By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
The movie version of Robert Bolt’s play A Man for All Seasons swept the Oscars in 1966. It seems to be largely forgotten now, except for a few law nerds who love it for one particular scene that contains a beautifully rendered illustration of the rule of law. Near the end of the first act, the Lord Chancellor of England, Sir Thomas More, is on stage with his wife Alice, his daughter Margaret, and his future son-in-law, William Roper. Richard Rich, whose dangerous ambitions have alarmed them all, has just departed, and Alice, Margaret, and William urge More to arrest him because he is a bad, dangerous man. More refuses, saying that Rich has broken no law. Exasperated, More’s wife bursts out:
Alice More: While you talk, he’s gone!
Sir Thomas More: And go he should, if he were the Devil himself, until he broke the law!
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?
Fidelity to the rule of law means that the right process is more important than any outcome, and for that reason prosecution can be hard on your heart. Despite our best efforts, despite doing everything right, sometimes what we (or the public) think of as the “right thing” just doesn’t happen. Sometimes a ruling isn’t what we think it should have been or a jury doesn’t follow what we laid out for them, and you lose a case you should have won. In those moments of heartache or disappointment, it’s hard not to think that “the system” didn’t reach the right outcome and let us down.
But did it really? Having an independent judiciary, a jury of the defendant’s peers, and a defense bar committed to the protection of the accuseds’ rights means to some extent that disappointment for the prosecutor is inevitable—it’s baked into the system. We’re never going to get every outcome we want or ask for, and we shouldn’t. The alternative is a society where the government’s power to do as it sees fit goes unchecked by the courts or the citizenry. I am not saying we should be happy when we lose a case that we feel we should have won, only that we can’t be so focused on getting the “right” outcome that we lose sight of the system and the law that restrains us.
Bearing that in mind, we must be experts on not only what the law requires us to prove, but also on how it requires us to ethically do so. This column involves a recent opinion of the U.S. Supreme Court, Glossip v. Oklahoma,[1] which deals with the prosecutor’s constitutional duty to correct testimony he or she knows to be false under Napue v. Illinois.[2]
Background
Richard Glossip was the live-in manager of an Oklahoma City motel owned by Barry Van Treese. Glossip hired 19-year-old Justin Sneed as the motel’s handyman, allowing him to live in the motel as payment. Sneed had a history of violence, angry outbursts, and abuse of marijuana, methamphetamine, cocaine, and LSD.
In late 1996, owner Van Treese began to suspect, after checking Glossip’s accounting, that the manager was allowing guests to stay at the motel off the books and pocketing the money. On January 6, 1997, Van Treese visited the motel and confronted Glossip about the discrepancies, and after discovering unregistered guests, he threatened to report Glossip to the police. Hours later, after Van Treese had gone to bed at the motel, handyman Sneed entered the room and beat Van Treese over the head with a baseball bat, killing him.
Sneed evaded arrest for several days, but Glossip, the manager, was interviewed by police shortly after the murder. Glossip stated that Sneed knocked on his door that night and had a bump on his head that looked “like somebody punched him,” which he said Sneed attributed to a fall in the shower. Glossip denied knowledge of the murder but admitted that he helped Sneed replace a broken window in the room where the body was later found, telling police that he hadn’t seen the body because he was replacing the window from the outside. Police arrested Glossip the next day in front of an attorney’s office with $1,700 in cash, and in his subsequent interview, he admitted Sneed had told him that “he killed Barry.” Glossip said that he was scared to tell the truth in the first interview because he was afraid that his failure to notify police immediately would make him look like he was involved.
Police eventually located Sneed and arrested him with $1,680 in blood-covered cash on his person. When he was interviewed, police told Sneed they did not think he had acted alone and that he should not “take the whole thing” on himself. They told Sneed that “everybody” was making him “the scapegoat in this,” especially Glossip, who was “putting it on [him] the worst.” Sneed first told police that his brother was responsible, but he eventually said that Glossip wanted to steal Van Treese’s money and the death was a robbery gone wrong. He stated that he stole Van Treese’s car and found an envelope there containing $4,000, which he split with Glossip. When pressed by police, Sneed added that “actually,” Glossip had asked him to kill Van Treese so he “could run the motel without him being the boss.”
