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

No. 22-7466

IN THE

Supreme Court of the United States

————

RICHARD EUGENE GLOSSIP,

v.

Petitioner,

STATE OF OKLAHOMA,

Respondent.

————

On Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

————

BRIEF OF THE DISTRICT OF COLUMBIA AND

THE STATES OF COLORADO, ILLINOIS,

MARYLAND, MASSACHUSETTS, MINNESOTA,

NEVADA, NEW JERSEY, NEW MEXICO,

NEW YORK, AND OREGON AS AMICI CURIAE

IN SUPPORT OF NEITHER PARTY

————

BRIAN L. SCHWALB

Attorney General for the

District of Columbia

CAROLINE S. VAN ZILE*

Solicitor General

ASHWIN P. PHATAK

Principal Deputy

Solicitor General

GRAHAM E. PHILLIPS

Deputy Solicitor General

ELISSA R. LOWENTHAL

Assistant Attorney General

Office of the Attorney General

for the District of Columbia

400 6th St., NW, Suite 8100

Washington, D.C. 20001

(202) 724-6609

caroline.vanzile@dc.gov

* Counsel of Record

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

QUESTIONS PRESENTED

1. Whether the Oklahoma Court of Criminal

Appeals erred in rejecting confessed constitutional

errors under Brady and Napue and giving no weight

to the State’s considered view that petitioner’s trial

was infected by serious constitutional error and

prosecutorial misconduct.

2. Whether the Oklahoma Court of Criminal

Appeals’ holding that the Oklahoma Post-Conviction

Procedure Act precluded post-conviction relief is an

adequate and independent state-law ground for the

judgment.

ii

TABLE OF CONTENTS

Page

INTRODUCTION AND INTERESTS OF AMICI

CURIAE………………………………………..……...1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 4

