Amicus Curiae Brief — Richard Eugene Glossip, Petitioner v. Oklahoma

No. 22-6500

CAPITAL CASE

IN THE

Supreme Court of the United States

_______________________

RICHARD EUGENE GLOSSIP,

Petitioner,

v.

STATE OF OKLAHOMA,

Respondent.

_______________________

On Petition for a Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

_______________________

BRIEF OF OKLAHOMA STATE

REPRESENTATIVE KEVIN MCDUGLE AS

AMICUS CURIAE IN SUPPORT OF

PETITIONER

_______________________

ANDREA LEWIS HARTUNG

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

160 East Grand Avenue

6th Floor

Chicago, IL 60611

(312) 503-0913

alewishartung@macarthurjust

ice.org

DEVI M. RAO

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3434

devi.rao@macarthurjustice.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ............................................................... 6

I. American Law Abhors Punishing the Innocent,

Especially When the Punishment is Death. ......... 6

II. The System Must Correct Miscarriages of Justice

and Wrongful Convictions. .................................... 7

III.Denying the Convicted a Remedy for Prosecutorial

Misconduct Only Worsens Miscarriages of

Justice................................................................... 10

IV. Absent This Court’s Intervention, Oklahoma

Could Execute An Innocent Man. ....................... 13

A. Justin Sneed’s Statements Inculpating Glossip

Were Manifestly False.................................... 14

1. New evidence shows detectives fabricated a

theory that Glossip was guilty, then coerced

Justin Sneed to adopt their story. ............ 15

2. Sneed immediately abandoned the story the

police fed him............................................. 17

3. Independent new evidence supports Sneed’s

jailhouse admissions. ................................ 19

B. The

Murder-For-Hire

Theory

Was

Fictitious. ........................................................ 20

CONCLUSION .......................................................... 24

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) ............................................. 8

Brady v. Maryland,

373 U.S. 83 (1963) ......................................... 4, 10

Giglio v. U.S.,

405 U.S. 150 (1972) ........................................... 10

Kansas v. Marsh,

548 U.S. 163 (2006) (Souter, J.,

dissenting) ........................................................... 8

Kennedy v. Louisiana,

554 U.S. 407 (2008) ......................................... 7, 8

Other Authorities

Adams’ Argument for the Defense: 3–4

December 1770, Founders Online,

National Archives ............................................... 7

Curtis McCarty, The Innocence Project .................. 9

Death Penalty Information Center,

Innocence Database: Oklahoma ......................... 8

Letter From Benjamin Franklin to

Benjamin Vaughan, 14 March 1785,

Founders Online, National Archives .................. 7

iii

Mark A. Hutchison, Town of Binger Finds

Itself Bogged in Political Mire, The

Oklahoman (Feb. 11, 1996) .............................. 22

The National Registry of Exonerations ................... 8

National Registry, Government Misconduct

& Convicting the Innocent (Sept. 1,

2020) .................................................................. 10

PHILLIP SHORT, POL POT: ANATOMY OF A

NIGHTMARE (2006)............................................... 6

Reed Smith, LLP, First Supplemental

Report (Aug. 9, 2022) ........................................ 11

Reed Smith, LLP, Independent

Investigation of State v. Richard E.

Glossip: Final Report (June 7, 2022) ...................

2, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23,

24

Reed Smith, LLP, Reed Smith augments

Richard Glossip report with further new

findings (Sept. 20, 2022) ..................................... 2

Reed Smith, LLP, Second Supplemental

Report (Aug. 20, 2022) ...................................... 11

Save Richard Glossip, Killing Richard

Glossip (2017) ...................................................... 2

Save Richard Glossip, Transcript of

Interview of Justin Sneed From

Videotape on January 14, 1997 (last

visited Jan. 23, 2023) ........................................ 16

iv

Yancy Douglas, National Registry of

Exonerations ....................................................... 9

No. 22-6500

CAPITAL CASE

IN THE

Supreme Court of the United States

_______________________

RICHARD EUGENE GLOSSIP,

Petitioner,

v.

STATE OF OKLAHOMA,

Respondent.

_______________________

On Petition for a Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

_______________________

BRIEF OF OKLAHOMA STATE

REPRESENTATIVE KEVIN MCDUGLE AS

AMICUS CURIAE IN SUPPORT OF

PETITIONER

_______________________

INTEREST OF AMICUS CURIAE 1

Amicus Kevin McDugle (R-Broken Arrow) is a

member of the Oklahoma House of Representatives.

1 No counsel for a party authored this brief in whole or in part,

and no counsel for a party (nor a party itself) made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than amicus or their counsel made a

monetary contribution to its preparation or submission. Counsel

for amicus notified the parties via e-mail of his intent to file this

brief more than 10 days prior to the filing deadline.

(1)

2

As an Oklahoma legislator and advocate for his

constituents, McDugle has a particular interest in,

responsibility for, and perspective on how Oklahoma’s

capital sentencing scheme does and should function.

