Last week, the Supreme Court heard oral arguments in Glossip v. Oklahoma, a case challenging the constitutionality of Richard Glossip’s conviction and sentencing to death for a 1997 murder. In this episode, Paul Cassell of the University of Utah and Andrea Miller of the Oklahoma Innocence Project join Jeffrey Rosen to recap the oral arguments and debate whether or not Glossip’s conviction should stand in light of newly revealed documents that allegedly suggest prosecutorial misconduct.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, Gyuha Lee, Matthew Spero, and Yara Daraiseh.
Participants
Andrea Miller is the legal director for the Oklahoma Innocence Project at Oklahoma City University School of Law. Prior to joining the Innocence Project she served as the appellate division chief for the Oklahoma County Public Defender’s Office, handling capital, general felony, and misdemeanor cases on direct appeal and post-conviction. She has also been an adjunct professor at Oklahoma City University School of Law.
Paul G. Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law at the University of Utah College of Law. He is a leading researcher on criminal (and also civil) justice issues and has published many widely-cited articles on topics such as crime victims’ rights, wrongful convictions, interrogation and confessions, and proactive policing. He previously served as a U.S. district court judge for the District of Utah from 2002-2007.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Glossip v. Oklahoma, Supreme Court oral argument (audio via C-SPAN; transcript)
- Brief of Amicus Curiae the Innocence Project in Support of Petitioner Richard Eugene Glossip, Glossip v. Oklahoma
- Paul G. Cassell, “Brief of Victim Family Members Derek Van Treese, Donna Van Treese, and Alana Mileto as Amici Curiae in Support of Affirming the Judgment Below,”Glossip v. Oklahoma
Excerpt from Interview: Paul Cassell argues that the Oklahoma Attorney General's refusal to seek a full evidentiary hearing on withheld evidence claims in the Glossip case undermines a genuine pursuit of the truth.
Paul Cassell: Let's assume that my interpretation of the notes is correct and that they simply record what the defense investigators were doing and both the defense team and the Oklahoma Attorney General know that, which I think is pretty clear from the record, but then they refuse to put that information into the record. Should the United States Supreme Court decide this important case based on a record that's incomplete where the proponents who are both on the same side of this case, let's recall, are withholding that information? I mean, I think that would be an absurd approach to the case because what that would mean is whenever a prosecutor wants to make a conviction go away, he'll just confess that we withheld evidence and then he won't put into the record the truth of the matter here.
But when you drill into the notes even a little bit more carefully, the Smotherman notes are in the record and that's the explanation I just provided to your listeners in my earlier remarks. And so it seems to me it's incumbent at that point on the Attorney General and the Glossip defense team to explain why my interpretation of the notes is incorrect. Professor Miller mentioned that Mr. Ackley was interviewed and she said, but in the affidavit he provided, that information that Professor Cassell referred to about it being a defense interview wasn't included in his affidavit. But what I think is important context here is the affidavit was prepared by a defense team working essentially for Mr. Glossip. So of course they wouldn't put that information into the Ackley affidavit. They just put the other information in that was helpful to them.
Professor Miller mentions that both prosecutors were interviewed. The way Professor Miller described it was the Attorney General was trying to get to the bottom of the matter. With all respect, I just have to strenuously disagree with that characterization of what Attorney General Drummond is doing. There was a first investigation that was anti-death penalty legislators retaining the law firm of Reed Smith, which is a anti-death penalty law firm. And they produced a report that, surprise, surprise, was anti-death penalty and said that the Glossip death penalty should be overturned. But then we get to the second investigation that was commissioned by the Attorney General.
That was by his lifelong childhood friend, Rex Duncan, who has limited experience in capital cases, was a vociferous supporter of General Drummond during the election. So vociferous, I believe he actually got fired from a job where he was supposed to be more neutral. So Rex Duncan then does a first interview with Connie Smotherman, the prosecutor whose notes are in question here, and doesn't ask her about this aspect of the notes. And then the next day, he calls back Ms. Smotherman for a second interview and says, hey, I'm wondering about lithium and Dr. Trumpet in your notes. And Smotherman says, hey, could I see those notes? Remember, this is an interview that's roughly 20 years. That's two decades later. And she says, hey, can I take a look at those notes so I can tell you what they mean? And then Rex Duncan says, there's no need.
Thanks for chatting with me and call ends. Whole call takes about three minutes. So that's the extent of the Attorney General's efforts to have determined from Ms. Smotherman, and he doesn't seem to have directly interviewed Mr. Ackley about this. Now, has the Attorney General been asked to even talk to Ms. Smotherman about her notes? Yes, I asked him. I was on a telephone call with my family members who were wondering why is the Attorney General suddenly on the other side of the case?