I. Courts Should Afford Great Weight To A State

Attorney General’s Confession Of Error In A

Criminal Case ....................................................... 4

II. Confessions Of Brady Or Napue Errors Deserve

Especially Great Weight ..................................... 11

CONCLUSION ......................................................... 16

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Arizona v. California,

530 U.S. 392 (2000)........................................... 4, 5

Berger v. United States,

295 U.S. 78 (1935)........................................... 9, 10

Brady v. Maryland,

373 U.S. 83 (1963)................................................. 2

Carducci v. Regan,

714 F.2d 171 (D.C. Cir. 1983) ............................... 5

Carpenter v. State,

1996 OK CR 56, 929 P.2d 988 .............................. 7

Casey v. United States,

343 U.S. 808 (1952)....................................... 12, 13

Greenlaw v. United States,

554 U.S. 237 (2008)..................................... 5, 7, 12

Heckler v. Chaney,

470 U.S. 821 (1985)............................................... 7

In re Aiken County,

725 F.3d 255 (D.C. Cir. 2013) ............................... 8

In re Dobbie,

305 A.3d 780 (D.C. 2023) .................................... 15

iv

Interstate Com. Comm’n v. Bhd. of Locomotive

Eng’rs, 482 U.S. 270 (1987) .................................. 7

Juniper v. Davis,

74 F.4th 196 (4th Cir. 2023) ............................... 14

Kyles v. Whitley,

514 U.S. 419 (1995)....................................... 13, 14

McCarty v. State,

1988 OK CR 271, 765 P.2d 1215 .......................... 9

Napue v. Illinois,

360 U.S. 264 (1959)............................................... 2

Nat’l Aeronautics & Space Admin. v. Nelson,

562 U.S. 134 (2011)............................................... 5

Petite v. United States,

361 U.S. 529 (1960)............................................... 8

Reddell v. Johnson,

1997 OK 86, 942 P.2d 200 .................................... 5

Rinaldi v. United States,

434 U.S. 22 (1977)................................................. 8

Sibron v. New York,

392 U.S. 40 (1968)........................................... 4, 11

State, ex rel., Pruitt v. Steidley,

2015 OK CR 6, 349 P.3d 554 .............................. 10

Strickler v. Greene,

527 U.S. 263 (1999)............................................. 13

v

Turner v. United States,

582 U.S. 313 (2017)............................................. 14

Tweedy v. Okla. Bar Ass’n,

1981 OK 12, 624 P.2d 1049 .............................. 8, 9

United States v. Agurs,

427 U.S. 97 (1976)............................................... 14

United States v. Ausby,

916 F.3d 1089 (D.C. Cir. 2019) ........................... 13

United States v. Batchelder,

442 U.S. 114 (1979)............................................... 7

United States v. Brumfield,

89 F.4th 506 (5th Cir. 2023) ......................... 14, 15

United States v. Fokker Servs. B.V.,

818 F.3d 733 (D.C. Cir. 2016) ........................... 7, 8

United States v. Olano,

507 U.S. 725 (1993)........................................... 5, 6

United States v. Sineneng-Smith,

590 U.S. 371 (2020)............................................... 5

United States v. Texas,

599 U.S. 670 (2023)............................................... 8

Wood v. Milyard,

566 U.S. 463 (2012)............................................... 6

Woodward v. Morrissey,

1999 OK CR 43, 991 P.2d 1042 ............................ 8

vi

Young v. United States,

315 U.S. 257 (1942)......................... 1, 4, 10, 11, 12

Constitutional Provisions

U.S. Const. art. VI, cl. 3 ........................................... 10

Statutes

Okla. Stat. tit. 22, § 815 ............................................. 8

Okla. Stat. tit. 74, § 18B .......................................... 10

Rules

Fed. R. Crim. P. 48 ..................................................... 8

Other Authorities

Nat’l Ass’n of Att’ys Gen., State Attorneys

General Powers and Responsibilities

(Emily Myers ed., 4th ed. 2018) ......................... 10

INTRODUCTION AND INTERESTS

OF AMICI CURIAE

The District of Columbia and the States of

Colorado,

Illinois,

Maryland,

Massachusetts,

Minnesota, Nevada, New Jersey, New Mexico, New

York, and Oregon (collectively, the “Amici States”) file

this brief as amici curiae in support of neither party.

The Amici States take no position on whether the

judgment below rests on an adequate and

independent state-law ground and thus take no

position on this Court’s ultimate disposition. If the

Court concludes that it has jurisdiction, however, the

Amici States have an interest in this Court’s giving

appropriate weight to a remarkable aspect of this

case: the Oklahoma Attorney General’s confession of

error. As the Amici States can attest, confessions of

error by a state’s chief law officer in criminal cases are

rare—as they should be. Confessing error is a

momentous step, one that Attorneys General never

take lightly. When they do so, then, courts should

give the confession of error great weight. This Court

long ago recognized that such deference is owed to

confessions of error by the United States. See Young

v. United States, 315 U.S. 257, 258 (1942).

Considered concessions by the states likewise deserve

great weight.

That weight should be heaviest when the error

confessed turns on a fact-intensive, case-specific

analysis. Courts are poorly positioned to conduct such

analyses better than the parties themselves. And

accepting fact-bound confessions of error has little

risk of accidentally distorting the wider law. This

case involves quintessential examples of such errors:

the suppression of favorable evidence in violation of

2

Brady v. Maryland, 373 U.S. 83 (1963), and the

presentation of false testimony in violation of Napue

v. Illinois, 360 U.S. 264 (1959). Like Oklahoma, the

Amici States take their obligations under Brady and

Napue seriously and will, in the rare case where

needed, confess error on these points. The coalition of

Attorneys General who represent the Amici States

submit this brief to explain why this Court and others

should give such a confession of error by a state

Attorney General great deference.

SUMMARY OF ARGUMENT

1. Confessions of error by an Attorney General

are rare, and the intersection of three wellestablished legal principles demonstrates why such a

confession should be afforded great deference. First,

the party presentation principle instructs that courts

should generally consider only those issues contested

by the parties and should not consider arguments

that a party has intelligently waived, particularly on

a fact-bound issue. A confession of error is an extrastrength waiver. Second, prosecutorial discretion

gives the executive wide latitude to decide whom to

prosecute, under what statute, and whether to

dismiss those charges.

