By Wesley Holston '25
Part of a blog series:
Question Presented: Supreme Court October Term 2024
The fate of Mr. Richard Glossip is up before the Supreme Court this upcoming October Term in the case Glossip v. Oklahoma (Docket No. 22-7466). The “v.” in the case’s style is misleading. Both Glossip, a convicted murderer, and Oklahoma, through its Attorney General, are appealing a decision by Oklahoma’s own highest criminal appellate court to execute Glossip for a conviction—one that the State can no longer defend. Both parties are asking—really, begging (1)—the Supreme Court to overturn that decision.
This is what’s called a “confession of error,” when the government (whether State, Federal, or an agency) informs its court that, due to some error or failure on its own or the court’s part, it cannot support a previous judgment in its favor. Here, the Oklahoma Attorney General has confessed to its highest criminal court that Glossip’s murder trial was marred by egregious prosecutorial misconduct that made it “impossible for the State to ‘have confidence in the process and result.’” (2) But that court refused to give the confession any weight and ruled that the execution must go on, forcing the State to execute a man it no longer believes is guilty of murder. Hence, the Oklahoma Attorney General fully supported Glossip’s appeal to the Supreme Court.
What is a Confession of Error?
A confession of error typically refers to the practice of the United States Solicitor General to “concede that error was committed in the lower court,” in their opinion, leading them for that reason to “join with the petitioner in requesting certiorari” from the Supreme Court in hopes of a reversal. (3)
This stems from a sense that “[a]s a government actor that has taken its oath to uphold the Constitution, the United States Attorney General (4) ‘transcends’ the role of ‘an adversary,’” (5) and so, “[f]ar from “an ordinary party to a controversy,” it represents “a sovereignty whose obligation to govern impartially” renders its “interest ... not that it shall win a case, but that justice shall be done.” (6) “The United States wins its point whenever justice is done by its citizens in the courts.” (7) Indeed, in Cook v. United States, the Court, accepting the confession of error of the Solicitor General Taft, described the practice as a “duty.” (8) The courts’ reliance, to a certain extent, on the Government “to be straight with them is another basis for the practice: since “courts can’t be experts in everything,” (9) the Attorney General’s office has a “responsibility of candor” to the courts. (10)
Although they carry significant weight as the product of serious and thorough examination, confessions of error do not necessarily decide cases: courts still reserve the final disposition of all issues to themselves. This dynamic is summed up in Young v. United States:
“The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight. Still, our judicial obligations compel us to examine independently the errors confessed.” (11)
The same rationale applies to Attorneys General in the States (such as the one supporting Glossip’s appeal), who have the duty not so much to win every case as to ensure that the State and its citizens secure justice through their courts.
Why Is It Relevant to this Case?
Convicted of murder in 1998 and again after a retrial in 2004, Mr. Glossip has been battling his conviction for almost three decades. When Justin Sneed killed Barry Van Treese in 1997, Mr. Glossip was questioned by police and confessed to helping Sneed cover up the murder. Glossip was charged with accessory after the fact to murder. But when Sneed was later arrested, he told detectives, after a highly suspect interrogation, that it was Glossip who had told him to commit the murder. (12) Glossip’s accessory charge was replaced with first-degree murder; Sneed agreed to testify against him after pleading guilty to his first-degree murder charge in return for the State declining to pursue the death penalty against himself. He was the State’s “star witness,” (13) “its only inculpatory one.” (14) Without Sneed, the State had no murder case against Glossip. (15) (16)
Although Glossip has repeatedly challenged his conviction, the present challenge stems from a January 2023 revelation that the prosecution had withheld documents from the defense that show that the State not only knew that Sneed had been diagnosed and treated for a serious mental disorder (potentially exacerbated by the drugs to which he was addicted) but also failed to correct at trial Sneed’s testimony claiming that a psychiatrist had never treated him and obscuring the reason why he was on Lithium (prescription medication for his disorder). (17) No one in the courtroom knew anything about Sneed’s mental illness or his lie about not being treated by a psychiatrist except the State and Sneed himself.
