By Robert Phillips, Deputy District Attorney (Ret.)

Legal Issues and Case Citation: 

• Fourteenth Amendment due process 
• False evidence and the prosecution’s duty to correct 
• Glossip v. Oklahoma (Feb. 25, 2025) U.S. [145 S.Ct. 612; 221 L.Ed.2nd 90] 

Rule: The prosecution’s failure to correct false or misleading evidence presented at trial constitutes a Fourteenth Amendment due process violation, providing grounds for reversible error. 

Facts: Defendant Richard Glossip worked for Barry Van Treese, the owner of two Best Budget Inns, and managed Van Treese’s Oklahoma City inn. In the summer of 1996, Glossip hired a 19-year-old man named Justin Sneed to do maintenance and housekeeping in exchange for a free room. Allegedly unbeknownst to Glossip, Sneed had a history of violence, angry outbursts and substance abuse. On Jan. 6, 1997, Van Treese visited Glossip’s Best Budget for the purpose of collecting the cash deposits. Van Treese suspected at the time that Glossip had been allowing guests to stay at the motel “off the books,” pocketing the money for himself. After Van Treese discussed this issue with Glossip and then retired to his motel room, Sneed snuck into Van Treese’s room and repeatedly beat him over the head with a baseball bat, killing him.  

In the ensuing investigation by local law enforcement, during the initial stages of which Sneed evaded arrest, Glossip denied any knowledge of the murder. Contrary to Glossip’s initial statements, however, an in-depth investigation eventually revealed that Sneed had come to Glossip’s room immediately after the murder and told Glossip what he had done. Glossip immediately began directing a coverup. That night, he directed Sneed to take Van Tresse’s car and hide it after retrieving about $4,000 in receipts from it. He later told various witnesses that he had seen Van Treese alive and well at around seven o’clock the morning of the 7th, although in reality Van Treese was already dead.  

Eventually, however, his story began to unravel. When initially questioned by police, Glossip told investigators that he suspected Sneed had something to do with the murder, explaining that he had heard glass breaking the night of the 6th, after which Sneed came banging on his door. Glossip, however, denied he had anything to do with the murder. But several days later, he was taken into custody after failing to appear for a second interview with homicide detectives. When arrested, he was found to have $1,757 in cash and no explanation for where he’d gotten it.  

He was interviewed again. This time Glossip admitted knowing about the murder immediately after it occurred. He claimed to have covered it up to protect himself, knowing that he was involved in it, albeit after the fact. Sneed was arrested five days after the murder with $1,680 in bloody cash recovered from his person; suspected to be part of the money that was stolen from Van Treese’s vehicle.  

When interviewed, Sneed claimed that robbing Van Treese was Glossip’s idea. Upon further questioning, he eventually admitted to breaking into Van Treese’s room and beating him with a baseball bat until he “figured he was knocked out.” Sneed also admitted to having taken Van Treese’s car keys, stealing an envelope with approximately $4,000 in cash from his car, and then splitting the money with Glossip. When officers pressed him for further details, Sneed finally asserted that Glossip had told him to kill Van Treese so that he could take over the operation of the motel. Oklahoma charged Sneed with capital murder.  

As for Glossip’s part, he was initially charged with being an accessory after-the-fact based upon the inconsistent statements he made to police. After Sneed’s interview, and upon the investigators deciding that they were finally getting closer to the truth as to the fatal events of Jan. 6, Oklahoma upped Glossip’s charges to capital murder. Recognizing, however, that they had some proof problems (with no witnesses other than Sneed), prosecutors offered Glossip a plea deal: plead guilty to murder and avoid a death sentence in return for testifying against Sneed. Glossip declined the offer, maintaining his innocence. So, prosecutors offered Sneed the same deal, an offer Sneed readily accepted.  

When Glossip’s case proceeded to trial, Sneed testified for the prosecution, telling the jury that he beat Van Treese to death “because [Glossip] asked him to do it.” In closing, the prosecution argued to the jury that Glossip had asked Sneed to kill Van Treese because he believed Van Treese planned to fire him for embezzling the motel’s profits. Apparently believing Sneed’s testimony, the jury convicted Glossip and sentenced him to death. It is significant to note that at this first trial, no evidence was presented to the jury concerning any anger issues Sneed may have had, or his possible drug use.  

