The Supreme Court appeared likely Wednesday to give Oklahoma death row inmate Richard Glossip at least another day in court in his long quest to throw out his murder conviction and death sentence.
The justices heard arguments in a case that has produced a rare alliance in which lawyers for Glossip and the state argued that the high court should overturn Glossip’s conviction and death sentence because he did not get a fair trial.
The victim’s relatives have told the high court that they want to see Glossip executed.
Oklahoma's top criminal appeals court has repeatedly upheld the conviction and sentence, even after the state sided with Glossip.
The justices seemed unlikely to affirm the Oklahoma court, after arguments that lasted nearly two hours.
But precisely what the court would do was less clear. The justices could throw out the conviction, which would take Glossip off of death row.
Attorney General Gentner Drummond, who attended Wednesday's session, has conceded the trial was unfair. Drummond, a Republican, has said Glossip could face a new trial in the 1997 killing in Oklahoma City of his former boss, motel owner Barry Van Treese, in what prosecutors have alleged was a murder-for-hire scheme.
The justices also could, as Justice Ketanji Brown Jackson suggested, order state courts to conduct a new hearing to weigh claims that prosecutors suppressed evidence.
Only eight justices are hearing the case and a 4-4 tie would affirm the Oklahoma court ruling. Justice Neil Gorsuch is not taking part, presumably because he participated in it at an earlier stage when he was an appeals court judge.
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At least five justices voted last year to block efforts to execute Glossip while his case played out.
Glossip has always maintained his innocence. Another man, Justin Sneed, admitted robbing Van Treese and beating him to death with a baseball bat but testified he only did so after Glossip promised to pay him $10,000. Sneed received a life sentence in exchange for his testimony and was the key witness against Glossip.
But evidence that emerged only last year persuaded Drummond.
Among Drummond’s concerns are that prosecutors suppressed evidence about Sneed's psychiatric condition that might have undermined his testimony. Drummond also has cited a box of evidence in the case that was destroyed that might have helped Glossip's defense.
At least four members of the court, Justice Brett Kavanaugh and his three liberal colleagues made clear that they were troubled by the questions about Sneed's testimony.
Kavanaugh said “the whole case depended on his credibility.” Sneed, he said, “lied on the stand.”
Justices Samuel Alito and Clarence Thomas seemed most inclined to uphold the conviction and death sentence.
The court is wrestling with two legal issues. The justices will consider whether Glossip’s rights were violated because the evidence wasn't turned over. They also will weigh whether the Oklahoma court decision upholding the conviction and sentence, reached after the state's position changed, should be allowed to stand.
Prosecutors in at least three other death penalty cases in Alabama and Texas have pushed for death row inmates to be given new trials or at least spared the prospect of being executed. The inmates are: Toforest Johnson in Alabama, and Melissa Lucio and Areli Escobar in Texas. In another similar case, the justices refused a last-minute reprieve for Marcellus Williams, whom Missouri executed last month.
The justices issued their most recent order blocking Glossip's execution last year. They previously stopped his execution in 2015, then ruled against him by a 5-4 vote in upholding Oklahoma's lethal injection process. He avoided execution then only because of a mix-up in the drugs that were to be used.
Glossip was initially convicted in 1998, but won a new trial ordered by a state appeals court. He was convicted again in 2004.
Two former solicitors general, Seth Waxman and Paul Clement, represent Glossip and Oklahoma, respectively, at the Supreme Court. Christopher Michel, an attorney appointed by the court, is defending the Oklahoma court ruling that Glossip should be put to death.
Michel suggested that a reconstituted state clemency board could be more favorable to Glossip than the 2-2 split that resulted when it last considered Glossip's case.
More than a half-dozen states also have weighed in on the case, asking the Supreme Court to uphold Glossip’s conviction, arguing that they have a “substantial interest” in federal-court respect for state-court decisions.
A decision is expected by early summer.
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