. That decision was reversed on appeal after a court concluded his lawyer was not prepared for trial, and he was retried again in 2004. The outcome was the same. But following an exhaustive investigation into Mr. Glossip’s second trial nearly two decades later, the state’s attorney general, Gentner Drummond, who was not in office during those trials, concluded that prosecutors had procured Mr. Glossip’s conviction by unconstitutional and unethical means.

Mr. Drummond filed a brief with Oklahoma’s Court of Criminal Appeals, the highest court in the state with jurisdiction over criminal appeals, supporting Mr. Glossip’s request to vacate his conviction and retry him. The court refused to do so, writing that Mr. Glossip had “exhausted every avenue” in prior appeals and “we have found no legal or factual ground which would require relief in this case.”

In other words, Oklahoma must execute a man that the state’s highest law-enforcement official believes was unconstitutionally convicted, a result that the attorney general, in a brief to the Supreme Court, said is “unthinkable.” The Supreme Court is scheduled to hear oral arguments in the case next Wednesday.

Mr. Glossip has been on Oklahoma’s death row for more than 26 years and has always maintained his innocence. He had no criminal history before being charged with hiring another man, Justin Sneed, to kill his boss. It is undisputed that Mr. Sneed committed the murder. Mr. Sneed, who dodged the death penalty himself only by testifying against Mr. Glossip, was, in the state’s words, its “indispensable witness.” The prosecution’s entire case depended on the jury’s perception of Mr. Sneed’s credibility.

In briefs filed with the Supreme Court, Mr. Drummond stated that, once he took office in 2023, he discovered that documents had been hidden from Mr. Glossip’s legal team. In an act of moral courage rarely seen in politics today, he revealed that at the time of Mr. Glossip’s second trial, prosecutors had withheld evidence that Mr. Sneed had a serious psychiatric disorder, and had knowingly allowed him to testify falsely that he did not. Both of those failures violated Supreme Court rules requiring prosecutors to disclose material, exculpatory information in their possession to the defense, and to correct testimony they knew was false. These actions violated Mr. Glossip’s right to due process as required by the Constitution.

If the jury had heard the suppressed evidence about Mr. Sneed’s psychiatric condition, or if prosecutors had fulfilled their obligation to correct what the attorney general now says is false testimony, there is little doubt that the result of the trial would have been very different. But prosecutors needed the jury to believe the words of Mr. Sneed, its one indispensable witness.

As I stated in an amicus brief to the Supreme Court, by according Mr. Drummond’s findings “no respect,” the Oklahoma Court of Criminal Appeals “threatens to force the state to execute an individual whose conviction was infected by admitted constitutional violations.” The Supreme Court, which in May 2023 agreed to put Mr. Glossip’s execution on hold while it considered whether to hear his appeal, must not allow such a travesty.

It’s extremely unusual for prosecutors to make what are called “confessions of error,” as Mr. Drummond has done. While they should not be conclusive before the courts, their rarity, and the courage it takes to make such a confession, entitles them to great deference by the courts. This is especially true when, as in Mr. Glossip’s case, the attorney general, who supports the death penalty as I do, backs up the confession of error with a thorough investigation.

In these uniquely compelling circumstances, the Oklahoma court should have given much greater weight to Mr. Drummond’s findings and his conclusion that he could not stand behind Mr. Glossip’s conviction and death sentence.

Ensuring public confidence in our criminal justice system requires that the courts afford proper respect to a state attorney general’s confession of error. Because Mr. Glossip faces execution, the admitted constitutional errors in his case threaten the most dire consequences. It would simply be unconscionable to execute a man who prosecutors now say was tried unfairly. The U.S. Supreme Court should reaffirm its nearly century-old maxim and direct that Mr. Glossip be given a new and fair trial.

Kenneth Cuccinelli was the attorney general of Virginia from 2010 to 2014 and was a senior official in Citizenship and Immigration Services and the Department of Homeland Security during the Trump administration.

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