Encroachments on this

discretion from the judiciary, including compelling

the executive to carry out a sentence it believes was

obtained unconstitutionally, raise separation-ofpowers concerns. Confessions of error are similar to

traditional exercises of prosecutorial discretion and

thus should be treated with similar respect. Third, it

is well established that a state’s goal in a criminal

proceeding is to achieve justice, which includes

protecting a defendant’s constitutional rights. Every

3

Attorney General takes an oath to carry out this

obligation, and Attorneys General are uniquely

situated to represent the public interest of each

state’s citizens. Accordingly, when a state Attorney

General confesses a constitutional error, that

confession should be afforded significant deference.

2. A state Attorney General’s confession of error

respecting a highly fact-intensive issue deserves

especially great deference—and doubly so when the

confession relates to misconduct by the prosecution.

The Attorney General is better positioned than a

court to understand and assess the relevant facts, and

accepting such a fact-bound confession will ordinarily

not have any wider, precedential impact on the law.

Constitutional violations under Brady and Napue are

examples of such errors because both involve highly

fact-specific inquiries. The “materiality” element of

both errors, in particular, requires examining the

totality of the evidence submitted at trial—an inquiry

better suited to an Attorney General, who has access

to the prosecution’s files and the trial lawyers, than to

an appellate court. Moreover, an Attorney General

has an especially strong reason to be careful and

thorough before confessing Brady and Napue errors,

given the potential reputational harm to the trial

lawyers.

These principles apply with full force here. After

a thorough and careful investigation, the Oklahoma

Attorney General conceded that the specific facts of

Glossip’s case constitute clear Brady and Napue

violations. If this Court reaches the merits, it should

give that confession of error great deference and

reverse the judgment below.

4

ARGUMENT

I. Courts Should Afford Great Weight To A

State Attorney General’s Confession Of

Error In A Criminal Case.

A state Attorney General’s confession that a

criminal conviction was the product of reversible error

is an extraordinary event. Few if any other acts in

our legal system have a similar character. By the

same token, few if any deserve greater deference from

courts. To be sure, “such a confession does not relieve

[a court] of the performance of the judicial function.”

Young, 315 U.S. at 258; see Sibron v. New York, 392

U.S. 40, 58 (1968). Yet only in rare circumstances

should a court performing that function refuse to

vacate a criminal conviction that an Attorney General

has determined—and declared—rests on prejudicial

error in the proceedings under review, especially

when the error is misconduct by the prosecution, not

a mistaken decision by the court.

To appreciate fully such a confession of error’s

extraordinary character, it helps to consider three

vital principles of American law: the party

presentation principle, prosecutorial discretion, and

prosecutors’ obligation to seek justice and uphold the

Constitution. In combination, these three concepts

highlight the breadth of an Attorney General’s power

to control criminal litigation in the interests of justice.

That power includes the power not to defend a

conviction tainted by error—a choice that courts in

our adversarial system should rarely second-guess.

First, start with the party presentation principle.

This principle, “so basic to our system of

adjudication,” Arizona v. California, 530 U.S. 392,

5

413 (2000), provides that courts “rely on the parties to

frame the issues for decision and assign to courts the

role of neutral arbiter of matters the parties present,”

Greenlaw v. United States, 554 U.S. 237, 243 (2008).

Accordingly, “in both civil and criminal cases, in the

first instance and on appeal,” courts typically “decide

only questions presented by the parties.” Id. at

243-44 (internal quotation marks omitted); see, e.g.,

United States v. Sineneng-Smith, 590 U.S. 371, 375

(2020) (vacating judgment where the court of appeals

“departed so drastically from the principle of party

presentation as to constitute an abuse of discretion”).

Appellate courts in particular “do not sit as

self-directed boards of legal inquiry and research, but

essentially as arbiters of legal questions presented

and argued by the parties before them.” Nat’l

Aeronautics & Space Admin. v. Nelson, 562 U.S. 134,

147 n.10 (2011) (quoting Carducci v. Regan, 714 F.2d

171, 177 (D.C. Cir. 1983) (Scalia, J.)); see also, e.g.,

Reddell v. Johnson, 1997 OK 86, ¶ 7, 942 P.2d 200,

202 (“[C]ourts are not free to play the role of advocate,

and raise claims or defenses that should be left to the

parties to raise.”).