He has been a strong supporter of capital punishment,

and he places the safety of the public above all else.

But McDugle also believes that Oklahoma must

take measures to ensure that it does not condemn

people who did not commit the crimes for which they

were convicted, and that it upholds people’s

constitutional rights. He believes that executing an

innocent person is a gross miscarriage of justice that

in no way contributes to public safety.

Concerned by the apparent injustice he saw in the

documentary, Killing Richard Glossip, 2 McDugle

helped commission an independent investigation into

Glossip’s case. The investigation was completed by the

law firm Reed Smith LLP on a pro bono basis. Reed

Smith spent 3,000 hours reviewing more than 12,000

documents (totaling 146,168 pages) and interviewing

dozens of witnesses—including members of law

enforcement, jurors, experts, and prosecutors and

defense attorneys from Glossip’s trials. The resulting

343-page report, 3 and three supplemental reports

issued since, 4 contained substantial new evidence

Save Richard Glossip, Killing Richard Glossip (2017),

https://saverichardglossip.com/killing-richard-glossip/.

2

3 Reed Smith, LLP, Independent Investigation of State v. Richard

E. Glossip: Final Report (June 7, 2022), https://www.reedsmith

.com/-/media/files/news/2022/glossipindependentinvestigation_

finalreport.pdf (“Report”).

4 Reed Smith, LLP, Reed Smith augments Richard Glossip report

with further new findings (Sept. 20, 2022) https://www.

3

that Glossip’s conviction rests on perjured testimony,

and that he may well be innocent.

Thus, the interest of McDugle is two-fold. First, as

a legislator responsible for the criminal sentencing

structure in Oklahoma—and the mechanisms for

ensuring it works properly—McDugle has a strong

interest in seeing this Court address Glossip’s legal

claims before the State of Oklahoma executes him.

Second, the Report, its supplements, and the

additional evidence put forward by his counsel

present a challenge to Oklahoma’s capital sentencing

scheme: it is critical that before completing an

execution, state courts fully and fairly consider

compelling evidence of individuals like Glossip

showing that their convictions were obtained through

unlawful means, especially when there is evidence of

innocence.

SUMMARY OF ARGUMENT

It would be a tragedy for a state to execute an

innocent person. Indeed, it would be a grave

miscarriage of justice to execute anyone with evidence

that puts the integrity of their conviction in question.

Richard Glossip faces state-imposed imminent death,

despite powerful evidence of his innocence that the

state improperly withheld from him for decades.

First, refusing to punish the innocent, especially

when the punishment is death, lies at the core of our

democracy, and has shaped this country’s policies

since its inception. State actors’ adherence to legal

procedures is essential to maintaining the integrity of

reedsmith.com/en/news/2022/09/reed-smith-augments-richardglossip-report-with-further-new-findings.

4

our criminal legal system, and to ensuring our safety

by prosecuting the individuals who are actually guilty

of committing crimes.

Second, innocent people assuredly are convicted of

crimes they did not commit, and our laws include

safeguards against wrongful execution when those

erroneous convictions occur. Oklahoma has

experienced—and corrected—numerous miscarriages

of justice that have resulted in the imprisonment of

people with claims of actual innocence, particularly in

cases involving state misconduct. A remedy for such

misconduct must equally be available to Glossip.

Third, the concealment of exculpatory evidence

constitutes a serious miscarriage of justice that has

led to numerous wrongful convictions across the

United States. The disclosure requirement in Brady v.

Maryland, 373 U.S. 83 (1963), exists to curb this exact

behavior. Here, evidence that the State’s most

essential witness—who was the actual perpetrator—

wished to recant his testimony would have

eviscerated its case against Glossip. Justin Sneed’s

pleas to recant—which tracks his admissions to a

multitude of other individuals that Glossip was not

involved in the crime—went unheard. The prosecutor

knew of Sneed’s wishes, but instead of disclosing

Sneed’s fervent desire to recant to Glossip, the

prosecutor worked with Sneed to align his false story

with other testimony at Glossip’s most recent trial.

Furthermore, the concealment was just part of a

pattern of state malfeasance, which also included

destroying potentially exculpatory evidence while

Glossip’s case was still on appeal. The State must be

held to answer for its conduct, and Glossip must be

5

allowed to present evidence of his innocence before he

is executed.

Fourth, absent judicial review and a rejection of

the improperly high bar proposed by the State of

Oklahoma for obtaining a new trial based on

concealment of exculpatory evidence, the integrity of

convictions and death sentences cannot be assured.

Sneed’s testimony brought about Glossip’s conviction.

Absent a new trial, a jury will never know that Sneed

wanted to recant, nor will it ever hear what amounts

to ample evidence of Glossip’s innocence. This

evidence is likely to lead to acquittal. Sneed’s

testimony appears to have been the product of a false

story fed to him by detectives who did not fully

investigate the case. Those detectives coerced from

Sneed a narrative that fit their theory of Barry Van

Treese’s murder. Sneed pled guilty, and testified

against Glossip in exchange for a non-death sentence.