For reasons having nothing to do with Sneed’s personal issues, the Oklahoma Court of Criminal Appeals (OCCA) unanimously reversed Glossip’s conviction. The OCCA noted that Sneed’s testimony was just about the only direct evidence connecting Glossip to the murder. The OCCA found that, “[t]he evidence at trial tending to corroborate Sneed’s testimony was extremely weak.” Noting that the defense counsel’s failure to cross-examine Sneed on his many inconsistent statements was “so ineffective” as to undermine any “confidence that a reliable adversarial proceeding took place,” the OCCA ruled that Glossip’s conviction failed to pass constitutional muster, necessitating a retrial.  

In preparation for a second trial, Glossip again rejected the prosecution’s offer to take the death penalty off the table in exchange for a plea of guilty. So, the prosecution proceeded to trial again. To bolster the strength of its case, the prosecution added witnesses confirming Glossip’s statements to police and others feigning ignorance about Van Treese’s murder. Evidence also came out that Sneed had attacked Van Treese with a knife in addition to the baseball bat. Evidence was also admitted that suggested Sneed, while in custody, had asked for Sudafed for a cold. Sneed testified, however, that “somehow they ended up giving me lithium for some reason, I don’t know why. I never seen no psychiatrist or anything.” Sneed then testified for the first time “that he used illegal drugs including marijuana and ‘crank’ (methamphetamine) ‘twice a week’ prior to his arrest.”  

Sneed further testified about Glossip’s purported motives for killing Van Treese, telling the jury that Glossip had suggested “robbing Barry of his money.” And lastly, Sneed testified that Glossip “told (him) at one point that with Mr. Van Treese out of the way...he would be able not only (to) manage the motel (in Oklahoma City) but also another one they had (in Tulsa), and that he had worried he ‘was going to get fired’ because a couple of the rooms that were already supposed to be remodeled...weren’t.”  

Glossip again was convicted and sentenced to death, a decision upheld this time by a closely divided OCCA. The opinion voiced no concerns about the evidence introduced of Sneed’s drug use. Glossip, however, continued to maintain his innocence as he filed habeas petitions in both state and federal court, to no avail. However, pursuant to the old adage that the squeaky wheel gets the oil, several members of the Oklahoma legislature took an interest in Glossip’s case and formed a bipartisan group of 62 legislators who took the unusual step of retaining the private law firm Reed Smith to conduct an independent investigation into the case.  

Reed Smith eventually reported that it had “grave doubt as to the integrity of Glossip’s murder conviction and death sentence.” The law firm made several findings which, if true, suggested strongly that there was inexcusable prosecutorial misconduct. Specifically, it was alleged that the prosecution had deliberately destroyed “key physical evidence” before Glossip’s retrial, including several items from the crime scene and the motel’s receipts and bank deposit books, which may have been relevant on this issue of Glossip’s alleged embezzlement.  

It was further alleged that the state had “falsely portrayed Sneed at trial as a meek and non-violent ‘puppet.’” Even more disturbing to Reed Smith were allegations that evidence concerning Glossip’s alleged motives and actions on the morning after the murder had been provided by a former police officer of “very limited honesty and integrity who was jailed for making false statements shortly after Glossip’s second trial.” (No further details were provided about who this officer was or the nature of his apparently false testimony.)  

Two months after Reed Smith issued its report, the prosecution disclosed that it had withheld seven boxes of documents. Found within those boxes was a note the lead prosecutor had sent to Sneed’s lawyer before Sneed testified at the second trial. The note concerned “a few items that have been testified to that (the prosecutor) needed to discuss with Justin (Sneed),” including the “biggest problem,” which was the knife that was allegedly used along with the baseball bat. Specifically, the note contained the prosecutor’s concerns with inconsistencies concerning Sneed’s alleged use of a knife to kill Van Treese, and how he alone could have had control of a bat and a knife at the same time.  

Also found within these boxes were letters from Sneed to his attorney suggesting that he was thinking about recanting his testimony that had implicated Glossip prior to the second trial. Based upon this newly discovered evidence, Glossip filed another motion for post-conviction relief with the OCCA. Among other things, and perhaps most importantly, Glossip submitted that the prosecutor had interfered with Sneed’s testimony about the knife in violation of what is referred to as “the rule of sequestration,” defined as the act of prohibiting different witnesses from hearing each other’s testimony. The OCCA rejected Glossip’s arguments, finding them procedurally barred as well as meritless. 

