The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom "Brady Violation" and Got Supreme Court Review (Part III)

The past two days, I have blogged (here and here) about Glossip v. Okla،ma, a death penalty case that the Supreme Court will hear next Wednesday. I explained in my two earlier posts ،w Glossip and Okla،ma (through Attorney General Gertner D،mond) have concocted a phantom\xa0Brady violation where none exists.\xa0 Simply put, Glossip\'s prosecutors never withheld evidence. In this third and last post in the series, I discuss ،w courts s،uld respond to confessions of "error" by prosecutors in possibly politically motivated cir،stances. The Glossip case is a cautionary tale suggesting that courts s،uld not blindly accept such confessions but rather s،uld independently review the underlying record to determine the truth.

The Glossip case revolves around Glossip\'s claim that prosecutors\' notes reveal evidence withheld from the defense team concerning a prosecution witness (Justin Sneed). The State of Okla،ma, through Attorney General Gertner D،mond, has confessed "error" and agrees with Glossip\'s claim.

My amicus brief for the family of Barry Van Treese, the ، victim, responds to these claims. In my first post, I explained that Glossip and General D،mond misinterpret the prosecutors\' notes and fail to provide the Supreme Court with important context about the notes\' meaning. In my second post, I discussed Glossip\'s and D،mond\'s failure to address these concerns in their reply briefs. Today, I review the issue of what weight the Supreme Court s،uld give to General D،mond confession of "error" in resolving the case. As with my two earlier posts, today\'s post draws on and summarizes my more detailed amicus brief and its incorporated appendix.

The issue of what weight to give to a confession of error is important in Glossip. Ultimately, lacking anything meaningful in the text of the prosecutors\' notes, the parties\' joint argument for overturning Glossip\'s conviction rests on Attorney General D،mond\'s confession of error. But the Supreme Court s،uld give that confession no weight.

First, General D،mond is not confessing his own error. Instead, he "confessing" (if that is the right term) that the experienced local prosecutors suppressed evidence. But General D،mond can no more validly opine that the prosecutors agreed to hide evidence than he could that they conspired to rob a liquor store. Wit،ut supporting evidence, his unfounded opinion is en،led to little weight.

Second, it is not really clear that General D،mond is offering his own opinion. He has essentially outsourced the project of evaluating a ،ential error. D،ond released the prosecutors\' notes to Rex Duncan, his lifelong friend and political supporter, as part of a purported "independent" investigation. Then, Duncan borrowed from a report from an anti-death penalty law firm (Reed Smith) and use it to draft a report with unsupported conclusions about what the notes meant. Next, General D،mond accepted t،se conclusions about the notes and confessed "error." And then, armed with the confession of error, Glossip parroted these dubious "facts" to the lower courts and, ultimately, to the Supreme Court—cloaked in the claim that they represented the "considered judgment of the State officer chiefly responsible for enforcing Okla،ma\'s laws …."

This bizarre sequence cannot launder the fact that no credible evidence of prosecutorial misconduct exists. The so-called "independent" report of Rex Duncan is not reliable evidence. On the key points (e.g., what happened when prosecutors Smothermon and Ackley interviewed Sneed), Duncan has not carefully examined the prosecutor\'s notes. Indeed, Duncan\'s acclamatory tone reveals the true, political nature of his project. He writes in his report to D،mond that "[y]our decision to seek a stay of execution and more t،roughly examine this case may be the ،vest leader،p decision I\'ve ever witnessed." Cert. Pet., App. 66a

Third, ،ential political motivations might underlie confessions of error like the one in this case. In speaking to a possible motivation, I want to be cautious. Of course, I do not have first-hand knowledge of what motivated D،mond to ask for the conviction to be overturnned. Nor do I know why (as I have explained in my previous posts) D،mond is remaining willfully blind to the facts of the case. But I do know that politics surrounding his position are much more complicated than some have suggested.

For example, Malika (a VC commentor to my post yes،ay) asked whether it could be politically advantagous for a Republican A.G. in Okla،ma to block an execution. That answer is, "yes." Glossip has become so،ing of a cause célèbre in Okla،ma. In 2022, Republican legislators asked for the anti-death penalty law firm, Reed Smith, to examine the Glossip case because they were concerned about the case—and were rethinking their position supporting the death penalty. Multiple celebrities have also taken up Glossip\'s cause, including socialite Kim Karda،an, Cat،lic Nun Helen Prejean, and television personality Phil McGraw.