But Sneed admitted to several people with whom he

was incarcerated that he lied about Glossip’s

participation. And this admission is corroborated by

other individuals who knew Sneed at the time of the

murder, and who would challenge the State’s theory

on Glossip’s motive and relationship to Sneed. New

independent evidence also shows that the State’s

proposed motive could not hold, and that it originated

with a witness who, unbeknownst to the jury, was

categorically untrustworthy.

These damning revelations would favor a different

verdict, yet Glossip still suffers the most serious of

consequences. States must not be rewarded for their

misconduct by imposing a herculean barrier to relief

from that malfeasance, lest citizens lose trust in the

criminal legal system. And Oklahoma should not be

6

allowed to proceed with an execution before evidence

of innocence is examined. This Court should

intervene.

ARGUMENT

I.

American Law Abhors Punishing the

Innocent,

Especially

When

the

Punishment is Death.

Refusing to execute the innocent differentiates the

United States from some of history’s most brutal and

authoritarian regimes. In the 1930s, Chinese

communists reasoned, “Better to kill a hundred

innocent people than let one truly guilty person go

free.” During uprisings in Vietnam in the 1950s,

communists argued: “Better to kill ten innocent

people than let a guilty person escape.” PHILLIP

SHORT, POL POT: ANATOMY OF A NIGHTMARE 496

(2006).

In this country we expect better. The integrity of

our justice system—and our safety—depends on

ensuring that proper procedures are followed in

arresting and prosecuting individuals for crimes, and

that the people we punish are actually guilty of the

crimes for which they are accused. As John Adams

recognized in 1770:

[W]hen innocence itself, is brought to the

bar and condemned, especially to die, the

subject will exclaim, it is immaterial to

me, whether I behave well or ill; for

virtue itself, is no security. And if such a

sentiment as this, should take place in

the mind of the subject, there would be

an end to all security what so ever.

7

Adams’ Argument for the Defense: 3–4 December

1770. 5 It was because of this threat to security that

Adams declared, “many guilty persons should escape

unpunished, than one innocent person should suffer.”

Id.

Similarly, Benjamin Franklin declared, “it is

better 100 guilty Persons should escape, than that one

innocent Person should suffer.” Letter From

Benjamin Franklin to Benjamin Vaughan, 14 March

1785. 6 The founders knew that no utility could be

derived from putting an innocent person to death, and

in fact more harm would be caused to the security of

our democracy.

The founders would recoil at the execution of an

innocent person like Richard Glossip.

II.

The System Must Correct Miscarriages of

Justice and Wrongful Convictions.

It is an unfortunate truth that innocent people are

convicted of crimes they did not commit. We must not

ignore these mistakes. When a person’s life is at stake,

we must provide an outlet to rectify these failures of

justice. This Court recognizes as much. Indeed, the

need to avoid imposing the harshest sentences on

individuals whose guilt is not certain has shaped this

Court’s jurisprudence for decades. The Court in

Kennedy v. Louisiana, 554 U.S. 407 (2008), held that

the Eighth Amendment prohibits the death penalty

for the rape of a child, in large part because of a

5 Founders Online, National Archives, https://founders.archives

.gov/documents/Adams/05-03-02-0001-0004-0016.

6 Founders Online, National Archives, https://founders.archives

.gov/documents/Franklin/01-43-02-0335.

8

“special risk of wrongful execution” that can stem

from child rape cases. Id. at 443 (quoting Atkins v.

Virginia, 536 U.S. 304, 321 (2002)). In Atkins v.

Virginia, this Court noted that in the years leading up

to its ruling, “a disturbing number on death row [had]

been exonerated.” Atkins, 536 U.S. at 320-21. Further,

in 2006, Justice Souter called for a reading of the

Eighth Amendment that accounts for the fact that

many individuals who previously had death sentences

were exonerated following the initiation of DNA

testing. Kansas v. Marsh, 548 U.S. 163, 207-08 (2006)

(Souter, J., dissenting).

Oklahoma is not immune to this phenomenon, but

it has corrected miscarriages of justice in numerous

cases over time. The National Registry of

Exonerations (“National Registry”). 7 At least fortyfive individuals have been exonerated in Oklahoma

since the 1960s. Id. Of those, at least eight were on

death row. Id. 8 And for some, their convictions were

secured following the withholding of key evidence,

false trial testimony, or both.

Consider the case of Curtis McCarty, who served

twenty-one years in prison—nineteen of which were

on death row—for a 1982 murder he did not commit.

7

https://www.law.umich.edu/special/exoneration/Pages/about

.aspx (“Browse Cases” link, and “Exonerations before 1989” link;

then filter “ST” to “OK”).

8 The Death Penalty Information Center lists an additional two

individuals as exonerated from death row—bringing the

Oklahoma exoneration count to forty-seven. Death Penalty

Information

Center,

Innocence

Database:

Oklahoma,

https://deathpenaltyinfo.org/policy-issues/innocence-database?

state=Oklahoma.