The trials
Glossip and Sneed were both charged with capital murder, and Glossip was offered a deal to plead guilty and avoid the death penalty in return for testifying against Sneed. Glossip maintained his innocence and refused the same deal that was offered to Sneed, who accepted. Glossip was sentenced to the death penalty, but the Oklahoma Court of Criminal Appeals (OCCA) unanimously reversed on grounds of ineffective assistance of counsel. The OCCA noted that Sneed’s testimony was the only direct evidence connecting Glossip to the murder, and that “the evidence at trial tending to corroborate Sneed’s testimony was extremely weak.”[3] Accordingly, Glossip’s 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.” Glossip again rejected a plea offer and was tried again.
In the second trial it was established through the medical examiner that the victim had been attacked with a knife as well as a baseball bat, and although Sneed had denied stabbing Van Treese to police at the first trial, he now said that he had done so repeatedly. The prosecution also asked Sneed whether anyone had prescribed him any medication, and he testified that he had been prescribed lithium by mistake:
Q. After you were arrested, were you placed on any type of prescription medication?
A. When I was arrested, I asked for some Sudafed because I had a cold, but then shortly after that somehow they ended up giving me lithium for some reason, I don’t know why. I never seen no psychiatrist or anything.
Q. So you don’t know why they gave you that?
A. No.
Sneed testified that he used marijuana and “crank” (methamphetamine) “twice a week” prior to his arrest, and he testified that Glossip’s motive for the murder was robbing Van Treese of his money and getting him out of the way so Glossip could take over the motels that Van Treese owned; Glossip had also threatened to fire Sneed if he did not kill the owner because of room remodels that had not been completed. The State, in its closing argument, weaved these motives together with the original theory that Glossip was caught embezzling, further arguing that Sneed was “satisfied and contented with [his] humble life” and that he had no propensity for violence, had Glossip not pushed him to commit the murder. Glossip was sentenced to death a second time, and a divided OCCA affirmed.[4]
Post-conviction
Glossip’s subsequent state and federal habeas petitions did not result in relief, but they did attract the attention of a bipartisan group of 62 Oklahoma legislators who retained the law firm of Reed Smith LLP to conduct an independent investigation. Reed Smith’s full report in June 2022 expressed “grave doubt” as to the integrity of the conviction and sentence.[5] The report found that the prosecution had deliberately destroyed “key physical evidence” before Glossip’s retrial, including items from the crime scene and the motel’s receipts and deposit books, which could have helped Glossip address the accusations of embezzlement. The report also said the State had falsely portrayed Sneed as Glossip’s “meek and non-violent puppet,” using the testimony of a now-former police officer who was later jailed for making false statements.
Two months after the report was issued, the State disclosed seven boxes of documents that had been withheld from Glossip’s trials. The boxes included notes from the lead prosecutor to Sneed’s attorney expressing reservations about the medical examiner’s report and Sneed’s statements about the knife. This revelation led to allegations that the State had violated the Oklahoma Court’s Rule of Sequestration (similar to our Tex. R. Evid. 614, “the Rule”) during Glossip’s retrial by providing Sneed, through his attorney, information regarding testimony given by other witnesses. The boxes also contained letters from Sneed to his attorney expressing a desire to recant his testimony prior to Glossip’s second trial. Another post-conviction writ was filed, and the OCCA held that Glossip’s claims were both procedurally barred and without merit.
Shortly after, the State found another box of trial documents, which included a page of handwritten notes from the lead trial prosecutor during a pretrial interview with Sneed indicating that he was on lithium not by mistake, but through a “Dr. Trumpet,” who was determined to be psychiatrist Dr. Larry Trompka. Dr. Trompka had been working at the county jail at the time of the trial. Sneed’s medical records, withheld from the defense, indicated that he had been treated with lithium for his undisclosed bipolar disorder. Glossip filed another petition for post-conviction relief arguing actual innocence, Brady violations, and cumulative error; he also argued that the State’s failure to correct Sneed’s false testimony about being mistakenly prescribed lithium violated Napue v. Illinois.[6] The State agreed and confessed that Napue error had been committed, which, taken with the destroyed and withheld evidence, warranted a new trial. Because Glossip and the State were in agreement, no evidentiary hearing was held.