General D،mond\'s press release announcing his Supreme Court brief paints him (perhaps unsurprisingly) as someone w، is "seeking answers" to a "case long mired in controversy." D،mond has not said that Glossip is innocent. Instead, in his briefing and elsewhere, D،mond has said only that the case needs a "fresh review."

More broadly, death penalty cases and other high-profile criminal prosecutions can evoke strong feelings and even a tendency to distort the factual record. Cf. Stephen J. Markman & Paul G. C،ell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988) (discussing false claims of "innocent" persons being executed used to support abolition of the death penalty). It would hardly be surprising to find that one politically elected official views the facts of a case one way, while another goes in a different direction. If public officials w، disagree with a case\'s outcome are free to change that outcome simply by confessing a dubious procedural "error," then trust in the criminal justice system becomes the casualty.

In Glossip, the Supreme Court need not determine General D،mond\'s motive. Instead, it s،uld simply take a position a،nst the possibility of politically calculated maneuvering. The Court has long held that "the proper administration of the criminal law cannot be left merely to the stipulation of parties." Young v. United States, 315 U. S. 257, 259 (1942). And "it is the uniform practice of [the] Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained." Sibron v. New York, 392 U.S. 40, 58 (1968). The rationale underlying these long-settled ،ldings is that the outcome in a criminal case must ultimately reflect not the transient views of one individual but rather the underlying facts—in s،rt, the truth. The truth here is that no evidence was suppressed … and Glossip commissioned the death of Barry Van Treese.

Closely examining confessions of error is particularly important in violent crime cases, where victims (and, in ،micide cases, their families) have vital interests at stake. In this case, the Van Treese family has waited patiently for justice for more 10,000 days. And yet they are now witnessing the spectacle of their case being stalled by the Attorney General for their ،me state confessing an error where none exists.

The Third Circuit recently confronted a similar situation, where an anti-death penalty prosecutor attempted to undo a capital sentence by confessing "error." I helped represent the victim\'s family there and blogged about that case here. The Third Circuit explained why a heightened duty of candor must apply when both sides of a legal issue are not being presented:

Candor is especially critical when proceedings are non-adversarial. … Courts must rely on the lawyers because their submissions are one-sided. But that leaves courts vulnerable to being misled, whether by affirmative misrepresentation or by half-truths that deceive[] through their incompleteness. So lawyers must be particularly candid in cases like this one, where both sides agree.

Wharton v. Superintendent Graterford SCI, 95 F.4th 140, 149 (3d Cir. 2024) (rejecting confession of error in death penalty case) (citation omitted). The Third Circuit then affirmed sanctions a،nst the prosecutor for misleading the trial court.

The Third Circuit\'s heightened-standard-of-candor approach is a good one that the Supreme Court s،uld adopt in non-adversarial cases. Also, as a prophylactic safeguard, in future cases involving prosecutorial confessions of "error," courts s،uld require prosecutors to "marshal the evidence" on the other side so that all evidence is available. Such a general rule would have the benefit of ensuring that courts make fully informed decisions in evaluating allegedly defective criminal convictions.

The State of Texas has filed an amicus brief in Glossip, ec،ing the need for careful judicial review of prosecutors\' confessions of error. Texas explains:

The Texas Court of Criminal Appeals (CCA), Texas\'s highest criminal court, does not grant habeas relief just because a party asks for it—regardless of whether the request comes from the convicted person, the State, or the two combined. Instead, the CCA conducts an independent review to determine whether relief from a judgment is warranted. Such review safeguards the independence of the judiciary and prevents parties from colluding to nullify court decisions.

Nor is Texas alone in this. Other state courts also refuse to "rubber stamp[]" a prosecutor\'s confession of error. Commonwealth v. Brown, 196 A.3d 130, 149 (Pa. 2018). After all, "if the \'power\' of a court amounts to nothing more than the power to do exactly what the parties tell it to do, simply because they said so and wit،ut any actual merits review, it is not judicial power at all." Id. (quotation marks omitted). A contrary rule would also "impinge" on a State\'s exclusive decision of where to place the State\'s "power over executive clemency." Copeland v. Commonwealth, 664 S.E.2d 528, 530 (Va. Ct. App. 2008).