This raises two major constitutional issues. First, it seems the State violated Brady v. Maryland by withholding evidence “material either to guilt or to punishment” from the defense. (18) Second, it seems the State also violated Napue v. Illinois, which held that a prosecutor may not knowingly use false testimony and that he must correct it when it appears at trial. (19)
These two failures have real implications for Glossip’s conviction. First, since the defense had no way of knowing about Sneed’s mental illness (bipolar disorder) before the 2023 documents disclosure, they were prevented from impeaching him as a witness. Had they known, they could have argued that his bipolar disorder, drug use (he was addicted to methamphetamine, among other drugs), and the false statements he made at trial (and on other occasions) denying psychiatric treatment undermined his reliability. (20) Considering that Sneed was the prosecution’s “indispensable witness,” (21) such an impeachment would have been devastating for its case. The recently revealed information also would have given the defense the basis for an alternative theory of the case: that it was not Glossip, but Sneed’s own bipolar disorder and drug addiction that together drove him to kill his victim in an exceptionally brutal way. This also would have explained his changing accounts about the crime. (22)
That the jury might have returned a “not guilty” verdict had Sneed been impeached and the alternative theory of the case been presented is reasonable to imagine. After the cover-up was exposed, the Attorney General of Oklahoma appointed an independent counsel to investigate possible misconduct in Glossip’s prosecution. Meanwhile, Glossip applied for post-conviction relief to the Oklahoma Court of Criminal Appeals (the “OCCA”), Oklahoma’s criminal court of last resort. After the independent counsel “concluded that the prosecution’s withholding evidence, particularly the evidence concerning Sneed’s mental health, undermined any hope the ‘State can have confidence in the process and result,’” (23) the Attorney General confessed violations of both Brady (by withholding material evidence) and Napue (by failing to correct false testimony) to the OCCA. (24)
But the OCCA rather peremptorily dismissed the Attorney General’s confession of error. It claimed only that “[t]he State's concession is not based in law or fact” (25) and never again engaged with it. It determined that there were no Brady or Napue violations and so denied Glossip’s request for relief, putting the State in the unthinkable position of having to execute a man in whose conviction it has no trust.
What’s the Problem?
Apart from the alleged constitutional violations, the problem here is not so much that the OCCA disagreed with the State’s confession of error (doing so is fully within its power). Rather, the problem is that it “gave the State’s confession of error precisely zero weight” (26) in apparent disregard of the fact that “[c]onfessions of error are ... entitled to and given great weight.” (27) “While that confession of error did not decide the constitutional issues for the OCCA, that candid confession of prosecutorial misconduct demanded respectful consideration, rather than a brush-back pitch.” (28)
The Attorney General arrived at the serious decision to confess the error after a comprehensive independent investigation. He might have expected, therefore, that the OCCA engage with that confession more extensively than merely by calling it “not based in law or fact” (29) before offering rather anemic arguments for why, contrary to the State’s assertions, it judged that no violations had taken place. This is especially where the confessed errors bear upon the credibility of the State’s “indispensable witness” in a capital case. (30)
The Attorney General, therefore, is seeking from the Supreme Court a more deferential and comprehensive review of the issues since, as he says, the OCCA “has never treated such an extraordinary confession of error so dismissively, let alone a prosecutor’s confession of prosecutorial misconduct, and in a capital case at that.” (31) He further argues that the confession of error is right as a matter of law and, therefore, Glossip’s conviction should be overturned.
What Will a Supreme Court Decision Mean?
