The Supreme Court has long held that a “prosecutor’s role transcends that of an adversary:” A prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” United States v. Bagley, 473 U.S. 667, 675 n.6 (1985) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

For the reasons set forth below, it is the view of the undersigned on behalf of the State of Oklahoma that setting aside Richard Glossip’s conviction and remanding the case to the district court is the fair and just result.

On January 26, 2023, the State appointed an independent counsel to re-examine this case. After a thorough review, the Independent Counsel concluded that Glossip’s conviction and sentence should be set aside. The State has reviewed the Independent Counsel’s report and conclusions. The State has reached the difficult conclusion that justice requires setting aside Glossip’s conviction and remanding the case to the district court.

Before discussing the reasons for the State’s difficult conclusion, the State is not suggesting that Glossip is innocent of any charge made against him. The State continues to believe that Glossip has culpability in the murder of Barry Van Treese.

Further, the State disagrees with many of the conclusions reached by the Independent Counsel. However, the State has concluded that Justin Sneed (“Sneed”) made material misstatements to the jury regarding his psychiatric treatment and the reasons for his lithium prescription. Consistent with its obligations in Napue v. Illinois, 360 U.S. 264 (1959), the State is compelled to correct these misstatements and permit the trier of fact the opportunity to weigh Sneed’s credibility with the accurate information.

Additionally, and even though previously addressed by this Court, the State is concerned that there were multiple and cumulative errors, such as violation of the rule of sequestration and destruction of evidence, that when taken together with Sneed’s misstatements warrant a remand to the district court.

Except as expressly identified below, the State denies all allegations of error or legal conclusions made by Glossip in his Successive Application for Post-Conviction Relief Death Penalty - Execution Scheduled May 18, 2023 (“Glossip’s Application”).

As this Court is well aware, many of the claims in Glossip’s Application have been advanced numerous times and have been rejected. However, because the State now believes Glossip’s conviction should be set aside and the case remanded to the district court, the State does not believe a thorough rehashing of these arguments is warranted. To the extent that they are consistent with this confession of error, the State adopts and incorporates by reference all prior State briefings to this Court related to Glossip’s appeals and multiple applications for post-conviction relief.

Here, at a minimum, Glossip was not made aware of Sneed’s treatment by Dr. Trombka at the second trial. Further, Glossip was not made aware of Dr. Trombka’s treatment of Sneed until he recently received the prosecutor’s notes. Consequently, this issue could not have been asserted in a direct appeal.

The State is also not comfortable asserting that the outcome of the trial would have been the same if Sneed had testified accurately. There is no dispute that Sneed was the State’s key witness at the second trial. If Sneed had accurately disclosed that he had seen a psychiatrist, then the defense would have likely learned of the nature of Sneed’s psychiatric condition and the true reason for Sneed’s lithium prescription. With this information plus Sneed’s history of drug addiction, the State believes that a qualified defense attorney likely could have attacked Sneed’s ability to properly recall key facts at the second trial. Stated another way, the State has reached the difficult conclusion that the conviction of Glossip was obtained with the benefit of material misstatements to the jury by its key witness. Accordingly, the State believes Glossip is entitled to post-conviction relief.

Glossip’s Conviction Should Be Set Aside and the Case Remanded to the District Court. As explained above, the State has concluded that the conviction can no longer be supported based on Sneed’s materially false testimony. In addition to the false testimony issue, Glossip also raises multiple errors in his Application such as violation of the rule of sequestration and the destruction of various pieces of evidence. While the State does not believe that these issues alone warrant reversal, they establish that Glossip’s trial was unfair and unreliable when they are taken together with the incorrect testimony when they are taken together with the incorrect testimony. Consequently, the State is not comfortable advocating that the result of the trial would have been the same but for these errors

In reaching this conclusion, the State is mindful:

that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100- year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Woodson v. North Carolina, 428 U.S. 280, 304-305 (1976).

Moreover, in deciding to take this difficult stance, the State has carefully considered the voluminous record in this case, the constitutional principles at stake, and the interests of justice.

While the State has previously opposed relief for Glossip, it has changed its position based on a careful review of the new information that has come to light, including its own Independent Counsel’s review of the case. Given the admonition that the State has a duty to “use every legitimate means to bring about a just” result, it urges this Court to give credence to the State’s considered judgment.

Accordingly, the State requests that the Court vacate Glossip’s conviction and that the case be remanded to the district court.

Oklahoma Attorney General Gentner Drummond

Richard Glossip v. State of Oklahoma; Case No. PCD 2023-267 (Death Penalty Case); Oklahoma State Court of Criminal Appeals; April 6, 2023

• Attorney General’s Request for Remand to State Court
• Special Prosecutor’s Report
• The Intercept: What Happened in Room 102