Sept. 8, 2015 (Mimesis Law) — One of the things I learned early in my legal career is that law school did not (and really could not) prepare me for giving a client like Richard Glossip the bad news. In the world of post-conviction criminal defense, that bad news takes on a whole different meaning. It’s not just a lost case where the client has to pay money or won’t be getting any money. It’s bad news that effectively means all is lost: liberty and life.
Your client will die in prison: whether it’s from old age or at the hands of the state, there is no going home. There is no silver lining to offer. Sometimes there are still some legal movements left, but for the most part you have to start the process of preparing the client for the reality that this is the end of the road. The legal system has run its course, the courts have closed the books, and there won’t be a Hail Mary pass to save the day.
Some clients accept this fate. They weren’t hopeful to begin with, but we tried. Others hold onto hope because it’s all they’ve got. But others don’t go so quietly. They reiterate their innocence; they cry; they ask a lot of questions about why the courts won’t listen.
It takes patience and compassion to answer those questions. It’s harder to explain when the only thing keeping a client there is the testimony of one unreliable witness. And there’s nothing to be done.
I promise I don’t live in a bubble of rainbows and butterflies. Just because a client says he or she is innocent doesn’t mean that’s the case. I’ve worked on plenty of cases where the client committed the crime and rightly went to prison on it.
But I’ve also worked on plenty of other cases as either a lawyer or an expert witness where I was as close as I could come to certainty that the accused didn’t commit the crime that will keep them in prison for the rest of their lives. Those cases keep me up at night.
Society likes to think that we protect innocence at all stages of the criminal justice process. But the truth is that innocence barely matters even when the accused still possesses the presumption of innocence (more on that in a future post). The really hard truth is that it doesn’t matter at all after the individual is convicted. The criminal justice system values stability, finality, and closure. In other words, we go to extraordinary lengths to protect a guilty verdict once it’s entered. Innocence matters not.
That’s a lot of verbiage to get me to the point of this post: the single witness case. On September 16, Oklahoma will execute Richard Glossip. Glossip has spent nearly twenty years in prison based on the testimony of just one man.
In 1997, Justin Sneed confessed to police that Glossip put Sneed up to beating hotel owner Barry Van Treese to death. Sneed admitted to committing the crime, testified against Glossip, and is now serving a life sentence for it.
Sneed’s testimony remains the only evidence against Glossip—and this evidence is entirely suspect. Sneed’s first three interviews with the police didn’t even mention Glossip. Only after succumbing to police pressure did the then-teenaged Sneed finger Glossip as the mastermind. Meanwhile, Glossip has always claimed his innocence. Twice he rejected an offer of a life sentence in exchange for pleading guilty.
Setting aside a debate about whether capital punishment should endure as a feature of the American criminal justice system when most of the developed world has done away with the practice, one would think that if a state insists on using the death penalty, that it would be certain that the person they intended to execute actually committed the crime.
In Glossip’s case, two trials, a lengthy appellate process, and a clemency board have all concluded that the word of one man is certain “enough” to justify death for Glossip. The lack of evidence of guilt also makes it difficult to prove innocence. It’s hard to prove a negative when there’s no evidence of the positive in the first place. Unfortunately, Glossip’s case is not an anomaly.
Lots of people sit behind bars based on nothing else but the dubious word of jailhouse snitches and unreliable witnesses. That’s the way the system works. It’s perversely incentivized.
Glossip’s plight has attracted some notable advocates, including Susan Sarandon. But it’s incredibly difficult—if not impossible—to convince a state to reverse course. In some cases it causes them to dig their heels in deeper and move an execution forward with even more fervor.
We will wait to see what Oklahoma will do. If things don’t work out for Glossip, his lawyers will have to go in and deliver the news that the case is over. Yet another case where one tainted witness seals the fate of a man who may be innocent. Which is good enough for death.
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