9

Curtis McCarty, The Innocence Project. 9 Like Glossip,

McCarty’s

conviction

resulted

from

official

misconduct and perjured testimony. Oklahoma City

District Attorney Robert Macy withheld key evidence

from the jury, and now-disgraced forensic analyst

Joyce Gilchrist falsely testified that hairs recovered

from the crime scene matched McCarty’s hairs. Id.

Two juries sentenced McCarthy to death before DNA

testing exonerated him in 2007. Id.

Yancy Douglas and Paris Powell were wrongly

convicted of murder and sentenced to death in 1995,

based on perjured testimony from rival gang member

Derrick Smith. Yancy Douglas, National Registry of

Exonerations. 10 Smith was offered a lighter sentence

on his own pending charges if he falsely implicated

Douglas and Powell in the murders. Id. The

prosecution withheld evidence of that deal, preventing

Smith’s impeachment. Id. Smith later recanted, and

Douglas and Powell were exonerated in 2009. Id.

Oklahoma has made another grave error that

must be corrected. Richard Glossip’s trial was tainted

by similar state misconduct and false testimony to

that present in the cases of McCarty, Douglas, and

Powell. And just like these individuals, Glossip

deserves judicial relief now that the truth has

surfaced.

9 https://innocenceproject.org/cases/906/.

https://www.law.umich.edu/special/exoneration/Pages/case

detail.aspx?caseid=3187.

10

10

III.

Denying the Convicted a Remedy for

Prosecutorial Misconduct Only Worsens

Miscarriages of Justice.

The concealment of potentially exculpatory

evidence by the state always constitutes a deeply

concerning miscarriage of justice. But this behavior is

all the more troubling when it is just one indicator of

a pattern of state actors blatantly and inexplicably

disregarding evidence in a case which contradicts the

narrative they created. And it is worse still when the

result of state misconduct is a death sentence. Legal

stopgaps, including the disclosure requirement in

Brady v. Maryland, 373 U.S. 83 (1963), exist for

precisely this reason. Imposing an unreasonably high

standard on such claims undermines constitutional

due process, and sanctions the behavior that leads to

wrongful convictions throughout this nation.

A 2020 report from the National Registry of

Exonerations, which analyzed thousands of recorded

exonerations in the United States between 1989 and

2020, found that prosecutorial misconduct was

present in 30% of wrongful conviction cases. National

Registry, Government Misconduct & Convicting the

Innocent 11-12 (Sept. 1, 2020). 11 When isolating

murder cases, that rate grew to 44% Id. at 12. And

frequently, as in this case, the evidence that was

concealed was impeachment evidence. Id. at 32, 86,

89-91. Such evidence can—and should—form a viable

basis for a Brady claim. Indeed, this Court has

explicitly stated as much. Giglio v. U.S., 405 U.S. 150,

https://www.law.umich.edu/special/exoneration/Documents/

Government_Misconduct_and_Convicting_the_Innocent.pdf

11

11

154 (1972) (“When the ‘reliability of a given witness

may well be determinative of guilt or innocence,’

nondisclosure of evidence affecting credibility falls

within this general [Brady] rule.”) (quoting Napue v.

Illinois, 360 U.S. 264, 269 (1959)).

Sneed’s impeachment is not inconsequential. It

undermines the State’s entire case, which even the

Oklahoma Court of Criminal Appeals acknowledged

hinged on Sneed’s testimony. Report, 5. The

prosecution agrees, stating “there’s no way [the jury]

would have convicted Glossip” had they not believed

Sneed Id. at 208. But the jury was deprived of key

information about Sneed’s credibility.

In 2007, Sneed wrote to his attorney, “[t]here are a

lot of things right now that are eating at me right

now,” and that—if his lawyer did not get back to

him—he would try to contact Glossip’s defense team.

Reed Smith, LLP, First Supplemental Report 1 (Aug.

9, 2022). Sneed then called his testimony a “mistake.”

Id. His attorney responded, “[h]ad you refused, you

would most likely be on death row right now.” Id. No

jury has ever seen this correspondence, because the

prosecution concealed it. Id. at 2. This letter

represents more than just hesitancy to testify; Sneed

had already testified at trial. Rather, Sneed must

have intended to recant before receiving his attorney’s

reminder about the death penalty. He would have had

no other reason to contact Glossip’s attorneys.

Furthermore, Reed Smith discovered an earlier letter,

penned before Glossip’s second trial, in which Sneed

asked his attorney outright whether he could recant

his testimony.

Reed Smith,

LLP, Second

Supplemental Report 1 (Aug. 20, 2022).

12

Evidence suggests that the prosecution knew

Sneed wanted to recant, yet he was not allowed to do

so. Instead, before trial, the State placed Sneed’s

attorney on its witness list, stating vaguely that

“rehabilitation” might be needed after Sneed testified.

