How a note hidden in dusty files for 18 years could stop the execution of Richard Glossip
A new trove of documents - which Glossip’s legal team spent seven years fighting to obtain - shows prosecutors trying to influence key witness’s testimony, Josh Marcus reports
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This September, the Oklahoma attorney general’s office turned over a box of dusty files death row inmate Richard Glossip had been seeking for the last seven years, part of a decadeslong campaign to clear his name for a 1997 murder he insists he didn’t commit.
At first, it seemed his attorneys didn’t have much new material on their hands. Old papers, a few records that wouldn’t change the case. Making matters worse, the AG’s office admitted they weren’t turning over everything, while also declining to provide an inventory of what materials they were keeping private. Then Glossip’s lawyers found the note.
"Our biggest problem is still the knife," lead prosecutor Connie Smothermon wrote in May of 2004, in a letter to a key witness’s lawyer.
At the time, Glossip was in the midst of his second trial for the brutal murder of his boss, Oklahoma City motel owner Barry Van Treese, after an appeals court threw out his first conviction for what it called “extremely weak” evidence. The state had no physical proof linking Glossip to the killing, and relied entirely on the testimony of a 19-year-old meth addict named Justin Sneed, who avoided death row himself through a plea deal. Sneed testified that Glossip had arranged for him to rob Van Treese then beat him to death with a baseball bat, in order to split the cash Glossip regularly handled without incident as manager of the motel.
Originally, Sneed told police he never used a knife found at the crime scene. However, during the second trial, a medical examiner testified that Van Treese’s body had cut marks that could’ve come from the weapon. Shortly after his lawyer got the letter from the prosecutor Sneed changed his tune, claiming that during the beating with the bat, he also took out his knife and “tried to force it through his [Van Treese’s] chest but it didn’t go." When pressed in court about the seemingly dramatic change in testimony, Ms Smothermon feigned ignorance.
To Don Knight, Glossip’s lawyer, this is one of the most egregious acts in case he says is already one of the most “horrible” instances of police and procedural work he’s ever seen.
The note violated the bedrock principle of witness sequestration, he said, which had been invoked at the outset of the retrial. Witnesses are supposed to offer their testimony without advanced knowledge of what others will say, in order to give jurors a chance to credibly assess their versions of events.
“Here’s a DA violating that order and giving this information,” he said. “And sure enough, the testimony changed.”
The Independent has contacted Ms Smothermon for comment.
Behind-the-scenes prosecutorial misconduct can be fiendishly hard to prove, but here Glossip was staring at apparent written proof that Oklahoma had violated one of what Mr Knight called “the crown jewels” of legal ethics, the fair presentation of evidence.
The memo forms the basis of a filing Glossip made last week with an Oklahoma appeals court, urging it to consider new evidence and eventually grant him a new trial, part yearslong legal drama in the case that has involved mixed-up execution drugs and delayed death dates, police destroying evidence, and witnesses being threatened and intimidated. Barring a dramatic reversal, Glossip will be executed on 8 December.
At nearly every moment of the investigation and resulting prosecution, there were enormous red flags, according to observers.
Police, in an interview that was never shared with Glossip’s original defence team, had to feed Glossip’s name to Sneed six times before the teen ever said the man arranged the killing.
One detective told the 19-year-old, “The first one that comes forward is the one that’s gonna be helping himself.”
In 1999, the Oklahoma County district attorney’s office destroyed evidence in the case, including vital financial logbooks, defying a longstanding agreement they had with the Oklahoma City police to never destroy evidence in a capital case.
“This Glossip deal horrifies me,” a former prosecutor in the case has said.
Law firm Reed Smith, which investigated the Glossip prosecution pro bono at the request of state legislators, has called the state’s conduct “inexcusable” and a “grave error.”
From nearly the moment he accused Glossip of arranging the murder, Sneed considered recanting his testimony, according to letters he sent to his lawyers and his family.
In 2003, he wrote to his lawyer that, “Parts of me are curious that if I chose to do this again, do I have the choice of re-canting my testimony at any time during my life, or anything like that.” More recently, investigators found a 2007 message from Sneed, where he admitted, “There are a lot of things right now that are eating at me… Some things I need to clean up.”
So far, four former prison associates have said Sneed admitted that Glossip was innocent.
At various points, such as a July 2022 interview with the Oklahoma Attorney General’s Office, Sneed has stuck by his story.
“It’s the truth and there’s nothing else to be there, but to stand on the truth,” he told officials.
In the most recent Reed Smith report, investigators spoke with Sneed himself a month later, who only seemed half-heartedly committed to the version of events he offered to the state.
“It was always well what do you think your options are, and then the options stem from well I told them this story,” he told the lawyers. “I’ve signed this contract. This is what’s going on. The only option would be recanting and trying to go along with some other story line I won’t be able to keep up with anyway.”
