Ziva Branstetter
propublica.org

Ziva Branstetter has been a senior editor at ProPublica since March 2022, supervising a team of national investigative reporters.

Richard Glossip Has Eaten Three Last Meals on Death Row. Years Later, the State Is Still Trying to Execute Him.

by Ziva Branstetter

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In the parking lot outside the Oklahoma State Penitentiary, I stood on my toes in a throng of reporters, straining to hear death row inmate Richard Glossip’s words through the speaker of a phone his friend held aloft.

It was 3:45 p.m. on Sept. 30, 2015, and Glossip should have been dead by now from a cocktail of lethal drugs pumped into his body.

I joined reporters, Glossip’s family and supporters outside the prison in McAlester that day — a warm and breezy afternoon — as the condemned man was able to make a phone call from inside the maximum-security facility’s death row. Glossip seemed relieved to be alive but, understandably, wondered why. He’d exhausted his last appeal and eaten his last meal: fish and chips, a Wendy’s Baconator burger and a strawberry shake.

He learned his life was spared because of a technicality: One of the three drugs Oklahoma officials procured for the execution was the wrong one.

“That’s just crazy,” Glossip said over his friend’s phone.

It was the third time the state of Oklahoma had tried to execute Glossip and the latest lapse in a macabre history of failure in its death penalty machinery. As a journalist who covered Oklahoma’s prison system and death row for 25 years, I reported on many of those breakdowns.

Seven years later, the state remains intent on executing Glossip, scheduling its fourth attempt for Sept. 22 despite persistent claims that the 59-year-old is innocent and allegations that prosecutors ordered the destruction of vital evidence in the 1997 murder-for-hire case that resulted in his death sentence.

Glossip’s claims of innocence have drawn an unusually bipartisan array of supporters, including 28 Republican state lawmakers, most of whom support the death penalty. The legislators commissioned an exhaustive review that recently turned up new information about prosecutors’ alleged role in destroying evidence and financial records bringing into question Glossip’s motive in the case. The lawmakers have called on the governor to order an independent review of Glossip’s case and for a state appeals court to conduct a hearing to examine the new evidence.

Calls to halt his scheduled execution come at a time of national reckoning over the death penalty. The Supreme Court’s rulings on the issue — including a 6-3 decision in May barring condemned prisoners from seeking federal court review for ineffective counsel in some cases — are increasingly at odds with public sentiment in many states. Meanwhile, the pace of new death sentences and executions carried out nationally is on track to hit a record low for the eighth year in a row, even with the reopening of courts shuttered during the pandemic, according to the Death Penalty Information Center.

Oklahoma is among a small number of states that routinely carry out the death penalty that are bucking that trend, and it is on pace to outdo them all despite its gruesome history of failures.

The state recently set execution dates for Glossip and 24 other inmates, including several with mental illness, brain damage and claims of innocence. They’re scheduled to die at a fast clip — about one each month through December 2024 — a rate that would eclipse the number of executions by all states combined since 2020.

Many observers, including those who support the death penalty, doubt the state’s ability to carry out executions in a constitutional manner, even for those inmates whose guilt remains unchallenged. If the past is any judge, they’re probably right.

In more than two decades covering Oklahoma’s death row, here are a few of the events I wrote about, including some that I witnessed:

• In 2014, I heard one inmate say just before he was executed: “Malcom Scott and De’Marchoe Carpenter are innocent.” The inmate had testified years earlier that the two men took part in a killing with him. They were later exonerated, but only after spending more than 20 years in prison.
• When the state needed to switch to a new lethal drug in 2014, an attorney for Oklahoma’s prison system later said that he looked for a replacement by searching for information about lethal drugs on the internet.
• A few months later, I was among the media witnesses who watched Clayton Lockett writhe, moan, talk and try to get up from the execution table for three minutes after the drugs were administered and he had been declared unconscious. The prison was using a new, unproven drug that some experts said wouldn’t anesthetize an inmate as the painful second and third drugs were administered. Prison officials closed the blinds and after about 20 minutes told us to leave the death chamber. Lockett died 43 minutes after the execution began.
• My reporting partner, Cary Aspinwall, and I later reported that the warden called the execution a “bloody mess” and that the doctor had improperly inserted the IV into Lockett, complaining about getting blood on his jacket.
• State officials used the wrong third drug to execute Charles Warner less than a year later in January 2015 but didn’t make that public. They were poised to use the wrong drug again in Glossip’s third scheduled execution before then-Gov. Mary Fallin halted it at the last minute.
• A grand jury report blasted state officials’ actions as “inexcusable,” finding that Fallin’s top lawyer wanted to proceed using the incorrect drug anyway. The state’s own attorney general said some officials had been “careless, cavalier and in some circumstances dismissive of established procedures that were intended to guard against the very mistakes that occurred.”

After a six year hiatus, Oklahoma executed John Marion Grant in October. Multiple witnesses said Grant convulsed and vomited during the process. Now, the state is preparing to execute Glossip amid doubts about his guilt.