But wait, there’s more! An eighth box of trial documents, “consisting of material (the prosecution) previously prevented the defense from obtaining,” was revealed shortly thereafter. Inside Box Eight was a page of notes handwritten by the prosecutor, Connie Smothermon, during a pretrial interview with Sneed, indicating “that Sneed had told her that he had been ‘on lithium’ not by mistake, as previously alleged, but as prescribed for him by a “Dr. Trumpet.” It was easily deduced that Sneed was talking about the only psychiatrist who worked in the Oklahoma County jail where Sneed was being held, Dr. Larry Trombka.  

Belatedly discovered medical records, which had been withheld despite Glossip’s attorney’s motion for discovery, showed that Sneed had received lithium while in custody to treat his previously undisclosed bipolar disorder. It was subsequently determined that Sneed “was not in fact mis-prescribed lithium” for a cold, as originally believed, “but rather diagnosed with bipolar disorder and treated with lithium under the care of a psychiatrist.” Making matters worse, it became apparent that prosecutor Smothermon, while aware of these facts, had purposely “elicited false testimony from Sneed” on this subject.  

Independent counsel was thus appointed by the Oklahoma state attorney general for the purpose of conducting yet another review of Glossip’s conviction. This attorney submitted a report to the attorney general making a number of determinations, including that the prosecution had violated both Brady v. Maryland and Napue v. Illinois. As a result, it was recommended that “the state...vacate Glossip’s conviction” and “correct what (the independent counsel) believe(d) was false trial testimony of its star witness.”  

As a result, Glossip filed another “successive petition” for post-conviction relief with the OCCA, asserting violations of Brady and Napue, as well as cumulative error and actual innocence. Although Oklahoma’s attorney general did not endorse Glossip’s innocence claim, he conceded that Glossip was entitled to a new trial. Despite this concession, and despite it being unopposed, the OCCA denied Glossip’s petition, doing so without a hearing, noting that the attorney general’s concession alone was not grounds, by itself, for relief. Also, applying Oklahoma’s Post-Conviction Procedures Act (PCPA), the OCCA held that Glossip’s claims were procedurally barred.  

The OCCA further concluded that the evidence as presented by the parties did not create a Napue issue. The U.S. Supreme Court granted certiorari for the purposes of considering the Brady and Napue claims. 

Held: The Supreme Court reversed. The High Court ignored the Brady issue (dealing with the prosecution’s duty to disclose to the defense evidence that is “favorable to [the] accused” and “material either to guilt or to punishment.” See Brady v. Maryland (1963) 373 U.S. 83.) The court considered only the alleged Napue violation, in that it found the latter to be sufficient by itself to reverse Glossip’s conviction.  

The rule under the Napue decision (found at Napue v. Illinois (1959) 360 U.S. 264) is simple enough: “(A) conviction obtained through use of false evidence, known to be such by representatives of the state, must fall under the Fourteenth Amendment (due process clause).” In a unanimous opinion authored by Chief Justice Earl Warren, it was held in Napue that “(t)he principle that a state may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” (pg. 269.)  

The fact that the jury in the Napue case had been apprised of other grounds for disbelieving the prosecution’s star witness was held to be irrelevant. What was important, as noted by the Supreme Court, is the fact that that witness had testified falsely, and the prosecution knew this. As such, the jury was entitled to know the true facts. As a Fourteenth Amendment due process violation, the Supreme Court disagreed with the Illinois Supreme Court’s conclusion that “there was no constitutional infirmity by virtue of the false statement.”  

Applying the rule of Napue to the Glossip case, the Supreme Court concluded that the prosecution had violated its constitutional obligation to correct false testimony, and that this violation in itself constituted a Fourteenth Amendment due process clause violation.  

Following Napue, the court held that Glossip had shown that the prosecution knowingly solicited false testimony and knowingly allowed it to go uncorrected when it appeared. In that this error may have precipitated a “reasonable likelihood” that it affected the outcome of the trial, Glossip was entitled to another trial.  