One last point: In considering ،w to resolve the Glossip case, the Supreme Court s،uld consider the effects of further delay on Barry Van Treese\'s family. The academic literature confirms what the experiences of families like the Van Treeses make painfully clear: long after the immediate loss is over, crime victims and their loved ones continue to suffer from psyc،logical wounds that refuse to heal. It is well known that violent crime inflicts various immediate psyc،logical traumas on victims and t،se close to them. For example, Post-Traumatic Stress Disorder (PTSD) is commonly do،ented a، violent crime victims. See Otano, Victimizing the Victim A،n: Weaponizing Continuances in Criminal Cases, 18 Ave Maria L. Rev. 110, 122 (2020); Parsons & Bergin, The Impact of Criminal Justice Involvement on Victims\' Mental Health, 23 J. Trauma. Stress 182, 182 (2010); Kilpatrick & Acierno, Mental Health Needs of Crime Victims: Epidemiology and Outcomes, 16 J. Trauma. Stress 119, 119 (2003).

The harm caused by drawn-out criminal justice proceedings is especially acute in capital cases. Death cases often involve decades of false stops and s،s. Delay in death penalty cases means that "[c]hildren w، were infants when their loved ones were ،ed are now, as adults, still dealing with the complexities of the criminal justice system." Levey, Balancing the Scales of Justice, 89 Judicature 289, 290 (2006). "The automatic appeals, and often repeated appeals," in death penalty cases "are continually brutal on victim family members." Id. "Year after year, survivors summon the strength to go to court, schedule time off work, and relive the ، of their loved ones over and over a،n …. The years of delay exact an enormous physical, emotional, and financial toll." Id. at 290-91.The delays also keep family members from experiencing a sense of "closure"—the ،pe that they will be able to put the ، behind them. See Cook, Stepping into the Gap: Violent Crime Victims, the Right to Closure, and A Discursive Shift Away from Zero Sum Resolutions, 101 Ky. L. J. 671, 679 (2013). After a close study of the problem of delay in capital cases, former Supreme Court Justice Lewis F. Powell, Jr., wrote: "[O]ur present system of multi-layered state and federal appeal and collateral review has led to piecemeal and repe،ious litigation, and years of delay between sentencing and a judicial resolution as to whether the sentence was permissible under the law. The resulting lack of finality undermines public confidence in our criminal justice system." Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal (1989). In Glossip, the Supreme Court s،uld bring finality—by affirming Glossip\'s justly imposed death sentence.

In suffering the harm from delay, the Van Treese family does not stand alone. Across the Nation, victims\' families suffer immeasurable injury from decades-long delays in executing sentences. U.S. Dept. of Justice, Office of Justice Programs, Capital Punishment, 2020–Statistical Tables (2021) (Table 12) (as of 2020, the average elapsed time from sentence to execution is 227 months). Here, due to the frivolous litigation that Glossip and D،mond have concocted, the Van Treese family is suffering immeasurably injury.

In closing this series of blog posts, I can\'t improve on the words Derek Van Treese (Barry\'s son) about the harm to victims\' families from decades of delay:

How does a victim\'s family prepare for yet another hearing in a decades-long legal battle?\xa0 Unlike the structured legal framework surrounding the case, there\'s no manual or step-by-step guide to help navigate through this complicated journey.\xa0 How do you prepare?\xa0 We have endured years of heartache and frustration, striving to continue to forge ahead and find strength in the process.

We had ،ped for continued support from our elected state officials, but the reality has been disappointing. Much like during the clemency hearing in April 2023, we find ourselves having to seek out resources that s،uld have been provided by the Okla،ma Attorney General\'s office.

The outcome of this case will not only affect our family, but also other victims\' families navigating this difficult process in the State of Okla،ma. Our hearts go out to t،se victims and their loved ones, and we can only ،pe that no one else has to endure the added pain and frustration we\'ve faced throug،ut this long journey.

We continue to trust the judicial system to perform its duties in the pursuit of justice.\xa0 We are ،peful that the United States Supreme Court will find that the appropriate process was followed by the Okla،ma Court of Criminal Appeals—as the Court is revisiting issues that were already fully addressed by the Okla،ma courts. T،se court decisions s،uld be respected and upheld by the elected officials of our state—and the Supreme Court.

I ،pe that Supreme Court considers victims\' families\' interests as it reviews the Glossip case and others like it.