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An Overlooked Bit of Good News from SCOTUS Last Week Concerning Death Penalty Appeals [1]

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Date: 2025-03-04

Back in October I wrote a diary about a most unlikely hero, the Oklahoma AG Gentner Drummond, who took it upon himself to correct a particularly egregious case of prosecutorial misconduct in a death penalty case stretching back to 1997, and against all the odds actually got SCOTUS to review the case after the Oklahoma Court of Criminal Appeals threw out his earlier attempt to dismiss the original conviction.

This week, by a 5.5 — 2.5 decision (with Gorsuch recusing because he had been involved with the case earlier at the Circuit Court level, and Barrett siding in part with the majority, but also joining Thomas and Alito’s dissent in part) SCOTUS did the nearly unthinkable — they actually overturned a Death Penalty conviction and ordered death row inmate Richard Glossip be granted a new trial (after coming within hours of execution on two different occasions).

The really remarkable fact here, as reported by CNN:

“I have long maintained that I do not believe Mr. Glossip is innocent, but it is now an undeniable fact that he did not receive a fair trial,” Drummond said in a statement Tuesday. Drummond and Oklahoma County District Attorney Vicki Behenna – the former director of the Oklahoma Innocence Project – must now decide whether to prosecute Glossip again. That would be “difficult,” Drummond told reporters, and their choice will rest on a review of the evidence and witnesses still available more than 30 years after Van Treese’s murder. “She and I will collaborate together with our staffs,” he said, “and we will review the evidence with fresh eyes and interview those witnesses that would be available to us to make a determination whether we should proceed seeking again the death penalty, whether we should proceed seeking life without the opportunity for parole, or if we should proceed with a lesser charged crime.”

So despite his own personal belief that Glossip is not entirely innocent in the murder of Barry Van Treese back in 1997, he still recognized there was a serious miscarriage of justice here due to gross prosecutorial misconduct and continued to do what he saw as the right thing to do, regardless of how ‘inconvenient’ it might prove to be for any future political aspirations in such a deep-red state like Oklahoma that is so infatuated by executions.

And that brings us now to another reconning — what of the former prosecutors who suppressed evidence and gamed the system to obtain a death sentence in this case against Glossip in two different trials? It turns out the lead prosecutor in the original case against Glossip, Connie Smothermon, is currently an adjunct law professor at the University of Oklahoma, and that isn’t sitting very well with some of the students there. From Oklahoma News 4 via News Nation:

A University of Oklahoma law student has started an online petition calling for an adjunct professor’s removal following a Supreme Court decision on Richard Glossip’s case. ... “They introduced knowingly false statements on the stand and failed to correct those,” said OU law student Travis Handler, when asked for his insight on the ruling. “And we also know, although the Supreme Court’s opinion does not really address this as much, that there were some, they’re called Brady violations. So failure to turn over evidence that might have been favorable to the defense.” Handler published an online petition February 27 calling for Smothermon’s removal as an adjunct professor at both of the universities she teaches. News 4 spoke with several OU law students on Monday who said they were either aware of the petition or previous information tied to Smothermon’s role in the case. ... “There’s no making Richard Glossip whole,” said Handler. “There’s no fixing, frankly, what happened to Barry Van Treese and his family, which is horrendous, but within our control is ensuring that the people who teach here are accountable and that they adhere to the same principles that we respect, which is justice and fairness and the rule of law.” Handler said much of the misconduct discussed in the ruling has been far from secret on the OU law campus, touching on a report released in 2022 by international law firm, Reed Smith. “It was released at that point that there had been several really really troubling allegations about the prosecution’s conduct during that trial,” said Handler. The report concluded that crime scene evidence was destroyed, naming Smothermon. It also said that no “reasonable juror” would have convicted Glossip in the murder case. Handler says the campus culture he experienced in the report’s aftermath was to just accept it; but he felt a shift with the Supreme Court opinion being released. “I sort of figured that it was a good time, momentum wise, to try and do the right thing, at least in some small amount,” said Handler. … “I think regardless of her being an adjunct, this case is an exception because it was so well documented, because you had the Reed Smith report in 2022,” said Handler. “It is hard for me, and again, not maligning anybody here, I want to make that clear. It is hard for me to understand how anybody could have not known about this and they allow her to stay on.”

And for those who want to take a look at the actual SCOTUS decision, here’s a link to the pdf.

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