Furthermore, the prosecutor drafted a memo before

Sneed took the stand, stating that she planned to “get

to” Sneed because his statement to the police was

inconsistent with medical examiner testimony

concerning apparent stab wounds on Van Treese at

Glossip’s second trial. Cert pet. 19. Notes reflecting

answers to the prosecutor’s questions about that

testimony suggest that someone, be it the prosecutor

or Glossip’s own attorney, spoke to Sneed about them

before Sneed testified. Id. at 20. Then, Sneed’s

testimony changed, and he claimed for the first time,

seventeen years after the murder, that he carried a

knife and had attempted to stab Van Treese. Id.

Even more disturbing than the withholding of this

information is the fact that it does not represent the

full extent of improper state conduct in this case. The

Oklahoma City Police Department (OCPD) destroyed

a box of evidence in 1999—during Glossip’s first

appeal—at the direction of the Oklahoma County

District Attorney’s Office. Report, 45-53. The reason

listed for the destruction of evidence—“Appeals

Exhausted”—was patently false. The initial appellate

decision in Glossip’s case, which overturned his

conviction, was not released until 2011. Id. at 53. And

numerous law enforcement officers have stated that

OCPD protocol called for the indefinite retention of

evidence in homicide cases. Id. at 47. Once again, the

prosecution obstructed Glossip’s ability to defend

himself.

13

The destroyed box contained, among other things,

accounting records recovered from Van Treese’s

vehicle. Id. at 34, 46, 52. Without them, Glossip could

not effectively challenge the allegation that he had

stolen money from the hotel. The box also held

physical items collected from the crime scene,

including duct tape, a white shower curtain, and Van

Treese’s wallet. Id. at 46, 49-50. DNA testing has

advanced greatly since 1997, and each of these items

could have contained exculpatory DNA. Yet Glossip

cannot request new DNA testing, because the physical

evidence is gone.

The intentional concealment and destruction of

relevant evidence in a capital case is reason enough to

void Glossip’s conviction and death sentence. After all,

if any other Oklahoma resident destroyed evidence in

a criminal case, they would rightfully face criminal

charges. For state actors to do so without consequence

is anathema to a functioning civil society and would

be cause for considerable legislative concern. But this

new information is only part of the picture in Glossip’s

case. It also bolsters ample other evidence that Sneed

lied under oath, and it is yet another convincing sign

of Glossip’s innocence.

IV.

Absent

This

Court’s

Intervention,

Oklahoma Could Execute An Innocent

Man.

This case demonstrates the worst possible outcome

in an unfair trial. Should this Court not review

Richard Glossip’s claims, and clarify that the

standard for relief from prosecutorial concealment of

material exculpatory evidence is less burdensome

than that imposed by Oklahoma courts, he will die

with unvetted, persuasive evidence that he is

14

innocent. Putting someone to death under these

circumstances, having robbed the jury of key relevant

facts, belies our Constitution, and undermines capital

punishment as a permissible criminal penalty.

The withheld and destroyed evidence at issue is

just the latest of a growing list of new exculpatory

evidence that was unavailable to Glossip for decades,

which strongly suggests Glossip had nothing to do

with the crime. Had the police actually investigated

the murder, they would have uncovered the far more

plausible scenario: Sneed murdered Van Treese

during a robbery gone wrong, which he planned and

initiated with a woman with whom he was involved at

the time. New evidence shows that Sneed testified

falsely against Glossip to avoid the death penalty

himself, and to take revenge on Glossip after the

police fallaciously told Sneed that Glossip had linked

him to the murder. Id. at 69. It proves that financial

information used to support the State’s theory was

false and misleading. Id. at 129. Further, it severely

undercuts the credibility of Cliff Everhart, the State’s

other supporting witness. Id. at 166. Each piece of new

evidence casts serious doubts on Glossip’s conviction;

together, it would probably lead to acquittal. Glossip

deserves, at minimum, a new trial.

A.

Justin Sneed’s Statements Inculpating

Glossip Were Manifestly False.

Today, it is clear that Sneed’s testimony

constituted perjury. New evidence shows that it was

detectives, not Sneed, who first broached the idea of

Glossip’s involvement, and Sneed adopted their story.

Sneed attempted to recant his story repeatedly after

speaking with detectives, but those attempts were

extinguished and instead he was coerced to testify

15

falsely against Glossip. An execution cannot move

forward when no jury has had the opportunity to hear

and evaluate evidence that the most consequential

trial testimony was false.

1.

New evidence shows detectives

fabricated a theory that Glossip was

guilty, then coerced Justin Sneed to

adopt their story.

Early in the murder investigation, detectives

developed one theory to the exclusion of others: Sneed

and Glossip murdered Van Treese. Lead Detective

Robert Bemo and his partner Bill Cook arrived at the

crime scene within two hours of the murder. Report 4,

30, 35. Officers on the scene told the detectives that

Glossip had given them some inconsistent facts. Id.