The Supreme Court can affirm the judgment of the OCCA or vacate Glossip's conviction and remand the case for a new trial, which would be Glossip’s third. (32) The latter is what Glossip and the State are requesting. (33) Alternatively, it could vacate the OCCA’s judgment but not Glossip’s conviction and remand to the OCCA for a fuller consideration of the legal questions involved, which is what the Supreme Court did in Escobar v. Texas. There, the appellate court ruled contrary to the State’s confession of error in an unpublished opinion and then denied the State’s motion for reconsideration without explanation. (34) It was appealed, and the Supreme Court ordered that the case be “remanded to the Court of Criminal Appeals of Texas for further consideration in light of the confession of error by Texas…" (35)
It seems probable, especially in light of Escobar, that the Court will repudiate the OCCA’s brusque treatment of the Attorney General’s confession. This would seem to align with the Court’s jurisprudence, which takes confessions of error seriously. An endorsement of the OCCA’s procedure would seem to go against the grain and would certainly cause some uncertainty for courts about how they should treat future confessions of error.
It is likely, however, that this case will not have a significant impact on the law. The Court takes capital cases such as these more to correct errors and ensure justice is done in a particular case than to clarify the law, which is its primary, perhaps exclusive concern in other types of cases.
Endnotes
“[T]he injustice of allowing a capital sentence to be carried out where the government’s own admitted failings occasioned the conviction would be nigh unfathomable” (Brief for Respondent in Support of Petitioner (Brief for Respondent), 1 (2024), https://www.supremecourt.gov/DocketPDF/22/22-7466/308265/20240423202240962_2024-4-23%20Final%20OK%20AG%20Glossip%20merits%20brief.pdf); “The [Oklahoma appellate court’s] decision cannot be reconciled with this Court’s precedents, the record in this case, or bedrock principles. The State is thus compelled to acquiesce in Glossip’s petition for certiorari arising out of that decision and waive any procedural objections it could assert” (Ibid., 6).
Petition for Writ of Certiorari (Petition) 13 (2023), https://www.supremecourt.gov/DocketPDF/22/22-7466/266163/20230504164258618_3%20REG-20230504%20PWC%20.pdf, citing Rex Duncan, Independent Counsel Report in the Matter of Richard Eugene Glossip, Case CF-1997-244 3 (Apr. 3, 2023), https://www.oag.ok.gov/sites/g/files/gmc766/f/documents/2023/glossip_report_4.3.202 3_redacted.pdf
Michigan Law Review, Confession of Error by the Solicitor General, 74 Mich. L. Rev. 1067 (1976), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=4135&context=mlr
By whom the Solicitor General appointed, and in whose department does he work?
Brief for Respondent, 33 (quoting United States v. Bagley, 473 U.S. 667, 675 n. 6 (1985))
Ibid. (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). Cf. Brief for Petitioner, 3 (2024), https://www.supremecourt.gov/DocketPDF/22/22-7466/308603/20240429163200162_22-7466%20ts.pdf (quoting same).
Cf. Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3031 (2013), https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4916&context=flr, referring in a footnote to Brady v. Maryland, 373 U.S. 83, 87 (1963) and quoting it: “An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’”
Cook v. United States, 138 U.S. 157 (1891). “The representatives of the government in this Court frankly concede, as it was their duty to do, that this action of the court below was so erroneous as to entitle the defendants to a reversal” (at 185). Cf. Ibid. and Brief for Respondent, 33.
The Solicitor General and Confession of Error, 3031.
Ibid.
315 U.S. 257, 258 (1942)
“Sneed was later arrested and interrogated. Despite Glossip’s denials, detectives immediately steered [Sneed] toward Glossip. Ignoring Sneed’s initial attempts to cast blame elsewhere, the detectives brought up Glossip’s name six times within the first 20 minutes of the interrogation. They told Sneed that Glossip was blaming him but suggested repeatedly that, in fact, it was Glossip who had planned the crime.” (Brief for Petitioner, 5 (2024), https://www.supremecourt.gov/DocketPDF/22/22-7466/308603/20240429163200162_22-7466%20ts.pdf; see also Brief for Respondent, 3-4).
