Groundhog Day Nightmare

Oklahoma is about to execute a man who is probably innocent.

Death row inmate Richard Glossip.
Death row inmate Richard Glossip in McAlester, Oklahoma, on Aug. 11, 2015.

Photo by AP Photo/Oklahoma Department of Corrections

Oklahoma is set to execute Richard Glossip, despite grave doubts about his guilt. A chorus of people that includes Republican former Sen. Tom Coburn; Virgin Group CEO Richard Branson; and Barry Switzer, the beloved former Oklahoma Sooners football coach, has called for Oklahoma Gov. Mary Fallin to grant a stay of execution. If she does not, and if the Supreme Court does not step in, Glossip will be put to death Wednesday. Update, Sept. 16, 2015: An Oklahoma appeals court has issued a two-week stay of Glossip’s execution.

The Supreme Court considered Glossip’s case in June, though the issue before the court dealt narrowly with Oklahoma’s lethal injection procedure. The court ruled 5–4 in Glossip v. Gross that states may continue to use a cocktail of drugs that has led to prolonged, possibly excruciating executions. Justice Stephen Breyer wrote a dissent suggesting that the death penalty is too broken to fix and that the Supreme Court should reconsider its constitutionality. Justice Antonin Scalia ridiculed Breyer’s suggestion, treating it as nothing more than a recycled request that a minority of the court has raised over the years: “Welcome to Groundhog day,” he wrote.

Scalia is correct. It is Groundhog Day—just not in the way he intended. Over and over again, the Supreme Court has been chillingly dismissive of serious questions about the death penalty. And over and over again, new evidence has suggested or even proved that the condemned prisoners at the center of these cases are innocent.

Two examples are particularly striking. Scalia specifically mentioned half brothers Leon Brown and Henry Lee McCollum, both on death row at the time, in one opinion. He wrote that an execution would be an “enviable” death for Brown and McCollum relative to the death of the victim—an “11-year old girl raped by four men and then killed by stuffing her panties down her throat.” In another decision, Chief Justice John Roberts ridiculed the claim of then-condemned Paul House that the scratches on his body did not demonstrate that he committed murder, but rather that he had obtained the wounds from “tearing down a building, and from a cat.” “Scratches from a cat, indeed,” Roberts wrote mockingly.

DNA evidence later cleared these men, saving the lives of Henry Lee McCollum and Paul House despite the fallibility of our institutions of justice. Unfortunately, there is no DNA test that can save Richard Glossip’s life.

In 1997, Justin Sneed killed Barry Van Treese, a motel owner for whom both Sneed and Glossip worked. The police found Sneed’s fingerprints all over the bloody crime scene and in the victim’s vehicle. Sneed later confessed to the killing. The prosecution’s theory at Glossip’s trial was that Glossip pressured Sneed into murdering Van Treese.

What evidence supported the state’s theory? Not much. The prosecution claimed that Glossip wanted Van Treese dead because Glossip was embezzling money from the motel. At trial, though, Van Treese’s own brother testified that the budget shortage involved “really insignificant amounts of money.” Then there was the motel’s front-desk clerk, who said that Glossip told her not to clean the room where Van Treese was killed. At the trial, though, Sneed testified that he—and not Glossip—had asked the clerk not to clean the room.

Sneed was the state’s star witness. The prosecution gave him a sweetheart deal: In exchange for his testimony against Glossip, the state waived the death penalty. The problem is that the substance of Sneed’s testimony at trial was invented by the state. As Liliana Segura and Jordan Smith report, the homicide detective in the case told Sneed:

“Before you make your mind up on anything,” [detective] Bemo cautioned him [Sneed], “I want you to hear some of the things that we’ve got to say to you.” Sneed was read his rights, and then Bemo leaned in: “We know this involves more than just you, okay?” Sneed told Bemo that he didn’t “really know what to say about” what happened to Van Treese. “Well,” Bemo said, “Everybody is saying you’re the one that did this and you did it by yourself and I don’t believe that. You know Rich is under arrest, don’t you?” No, Sneed said, he didn’t know that. “So he’s the one,” Bemo replied. “He’s putting it on you the worst.”

If Sneed didn’t want to talk about the involvement of anyone else, Bemo said he would be happy to walk Sneed into the jail and book him for Van Treese’s murder, “and you would be facing this thing on your own,” Bemo said. “And I don’t think it’s just you.”

Sneed obliged, confessing to the murder and blaming Glossip for it.

Richard Leo of the University of San Francisco Law School, arguably the country’s foremost expert on false confessions, concluded after watching a video of the interrogation that the tactics the detectives used on Sneed “are substantially likely to increase the risk of eliciting false statements, admissions, and confessions.” This is because, Leo contends, the detectives “presumed the guilt of Richard Glossip from almost the start and sought to pressure and persuade Justin Sneed to implicate Richard Glossip.”

