Richard Glossip has been on death row for over 25 years. He has maintained his innocence in a murder-for-hire conviction that he first received in 1998. He has lived through nine execution dates and eaten three last meals, and he claims that his death penalty trial was tainted by massive and egregious procedural error. Oddly enough, the state of Oklahoma agrees with him, and yet that state’s Supreme Court wants to execute him anyhow. On this week’s Amicus podcast, Dahlia Lithwick spoke to his pro bono attorney, Don Knight, about last Wednesday’s oral argument in Glossip’s case at the high court. Knight is a trial attorney, licensed in Colorado, who advises on death penalty cases around the country. He’s been working to have Richard Glossip receive a fair trial for over a decade. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: This litigation has been going on for over a quarter of a century, from the date of the alleged murder for hire to the not one but two jury trials, to the many appeals that followed. Can you unroll the extent of the processes that have happened here and why this has been going on for over two decades?
Don Knight: Richard Glossip was accused in January of 1997 and didn’t face his first trial until June or July of 1998. He was represented at that time by an attorney that I think his family had known, a terrible lawyer. They paid him, I’m not kidding, $2,500 to do this death penalty case. That lawyer had never tried a capital case before. It was so bad that when it got around to the time of the penalty phase, he didn’t know what that penalty phase was. When it got to the Oklahoma Court of Criminal Appeals, in a unanimous 5–0 decision, without even taking argument, they found ineffective assistance of counsel and sent it back for a new trial. In 2004, there was a second trial. This time the lawyers were working with the Oklahoma Indigent Defense Services, and they really did no better job for Rich Glossip than that first trial. It’s important to note that trials are the tip of the iceberg. The rest of the iceberg is all the things you have to do before you get to trial. You have to do the investigation, you have to talk to witnesses, you have to prepare witnesses, you have to know what the other side’s going to say, you have to be prepared to rebut it. There are so many things that go into doing a proper trial, and these lawyers did none of that.
There was also a lousy, lousy police investigation to begin with. Prosecutors in the first trial did things that they should not have done, then it all got overturned and went to these second lawyers who picked it up. I don’t think they even read the transcripts. The transcripts are a golden opportunity for cross-examination purposes in any second trial, but it does take a lot of work. Reading transcripts is not easy. You have to go through it, and you have to prepare. They didn’t do any preparation at all. So the second trial was another travesty.
Next came the appeals. The Oklahoma Court of Criminal Appeals is the highest court of criminal jurisdiction in Oklahoma. There’s only one appeal to that court. In most states, there are two appeals, but in Oklahoma, there’s one appeal, and that’s to the Oklahoma Court of Criminal Appeals. Then there’s the trip to the United States Supreme Court in 2015. I got involved in the spring of 2015 after Sister Helen Prejean called me and said, “Can you help? This guy’s innocent.” But by that point in time, there’s essentially no process left.
But in September and October of 2015 Richard Glossip was given three successive stays of execution. That gave me some time to get down to Oklahoma and to start talking to some witnesses. Oklahoma started a moratorium on executions that we thought would last a year, but it actually ended up lasting six years. With that six years, I started doing a lot of work on the case. A documentary was made about the case, and that gave us some more witnesses, but most importantly from the documentary, a politically connected man in Oklahoma watched the documentary and got in touch. He invited me down to do some bird hunting in Oklahoma. He introduced me to a lot of politicians, and we began to think that maybe the way through this process was to try to work with the other two branches of government, rather than the judicial branch. The judicial branch didn’t seem like they were very favorable to us in Oklahoma. So we decided we would see what politicians could do. We began to get some people who would look at the case in a fair way; politicians, and they would opine on Rich’s execution, and the fairness that he received or didn’t receive. That took us up to 2021 when they began to execute again. The legislators commissioned an independent investigation into Rich’s case, which produced an incredible 350-page report by the international law firm of Reed Smith. It said, “If a jury heard all the evidence that we now have, it’s very clear that they would not find this man guilty.”
We went through several more execution cycles. The governor gave us two reprieves along the way, 60-day reprieves, which saved Rich a couple of times. Then a new state attorney general came in who opened up these new boxes of documents related to the case. Those boxes contained documents that gave us the information that ultimately ended up in the petition that was granted before the United Supreme Court, which brings us to last Wednesday.
I’m remembering Justice Stephen Breyer’s dissent in the 2015 Glossip case at the U.S. Supreme Court as a kind of cri de coeur, asking, Can we please talk about the death penalty? Can we please talk about the United States as an outlier? Can we talk about the racial bias? Can we talk about the unbelievable penalty you pay if you are poor on death row? Can we talk about all of the ways in which the death penalty as currently administered is a sin? But we are not having that conversation, are we? We were probably having it for a nanosecond after Justice Breyer’s Glossip dissent, but whatever it was that happened at oral argument last Wednesday in Glossip, it was not a meta-conversation about how we do capital punishment and what finality means. You’ve been doing this for a long time.You live in these trenches. Am I wrong to just be slightly heartbroken that this conversation about jurisdiction and procedural bars is likely the most sophisticated conversation we will have this year at the Supreme Court about the way we execute people in America?
Breyer’s dissent in Glossip v. Gross was really a tour de force on the federal death penalty in this country, and probably the most powerful since Gregg v. Georgia back in the ’70s. I don’t know if somebody’s going to pick up the mantle from Justice Breyer and say that we need to talk about this, even though at argument we didn’t talk about this. We’re not even talking about whether he is innocent or not. We’re talking about whether he actually got fair process—and he didn’t get fair process. We know that, because the attorney general of the state of Oklahoma has said Richard Glossip didn’t get fair process. At what point in time do regular people say, I don’t trust our criminal justice system anymore? At what point do they say, I don’t trust that I’m going to get fair process when I go to court? And if that doesn’t happen in the criminal justice system, what about the civil system? What happens to a country where we get to a place where nobody believes in the rule of law anymore? I think we all know what happens, and it’s not OK.
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