By Kit Beyer, FTC law clerk

The Court heard argument yesterday in Glossip v. Oklahoma, considering whether Oklahoma must execute Richard Glossip. Glossip was sentenced to death for murder based on the testimony of Justin Sneed, who claimed that Glossip paid him to commit the killing. 

According to Glossip, newly unearthed evidence reveals that Sneed lied to the jury on the stand, and prosecutors suppressed this information in violation of Napue v. Illinois (1959) and Brady v. Maryland (1963). 

Notably, Oklahoma’s current Attorney General supports a retrial, but the Oklahoma Court of Criminal Appeals ruled against Glossip. The OCCA determined that a state statute precluded post-conviction relief and further opined that there was no due process violation.

To persuade the Court to invalidate his convictions, Glossip will need to overcome several hurdles, including whether the Court has the authority to review his case. 

At the argument, counsel for both sides addressed this issue, which surfaced repeatedly in the justices’ questions. Representing Glossip, former U.S. Solicitor General Seth Waxman argued there was no jurisdictional or procedural impediment; in contrast, Christopher Michel, appointed to defend the OCCA decision, opened by arguing that the Court should dismiss the case. Justice Sotomayor appeared sympathetic to Waxman’s claim. Some of her colleagues were less convinced, and discussions of jurisdiction dominated much of the argument.

The justices also addressed the alleged constitutional violation. For instance, Justice Kavanaugh asked why the result would have been different had the evidence not been suppressed, and several justices pressed Glossip’s counsel about their reliance on recently disclosed prosecutors’ notes from a pretrial interview with Sneed.

Justice Barrett suggested the notes lent themselves to “multiple plausible interpretations,” Justice Alito called them “cryptic,” and Justice Thomas indicated he “couldn’t make heads or tails” of them.

Whatever the Court ultimately rules, it’s likely to further stimulate the ongoing national conversation around the death penalty.

Justice Gorsuch did not participate in the case, likely because he had participated in earlier litigation involving Glossip while serving as a judge on the Tenth Circuit.