Richard Glossip, who was sentenced to death in Oklahoma State for a 1997 murder, has been granted a new trial by the Supreme Court, Glossip v. Oklahoma, 604 U.S. –, 2025 WL 594736 (Feb. 25, 2025). The Court’s opinion recounts some of the saga of Mr. Glossip’s case.
Ten years ago, Mr. Glossip’s case first came to the Supreme Court in a failed challenge to Oklahoma’s lethal injection protocol. See Glossip v. Gross, 576 U.S. 863 (2015). In the intervening years, new revelations have cast doubt on his guilt and the reliability of evidence presented against him at trial.
The Supreme Court ultimately orders a new trial based on prosecutorial misconduct, in light of its prior ruling in Napue v. Illinois, 360 U.S. 264 (1959). In Napue, the Court held that a prosecutor’s knowing use of false evidence to obtain a conviction violates due process.
Glossip includes a useful reiteration of the Napue rule, along with a helpful example of how this should work in practice: A prosecutor violates due process by knowingly using false evidence or testimony at trial. This includes both soliciting false testimony and failing to correct false testimony given by a witness. And such false testimony can be material even if it “goes only to the credibility of the witness.” When a prosecutor solicits or lets stand this sort of false testimony, a defendant is entitled to a new trial whenever the testimony “may have had an effect on the outcome of the trial” or if there is “any reasonable likelihood” it “[could] have affected the judgment of the jury.” Put differently, the prosecutor must prove “beyond a reasonable doubt” this false testimony “did not contribute to the verdict.”
In Mr. Glossip’s case, prosecutors violated due process by failing to correct a cooperating witness’s testimony about his own mental illness and treatment. The witness lied about having previously been diagnosed with bipolar disorder, and the reason he had been prescribed lithium. Based on other facts, the prosecution must have known the witness’s testimony on this issue was untrue. Correcting these lies would have cast doubt on the witness’s credibility. And the failure to correct his testimony, and acknowledge its falsity, was significant even though the defense otherwise sought to discredit the witness: although the cooperator was “nobody’s idea of a strong witness,” the prosecution’s “correction would have revealed to the jury not just that [the witness] was untrustworthy (as amicus points out, the jury already knew he repeatedly lied to the police), but also that [the witness] was willing to lie to them under oath. Such a revelation would be significant in any case ….”
Accurate information about the witness’s mental illness also would have undermined the prosecution’s argument that this witness was simply following Glossip’s instructions in his violent acts, and supported a defense argument that he might have been prone to “impulsive violence” on his own. For these reasons, Mr. Glossip is entitled to a new trial.
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