Is Oklahoma About to Execute an Innocent Man?

By Kristen Gwynne, Guardian UK

13 September 15

In a case that has drawn the attention of Sister Helen Prejean and Susan Sarandon, attorney says Glossip has been sentenced to death ‘because he’s poor’ as lawyers race to win a 60-day stay before Wednesday’s scheduled execution

klahoma death row inmate Richard Glossip may be running out of time before Wednesday, when he is scheduled to be executed by lethal injection, but the attorneys fighting tooth-and-nail to convince Governor Mary Fallin to grant him a 60-day stay of execution announced this week that they have uncovered new information adding doubt to his already widely contested conviction.

In several new statements from sources with knowledge of the case, Glossip’s attorneys on Friday challenged the narrative of the prosecution’s most important witness and, days before he is to be executed, put new fuel on a fire that has been carried by several of Glossip’s high-profile supporters, including activist Sister Helen Prejean and actor Susan Sarandon.

At issue are several competing narratives of what happened one night in early January 1997, when Barry Van Treese was bludgeoned to death at his Best Budget Inn in Oklahoma City. At trial, the prosecution claimed Glossip hired maintenance worker Justin Sneed to kill Van Treese, his boss, before he discovered money they say Glossip had embezzled. He and Glossip then split about $4,000 Sneed stole from Van Treese’s car, and covered up a window broken during Sneed’s struggle with Van Treese.

Glossip’s original defense argued that physical evidence placed only Sneed at the scene of the murder, and that shortages used to prove Glossip’s embezzlement were insignificant, as Van Treese’s brother, who took over the hotel after Van Treese’s death, testified in court.

Now, nearly 20 years later, a new legal team is arguing that the case against Glossip was built on the testimony of the actual murderer, whose account of the night grew more and more elaborate with each retelling and was not adequately disputed in trial as he cast blame on Glossip.

Glossip’s attorneys said “exonerations of death-sentenced inmates are common under similar circumstances”, in which testimony but no physical evidence ties them to the crime.

“Richard is sentenced to death because he’s poor,” Glossip’s new attorney Donald Knight told the Guardian. “Not very many people can afford a death penalty defense. That should scare everyone.”

With 60 more days, his attorneys say they could gather more evidence to present a petition allowing them to litigate in a court that could grant a new trial or a clemency review.

Twice convicted

Glossip was convicted in twice – in 1998 and at a retrial in 2004 – of murder. He came within a day of execution in January before being granted a stay, as his name was attached to a landmark supreme court appeal over the lethal injection drug midazolam, which has been used in several botched executions, including one in Oklahoma last year. In June, the court ruled the drug’s use to be constitutional, and Glossip’s date with death was set in July.

There is no DNA or nor any fingerprints linking him to the 1997 murder of Van Treese in the Best Budget Inn in Oklahoma City. His lawyers this week noted that the prosecutors themselves admitted in 2004 that “the physical evidence doesn’t directly implicate Mr Glossip”.

Rather, Glossip was convicted based on the testimony of Justin Sneed, a 19-year-old maintenance worker who, at various points during his police interrogation a week after the murder, said he didn’t know Van Treese, then that he didn’t kill van Treese, then that he had killed him accidentally, and then that he had killed him intentionally, under Glossip’s instruction. Eventually, Sneed agreed to a plea deal in which he would testify against Glossip to save himself from the death penalty.

Transcripts of the police interrogation show Sneed first denied any knowledge of the murder. “I don’t really know what to say about it,” he told investigators, stumbling over a story about his brother before admitting that he robbed Van Treese but “I only meant to knock him out”.

“The thing about it is, Justin, we think – we know that this involves more than just you, okay?” Detective Bob Bemo said to Sneed, later introducing Glossip as a snitch. “You know Rich is under arrest don’t you?… [H]e’s putting it on you the worst.”

Sneed’s story shifted.

“Actually, Rich asked me to kill Barry, that’s what he’d done,” Sneed said, and investigators took the conversation off-camera, where Sneed signed a plea deal.

In a version of events on which he would later elaborate even further, Sneed claimed Glossip woke him up and sent him into Van Treese’s room to get the keys to Van Treese’s car, where he stashed the cash profits he obtained during his bi-monthly visits to check up on his motel. Sneed said the two split the roughly $4,000 he found in the front seat.

‘Selling a product to the jury’

As the police and prosecutors began to build their case against Glossip, he says now, he began to realize how powerless he was to tell his side of the story. His new attorneys say the conviction is the result of an aggressive prosecution unmatched by a meek defense.

In 2001, the Oklahoma Court of Criminal Appeals unanimously and without oral argument overturned Glossip’s first conviction due to the inadequacy of his first and since-disbarred counsel, Wayne Fournerat. The state re-tried Gosslip in 2004, but his public defenders grappled with the same problem of how to overpower the prosecution’s narrative.

“Basically, you’ve got prosecution trying to sell their product to the jury” – their product being the idea that Glossip offered to pay Sneed for Van Treese’s murder, Knight, Glossip’s new attorney, said of the trials. “Now, to be effective, you need a counter-narrative.” The juries didn’t get that counter-narrative, and Glossip was convicted of capital murder, twice.

At both trials, Glossip’s attorneys did not introduce the videotape of Sneed’s interrogation, which showed leading questions from investigators coaxing Sneed into implicating Glossip. Without the video showing how Sneed’s story changed, Glossip’s defense struggled to discredit Sneed’s evolving theories, the prosecution’s most influential testimony.