The party presentation principle does not, to be

clear, prevent a court from forgiving a forfeiture

where appropriate. See United States v. Olano, 507

U.S. 725, 733 (1993) (defining “forfeiture” as “the

failure to make the timely assertion of a right”). That

includes forfeitures by the government, in both civil

and criminal cases. Courts also have some flexibility

to look beyond the parties’ arguments “to protect a pro

se litigant’s rights,” Greenlaw, 554 U.S. at 244, or

where adopting a broad rule of law in a precedential

opinion risks interfering with the rights of other

6

parties. But where a counseled party has waived a

point—that is, intentionally relinquished or

abandoned a known right, see Olano, 507 U.S. at

733—a court should, absent these or other

extraordinary circumstances, accept that waiver.

This Court’s decision in Wood v. Milyard, 566 U.S.

463 (2012), illustrates the principle. In that federal

habeas case, the district court asked the state

whether Wood’s federal petition was timely. Id. at

467. The state answered, twice, that it was “not

challenging, but d[id] not concede, the timeliness of

the petition.” Id. After the district court ruled in the

state’s favor on the merits, Wood appealed. The

Tenth Circuit sua sponte addressed the petition’s

timeliness and ruled against Wood on that basis. Id.

at 467-68. This Court reversed and remanded. The

state’s “decision not to contest the timeliness of

Wood’s petition,” the Court explained, “did not stem

from an ‘inadvertent error.’” Id. at 474. Instead,

“after

expressing

its

clear

and

accurate

understanding of the timeliness issue,” the state had

“deliberately steered the District Court away from the

question and towards the merits.” Id. This was

waiver, not forfeiture, and could not be disregarded by

the court of appeals. Id.; see id. at 471 n.5.

Disregarding a confession of error by a state’s chief

legal officer is an even more extreme departure from

the principle of party presentation. Such a confession

is not simply a deliberate, knowing choice not to

pursue an argument, as in Wood. It is an express

concession at the highest level of the state

prosecutorial system—an admission that the criminal

judgment is tainted by error. And disregarding a

7

state’s confession of error in a criminal case obviously

cannot be justified as “protect[ing] a pro se litigant’s

rights.” Greenlaw, 554 U.S. at 244. In our adversarial

system, then, a confession of error by the state’s chief

legal officer should almost always be dispositive—

especially when, as here, the error concerns

misconduct by the state’s own prosecutors.

Second, consider the breadth of criminal

prosecutorial discretion. “Whether to prosecute and

what charge to file or bring before a grand jury are

decisions that generally rest in the prosecutor’s

discretion.” United States v. Batchelder, 442 U.S. 114,

124 (1979); accord, e.g., Carpenter v. State, 1996 OK

CR 56, ¶ 23, 929 P.2d 988, 995 (“[T]he decision

whether to prosecute and what charge to file is within

the discretion of the prosecutor.”).

Indeed, a

prosecutor’s discretion to not file charges is generally

“absolute.” Heckler v. Chaney, 470 U.S. 821, 831

(1985) (“[A]n agency’s decision not to prosecute or

enforce, whether through civil or criminal process, is

a decision generally committed to an agency’s

absolute discretion.”); see, e.g., Interstate Com.

Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270,

283 (1987) (“[I]t is entirely clear that the refusal to

prosecute cannot be the subject of judicial review.”).

Notably, prosecutorial discretion persists even

after charges have been filed. “[D]ecisions to dismiss

pending criminal charges—no less than decisions to

initiate charges and to identify which charges to

bring—lie squarely within the ken of prosecutorial

discretion.” United States v. Fokker Servs. B.V., 818

F.3d 733, 742 (D.C. Cir. 2016). To be sure, under

federal law and that of many states, a prosecutor’s

8

discretion to dismiss pending charges is not absolute.

See, e.g., Fed. R. Crim. P. 48(a); Okla. Stat. tit. 22,

§ 815. But the role of courts remains “a narrow one,”

Fokker Servs., 818 F.3d at 742, focused on

“protect[ing] a defendant against prosecutorial

harassment, e.g., charging, dismissing, and

recharging, when the Government moves to dismiss

an indictment over the defendant’s objection,” Rinaldi

v. United States, 434 U.S. 22, 29 n.15 (1977). When

there is no suggestion of prosecutorial harassment

and the government has instead concluded that

continued prosecution would be unjust, courts should

freely allow dismissal. Indeed, they should do so even

after a judgment of conviction has been entered. See,

e.g., id. at 23-32 (authorizing post-judgment dismissal

of the indictment where the government

acknowledged that the prosecution contravened wellsettled Department of Justice policy); Petite v. United

States, 361 U.S. 529, 529-31 (1960) (same).