Brief for Respondent in Support of Petition for Writ of Certiorari, 8 (2023), https://www.supremecourt.gov/DocketPDF/22/22-7466/270450/20230705170639604_GlossipRes%20MAIN%20%20E%20FILE%20Jul%205.pdf. Cf. the words of the Independent Counsel appointed by the Oklahoma Attorney General to review the case quoted Ibid., 3.
Brief for Respondent, 5.
Indeed, “[t]he centrality of Sneed’s testimony to the murder charged cannot be overstated. As reviewing courts have repeatedly acknowledged, the prosecution would not have been viable without Sneed’s testimony” (Brief for Respondent, 17). “‘[T]he prosecution made it abundantly clear at closing argument’ that Sneed’s testimony was effectively dispositive of Glossip’s guilt or innocence” (Brief for Respondent in Support of Petition for Writ of Certiorari, 16 (quoting the Appendix, 1106). “[N]o forensic evidence linked [Glossip] to murder” (Brief for Petitioner, 6, quoting the opinion of the Oklahoma Court of Criminal Appeals overturning his first conviction, found at Joint Appendix, 23).
See Brief for Petitioner, 5-6 and Brief for Respondent, 3-7 for a longer account of the crime and two trials.
See Unopposed Application for Stay of Execution (Application for Stay), 3 (2023), https://www.supremecourt.gov/DocketPDF/22/22-7466/264503/20230426160616704_REG-Stay%20App%20FINAL.pdf.
Brady v. Maryland, 373 U.S. 83, 87 (1963), Justia Law, https://supreme.justia.com/cases/federal/us/373/83/.
See Napue v. Illinois, 360 U.S. 264, 269 (1959), Justia Law, https://supreme.justia.com/cases/federal/us/360/264/, (“[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment…The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.”).
See Brief for Petitioner, 10-12.
Brief for Respondent, 23. Cf. Ibid., 11-12 (“The undisclosed evidence here did not relate to some ancillary witness or tertiary issue. Justin Sneed was the indispensable witness for the State.”) (emphasis original).
Ibid., 24-25.
Application for Stay, 5 (quoting Rex Duncan, Independent Counsel Report in the Matter of Richard Eugene Glossip, Case CF-1997-244 3 (Apr. 3, 2023), https://www.oag.ok.gov/sites/g/files/gmc766/f/documents/2023/glossip_report_4.3.202 3_redacted.pdf).
Cf. Glossip v. State, 529 P.3d 218, 223 (Okla. Crim. App. 2023), casetext, https://casetext.com/case/glossip-v-state-2, (“The Attorney General of Oklahoma has filed a response requesting that this Court vacate Glossip's twenty-five-year-old murder conviction and sentence of death and send the case back to the district court for a new trial. Despite the request, Attorney General Gentner F. Drummond is ‘not suggesting that Glossip is innocent of any charge made against him’ and ‘continues to believe that Glossip has culpability in the murder of Barry Van Treese.’”).
Ibid., 226.
Brief for Respondent, 32.
Sibron v. New York, 392 U.S. 40, 58 (1968) (quoted by Brief for Respondent, 32).
Brief for Respondent, 32.
Glossip v. State, 529 P.3d at 226.
Brief for Respondent, 23.
Ibid., 32.
See https://www.scotusblog.com/glossary-of-legal-terms/, “GVR”
See Brief for Petitioner, 50 and Brief for Respondent, 52.
Brief for Respondent State of Texas in Support of Petitioner, 2 (2022), https://www.supremecourt.gov/DocketPDF/21/21-1601/240992/20220928153732704_Texas%20Escobar%20Main%20Brief%20E%20FILE%20Sep%2028%2022.pdf.
Order, Escobar v. Texas, 143 S. Ct. 557 (2023), https://www.supremecourt.gov/DocketPDF/21/21-1601/254475/20230210091154145_E%20Filing%2021-1601%20GVR%20MANDATE%20COSTS%20Court%20of%20Crim.%20App.%20TX%202.10.pdf. Cited by parties, see e.g. Petition, 2-3, 20 and Brief for Respondent, 37-38.
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