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Oklahoma issues a 4th delay in the execution of Richard Glossip

Richard Glossip was supposed to be executed by the state of Oklahoma on September 30 for the 1997 murder of Barry Van Treese — his boss at the Best Budget Inn in Oklahoma City. But at the last minute, Oklahoma Gov. Mary Fallin granted a stay until November 6.

This is the fourth time that an execution date has been set and delayed for Glossip. The case has been plagued by two questions: Should Richard Glossip be executed? and Is Oklahoma using the right drugs to do it?

The latest delay is about the latter problem. But previous delays have centered on the former, as evidence has kept coming out that suggests Glossip didn't do what prosecutors said he did, or that prosecutors acted improperly in the case. The case has been so controversial that former Oklahoma Sen. Tom Coburn, a supporter of the death penalty, signed on to an open letter asking Fallin to stop Glossip's execution from going forward.

So while Richard Glossip gets to live until November 7, he's exhausted any way to extend his life beyond that — even though there are still serious questions about his guilt.

At the last minute, Oklahoma realized it might not be using the right drugs

In June, the Supreme Court upheld the three-drug cocktail that Oklahoma used for executions, involving an experimental drug called midazolam. The Court ruled (in a case filed by Glossip and other Oklahoma death row inmates) that the regime wasn't unconstitutional, even though there's a risk of a very painful death.

But that cocktail wasn't the same one Oklahoma was about to use on Glossip. In the past, Oklahoma had used potassium chloride as one of the drugs; today, it was preparing to use potassium acetate. According to Fallin, the state isn't sure whether a cocktail with potassium acetate is still covered under the Supreme Court's decision. So she's granted Glossip another 37 days of life, in time for the state to order potassium chloride or get an approval to use potassium acetate.

But this stay is purely a technical one — there's nothing that indicates that Glossip and his lawyers will get any chances for a further delay during the 37-day span. And it came after the Supreme Court had denied a final stay of Glossip's execution themselves.

That means that the final word on Richard Glossip's guilt or innocence is likely to remain that of the Oklahoma Court of Criminal Appeals, which decided in a 3-2 decision on September 28 that there wasn't enough new evidence to reconsider Glossip's guilt. That put a very hasty end to a long process about which a lot of people still have serious doubts.

Glossip didn't kill Van Treese himself. He was convicted on the testimony of the man who did.

Everyone agrees that Glossip helped cover up the murder of Van Treese, who was Glossip's boss at the Best Budget Inn. But everyone agrees he didn't kill Van Treese himself. A fellow employee, Justin Sneed, confessed to killing Van Treese with a baseball bat.

But prosecutors argue that it was Glossip's idea to kill Van Treese because Glossip was embezzling money from the motel and was worried Van Treese would find out and fire him. So, prosecutors claim, he promised to pay Sneed to kill Van Treese instead.

There wasn't much evidence to support this theory. Van Treese's own brother testified that the budget shortfall at the motel wasn't that big — and detailed records about the motel's finances were apparently destroyed in a flood. The prosecution didn't present physical evidence tying Glossip to the crime scene; Sneed testified that Glossip helped him cover a window that was broken during the fight that led to Van Treese's death, but the shower curtain and duct tape used to cover the window weren't tested or entered as evidence. (They've since been destroyed, too.)

Instead, the case against Glossip rested on one witness: Sneed himself. Glossip was convicted of murder because the man who confessed to committing the murder claimed it wasn't his idea.

Both men were charged with murder, and both were convicted. But prosecutors only sought the death penalty in Glossip's case. Sneed, after cooperating with prosecutors by testifying against Glossip, was sentenced to life without parole.

Glossip filed an appeal, arguing that his defense team hadn't represented him adequately and prosecutors had engaged in misconduct. In 2001, the Oklahoma Court of Criminal Appeals agreed, overturned Glossip's conviction, and granted him a retrial. Among the reasons listed by the court for granting the retrial: The jury hadn't seen the video of Sneed's taped confession and interrogation by police.

Before Glossip's second trial in 2004, prosecutors offered him a plea deal: If Glossip pleaded guilty to second-degree murder, the prosecution would take the death penalty off the table. Glossip refused. At the second trial, his defense team again didn't show the videotape of Sneed's confession to jurors, and Glossip was convicted again. This time, the Court of Criminal Appeals upheld the conviction.

The Glossip case shows the problem with building death penalty cases on "jailhouse snitches"

The use of a single witness to seal a death penalty case is worrisome enough to some defense lawyers. But it's especially worrisome when that witness is what's known as a "jailhouse snitch" — someone who's also facing criminal charges, and who has an incentive to tell prosecutors what they want to hear in exchange for a lighter sentence.

A 2005 study by Northwestern Law School's Center on Wrongful Convictions found that (in the words of a Pew Charitable Trusts report) "snitch-dependent prosecutions are a leading cause of wrongful convictions in death penalty cases." And according to the Innocence Project,15 percent of death row inmates who were later exonerated by DNA evidence were initially convicted and sentenced because of the testimony of "people with incentives to testify."

Sneed fit solidly in the category of jailhouse snitch. And during the nearly 20 years since the murder, evidence has continued to come out that suggests Sneed is, at the very least, an unreliable witness.

