Glossip v. Oklahoma: The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom “Brady Violation” and Got Supreme Court Review (Part III)
The past two days, I have blogged (here and here) about Glossip v. Oklahoma, a death penalty case that the Supreme Court will hear next Wednesday. I explained in my two earlier posts how Glossip and Oklahoma (through Attorney General Gertner Drummond) have concocted a phantom Brady violation where none exists. Simply put, Glossip’s prosecutors never withheld evidence. In this third and last post in the series, I discuss how courts should respond to confessions of “error” by prosecutors in possibly politically motivated circumstances. The Glossip case is a cautionary tale suggesting that courts should not blindly accept such confessions but rather should independently review the underlying record to determine the truth.
The Glossip case revolves around Glossip’s claim that prosecutors’ notes reveal evidence withheld from the defense team concerning a prosecution witness (Justin Sneed). The State of Oklahoma, through Attorney General Gertner Drummond, has confessed “error” and agrees with Glossip’s claim.
My amicus brief for the family of Barry Van Treese, the murder victim, responds to these claims. In my first post, I explained that Glossip and General Drummond misinterpret the prosecutors’ notes and fail to provide the Supreme Court with important context about the notes’ meaning. In my second post, I discussed Glossip’s and Drummond’s failure to address these concerns in their reply briefs. Today, I review the issue of what weight the Supreme Court should give to General Drummond confession of “error” in resolving the case. As with my two earlier posts, today’s post draws on and summarizes my more detailed amicus brief and its incorporated appendix.
The issue of what weight to give to a confession of error is important in Glossip. Ultimately, lacking anything meaningful in the text of the prosecutors’ notes, the parties’ joint argument for overturning Glossip’s conviction rests on Attorney General Drummond’s confession of error. But the Supreme Court should give that confession no weight.
First, General Drummond is not confessing his own error. Instead, he “confessing” (if that is the right term) that the experienced local prosecutors suppressed evidence. But General Drummond can no more validly opine that the prosecutors agreed to hide evidence than he could that they conspired to rob a liquor store. Without supporting evidence, his unfounded opinion is entitled to little weight.
Second, it is not really clear that General Drummond is offering his own opinion. He has essentially outsourced the project of evaluating a potential error. Drumond released the prosecutors’ notes to Rex Duncan, his lifelong friend and political supporter, as part of a purported “independent” investigation. Then, Duncan borrowed from a report from an anti-death penalty law firm (Reed Smith) and use it to draft a report with unsupported conclusions about what the notes meant. Next, General Drummond accepted those conclusions about the notes and confessed “error.” And then, armed with the confession of error, Glossip parroted these dubious “facts” to the lower courts and, ultimately, to the Supreme Court—cloaked in the claim that they represented the “considered judgment of the State officer chiefly responsible for enforcing Oklahoma’s laws ….”
This bizarre sequence cannot launder the fact that no credible evidence of prosecutorial misconduct exists. The so-called “independent” report of Rex Duncan is not reliable evidence. On the key points (e.g., what happened when prosecutors Smothermon and Ackley interviewed Sneed), Duncan has not carefully examined the prosecutor’s notes. Indeed, Duncan’s acclamatory tone reveals the true, political nature of his project. He writes in his report to Drummond that “[y]our decision to seek a stay of execution and more thoroughly examine this case may be the bravest leadership decision I’ve ever witnessed.” Cert. Pet., App. 66a
Third, potential political motivations might underlie confessions of error like the one in this case. In speaking to a possible motivation, I want to be cautious. Of course, I do not have first-hand knowledge of what motivated Drummond to ask for the conviction to be overturnned. Nor do I know why (as I have explained in my previous posts) Drummond is remaining willfully blind to the facts of the case. But I do know that politics surrounding his position are much more complicat
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