The underpinning of prosecutorial discretion is the

separation of powers. See, e.g., In re Aiken County,

725 F.3d 255, 262-64 (D.C. Cir. 2013) (Kavanaugh, J.).

“The Executive Branch—not the Judiciary—makes

arrests and prosecutes offenses,” and therefore

“judicial review of the Executive Branch’s arrest and

prosecution policies” would be improper. United

States v. Texas, 599 U.S. 670, 679 (2023). States,

including Oklahoma, likewise recognize this

principle. See, e.g., Woodward v. Morrissey, 1999 OK

CR 43, ¶ 13, 991 P.2d 1042, 1046 (“The separation of

powers principle specifically prevents judicial

interference with the prosecutor’s discretion.”);

Tweedy v. Okla. Bar Ass’n, 1981 OK 12, 624 P.2d

1049, 1054 n.12 (“Within the Anglo-American legal

9

system, the decision to prosecute has always belonged

to the crown (executive), not the judiciary.”).

An Attorney General’s confession of error in a

criminal case is akin (albeit not identical) to

traditional exercises of prosecutorial discretion,

especially when the error is fact intensive. And a

court’s disregard of such a confession implicates the

same separation-of-powers concerns: the court

effectively compels the state’s executive branch to

continue allocating resources to a prosecution that the

Attorney General has determined to be tainted. This

concern is at its maximum in a capital case, where

enforcing the judgment entails extensive efforts by

executive branch agencies. When the state’s chief

law-enforcement officer has determined that those

efforts are not appropriate, the judiciary generally

should not second-guess that determination.

Third, as this Court and others have long

recognized, criminal prosecution is a unique category

of litigation where achieving evenhanded justice must

be paramount. A prosecutor “is the representative

not of an ordinary party to a controversy, but of a

sovereignty whose obligation to govern impartially is

as compelling as its obligation to govern at all; and

whose interest, therefore, in a criminal prosecution is

not that it shall win a case, but that justice shall be

done.” Berger v. United States, 295 U.S. 78, 88 (1935);

accord, e.g., McCarty v. State, 1988 OK CR 271, ¶ 17,

765 P.2d 1215, 1221-22. A prosecutor’s duty is as

much “to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.” Berger,

295 U.S. at 88. By extension, when a prosecutor later

10

discovers that “improper methods” in fact “produce[d]

a wrongful conviction,” it is only proper that they alert

the court and seek to rectify the error. Id.; see Young,

315 U.S. at 258 (“The public trust reposed in the law

enforcement officers of the Government requires that

they be quick to confess error when, in their opinion,

a miscarriage of justice may result from their

remaining silent.”).

When a conviction is wrongful under the federal

Constitution, there is a further impetus for corrective

action: the prosecutor’s oath. “[A]ll executive and

judicial Officers, both of the United States and of the

several States, shall be bound by Oath or Affirmation,

to support this Constitution.” U.S. Const. art. VI,

cl. 3. Every Attorney General thus swears to support

the Constitution, as do many state prosecutors.

Asking a court to set aside a constitutionally infirm

conviction is a vital and solemn act of fulfilling that

oath.

Within a state, the obligation “that justice shall be

done” rests ultimately and most heavily with the

Attorney General. They are the state’s chief law

officer and in that “unique position in state

government” serve as “the principal legal

representative of the public interest for all citizens.”

Nat’l Ass’n of Att’ys Gen., State Attorneys General

Powers and Responsibilities 46 (Emily Myers ed., 4th

ed. 2018); see, e.g., Okla. Stat. tit. 74, § 18b; State, ex

rel., Pruitt v. Steidley, 2015 OK CR 6, ¶ 16, 349 P.3d

554, 558 (recognizing the Oklahoma Attorney

General’s authority to “take and assume control of [a]

prosecution”). An Attorney General takes a statewide

view of the law, and the Attorney General’s litigating

11

positions and legal pronouncements have statewide

significance. Accordingly, when an Attorney General

exercises state-law authority to confess error in a

criminal case, that confession deserves special

weight. Cf. Sibron, 392 U.S. at 58-59 (affording less

deference to a confession of error “made, not by a state

official, but by the elected legal officer of one political

subdivision within the State”).