What was the “false testimony ” It was undisputed that Sneed was afflicted with bipolar disorder and had been prescribed lithium to treat this by a jail psychiatrist. It was also established that lithium is used only for psychiatric treatments and not for dental pain (as Sneed had claimed at a pretrial hearing) or a cold (as Sneed testified to at Glossip’s trial). The court held that it was not reasonable to confuse lithium with Sudafed, which is an over-the-counter cold medication. Sneed’s trial testimony that he had been given lithium after asking for Sudafed and had “never seen no psychiatrist or anything” was therefore blatantly false, a fact which was known by the prosecution.  

This was an extremely important fact that was obviously material to the outcome of the case. Sneed having been diagnosed with a disorder that very well could have triggered impulsive violence when combined with drug use would have undoubtedly undermined the prosecution’s theory that Sneed was harmless on his own and needed Glossip’s assistance. The evidence also established that the prosecution knew Sneed’s testimony was false, having access to Sneed’s medical records and having discussed his medical condition with him. When prosecutors heard Sneed testify to a different version of the facts at trial – that the lithium had been mistakenly given to him after he asked for Sudafed because he had a cold – they had a constitutional obligation to correct this testimony.  

Because Sneed’s testimony was the only direct evidence of Glossip’s guilt of capital murder, the jury’s assessment of Sneed’s credibility was necessarily determinative. Other than Sneed’s testimony, there was no evidence that Glossip had orchestrated Van Treese’s murder. As such, the jury could reasonably have convicted Glossip only if the individual jurors believed Sneed. The prosecution’s purposeful failure to correct this misconception of the evidence precipitated by Sneed’s testimony – where it was argued that Sneed was in fact telling the truth – constituted a Fourteenth Amendment due process violation.  

Lastly, the court also held that while the prosecution’s failure to correct Sneed’s false testimony was sufficient to warrant a reversal, it was not the only violation by the prosecution of Glossip’s rights. The attorney general further admitted, for instance, to a violation of the rule of sequestration with respect to Smothermon’s apparent midtrial attempt to speak with Sneed about the knife he was alleged to have used, although the court did not explain how this act violated the rule.  

It was also noted that there was an alleged destruction of evidence, including the motel’s financial records as well as items Glossip and Sneed were believed to have handled in Van Treese’s room. Further, another prosecutor attested to the fact that there was a box of evidence containing 10 items (the nature of which are unknown) that was destroyed by the Oklahoma City Police Department. Also, the eight boxes of documents belatedly released to Glossip included written statements from Sneed evincing a desire to recant his testimony along with witness notes with details not previously turned over to the defense. For these reasons, the Supreme Court concluded that the prosecution’s failure to correct Sneed’s trial testimony violated the due process clause, entitling Glossip to a new trial. 

Note: This case, with a pile of sub-issues, is obviously of more importance to prosecutors than law enforcement officers. But the same result would have come about had it been the investigators who withheld relevant evidence, under the Brady decision, cops considered to be a part of the so-called “prosecution team.” Also note that the court named the Oklahoma prosecutor by name, leaving her actions a matter of national concern for all to read. As a prosecutor, you never want to be put into that position or subjected to that type of scrutiny. 

Whether Richard Glossip will ever suffer the ultimate penalty of death remains to be seen. It’s pretty clear to me from the evidence, as tainted as it was, that he orchestrated Van Treese’s murder. So far, however, his refusal to submit to a 199-year prison sentence in a plea bargain and his continual appeals have kept him off death row, at least as a permanent resident pending execution.  

But prosecutors nationwide are to take heed of this decision and the hard and fast rule that there is absolutely no benefit to withholding relevant and material evidence from a criminal defendant per the Brady decision, nor to failing to correct false or misleading testimony as it occurs, per Napue. Due process dictates that prosecutors and cops must remember to err on the side of caution in this regard. That does not mean there aren’t exceptions, albeit rare (a prosecutor’s private trial notes). When in doubt, however, it is strongly suggested that the trial court be appraised of the possible issue and given the final word as to whether the item or information at issue is discoverable. And then during trial, should a prosecutor hear false evidence by one of his or her witnesses, all proceedings must be stopped and, with the assistance of the trial court, a determination made as to how to correct that witness’ testimony. Violating this rule guarantees a reversal.