In their new reports, Glossip’s defense points out how Sneed’s testimony at trial became even more elaborate than it was in statements to investigators. While he had first claimed that Glossip called him in the middle of the night with instructions to kill Van Treese, Sneed at trial suggested pre-meditation. Glossip had been hounding him to commit the murder, he said, and even instructed him to “pick up some trash bags, a hacksaw, and muriatic acid” to dispose of the body after-the-fact.

Sneed’s daughter, O’Ryan Justine Sneed, attempted to save Glossip’s life by tarnishing her father’s credibility. In a letter to the Oklahoma Parole and Pardon board that arrived too late to be presented at Glossip’s October clemency hearing, she wrote: “I am sure that Mr Glossip did not do what my father originally said, that he did not hire my father to kill Mr Van Treese, and he doesn’t deserve to die over my father’s actions.”

She said her father implicated Glossip out of fear of the death penalty, and still fears recanting his testimony at the risk of losing his life.

In a statement released by his defense, Richard A Leo, a professor at the San Francisco University School of Law, says the tactics used by the investigating officers “are substantially likely to increase the risk of eliciting false statements, admissions, and confessions”. It was not Sneed who initiated the accusation that Glossip orchestrated Van Treese’s murder, Leo said, but investigators who “presumed the guilt of Richard Glossip from almost the start and sought to pressure and persuade Justin Sneed to implicate Richard Glossip”. To secure Sneed’s testimony would support their theory, Leo said, investigators lied about witnesses testifying against him and implied that by failing to incriminate Glossip, he would face a harsher punishment for killing Van Treese.

Recently, a juror from Glossip’s first trial told Oklahoma City’s Fox 25 TV station: “If the defense would have presented the case that they are presenting now in the original trial, (and dare I say in even the jurors in the second), I would not have given a guilty verdict.” Though she thinks Glossip at least helped cover up the murder, she also believes Governor Fallin should implement a 60-day stay so the new evidence can be heard.

Knight told the Guardian Glossip’s second round of defense “did a pathetically horrible job of investigating the case”. In Knight’s filings to the governor’s office, he says the lawyers did not adequately prepare for trial and did not question key witnesses like D-Anna Wood, Glossip’s girlfriend, who could have provided alibis for Glossip when Sneed said he was helping him to cover up a crime.

The new attorneys say Glossip’s earlier defense lawyers did not challenge a gruesome bit of evidence adding a layer of malice to Glossip’s role. While the prosecution’s pathologist claimed that Van Treese was left in a pool of his own blood dying for up to eight hours, a Fox 25-commissioned review of the autopsy, cited as new evidence by the attorneys on Friday, found that Van Treese died within 30 minutes. Fox 25 said jurors at the second trial cited the importance of the claim that Glossip chose to leave Van Treese to die, rather than call police for his rescue, in their decision.

A coalition of support

Pro bono attorneys and investigators paid for through donations from “thousands of supporters” spent the past several weeks “working tirelessly to conduct the investigation that was never done prior to either trial”, Glossip’s team said on Friday.

“I never thought it would get this big and make this big a difference in the world,” Glossip told the Guardian in a phone interview.

As his execution date draws near, Glossip has received letters from inmates and supporters across the world, appeared on the Dr Phil show with Sarandon and Sister Prejean in August, and this week, received an endorsement from Virgin mogul Richard Branson, who penned a blog post calling for his reprieve. More than 50,000 people have signed a petition urging Fallin to stop Glossip’s execution.

Former Oklahoma senator Tom Corbin put his name to a letter on Friday signed by several high-profile legal experts urging Fallon to keep Glossip alive.

“Unless you act, the State of Oklahoma will put Mr. Glossip to death for the murder of Barry Van Treese. Justin Sneed – who, by his own admission, beat Van Treese to death with a baseball bat – will not meet that fate,” they wrote.

“The writers of this letter have a wide range of professional backgrounds and political perspectives. But we share a deep concern about the integrity of the criminal justice system in Oklahoma and throughout the United States. We are particularly concerned about the danger of executing an innocent man.”

Glossip said he has learned through his encounter with US courts how flawed the criminal justice system is. “When I was out there, I didn’t understand that was happening – out of sight, out of mind. But when it happens to you, it wakes you up,” he told the Guardian. “I think execution, period, is a mistake. I don’t think there’s a humane way of doing it.

Glossip said though he was happy to be alive, he had prepared to face death. “I don’t want to be a martyr, and I don’t want to die. Believe me, I want to live, but if my death would stop anybody else from having to go through what I went through for 18 years, I’d be more than happy to die for them.”

“I just want everyone to know the truth,” he said. “If this can happen to me, it can happen to anyone.”

While Governor Fallin has defended Glossip’s execution and pointed to his two trial convictions, Glossip’s team of supporters have vowed to keep fighting. At 1:46 am on Saturday, Knight told the Guardian, he received a call from a guest at the hotel the night of the murder. The man did not have information useful to Glossip’s team, he said, but the call is evidentiary of “how investigation has gone”.

“Some things happen, people see reports in the media, and all of the sudden, more people are coming forward. That seems to be how it continues to roll. There is no reason to believe that’s going to stop tomorrow or the next day,” Knight said.

“We are not finished, and will not be finished before Wednesday,” Knight said, There simply is not enough time.”