EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, September 16, 2015

A Legal Analysis of the Stay of Execution Entered in the Richard Glossip Case

Just three hours before Richard Glossip was scheduled to be executed, the Oklahoma Court of Criminal Appeals granted him a stay of the execution until September 30th. The Glossip case initially garnered a lot of attention when the Supreme Court denied Glossip's claim that Oklahoma's use of midazolam as the first drug in its lethal injection protocol violated the Eight Amendment earlier this year. 

Glossip was convicted of the murder of motel owner Barry Van Treese in large part due to the testimony of Justin Sneed, who claimed that Glossip hired him to murder Van Treese. The stay of execution was granted based upon a "successor petition" filed by Glossip, which was based upon an affidavit by a fellow inmate, who indicated that "among all the inmates, it was common knowledge that Justin Sneed lied and sold Richard Glossip up the river."

A "successor petition" earns its name because the petition is a "successor" to prior postconviction petitions. The standard used by federal and state courts is similar. 28 U.S.C. Section 2244(b) provides that

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—...


(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

In other words, a successor petition can only be brought if it tends to establish actual innocence and could not have previously been discovered. Given that the other inmate only came forward in the last few weeks and tends to establish Glossip's actual innocence, it made sense for the court to grant a stay. It also makes sense given that courts generally require only a prima facie showing of actual innocence to grant successor petitions (although this standard is rarely met).

So, what happens next? According to the court, it granted the stay to "give fair consideration to the materials included" in the successor petition. We'll see what that means in the next two weeks.



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Thanks for the clear, concise explanation. Great day for Glossip, hope this is a first step towards exoneration!

Posted by: John | Sep 16, 2015 12:08:31 PM

Hi Professor, What can you say about the expected procedure after this? Is the inmate going to give a testimony at the Court of Criminal Appeals?

Posted by: Lagertha | Sep 16, 2015 7:41:06 PM

Thanks for the explanation Colin! I am relieved the governor agreed to let new information come out.mI'm not opposed to the death penalty if there is absolutely no question.

Posted by: Elizabeth MM | Sep 16, 2015 8:34:39 PM

The governor actually denied the request for a stay, stating "After carefully reviewing the facts of this case multiple times, I see no reason to cast doubt on the guilty verdict reached by the jury or to delay Glossip’s sentence of death. For that reason I am rejecting his request for a stay of execution." But luckily, the Oklahoma Court of Criminal Appeals had more sense about them.

Posted by: Traci | Sep 17, 2015 10:24:58 AM

John: Thanks.

Lagertha: That would be my guess. There will be some type of hearing where new evidence and testimony is presented.

Elizabeth MM and Traci: Yes, it was the court and not the governor. The governor lacked the authority to intervene.

Posted by: Colin | Sep 18, 2015 5:05:10 AM

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