***

In sum, several strands of jurisprudence

intertwine to give a state Attorney General’s

confession of error great strength. The confession is

a deliberate choice within our adversarial litigation

system, which privileges the parties’ decisions about

which arguments to present and pursue. It is a legal

judgment akin to prosecutorial discretion and

implicates the separation-of-powers concerns that

undergird that doctrine.

And it embodies the

touchstone obligation of criminal prosecutors to

ensure that, rather than simply win cases, they do

justice and support the Constitution.

II. Confessions Of Brady Or Napue Errors

Deserve Especially Great Weight.

For the reasons explained in Part I, courts should

always give “great weight” to a state Attorney

General’s confession of error, just as this Court does

with confessions by the Solicitor General. See Young,

315 U.S. at 258 (“The considered judgment of the law

enforcement officers that reversible error has been

committed is entitled to great weight . . . .”). Yet

precisely how great the weight need not be the same

in every case. Among other things, it will depend on

the character of the error confessed.

12

At one end of the spectrum, where the weight is

relatively less, lie errors concerning purely legal

questions. In Young, for instance, the error concerned

a pure question of statutory interpretation: whether

the term “dispensing physicians” in a criminal statute

included “physicians administering to patients whom

they personally attend.” Id. at 259. A general

question of statutory meaning like this does not turn

on the specific facts or history of the case and thus

does not implicate the parties’ greater knowledge of

those details as compared to the court’s. An appellate

court is relatively well positioned to decide whether

the error confessed was indeed an error. Moreover,

the court’s disposition of such an issue might

establish precedent that could affect other cases. It

was for this reason—“our judgments are

precedents”—that

this

Court

“examine[d]

independently” the Solicitor General’s concession in

Young that the statute did not reach the relevant

category of doctors. Id. at 258-59.

At the other end of the spectrum, where the “great

weight” should be its greatest, are confessed errors

that are highly fact-bound or case-specific. Extra

deference is fitting in such a case because the court is

unlikely to understand the details of the case better

than the parties. See Greenlaw, 554 U.S. at 244

(“Counsel almost always know a great deal more

about their cases than we do . . . .” (internal quotation

marks omitted)). And accepting a confession of

fact-intensive error can have little if any broader

impact on the law. For example, this Court readily

accepted the Solicitor General’s confession of error in

a Fourth Amendment case that required “conflicting

views as to the facts . . . and the inferences to be

13

drawn from them . . . to be resolved.” Casey v. United

States, 343 U.S. 808, 808 (1952) (per curiam).

Accepting a confession of error in these

circumstances, the Court recognized, “would not

involve the establishment of any precedent.” Id.

The constitutional errors at issue in this case—

violations of Brady and Napue—fall squarely at this

latter end of the spectrum. Indeed, they are at the far

end of this end of the spectrum, as they involve not

only fact-intensive inquiry, but misconduct by the

state’s own officers. When a state Attorney General

confesses that either type of error has tainted a

criminal conviction, courts should afford that

confession especially great deference.

Both types of error, which each have three

elements, are intensely factual. A Brady violation

requires showing (1) evidence favorable to the accused

because it is exculpatory or impeaching; (2) that this

evidence was suppressed by the government, either

willfully or inadvertently; and (3) that “the

government’s evidentiary suppression undermines

confidence in the outcome of the trial.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995) (internal quotation

marks omitted); see Strickler v. Greene, 527 U.S. 263,

280-82 (1999). Similarly, a Napue violation requires

showing that (1) the government introduced or

allowed to go uncorrected trial testimony that was

false; (2) the government knew or should have known

that it was false; and (3) there is a reasonable

likelihood that the false testimony could have affected

the judgment of the jury. See, e.g., United States v.

Ausby, 916 F.3d 1089, 1092 (D.C. Cir. 2019).

14

Although every element of a Brady or Napue error

tends to be fact-bound and case-specific, the third

element—frequently shorthanded as “materiality”—

deserves special attention.