One of the GOP lawmakers calling on the state to review Glossip’s case, despite a long history of supporting the death penalty, said he’ll advocate to end capital punishment in Oklahoma if Glossip is executed.

“I’m 99% sure that he is not guilty sitting on death row,” state Rep. Kevin McDugle said in an interview with ProPublica. “My stance is not anti-death penalty at all. My stance will be (different) if they put Richard to death, because that means our process in Oklahoma is flawed.”

In a sharply worded dissent in a case challenging Oklahoma’s choice of execution drugs, then-Justice Stephen Breyer argued that the death penalty was no longer constitutional. Among his reasons, Breyer cited studies showing death penalty crimes have a disproportionately high exoneration rate.

In fact, courts have reversed verdicts or exonerated prisoners because of prosecutorial misconduct in 11 death sentences in the same county where Glossip was convicted, according to a study released last month by the Death Penalty Information Center. Another 11 from that county, home to the state Capitol, were put to death using testimony from a disgraced police chemist, the study found.

Though Glossip’s recent appeals have been unsuccessful, a state court judge and a federal judge have noted in appellate rulings the relatively thin nature of the evidence against him. “Unlike many cases in which the death penalty has been imposed, the evidence of petitioner’s guilt was not overwhelming,” the federal judge wrote.

In a letter last year to Gov. Kevin Stitt, McDugle joined more than 30 state lawmakers, nearly all Republicans, in asking him to appoint an independent body to review Glossip’s case and examine what they say is compelling evidence he is innocent.

“Many of those who have signed this letter support the death penalty but, as such, we have a moral obligation to make sure the State of Oklahoma never executes a person for a crime he did not commit,” the letter states. “Mr. Glossip’s case gives us pause, because it appears the police investigation was not conducted in a manner that gives us confidence that we know the truth.”

Glossip was convicted of murder in the 1997 killing of Barry Van Treese, who owned the Oklahoma City budget motel where Glossip worked. Justin Sneed, a maintenance man with a violent record, beat Van Treese to death with a baseball bat and testified Glossip paid him to carry out the killing. Prosecutors alleged that Glossip feared he would be fired because Van Treese had discovered he was embezzling from the motel.

In exchange for his plea and testimony against Glossip, Sneed received life in prison.

After Stitt did not order a new investigation into Glossip’s case, the lawmakers commissioned a review by a law firm. The pro-bono report, released last month, is based on a review of 12,000 documents, 36 witness interviews, seven juror interviews and other evidence.

It concludes that Glossip’s 2004 conviction “cannot be relied on to support a murder-for-hire conviction. Nor can it provide a basis for the government to take the life of Richard E. Glossip.”

Glossip’s attorneys have filed a motion seeking a new hearing on the basis of actual innocence, including witnesses they say were never called in previous hearings. The motion also seeks a hearing to look into who ordered a box of key evidence destroyed, claims of ineffective assistance of counsel, due process violations and testing indicating that Glossip is intellectually disabled.

They are also seeking documents from the Oklahoma County District Attorney’s Office related to the destruction of evidence as well as a videotape from a gas station near the crime scene they say was never handed over.

The law firm’s report quotes an Oklahoma City police officer and a former assistant district attorney talking about the evidence destruction, which included records that could have established whether Glossip embezzled money from the motel, as alleged by prosecutors.

Such claims frustrate the current district attorney, David Prater, a chatty, accessible official I’ve interviewed many times over the years about Oklahoma’s justice system.

Prater, who was not in office at the time the evidence was destroyed, said Glossip’s execution should proceed as scheduled and called the allegation that his office ordered the destruction “an outright lie.”

“There is no documentation as to that,” he said. “The DA’s office does not order the destruction of evidence in cases like that.”

Glossip and his attorney, Don Knight, declined interview requests. Knight said in a written statement provided to ProPublica that the execution should be delayed while the state appeals court reviews new information turned up in the report.

“Richard Glossip has been through three tortuous execution dates already. It does not serve justice to set a fourth execution date for an innocent man before all this new evidence can be fully considered in a court of law,” the statement said.

“Public reaction to this new evidence makes clear that Oklahomans, even those who support the death penalty, do not want to see an innocent man executed.”

Sister Helen Prejean, the anti-death-penalty activist who was portrayed in “Dead Man Walking,” said she plans to be at the prison to support Glossip in September, as she was on his three prior execution dates. (Glossip called Prejean before his first scheduled execution and asked if she would serve as one of his selected witnesses, as she had for six condemned men in other states.)

But Prejean predicts that day won’t come and says she plans to work feverishly to draw attention to his case and win a reprieve.

Sounding more like a publicity strategist than a nun, Prejean said the smartest approach involves letting the “conservative pro-death-penalty legislators” make the case for Glossip rather than celebrity activists who’ve supported Glossip and other condemned inmates.

“I know I have to do everything I know how to do to save the life of this man,” she said, adding: “When it looks like everything is signed, sealed and delivered what do you do? You go to the public and you raise questions.”