It is bad enough that Sneed received a deal in exchange for his testimony. It is worse that the detective “educated” Sneed about Glossip being the mastermind. But what’s not only unforgivable, but downright immoral, is that the prosecution put forward the Glossip-as-mastermind theory in a capital case, with a man’s life on the line, when Sneed couldn’t even keep his story straight. According to a recent letter signed by the Innocence Project’s Barry Scheck, Sen. Coburn, and others:

When he was first questioned by detectives Sneed said he didn’t know anything about the murder. Then he said he didn’t kill Mr. Van Treese. Then he admitted that he did but said it was an accident, he only meant to rob him and knock him out. Then, after the detectives told him that they didn’t believe he acted alone, that they had Glossip in custody, and that it would be better for him if he gave them another name, Sneed finally said that Richard Glossip got him to kill Barry Van Treese. After getting what they were looking for, the police assured Sneed that this story would help him avoid the death penalty.

Should Richard Glossip be executed on little more than the incentivized testimony of the admitted killer? At least one juror who voted to send Glossip to death row doesn’t think so. He wrote recently that Glossip “at the VERY least [should be] given a 60 days stay to make for certain that all the stones are unturned and everything is looked at with a fine tooth comb.” “If the defense would have presented the case that they are presenting now in the original trial,” the juror said, “I would have not given a guilty verdict.”

Justin Sneed’s daughter agrees. In a letter that she sent to the Oklahoma Pardon and Parole Board, she alleges that her father, with whom she maintains a close relationship, has wanted to recant his testimony for years but fears that prosecutors would seek to convert his sentence of life without parole into the death penalty if he told the truth—the same fear, according to the daughter, that led Sneed to fabricate his testimony against Glossip in the first place.

If Oklahoma proceeds with this execution, Glossip will not, unfortunately, be the only plausibly innocent man put to death. In fact, the near certainty that the United States has already executed an innocent person is chief among Justice Breyer’s reasons for questioning the constitutionality of capital punishment:

There is increasing evidence, however, that the death penalty as now applied lacks that requisite reliability. … For one thing, despite the difficulty of investigating the circumstances surrounding an execution for a crime that took place long ago, researchers have found convincing evidence that, in the past three decades, innocent people have been executed.

Breyer likely had in mind three recent executions that involved serious claims of innocence. In 2004, Texas executed Cameron Todd Willingham for the murder of his three young children on the testimony of a fire investigator who concluded that someone used an accelerant to start the fire. Two nationally renowned arson experts would later conclude, respectively, that there was “nothing to suggest to any reasonable arson investigator that this was an arson fire” and that the arson finding was not grounded “in modern fire science” and “could not be sustained.”

In 2011, Georgia executed Troy Anthony Davis for the murder of a police officer in a case in which seven of the nine trial witnesses recanted their testimony, no physical evidence tied Davis to the crime, and multiple people said that Sylvester “Redd” Coles, one of the two witnesses remaining, confessed to—and even boasted about—killing the officer. The other remaining witness originally told police that he could not identify the shooter, later changed his story after seeing a picture of Troy Davis in a newspaper, and then testified to witnessing the shooting from an angle and distance (and under lighting conditions) that exceed all limits of reliable human observation.

Texas executed Lester Bower in June. The prosecution said Bower stole an airplane and killed four men at the airport hangar to cover up the crime. But the prosecution did not disclose “a detailed … tip that the murders were actually connected to drug dealing in the area” or that “allegations existed that one of the victims, Tate, had been involved in cocaine trafficking in the years leading up to the murders.” Moreover, a witness came forward after the conviction to reveal that her boyfriend (with whom Bower had no connection) had admitted to killing the men in a drug deal gone wrong. The wife of a friend of this alternative suspect came forward claiming that her husband, too, was involved in the killing. Bower, meanwhile, steadfastly maintained his innocence.

Did Georgia execute an innocent man when it killed Troy Anthony Davis? Did Texas execute innocent men when it put Cameron Todd Willingham and Lester Bower to death? Will Oklahoma add to this tragic list if neither Gov. Fallin nor the Supreme Court stops the execution of Richard Glossip? We honestly do not know. And that’s the problem. How do we preserve the integrity of our justice system and our courts if we send condemned inmates to the lethal injection chamber with no more certainty of their guilt than a coin flip?

Given all that is known today about wrongful convictions, the fallibility of our criminal justice institutions, and their fallibility in identifying these potentially fatal errors, the question should not be Is this person innocent? but rather: Is this a case of uncertain guilt? Whatever principles the state seeks to uphold, whether it is the finality of its judgments or deference to juries or state courts, nothing trumps the risk of executing a person where there is some serious doubt as to his or her guilt.

In Richard Glossip’s case, there is more than “some” doubt. There is lots of it. No physical evidence ties him to the crime. There is no motive that withstands scrutiny. The detectives in the case engaged in tactics known to increase the likelihood of witnesses providing false statements. And the state’s chief witness, Justin Sneed, was unreliable at best, with clear motives for lying. Few of us would buy a used car from Justin Sneed. Are we prepared to stake the moral fiber of our justice system on his word? If our answer is no, we must stop the execution of Richard Glossip. His life depends upon it, and so does the soul of our nation’s justice system.