Well, the decision is in, and Glossip v. Oklahoma, No. 22-7466, doesn’t hold any punches. The Court’s opinion (basically 5-3 in critical part, as Gorsuch sat this one out) reads like a ‘how to’ manual in unethical investigation and prosecution, from initial suspect interrogation (feeding the killer what the State wished to hear, instead of asking what he had to say), to pretrial ethics violations (failure to disclose known defense-favorable evidence), to trial ethics violations (communications with a sequestered witness in attempt to alter testimony and failure to correct State witness known perjury), to post-trial ethics violations (destruction of potentially defense-favorable evidence and shifting stories to better negate revelations). It’s what happens when a State engages in a search for convictions, rather than a search for truth. As a result, we can never know what happened on that January day in 1997. That’s what results when police and prosecutors irretrievably taint an investigation and prosecution, and it is a result nobody—not the victim’s family, not the defendant, not the defendant’s family, and not any citizen of Oklahoma—should accept.
So much has already been written about the case, and the Court’s opinion is so comprehensive, that I won’t attempt to add much here. But it is worth emphasizing how bad this one is: because the Court found a Napue violation (failure to correct known perjury), it didn’t even consider the more-commonly-problematic Brady claims. In other words, this one was so bad that the Court didn’t need to even consider other, likely also independently meritorious claims. As Justice Marshall explained for a unanimous Court in California v. Trombetta, 467 U.S. 479 (1984),
Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.
The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264 (1959); see also Mooney v. Holohan, 294 U.S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt. United States v. Agurs, 427 U.S., at 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53 (1957).
Quite right. Glossip found “the most rudimentary of the access-to-evidence” constitutional violations, and so was able to stop there. (Also, for those ‘in the weeds’ of criminal procedure, the Glossip Court made some important moves to make it easier for a defendant to win a new trial in the Mooney/Napue situation, sensibly pushing what was a sui generis rule of reasonable likelihood into the more favorable beyond a reasonable doubt standard typically used for constitutional trial error.)
So, where do we go from here, Oklahoma? We ought to consider how the Oklahoma Court of Criminal Appeals could get this one so wrong, again and again, even as ever more damaging evidence came to light. And, more generally, how do we learn from this? How do we improve? Given that the Glossip investigation and prosecution demonstrate massive failures, how do we not only, insofar as we are able, remedy those errors in this particular case, and then in all existing cases like it, but further enact safeguards to minimize the likelihood we will repeat such unacceptable practices in the future?
Finally, as to the Thomas/Alito/sometimes Barrett Glossip dissent? I’m content to quote Justice Gorsuch, writing in Gamble v. United States, 587 U.S. 678 (2019): “Really?” How could anyone have so low an estimation of what criminal justice—let alone capital-case criminal justice—ought to demand?
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