Minutes later, a patrol officer was contacted to bring

Glossip in for questioning. Id. at 34. By this point,

police had only spoken to a handful of witnesses, and

Sneed had yet to be located. Id. at 61. Yet during

Glossip’s interrogation, which occurred mere hours

into the investigation, Bemo told Glossip:

[W]e’re gonna get Justin [Sneed] and

when we tell him, you know, what we’ve

got against him and everything and

what’s coming down, if he brings your

name up in this thing, we come back

you’re going done (sic) for first degree

murder, buddy, do you understand what

I’m saying?

Id. at 62. That day, Bemo also told Glossip that he had

“seen the last free air he’ll ever breathe.” Id. at 65.

Bemo made sure his threat became reality.

16

Days later, Bemo and Cook questioned Sneed.

Report, 16. The detectives began the interrogation by

telling Sneed that they believed he and someone else

were involved. Id. at 66. Sneed ultimately confessed,

but during the course of his interrogation the

detectives named Glossip six times, suggesting they

believed he was the accomplice. Report, 66.

Early on, detectives told Sneed that Glossip was

under arrest, and deceptively stated that Glossip

blamed Sneed for the murder. Id. at 66-69. When

Sneed tried to say his brother Wes (not Glossip)

helped plan the robbery, detectives clung to their

theory that Glossip was involved and tried to insert

Glossip as a second accomplice. Id. at 72; Save

Richard Glossip, Transcript of Interview of Justin

Sneed From Videotape on January 14, 1997, 18-19

(last visited Jan. 23, 2023). 12 The detectives said that

Glossip attempted to cover up the crime and split the

money with Sneed. Transcript at 18. When Sneed

failed to take that bait, the detectives again said that

Glossip told them that Sneed had planned the crime.

Id. Only then did Sneed first mention Glossip’s name.

Incorporating what detectives seemingly wanted to

hear, Sneed said that Glossip told him that Wes had

broached the idea of a robbery, but that Wes had never

discussed a robbery with Sneed. Id. at 18-20. From

there, Sneed’s account evolved, with pointed guidance

from detectives, into his trial testimony that Glossip

had hired him to kill Van Treese.

12https://saverichardglossip.com/wp-content/uploads/2021/06/

sneed-interview2.pdf.

17

2.

Sneed immediately abandoned the

story the police fed him.

New evidence shows that Sneed changed his story

soon after his interrogation. Sneed told multiple

individuals about Van Treese’s death, beginning with

people incarcerated with him at the Oklahoma City

Jail. Not one of those accounts involved Glossip.

Sneed’s cellmate, Joseph Tapley, averred that

Sneed discussed the murder several times, and that

Sneed mentioned that money was in Van Treese’s car.

Report, App. 6 at 4. Sneed never mentioned Glossip;

indeed, Tapley had the impression that Sneed acted

alone. Id. at 5.

According to Paul Melton, Sneed said that he had

planned to rob Van Treese with his then-girlfriend.

Id. at 5-6. Sneed told Melton that Van Treese also was

the girlfriend’s “sugar daddy,” and that the two had

planned for the girlfriend to lure Van Treese to a

motel room for the robbery. Id at 5. 13 But Van Treese

fought back, and was killed. Id. at 5. Sneed took

money from Van Treese’s car. Id. at 6. Sneed never

mentioned Glossip—or anyone other than his

unnamed girlfriend—to Melton. Id. at 5.

Within hours of Sneed’s arrival at the jail, Sneed

told Roger Lee Ramsey what he told Melton: Sneed

worked with a woman to lure the victim into a hotel

room, so that Sneed could rob him. Report, App. 6 at

6-7. Sneed killed the man because the man did not

want to give up his money. Id. at 6. Sneed said that he

implicated Glossip because, according to Sneed,

13 Other witnesses also attest to Mr. Sneed using this kind of

scam in the past. Report at 222, 229.

18

Glossip pointed the finger at Sneed. Id. at 7. Sneed

never mentioned Glossip paying him, or hiring him to

commit the crime. Id.

Both Tapley and Melton said Sneed expressed a

fear of the death penalty. Id. at 5-6. Tapley relayed

that Sneed wanted to “sign” for a life sentence. Id. at

5. Melton also referenced Sneed’s concern about his

girlfriend being charged. Id. at 6.

On May 26, 1998, the State entered a written plea

deal with Sneed. Report, 41. Sneed would testify

against Glossip, and in exchange Sneed would be

spared the death penalty. Id. But in the years

following Glossip’s initial conviction, Sneed

repeatedly admitted that his implication of Glossip,

and the murder-for-hire plot, were lies.

Between 2005 and 2008, while at the Joseph Harp

Correctional Center, Sneed told Frederick Gray that

he had approached his “fall partner,” i.e. Glossip,

about helping him rob Van Treese, but that Sneed

proceeded with the crime without him because the fall

partner would not help. Report, App. 6 at 8. Sneed

said he did not want to kill Van Treese, but Van

Treese fought for the money. Id. Sneed told Gray that

he testified against his fall partner as revenge for not

helping him. Id. Sneed told Gray that the fall partner

got death, while Sneed got life, and that Sneed lied

about being hired to kill Van Treese. Id. Report, App.