The OCCA disagreed that there had been a Napue violation and held that Glossip’s post-conviction claim was both procedurally barred and without merit, even though the State had confessed error.[7]
Glossip petitioned the Supreme Court of the United States (SCOTUS), and the Court granted certiorari and stayed the execution pending its decision.[8] The Court also directed the parties to brief and argue an additional question: whether the Oklahoma Court of Criminal Appeals’s holding—that the Oklahoma Post-Conviction Procedure Act (PCPA) precluded post-conviction relief—is an adequate and independent state law ground for the judgment.[9] Because the State agreed with Glossip, the Court appointed Christopher G. Michel as amicus curiae to argue in support of the OCCA’s judgment. [10]
As the judges saw it
The U.S. Supreme Court reversed in a 5–3 ruling.[11] Writing for the majority, Justice Sotomayor first addressed the additional question it directed the parties to address: whether the Court had jurisdiction to review the OCCA’s judgment under the independent and adequate state ground doctrine. The Court found that the doctrine was not a bar here, because the OCCA’s procedural ruling rested on a misapplication of federal law (as discussed below, Justice Barrett concurred with the Court as to this holding). The OCCA explained in both this case and others like it that it will normally reject the State’s confession of error only “after finding that it lacks a basis in the law and in the record.” Accordingly, the procedural question rests on an underlying question of law, which in this case involved Napue and was thus federal. Because the OCCA’s resolution of the procedural issue depended on its determination that no Napue violation had occurred, a mistaken ruling on that federal question was not a jurisdictional bar to SCOTUS review.
Justice Sotomayor then addressed the heart of the matter: the Napue violation. Sneed had also testified in a pretrial hearing and told a competency evaluator that he was given lithium for dental pain after having a tooth pulled, but the jail psychiatrist, Dr. Trompka, attested by affidavit that 1) lithium is only used as a psychiatric medication and 2) he was the only medical professional at the jail who would have issued that prescription. Sneed’s testimony that he received lithium after asking for Sudafed and that he had never seen a psychiatrist was accordingly false, and the record supported the State’s confession of error. The OCCA had held that no violation had occurred because the defense “was aware or should have been aware” Sneed had been prescribed lithium and the prosecution could not have knowingly concealed something the defense already knew, but the Court stated that was a mistaken application of Napue. For one, the false testimony concerned why he was prescribed lithium, not merely that he was taking it. Secondly, the OCCA’s finding that Sneed’s testimony was not “clearly false” because Sneed was likely in denial of his mental disorder was unconvincing and irrelevant: “What matters is that his testimony was false and a prosecutor knowingly let it stand nonetheless.”[12]
Justice Sotomayor further found the State was aware that Sneed’s testimony was false based on the State’s access to his medical file regarding the competency evaluation and the pretrial notes showing that the State was aware that he was prescribed lithium from Dr. Trompka. When considered in conjunction with the additional mis- conduct of violating the rule of sequestration, destroying evidence, and withholding witness statements, the Napue violation was material.[13] Credibility was paramount; Sneed’s testimony was the only direct evidence of Glossip’s involvement in the murder. The Court did not accept the amicus’s argument that the impeachment evidence was already overwhelming and that the Napue violation could not have added to it. Correcting Sneed would have shown the jury that Sneed was willing to lie on the stand under oath; even if his bipolar disorder itself were irrelevant, his lie was not. The Court concluded that the prosecution’s failure to correct Sneed’s trial testimony violated the Due Process Clause and that Glossip was entitled to a new trial.
Concurrence and dissent
Justice Barrett concurred in part and dissented in part. She agreed with the Court’s opinion as to the adequate and independent grounds doctrine, although she stated it was “a closer question for me than it is for the Court.”[14] Citing Michigan v. Long,[15] she noted that the OCCA did not “make clear by a plain statement” that the lower court was relying on state law independent of Glossip’s federal claims, and she further noted that the OCCA’s opinion can be read to say that the court’s procedural holding was based on the merits of Glossip’s federal claim, which it denied based on a mistaken reading of Napue. Justice Barrett agreed with the majority that the question was not whether the witness subjectively believed he was lying, but whether the prosecution knowingly presented false testimony. Because Sneed’s testimony was the primary evidence offered by the State to show Glossip’s involvement, being corrected by the prosecutor could have made the critical difference in whether a juror found guilt proven beyond a reasonable doubt. If Sneed gave false testimony and if the prosecutor knew it was false, then there was a Napue violation and the OCCA was wrong as a matter of federal law.
Those “ifs,” however, are where Justice Barrett parts ways with the majority. The Court opined that the State’s confession of error was enough to warrant reversal for a new trial, and that the written documentation clearly demonstrated that Sneed lied and the prosecutor knew it. But this was not at all clear to Justice Barrett, who observed that the prosecutor’s notes were difficult to parse and that the prosecutor may well have been confused by the reference to “Dr. Trumpet.” Justice Barrett would have held that the lower court is better equipped to make these factual findings, and she believed the Court was exceeding its appellate role in making those findings in its place. She would correct only the OCCA’s misstatement of federal law and vacate the judgment, leaving the OCCA to order an evidentiary hearing and make findings of its own.