The seeming contradiction is nothing new for Sneed, who is serving a life sentence in the Van Treese killing. He’s changed his testimony numerous times regarding when he saw various actions take place, and how much money he’d agreed to split with Glossip for the alleged murder scheme.
The details of that killing may be fuzzy, but multiple former associates told The Intercept they had seen Sneed steal from his employers, use sex workers to lure men into robberies, and commit other suspicious acts to support his drug habit.
Nonetheless, the state has tried to execute Glossip multiple times, including a 2015 killing attempt that was stopped at the last minute due to a supply of the wrong lethal injection drugs.
The state has stood by its prosecution.
"It’s the truth,” Attorney General John O’Connor said earlier this month. "It is disappointing that Glossip’s supporters are criticizing law enforcement, prosecutors, juries and judges in an attempt to distract the public from the evidence beyond a reasonable doubt of Glossip’s guilt.”
"My office will continue to abide by the rules of law and ethics. Any insinuation to the contrary is false,” he added.
So have local officials like Oklahoma County District Attorney David Prater, whose predecessors put Glossip away in the first place. Mr Prater has accused Glossip and his team of playing to the media to avoid the facts of the conviction, which has been affirmed twice.
"Professional attorneys handle matters in courtrooms before judges, not by calling press conferences," he told The Oklahoman last week. "Attorney General John O’Connor’s office is handling this matter for the State of Oklahoma. I have full confidence in him and his attorneys to respond appropriately in a court of law, before a judge."
Still, after decades of advocacy, against all odds, the tide may slowly be shifting in Glossip’s favor.
In August, Oklahoma governor Kevin Stitt ordered a 60-day stay of execution to allow for Glossip’s claims before the Oklahoma Court of Criminal Appeals to take shape.
His attorneys will also seek clemency at a state parole hearing in October, though this is more of a last resort. Glossip’s fate is the result of two decades of strange and allegedly abusive uses of the legal system, and the hearings don’t offer much time for inmates to tell their story.
“My hope is we just don’t go there,” Mr Knight told The Independent. “The clemency hearing is not the place to present a full-blown innocence claim.”
Glossip’s cause has attracted a set of unlikely allies in Oklahoma, a state with long and brutal legacy of capital punishment and one of the most historically active execution chambers in the country. Republican lawmakers in the state legislature have become key champions for the case, many of them joining a group of 61 legislators who in August asked the attorney general to back a new hearing for Glossip to consider new evidence.
Representative Kevin McDugle, a friend of Attorney General O’Connor and supporter of the death penalty, says state officials have been wrongly convinced by their original convictions, and a blind faith in the system, that there can be no problems with the Glossip case.
“If I have unlimited funds, I can prove anybody’s guilt, anybody,” he said. “The people who are able to fight are the people who have the money. The people who are not able to fight are the Richard Flossips of the world.”
Mr McDugle, who has met with Glossip in prison and taken fellow legislators on tours of death row, says he’s dismayed by the fact that the state is still holding onto materials it won’t share with Glossip’s defence.
“I honestly thought John O’Connor to be the kind of guy who’d say, ‘I just want the truth no matter what, and I’ve just found that not to be true,” he said. “What are you hiding?”
Representative Justin Humphrey, a death penalty supporter and law enforcement veteran himself, says it’s pretty simple: if the state has clear proof Glossip committed the murder, it should reveal it.
“I’m on the the side of truth,” he told The Independent. “If the truth convicts Richard Glossip, then it convict Richard Glossip. If the truth sets him free, then it sets him free.”
What’s been released so far is not enough to convince him Glossip is guilty without a doubt.
“We have destroyed evidence, manufactured evidence, and perjury, all right there,” he said. “If that’s not grounds for a new trial, I don’t know what is.”
Mr Knight, Glossip’s attorney, says the 59-year-old remains “hopeful” and is happy to see people rallying to his defence.
No matter what happens in the clemency hearing, the court of appeals, or the execution chamber, representatives McDugle and Humphrey say big changes are needed to how Oklahoma handles death penalty cases.
Mr Humphrey has called for an investigation into the Oklahoma County DA’s office, while Mr McDugle wants the creation of a state conviction integrity unit to review cases like the Glossip death sentence. Such a body recently helped free Adnan Syed, the subject of the Serial podcast, from prison.
“When he walks out that prison gates, and I believe he will, it’s going to be 100 per cent a miracle,” Mr McDugle says.
As it stands, the state of Oklahoma has failed Richard Glossip, he says.
“It’s going to be because it’s a miracle. Period.”
The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to their Business Leaders Declaration Against the Death Penalty - with The Independent as the latest on the list. We join high-profile executives like Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.