I said, look, General Drummond, you should at least talk to the prosecutors about what their notes mean if you're gonna give a certain interpretation. And I was under the impression he was gonna talk to the prosecutors, but he didn't. And so the next group of people who asked the Attorney General to talk to the prosecutors were the Oklahoma District Attorney's Association. At a meeting where he attended, they said, you can't malign prosecutors like this without at least talking to them. And I think Attorney General Drummond said something like, well, I gotta own that. I guess I made a mistake there.
Ms. Smotherman has contacted us, we have the emails in my brief, the Attorney General's office saying, please talk to me about what my notes mean. And so the Attorney General's office has been contacted. They haven't done that. And so then we get to the question of, all right, is that really an Attorney General trying to get to the bottom of something? Or is that an Attorney General who has what I think is a sort of politically popular stance, even in Oklahoma? I wanna investigate this carefully and so forth, even though he's not investigating it carefully.
And it's interesting. You would think if Attorney General Drummond was investigating this case carefully, he would then be asking the United States Supreme Court for an evidentiary hearing so the truth can come out. But what did the Oklahoma AG argue to the US Supreme Court? No evidentiary hearing. And Glossip does ask that there not be an evidentiary hearing also. Both the prosecutor and the defense told the US Supreme Court, we don't want a hearing on all this. And I think it's clear why they don't want a hearing. If there was a hearing, the truth would come out and the truth would show that no evidence was withheld.
Excerpt from Interview: Andrea Miller argues that the prosecutor withheld information regarding Justin Sneed’s bipolar diagnosis and lithium treatment, which could have impacted his credibility, raising questions of a Brady violation by the prosecution’s failure to disclose potentially exculpatory evidence in Mr. Glossip's case.
Andrea Miller: So the prosecutor's notes suggest that the prosecutor was aware of a couple of things that the defense was not aware of, the defense for Mr. Glossip was not aware of. I think potentially the record suggests that Mr. Sneed's attorney was aware of it. One of them is the reference to Dr. Trumpet, who turns out to be Dr. Trombka, who was the only psychologist on staff or psychiatrist on staff at the Oklahoma County Jail at the time. The reference to lithium is significant in this case because at trial, and this ties into Sneed's false testimony claim as well, he testified that he saw a doctor, he thought it was Trumpet that put him on lithium and claimed the lithium was given to him because he was having a cold.
Well, lithium is used to treat bipolar disorder. And so the fact that that's part of the non-disclosure and the false testimony, if he was on lithium, and it now has been documented that he suffers from bipolar disorder, which by the way involves a certain aspect of a thought disorder, which could impact his ability to not only recall, but to really be able to relate without any kind of interference by his mental illness, what actually had happened.
So it's significant, not because he was on the lithium itself, it's significant because what of that information could have then led to, had defense counsel been fully aware of that psychiatric history, and what the consequences of that particular diagnosis could be on his ability to basically be truthful. Because there's no question that Justin Sneed is a liar. Justin Sneed has admitted to being a liar. He admitted to being a liar during the first trial. I believe he admitted to being a liar during the second trial. So but it's it, and in the Brady context, I think it's important to mention that it's not necessarily the information itself that comes out of the prosecutor's file. It is what evidence could then be generated if defense counsel follows up and investigates that information. So in this case, it's not necessarily the reference to Lithium, it is what the information that knowing that he was being treated for bipolar disorder could have developed into.
I also wanna point out that the issue here does not involve whether, and despite what the Court of Criminal Appeals has said in the order, in the state court, Brady doesn't involve a component of counsel has to go out and find the information, that's a separate issue that potentially is an ineffective assistance of counsel issue. The issue here is specifically whether or not the information is potentially exculpatory being potentially favorable to the defendant, and if so, there is a due process requirement that the prosecution turn it over. So regardless of whether counsel could have gone and found this information is a different question. And that's not a question that is an issue at this point in the litigation. What is a question is if under the Brady line of cases, the prosecution had a duty to turn that specific information over.
There's also some other information that was developed during the course of the independent investigations in this case, which included the fact that Justin Sneed had never mentioned that in committing the actual murder he stabbed Mr. Van Treese. But during the second trial, after I believe the prosecutors sent a copy of the medical examiner's report to Mr. Sneed through counsel, Justin Sneed suddenly remembered that he had in fact stabbed Mr. Van Treese. So, that's part of, kind of in the mix of this whole Brady violation, Napue violation that's at issue at the Supreme Court.
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