6 at 8.

During the same period, Michael Scott heard

Sneed brag that Sneed set up Glossip, and that

Glossip “didn’t do anything.” Id. According to Mr.

Scott, it was common knowledge at Joseph Harp that

Sneed lied about Glossip. Id. at 8-9.

19

3.

Independent new evidence supports

Sneed’s jailhouse admissions.

Sneed’s conversations about the true motive for

the crime during his incarceration were not mere

posturing. They are supported by other independent

new evidence. For instance, Stephania Garcia, who

worked at a club near the Best Budget Inn (Report,

218), recalled that Sneed used dancers in the club to

lure men into hotel rooms so that Sneed could rob

them—the same story Sneed told to multiple people

after he was arrested. 14 Sneed also was known for

stealing and misleading others. According to Jamie

Spann, a friend and coworker of Sneed’s, Sneed acted

like he “owned the motel.” Id. at 216. Sneed openly

carried stolen jewelry around in a purple Crown Royal

bag and wanted women to split profits with him if they

engaged in sex work at the motel. Id.

Recently-discovered evidence also explains why

Sneed would react to Van Treese’s hesitation to give

him money so viciously. According to several

individuals, Sneed used a wide array of drugs

regularly. Id. at 218. On the day Sneed murdered Van

Treese, he was coming down off a two-day meth run.

Id. App. 5 at 2. Sneed had a short temper, perhaps

attributable to his substance abuse. Spann noted that

Sneed “acted mean” when coming off of meth. Id. at

217. Garcia recalls that when Sneed was high he “got

insane” and became violent, and that when he was

coming down from a high, he was “even crazier.”

14 During the police investigation, John Prittie, the guest next

door to Room 102 where Van Treese was murdered, stated that

he heard two voices in Room 102 the night of the murder, and

only identified one of them as male. Id. at 24.

20

Report, 218-219. Albert Mize, a drug dealer to Sneed,

said Sneed was a “hot head” who was “always acting

like a tough guy or a big shot.” Id. at 219. Garcia, who

regularly did drugs with Sneed (Id. at 118), saw Sneed

shove a dancer into a bathroom at the motel, call her

a “fucking bitch,” and strangle her. Id. at 222. On

another occasion, Garcia saw Sneed pick up a brick

and announce that he was going to get money,

returning later with drugs, and with blood on his

shirt. Id. at 223.

Furthermore, it is now clear why Sneed targeted

Van Treese. Margaret Humphrey, a maid and guest

at the motel, stated that weeks before the murder, she

heard Sneed yelling at Van Treese about not being

paid. Report, App. 6 at 2. Afterwards, she heard Sneed

say that Van Treese was going to “get what was

coming to him” and that Sneed was “going to rob and

kill [Van Treese]” to “get what was owed to [Sneed].”

Id. Around the same time another guest, Tricia

Eckhart, overheard Sneed saying that Van Treese was

“going to get what he deserved.” Id. Simply put, Sneed

needed money, he believed Van Treese had money,

and he was already upset with Van Treese for not

being paid. Id. at 227-33. Glossip had no such motive.

B.

The Murder-For-Hire

Fictitious.

Theory

Was

The State posited that Glossip hired Sneed to

murder Van Treese, because Van Treese had

discovered that Glossip was stealing money from the

motel and was planning to fire Glossip. Report, 21.

absent this theory, Sneed’s participation in a crime

with Glossip would have made no sense. Yet several

new pieces of information render this stated motive,

21

and other key details of Sneed’s testimony concerning

the money at issue in the case, demonstrably false.

First, Sneed testified that he and Glossip stole and

split approximately $4,000 after the murder. Id. at

109. But for this testimony to hold, Van Treese must

have had that much money in his possession that day.

Reed Smith determined, based on daily receipts in

evidence that Van Treese picked up the day he was

killed, that he likely had less than $2,900 with him at

the time of the crime. Id. at 110-11.

Second, new evidence shows it is impossible to

confirm that any money was missing, let alone stolen

from, the motel. The idea that money was missing

from the motel came from testimony by Van Treese’s

wife that the motel was short $6,101.92 for the year.

Report, 129-30. But no financial records to support

Ms. Van Treese’s testimony were introduced at trial.

Indeed, evidence that could confirm whether or not

the business was short—a deposit book and two

receipt books kept by Van Treese—were destroyed by

police at the prosecutor’s behest before Glossip’s last

trial. Id. at 44. A flood at the Van Treese home

reportedly destroyed any other business records. Id.

at 136. Without these documents, Glossip could not

adequately counter Ms. Van Treese’s testimony. 15

Furthermore, the only person who testified that

Glossip had embezzled money from the motel, and

that Van Treese planned to confront Glossip about it,

was Cliff Everhart. Id. at 166, 176. Everhart—whose

15 The defense failed to object to any of this testimony. Report,

136.

