The Supreme Court Should Use the Richard Glossip Case To Say That the Constitution Forbids Executing the Innocent

Yesterday, the Supreme Court docket introduced that it could hear the enchantment of Richard Glossip, now awaiting execution on Oklahoma’s demise row. Glossip, who’s considered one of this nation’s best-known demise row inmates, was convicted and sentenced in 2004 for his function in an alleged murder-for-hire plot.

Seven years earlier, Glossip supposedly paid his co-defendant, Justin Sneed, to kill Barry Van Treese, who owned the motel the place Glossip was the supervisor. Sneed, a upkeep man on the motel, stabbed and beat Van Treese to demise with a baseball bat. He took cash from the motel and confessed to the theft and killing quickly after he was arrested.

Sneed would later play a key and troubling function in Glossip’s trial and conviction. Since that point, Glossip has had an odyssey of Kafkaesque proportions.

It contains the truth that he has had a sequence of 9 totally different execution dates. On a number of of those events, he had his “final” meal and stated his goodbyes to his household, solely to be spared on the final minute.

Meantime, the various vexing issues in Oklahoma’s dealing with of Glossip’s case have generated many authorized appeals and attracted nationwide and worldwide consideration from a variety of individuals, together with a few of Oklahoma’s most conservative Republican legislators, who suppose that if the state put him to demise it could be executing an harmless man. Alongside the way in which, there have been two unbiased investigations, every of which has shone a harsh gentle on the issues and misconduct that occurred in Glossip’s case.

These issues and that misconduct give the Supreme Court docket loads of causes to overturn Glossip’s conviction and order a re-trial. However his enchantment additionally offers the justices an opportunity to say as soon as and for all that the Structure forbids executing the harmless.

As a result of it’s an appellate courtroom, the Supreme Court docket can not by itself say Glossip is harmless. However it may say that, as a matter of regulation, nobody who’s in that place must be topic to any punishment, most significantly capital punishment.

It has by no means earlier than performed so. Certainly, in a 1983 case, Herrera v. Collins, it appeared to say the alternative.

In that case, a 6–3 majority concluded that proof of precise innocence was “not related” in a petition for a writ of habeas corpus “absent some [other] constitutional violation.” As Chief Justice William Rehnquist put it, “Due course of doesn’t require that each conceivable step be taken, at no matter price, to eradicate the opportunity of convicting an harmless individual.… To conclude in any other case would all however paralyze our system for enforcement of the legal regulation.”

And after reviewing the historical past of the Structure’s due course of clause, Rehnquist concluded {that a} declare of “‘precise innocence’ is just not itself a constitutional declare.” In a concurring opinion, Justice Antonin Scalia agreed that the Structure doesn’t stop the federal government from executing somebody with new proof that signifies that they is perhaps “really harmless”—somebody, which because the Washington Put up places it, “with the potential to legally exhibit they didn’t commit the crime for which they had been convicted.”

Within the final thirty years, courts all around the nation have cited Herrera as a motive to disclaim reduction to individuals elevating innocence claims. And in 2022, the Supreme Court docket appeared to reaffirm that call and once more dominated that appellate courts wouldn’t have to contemplate precise innocence claims.

Not surprisingly, Herrera has generated numerous controversy.

For instance, in 2009, Justice John Paul Stevens used a concurrence in one other precise innocence case to watch that any statute that “bars reduction for a demise row inmate who has established his innocence” is “arguably unconstitutional.” He urged that “choices of this Court docket clearly assist the proposition that it could be an atrocious violation of our Structure and the ideas upon which it’s based mostly to execute an harmless individual.”

If any case qualifies as an “atrocious violation” of the Structure, Glossip’s could be it. His cert. petition to the Court docket makes that clear.

First, it paperwork a really troubling sample of prosecutorial misconduct. Because the petition notes, “even at this late stage of his case… new proof continues to emerge that the state knew full effectively that the proof it used to convict [Glossip] and sentenced him to demise was false.”

The petition focuses on Sneed, who supplied the important thing proof towards Glossip in return for the state’s settlement that he wouldn’t be sentenced to demise. The police repeatedly and falsely instructed Sneed that Glossip was implicating him, finally convincing Sneed to level the finger at Glossip and testify towards him at trial.

Glossip’s petition notes that Sneed’s “credibility has all the time been tenuous.” It goes on to level out that on what it calls “seminal questions,” Sneed’s testimony was inconsistent.

Police and prosecutors coached Sneed “to vary his testimony on materials points concerning the way wherein he murdered Van Treese to keep away from conflicting with different proof, teaching he accepted and delivered upon” all through Glossip’s case.

Moreover, Sneed additionally lied on the witness stand when he denied that he was underneath the care of a psychiatrist and was taking medication for his bipolar dysfunction.

None of this was disclosed upfront of Glossip’s trial. This failure violated clearly established Supreme Court docket precedents.

As well as, Glossip’s petition alleges that the state of Oklahoma destroyed or misplaced key proof within the case. And right here, as elsewhere, Oklahoma Atty. Gen. Gentner Drummond has conceded that what Glossip alleges is true.

Glossip’s petition rightly factors out that the state’s mishandling of his case violates due means of regulation. And it asks the Court docket to find out whether or not due course of requires reversal of a conviction the place it’s “so contaminated with errors that the state now not seeks to defend it.”

For a Court docket that now could be typically reluctant to strike down demise sentences in any respect, particularly when doing so would set up broad constitutional ideas, every of the questions that Glossip is asking it to reply supplies a car for reversing his conviction and remanding it for a brand new trial.

However, the broad query which must be revisited is whether or not the Structure forbids “the execution of an harmless man who by no means had a good trial.” The Supreme Court docket, Glossip’s petition suggests, “faces a stark selection: whether or not the state of Oklahoma can execute an individual which chief regulation enforcement officer believes is wrongly convicted due to state misconduct.”

The reply must be an unequivocal no. For the Court docket to stay silent about that selection, or to keep away from dealing with it squarely, would do a unprecedented disservice not solely to Richard Glossip, however to all People who consider it’s improper to punish the harmless.