Politics

Paul Cassell | 10.2.2024 9:15 AM

In yesterday's post, I discussed Glossip v. Oklahoma—a case that the Supreme Court will hear next Wednesday about allegations that prosecutors withheld evidence in a death penalty trial. In that post, I reviewed my amicus brief for the murder victim's family, which contains extensive documentation proving that the prosecutors never withheld any evidence. In this second post, I discuss Glossip's and Oklahoma's (non)responses to the facts that I presented. The parties' failure to respond confirms that their Brady claim is concocted and that they are forcing the victim's family to endure frivolous litigation. Tomorrow, in my third and final post, I will explain why courts should be cautious before accepting an apparently politically motivated confession of "error" from a prosecutor.

In Glossip, the underlying question before the Supreme Court concerns whether state prosecutors withheld evidence from Glossip's defense team before his 2004 trial. In that trial, Glossip was found guilty of commissioning his friend, Justin Sneed, to murder Barry Van Treese. Glossip was sentenced to death. Now, nearly two decades later, Glossip argues that newly released notes from the prosecutors show that they withheld information about Sneed's lithium usage and treatment by a psychiatrist. And, curiously, Oklahoma Attorney General Gertner Drummond agrees. Drummond has joined Glossip in asking the Supreme Court to overturn the conviction and capital sentence.

As I reviewed yesterday, Glossip's and General Drummond's argument rests primarily on four handwritten words in prosecutor Smothermon's notes:

According to Glossip and General Drummond, these few words "confirm" Smothermon's knowledge of Sneed's treatment for a psychiatric condition by lithium by a "Dr. Trumpet" (later claimed to be a Dr. Trombka). But stepping back and reading the notes in context reveals a much different interpetation. Here are Smothermon's notes surrounding the four words in question:

In yesterday's post, I explained that looking at all of her notes reveals that Sneed was merely recounting what the defense team was questioning him about—not what the prosecutors had discovered. The defense team interview is reflected in the reference to "2x" (two interviews), including one by "women" that was "b4 [the] appeal" who were an "invest[igator]" and a person involved in the "appeal."

To the extent any question remains, the corresponding notes from the other prosecutor at the interview (Gary Ackley) show even more directly that Sneed was simply recounting a defense interview. The first line of Ackley's notes from the Sneed interview reads "W was visited by 2 women who said they rep[resented] Glossip—heavy—1 "inv" & 1 "Atty" Appellate?" Read for yourself:

As I pointed out yesterday, if the prosecutors' notes record what happened during a defense interview, obviously no Brady violation could exist. Because the prosecutors were simply recording what a state's witness recounted about questions asked of him by the defense team, the notes cannot contain information withheld from the defense.

In today's post, I review Glossip's and General Drummond's failure to respond to these facts. As with yesterday's post, today's post summarizes my amicus brief and also additional factual material contained in an appendix to my brief (linked here as a single document).

Glossip and General Drummond contend that the four words in the notes mean that the prosecutors possessed information that they should have disclosed to the defense. My contrary interpretation prompts the obvious question of what do the prosecutors say their own notes mean. The authors' explanation of what their own handwriting means would seem to be at least relevant to the discussion. But,........

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