A brief filed at the Supreme Court this week argues that a state court decision ordering an execution “was riddled with errors from start to finish.” Notably, that brief wasn’t filed by the death row prisoner, Richard Glossip, but by the State of Oklahoma, which, in a remarkable turn of events, is practically begging not to execute him.
The state has admitted prosecutorial misconduct in keeping key evidence from the jury in securing Glossip’s conviction. But the Oklahoma Court of Criminal Appeals didn’t think much of the government’s plea, instead reasoning in April of last year that the admission “cannot overcome the limitations on successive post-conviction review.”
Glossip, who has maintained his innocence, then asked the justices to stay to his execution. With the state supporting his request, the high court did so in May of last year. Yet, instead of summarily ordering a new trial like the state asked for — “so that justice can be done in this case,” the state said — the Supreme Court appointed a third party to defend the state court ruling.
The implications of the justices potentially upholding the state court ruling here are extraordinary.
It’s not unprecedented for the court to appoint a third party to argue an abandoned position, but the implications of the justices potentially upholding the state court ruling here are extraordinary.
“The [Oklahoma Court of Criminal Appeals] had no valid basis to order Oklahoma to execute Richard Glossip over the objection of the State’s chief law officer,” the state argued in its latest brief to the justices. In another notable feature of the case, Oklahoma is represented by top conservative Supreme Court lawyer Paul Clement, who’s also representing former Trump White House chief of staff Mark Meadows in his bid to move his Georgia state criminal charges to federal court.
“When the prosecution takes the extraordinary step of confessing error in criminal cases, courts are obliged to take the confession seriously, not apply procedural obstacles the State has waived,” Oklahoma’s brief said, adding: “That is particularly true in capital cases, and doubly so when the confessed error involves prosecutorial misconduct.”
The oral argument is set for Oct. 9, during the first week of the court’s upcoming term. The hearing may provide a sense of where the court stands, ahead of a ruling expected by July 2025.
In yet another noteworthy aspect of the dispute, Justice Neil Gorsuch recused himself from the case, presumably because he previously sat on the 10th U.S. Circuit Court of Appeals, which covers Oklahoma and thus some of Glossip’s prior litigation. While Gorsuch has sided with certain criminal defendants in cases where his Republican-appointed colleagues haven’t, he has routinely ruled against capital defendants.
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