The materiality of

suppressed evidence or false testimony “must be

evaluated in the context of the entire record.” United

States v. Agurs, 427 U.S. 97, 112 (1976). This means

both that the suppressed or false evidence must be

“considered collectively, not item by item,” but also

that it must be weighed against the totality of the

evidence of guilt. Kyles, 514 U.S. at 436; see Agurs,

427 U.S. at 112-13 (“If there is no reasonable doubt

about guilt whether or not the additional evidence is

considered, there is no justification for a new trial.”).

Necessarily, then, the materiality inquiry is

exceedingly “fact-intensive.” Turner v. United States,

582 U.S. 313, 316 (2017) (analyzing Brady

materiality); see, e.g., Juniper v. Davis, 74 F.4th 196

(4th Cir. 2023) (60-page opinion analyzing Brady and

Napue materiality).

When the government concedes that a material

Brady or Napue error occurred, courts should give

that concession the utmost deference. With its unique

access to the prosecution, such as its case files and the

trial lawyers themselves, the government is far better

positioned than a court—especially an appellate

court—to make the holistic evaluation justifying such

a concession. Absent evidence of bad faith or a facially

egregious misanalysis, courts should readily accept

confessions of Brady or Napue errors. Doing so need

not set any precedent affecting the resolution of other

cases, since even the smallest factual distinctions

matter under Brady and Napue. See, e.g., United

States v. Brumfield, 89 F.4th 506, 513-19 (5th Cir.

15

2023) (same evidence was material under Brady as to

one codefendant but not another).

What is more, courts can have confidence that the

government will confess Brady and Napue errors only

after the most careful analysis. Violations of Brady

and Napue are not just errors—they are prosecutorial

misconduct.

Such misconduct can expose the

individual prosecutors to professional discipline. See,

e.g., In re Dobbie, 305 A.3d 780 (D.C. 2023)

(disciplining prosecutors for Brady violation). Even

without formal discipline, responsibility for such

misconduct may harm the professional reputations of

the prosecutors involved. By contrast, no similar

opprobrium is involved when, for example, the

government reconsiders the scope of a criminal

statute or concedes that a defendant received

ineffective assistance of counsel. Attorneys General

therefore have an especially strong reason to be

careful, cautious, and thorough in deciding to confess

a Brady or Napue error.

The foregoing principles apply squarely to the

Oklahoma Attorney General’s confession of error in

this case. As detailed in Oklahoma’s brief, that

confession of Brady and Napue error was the product

of multiple rounds of lengthy, careful review of

Glossip’s case, including by an independent counsel.

Not a shred of evidence suggests that Attorney

General Drummond has acted in bad faith or with an

ulterior motive in confessing error. And far from

being dubious on its face, Oklahoma’s analysis of the

errors in question is compelling. Thus, if this Court

concludes that it has jurisdiction and reaches the

merits of this case, it should give Oklahoma’s

16

confession of error the utmost deference and reverse

the judgment of the Court of Criminal Appeals.

CONCLUSION

If the Court concludes that it has jurisdiction, it

should reverse the judgment below.

Respectfully submitted,

BRIAN L. SCHWALB

Attorney General for the

District of Columbia

CAROLINE S. VAN ZILE

Solicitor General

Counsel of Record

ASHWIN P. PHATAK

Principal Deputy Solicitor General

GRAHAM E. PHILLIPS

Deputy Solicitor General

ELISSA R. LOWENTHAL

Assistant Attorney General

April 2024

OFFICE OF THE ATTORNEY GENERAL

400 6th Street, NW, Suite 8100

Washington, D.C. 20001

(202) 724-6609

caroline.vanzile@dc.gov

On behalf of:

PHILIP J. WEISER

Attorney General

State of Colorado

KWAME RAOUL

Attorney General

State of Illinois

ANTHONY G. BROWN

Attorney General

State of Maryland

ANDREA JOY CAMPBELL

Attorney General

Commonwealth of

Massachusetts

KEITH ELLISON

Attorney General

State of Minnesota

AARON D. FORD

Attorney General

State of Nevada

MATTHEW J. PLATKIN

Attorney General

State of New Jersey

RAÚL TORREZ

Attorney General

State of New Mexico

LETITIA JAMES

Attorney General

State of New York

ELLEN F. ROSENBLUM

Attorney General

State of Oregon