Justice Thomas sharply dissented, joined by Justice Alito and in part by Justice Barrett (as it concerns the need for an evidentiary hearing). Justice Thomas criticizes the majority for its reading of the independent state grounds doctrine, the Napue decision, the facts of the case, and the need for an evidentiary hearing to present the evidence and arguments raised by the family of Barry Van Treese.
Justice Thomas accused the majority of “stretching the law at every turn” to rule in Glossip’s favor, beginning with the jurisdictional question, in which he stated the Court “concocts federal jurisdiction by misreading the decision below.”[16] Thomas observed that Oklahoma’s Post Conviction Procedure Act governing post-conviction law closely mirrors the federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)[17] as to when it allows subsequent applications. That is, the applicant must show that “the factual basis for the claim” was not previously “ascertainable through the exercise of reasonable diligence”; and the applicant must demonstrate that “the facts underlying the claim” would, if proved, “establish by clear and convincing evidence that, but for the alleged error, no reasonable fact finder would have found the applicant guilty of the underlying offense or would have rendered the penalty of death.”[18] Thomas wrote that the OCCA’s opinion that the “State’s concession was not based in law or fact” was not merely based on the Napue violation, but also on the lack of actual innocence evidence and the diligence requirement, which he says are strictly a matter of Oklahoma law. Thomas points out that a forensic psychologist’s report prior to Glossip’s first trial strongly suggested that Sneed was taking lithium to treat bipolar disorder or a similar condition, and that the defense was well aware of this prior to the second trial. Glossip’s appellate counsel in his direct appeal from the first trial had faulted his trial counsel for not using the report to show the jury that Sneed was taking lithium to control his anger, but defense counsel chose not to raise it in the second trial. Because the OCCA expressly stated that the diligence and actual innocence requirements were not met even considering the State’s confession, in Justice Thomas’s view the decision rested on independent and adequate state grounds that the Court had no jurisdiction to review.
Turning to the merits, Justice Thomas finds that even if the Court had jurisdiction, Glossip does not show he is entitled to a hearing on his Napue claim. He asserts that the Oklahoma high court correctly held that Sneed’s false statements were not material because the defense already knew about Sneed’s condition but strategically decided not to use it, perhaps believing that highlighting his poor mental health would show his vulnerability to Glossip’s manipulation. He criticizes the majority’s recitation of Napue’s admonition (“[a] lie is a lie, no matter what its subject”) because the Court omits what immediately follows: “and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.”[19] Thomas reasons that treating any false statement regardless of content as material because it undermines a witness’s credibility renders the materiality requirement meaningless.
Justice Thomas further criticized the majority’s finding that a Napue violation had been definitively shown in the first place. In the lead prosecutor’s notes from a 2003 meeting between her, her co-counsel, Sneed, and his attorney, she had written “on Lithium?” and “Dr Trumpet?” A copy of those handwritten notes in the body of the dissent is below.
Glossip’s current counsel stated that these phrases meant that Sneed had admitted during the meeting he had been prescribed lithium by the psychiatrist at the county jail. Referring to the amicus brief filed by the victim’s family, Thomas pointed out that the two prosecutors disagreed with this interpretation, saying that the notes simply record that Sneed told her that Glossip’s defense team had asked him about his use of lithium and about “Dr Trumpet,” and that Sneed recounted that he had responded to questions about lithium and Dr. Trompka with his earlier story that he was prescribed lithium in error after having his tooth pulled. Thomas argued that this interpretation was explained at great length by the Van Treese family’s brief, but “as of yet, no one—including the parties and the majority—has attempted to refute it on the merits.”[20] He further faulted the independent counsel for failing to give the trial prosecutor a meaningful opportunity to explain what her notes may have meant or what she knew about Sneed’s medical history—despite requests from the Van Treese family to speak with her.
For these reasons and others, Thomas states that even if the majority were correct in the jurisdictional and merits analyses, the appropriate remedy is to vacate the OCCA’s opinion and allow the lower court to conduct an evidentiary hearing, saying, “This Court has no authority to order a new trial.”[21] Thomas castigates the majority for rejecting the family’s arguments because it relies on “extra-record materials not properly before the Court,” yet denying them the opportunity to present it in an evidentiary hearing. He ended with, “Make no mistake: The majority is choosing to cast aside the family’s interests. I would not.”