First, there's the problem of Sneed's testimony: As the murder got further away, Sneed appeared to remember even more details that implicated Glossip in it. (The Intercept's Liliana Segura and Jordan Smith, whose coverage of the Glossip case has been excellent, wrote a very good rundown in July.) In the first trial, Sneed said Glossip had offered him $7,000 to kill Van Treese; by 2004, it was $10,000. And while Sneed had initially said he'd only ever met Glossip a couple of times, by 2004 he was claiming that Glossip had already told him to kill Van Treese "five or six times" by the time he actually did it.

Second, there's mounting evidence that Sneed wants to take back his testimony. In 2014, Sneed's daughter wrote a letter to the Oklahoma state government asking for clemency for Glossip. In it, she said that Sneed had only testified against Glossip to avoid being sentenced to death himself:

For a couple of years now, my father has been talking to me about recanting his original testimony. But he has been afraid to act upon it, for fear of being charged with the Death Penalty [...] He has asked me several times to look into what the legal ramifications would be to his own case if he recanted.

My father told me he said what he had to say to police to stay in my life. He was backed into a corner, facing being charged with the Death Penalty. But he was offered a Plea Agreement, of Life without Parole, to testify against Mr. Glossip.

In August 2015, the videotape of Sneed's confession to police — the one that helped lead the appeals court to overturn Glossip's first conviction, but wasn't shown to the jury in the second trial either — was finally released to the public. In it, Sneed admits that he had been coming off a meth binge when he killed Van Treese. Furthermore, the videotape shows that — despite Sneed's testimony at the 2004 trial — it was interrogators who told Sneed that they'd also arrested Glossip, and encouraged him to name someone else who'd been involved in the murder. As Oklahoma's KATV reported:

At the time of the interview, Sneed doesn’t even know Glossip’s full name, and told detectives he was a good guy who he got along with.

However the police officers tell Sneed repeatedly they believe he was not alone in the crime. They tell him things will "go better" for him if he cooperates and gives them information about who else was involved. The police interrogators finally tell Sneed, after half an hour of no luck getting him to confess, they have arrested Richard Glossip as an accomplice.

"Whose idea was it?," the detectives can be heard asking, "Was it all your idea; the whole thing?"

Sneed answers, "No sir."

"OK, then tell me about it," the detective said.

"Rich [Glossip] told me, he would uh steal what money and we could get out of Barry, I think that's his name was Barry…"

There's increasing evidence that at least 4 percent of people sentenced to death are innocent

A 2014 study in the Proceedings of the National Academy of Sciences estimated that if every prisoner on death row had his case scrutinized for 21 years, 4 percent of them would eventually be found to be innocent. But while death row inmates do get years of scrutiny and appeals before their executions (one reason that death penalty cases have gotten so long and expensive in recent years), they don't get quite that many:

time on death row

(Bureau of Justice Statistics via the Death Penalty Information Center)

The inescapable conclusion is that the US has executed innocent people. And in fact, there are cases where people have been exonerated by DNA evidence after their executions.

Glossip is never going to get exonerated by DNA evidence, because everyone agrees he didn't murder Van Treese himself (and the only possible DNA evidence that could show that Sneed's testimony was incorrect has been destroyed). But the extra scrutiny his case received demonstrated that there is a bigger chance he might be innocent than jurors believed when they convicted him both times. That's why the open letter submitted to Oklahoma Gov. Mary Fallin by the Innocence Project was co-signed by Tom Coburn.

Coburn supports the death penalty, but he was worried it's about to be used to execute an innocent man.

Should Glossip's execution be put on hold even if he may never be fully exonerated?

The problem for Glossip's lawyers is that it's extremely hard to get an execution overturned at the last minute, unless there's new evidence that exonerates the defendant. And because that evidence will be impossible to produce (unless Sneed actually confesses that Glossip didn't tell him to kill Van Treese), their options are seriously limited.

Instead, in the weeks before the execution, Glossip's lawyers and the press uncovered more evidence that bolstered their existing cases: that Sneed was lying when he testified against Glossip, and that prosecutors badly mishandled the case. The lawyers presented a sworn affidavit from a man who'd served time in prison with Sneed, who said that "among all the inmates, it was common knowledge that Justin Sneed lied and sold Richard Glossip up the river."

Then, the night before Glossip was to be executed, Oklahoma City's Fox affiliate reported that prosecutors had destroyed a box of evidence in 1999 — before Glossip's first appeal had been heard and his conviction overturned. The box reportedly contained more information about the motel's financial records — the information that Glossip has long claimed would prove he wasn't embezzling from the motel. In other words, the Fox affiliate discovered that there might have been evidence that would disprove the supposed motive in Van Treese's murder — but that that evidence was now never going to come to light.

Those discoveries were what prompted the Oklahoma Court of Criminal Appeals to delay Glossip's execution for two weeks so they could look over the new evidence in full. But ultimately, they weren't enough. Defense lawyers had already been arguing Sneed lied — and having more evidence for it was just an expansion of their original argument. And the evidence of prosecutorial misconduct didn't prove, one way or the other, Glossip's guilt in the original case.

Neither discovery counted as new evidence in Van Treese's murder itself — which is the standard the court said it needed to justify another delay. But there will never be new evidence in the murder that could exonerate Glossip. There's only a piling on of doubt. That isn't enough for a legal remedy that would save him from execution — it's just enough to make a lot of people, no matter how Glossip is ultimately executed, very, very uneasy.

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