22

role at the motel is unclear 16—testified that he was

the one who told Van Treese that Glossip was stealing

from the motel, and that he and Van Treese were to

confront Glossip together about the theft. Id. at 166.

Yet evidence never presented to the jury shows that

Everhart was patently untrustworthy, and further

undermines the trial testimony of Sneed.

Glossip’s ex-girlfriend, D-Anna Wood, described

Everhart as one of Sneed’s only friends, and explained

during an interview that Everhart used his role as a

supposed security guard to coerce drugs and sex from

women at the motel. Id. at 226, 226 n. 911. Additional

records show that Everhart was corrupt even before

he arrived at the Budget Inn. Everhart was a former

Police Chief of Binger, Oklahoma, where he allegedly

created an atmosphere of intimidation, needlessly

harassing and stopping townspeople, and circulating

an anonymous newsletter containing obscene and

derogatory comments about local business owners.

Mark A. Hutchison, Town of Binger Finds Itself

Bogged in Political Mire, The Oklahoman (Feb. 11,

1996). 17 Everhart lost the community’s trust and

resigned. Id. After that, he was Police Chief of

Longdale, Oklahoma, where he was charged with—

and ultimately pled guilty to—an array of charges

related to official misconduct and deceit. The actions

at issue included receiving illegal gambling payments,

seizing and keeping an illegally converted firearm

16 Everhart alternatively claimed he was part-time security, or

that he had some ownership in the hotel. Report, 122. Other

individuals closely connected to the business disputed both of

these claims. Id. at 122, 170.

https://www.oklahoman.com/story/news/1996/02/11/town-ofbinger-finds-itself-bogged-in-political-mire/62364908007/.

17

23

instead of turning it in to the Oklahoma State Bureau

of Investigation, and fraudulently demanding state

reimbursement for an expense Everhart never

incurred. Report, 9 n. 26, 173. Unbeknownst to the

jury, these charges were pending when Everhart

testified at Glossip’s second trial.

Even more troubling, Everhart was a former

investigator for the Oklahoma Indigent Defense

System (“OIDS”), where performance evaluations

indicate that he “exhibit[ed] character deficiencies

including very limited honesty and integrity.” Id. at

10, 167-68. He was known to fabricate information

and attempted to obstruct investigations. Id. at 168.

Notably, OIDS records reveal that Everhart

obstructed an investigation in a case to which he was

assigned, thereby hindering the discovery of “crucial

and readily discoverable evidence of innocence.” Id.

Everhart denied trying to obstruct the investigation—

a denial his supervisor called a “complete falsehood.”

Id. In 1998, while Glossip’s case was being

investigated, many of Everhart’s former colleagues at

OIDS

expressed

concern

about

Everhart’s

involvement. Id. at 169-70.

Everhart consistently used any power and position

he had to his own benefit. He abused the people under

his care and trust. He had no regard for the harm

caused by his actions, and he violated the law as a

state actor. Despite these obvious warning flags that

Everhart was unreliable, the State used his testimony

to support its theory of the case. Report, 122 n. 452;

Id. at 208-24. The use of this evidence is even more

egregious when considered in light of concealed

evidence that Justin Sneed—with the State’s

24

knowledge—lied about Glossip’s involvement in the

first place.

This information reflects just some of the evidence

discovered by Reed Smith that flatly contradicts the

State’s portrayal of Sneed as weak, dependent on

Glossip, and devoid of an independent motive to kill

Van Treese. See Report 10, 209-27. At best, Sneed told

conflicting stories about the murder that render him

completely incredible. At worst, Glossip is an innocent

man condemned to die. Either way, the disclosure of

the evidence that the State withheld would have

further illuminated Sneed’s lack of credibility and

tipped the scale in Glossip’s favor. And armed with all

of the new evidence at a retrial, Glossip probably

would not be convicted.

CONCLUSION

Citizens must be able to trust the criminal legal

system, and they need to know that justice is never

out of reach. They also need assurance that if a

miscarriage of justice takes place, safeguards are in

place to ensure that it is rectified before it turns fatal.

States must be held accountable for their missteps in

cases like Glossip’s, and the remedies must be free

from onerous legal road blocks by the very State that

improperly convicted them. Only then can we insure

the integrity of convictions, and of the grave penalties

that come with them.

For these reasons, McDugle asks this Court to

grant the petition for a writ of certiorari, review

Glossip’s constitutional claims on the merits, and

reverse the judgment of the Oklahoma Court of

Criminal Appeals.

25

Respectfully submitted,

DEVI M. RAO

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3434

devi.rao@macarthurjustice.org

ANDREA LEWIS HARTUNG

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

160 East Grand Avenue

6th Floor

Chicago, IL 60611

(312) 503-0913

alewishartung@macarthurjusti

ce.org

Counsel for Amicus Curiae

JANUARY 2023