The takeaway
Glossip is notable for how it will impact post-conviction litigation, particularly what constitutes adequate and independent state grounds that limit federal review. At the trial level, it makes clear that a Napue violation is not dependent on whether the witness thinks he is lying, but on whether the prosecution knowingly allowed a witness to testify falsely—regardless of the witness’s subjective belief—without having corrected him. Napue applies equally to falsehoods that the prosecution did not elicit, and it’s accordingly just as important for a prosecutor to scrutinize the testimony of the witnesses presented by the State for falsehoods and errors as it is defense witnesses. It’s easy to be taken by surprise when this happens, so mental preparation on the steps to be taken when it does are important. Falsehoods, even mistaken ones, must be corrected without any regard to how doing so hurts the State’s case.
But there’s another broader takeaway from Glossip, and it’s a good reason to delve into opinions dealing with prosecutorial ethics when they issue: refocusing on exactly what our job is and our role in the criminal justice system. Getting the “right” outcome isn’t our paramount duty. Echoing Berger v. United States,[22] the Code of Criminal Procedure lays out our highest duty: “The primary duty of an attorney representing the State, including a special prosecutor, is not to convict but to see that justice is done.”[23] Not to seek justice but to see that justice is done. Seeing that justice is done means enforcing criminal law and discharging our obligations to the public and to victims of crime, but that’s not all it means. Seeing that justice is done means upholding the law that protects the accused and ensuring they receive the due process to which the law entitles them. It rests on the shoulders of defense counsel and the courts as well, but it must start with prosecutors.
[1] 145 S. Ct. 612 (2025).
[2] 360 U.S. 264 (1959).
[3] Glossip v. State (Glossip I), 29 P.3d 597, 599 (Okla. Crim. App. 2001).
[4] Glossip v. State (Glossip II), 157 P.3d 143 (Okla. Crim. App. 2007).
[5] Independent Investigation of State v. Richard E. Glossip, Final Report, Reed Smith LLP (June 7, 2022) (retrieved May 25, 2025 at www.reedsmith.com/en/ news/2023/03/reed-smith-glossip-investigation-releases-new-findings-evidence-withheld).
[6] 360 U.S. 264 (1959). Napue held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment,” including when “the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id. at 269. The falsehood in Napue occurred when an accomplice testified that the Assistant State’s Attorney had made no promise of consideration in return for his testimony, when in fact he had promised to recommend a reduced sentence.
[7] Glossip v. State, 529 P.3d 218 (Okla. Crim. App. 2023).
[8] Glossip v. Oklahoma, 144 S. Ct. 691 (2024).
[9] Id.
[10] Glossip v. Oklahoma, 144 S. Ct. 715 (2024). Michel, now a partner at Quinn Emanuel, is a former attorney in the U.S. Solicitor General’s Office and former law clerk to Chief Justice Roberts. Despite the Court’s rigorous treatment of the amicus’s arguments, the opinion approvingly noted that Michel “ably discharged his responsibilities.” Glossip, 145 S. Ct. at 624.
[11] Justice Gorsuch recused himself and did not participate; no reason was given but presumably it was because he had participated in Glossip’s previous post-conviction litigation while a judge of the U.S. Tenth Circuit Court of Appeals.
[12] Glossip, 145 S. Ct. at 630.
[13] Materiality under Napue requires “the beneficiary of [the] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” United States v. Bagley, 473 U. S. 667, 680, n. 9, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (quoting Chapman v. California, 386 U. S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)); Glossip, 145 S. Ct. at 627. Stated another way, a new trial is warranted if there is “any reasonable likelihood” the false testimony could “have affected the judgment of the jury.” Napue, 360 U.S. at 271.
[14] Glossip, 145 S. Ct. at 634 (Barrett, J., concurring in part and dissenting in part).
[15] 463 U.S. 1032, 1041 (1983).
[16] Glossip v. Oklahoma, 145 S. Ct. at 636 (Thomas, J., dissenting).
[17] 28 U.S.C. §2244(b)(2)(B).
[18] Okla. Stat. Tit. 22, §1089(D)(8)(b)(1), (2). This is similar to the subsequent-writ bar found in Tex. Code Crim. Proc. Art. 11.07 §4 and 11.071 §5.
[19] Napue, 360 U.S. at 269–70 (emphasis added in Glossip).
[20] Glossip, 145 S. Ct. at 642 (Thomas, J. dissenting).
[21] Id. at 658.
[22] 295 U.S. 78, 88, 55 (1935) “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
[23] Tex. Code Crim. Proc. Art. 2A.101 (formerly Tex. Code Crim. Proc. Art. 2.01).