Oklahoma AG tells SCOTUS that state court decision allowing Glossip's execution cannot stand

The Oklahoma court's decision refusing to throw out Richard Glossip's conviction in the face of "grave prosecutorial misconduct" has "no valid place in our system of justice."

On Tuesday, Oklahoma Attorney General Gentner Drummond, a conservative Republican, argued in a brief at the U.S. Supreme Court that the justices should reverse a state court decision — Oklahoma’s own top criminal court — that would have sent Richard Glossip to his death.

Glossip has maintained his innocence in the 1997 killing of Barry Van Treese, with long-running questions about his trial, conviction, and death sentence having led Republican lawmakers in the state to oppose his execution. The questions — and an independent review of the case — led Drummond to argue unsuccessfully before the Oklahoma Court of Criminal Appeals that Glossip’s conviction could not stand.

As with the state’s brief last year supporting Glossip’s request at the U.S. Supreme Court seeking a stay of execution, Tuesday’s merits brief is submitted with Paul Clement as counsel of record. Clement, too, is a conservative Republican — known for leaving BigLaw firms, twice, to defend unpopular conservative causes (the Defense of Marriage Act and gun rights) after having served as the solicitor general in the George W. Bush administration.

After granting Glossip a stay of execution in May 2023, the Supreme Court did not grant the case for review until late January — just late enough that it would not be heard this term.

On Tuesday, though, Oklahoma’s brief was due.

“BRIEF FOR RESPONDENT IN SUPPORT OF PETITIONER,” the cover exclaims, highlighting the rarity of this sort of filing, with Drummond and Clement’s names immediately below it.

I rarely pull out a big block quote for you all to read, but such a rare moment merits it. Here is the State of Oklahoma’s opening:

Both the State of Oklahoma and the current Attorney General have resisted earlier efforts by Richard Glossip to attack his first-degree murder conviction and capital sentence. Last year, however, the State uncovered evidence—long suppressed in violation of Brady v. Maryland, 373 U.S. 83 (1963)—revealing not only that the State’s one indispensable witness against Glossip lied on the stand, but that the prosecution knowingly elicited his false testimony and then failed to correct the record, in violation of Napue v. Illinois, 360 U.S. 264 (1959). In light of that troubling evidence of grave prosecutorial misconduct, the State initiated an extraordinary independent counsel investigation and, based on the evidence, made the difficult but necessary decision to confess error before the Oklahoma Court of Criminal Appeals and waive any procedural obstacles to adjudication of the Brady and Napue issues.

Rather than accept the State’s confession, the OCCA rejected it in a remarkable and remarkably flawed decision. … The net result was a decision ordering the State to move forward with an execution that all parties agree was the product of serious constitutional violations and prosecutorial misconduct.

That decision cannot stand. …

The Attorney General does not claim to have the final word on whether there were Brady and Napue violations here. But by refusing to accept the Attorney General’s decision to waive any procedural obstacles, the OCCA reinforced the troubling message that it will cling to its past decisions even in the rare situation in which a State’s chief law officer concludes that a fresh review is needed. That message has no valid place in our system of justice, least of all in a capital case. This Court should reverse and send a very different signal.

Glossip’s brief is also due to be filed Tuesday, but it was not available on the docket at the time of publication.

The Supreme Court, as it regularly does in situations where no party is defending the judgment below, asked Christopher Michel, a partner at Quinn Emanuel, “to brief and argue this case, as amicus curiae, in support of the judgment below.” His brief is not due until July 8 — which will be a lifetime from now, in Supreme Court years.

I’ll have more on the arguments raised in the case once all of the briefs are filed.

Although the case won’t be heard until the fall, I wanted to highlight this brief now because it is important to see Drummond and Clement fighting at the Supreme Court for the rule of law — particularly two days before Donald Trump’s lawyers will be before the justices asking for the Supreme Court to hold the former president immune from the rule of law.

The filing also came, of course, as Trump is spending his time this week in his criminal trial in Manhattan, where jurors heard damaging testimony Tuesday about the efforts to bury negative stories about Trump from the public during his 2016 presidential campaign. Additionally, the judge in that case questioned Trump’s lawyers Tuesday about the prosecutor’s request to hold Trump in contempt for violating the court’s gag order — yet more disrespect for the rule of law.