What’s next for former Oklahoma death row inmate Richard Glossip after the Supreme Court ordered he receive a new trial

By Dakin Andone, CNN

(CNN) — After nearly three decades maintaining his innocence on Oklahoma’s death row, Richard Glossip this week now has the opportunity to win his freedom after the US Supreme Court ordered he receive a new trial, finding prosecutors failed to correct false testimony that may have influenced his jury.

The question now? Whether Oklahoma prosecutors want to retry the case at all.

Since Glossip’s 1998 conviction as the alleged orchestrator of a murder-for-hire scheme targeting his boss, Oklahoma City motel owner Barry Van Treese, a raft of issues with his prosecution has surfaced, coinciding with a shift of political winds now at the inmate’s back.

Aside from his attorneys, the fight to spare Glossip’s life has been largely helmed by pro-death penalty Republicans, most notably Oklahoma Attorney General Gentner Drummond: He and others have said it’s important Oklahomans have faith the death penalty is fairly administrated, and that Glossip’s execution would erode trust in the state’s justice system, given the questions surrounding his case.

“I have long maintained that I do not believe Mr. Glossip is innocent, but it is now an undeniable fact that he did not receive a fair trial,” Drummond said in a statement Tuesday.

Drummond and Oklahoma County District Attorney Vicki Behenna – the former director of the Oklahoma Innocence Project – must now decide whether to prosecute Glossip again. That would be “difficult,” Drummond told reporters, and their choice will rest on a review of the evidence and witnesses still available more than 30 years after Van Treese’s murder.

“She and I will collaborate together with our staffs,” he said, “and we will review the evidence with fresh eyes and interview those witnesses that would be available to us to make a determination whether we should proceed seeking again the death penalty, whether we should proceed seeking life without the opportunity for parole, or if we should proceed with a lesser charged crime.”

Re-prosecuting old cases can be challenging, because witnesses’ memories fade and physical evidence may decay or be lost altogether with the passage of time.

But in a retrial of Glossip’s case, prosecutors would have to contend with another issue: The Supreme Court’s ruling and other revelations have undermined the credibility of the prosecution’s star witness: Van Treese’s actual killer, Justin Sneed, who got a life sentence in exchange for a guilty plea and for testifying against Glossip.

The Supreme Court’s ruling Tuesday stemmed directly from Sneed’s testimony, the sole evidence linking Glossip, the motel’s manager, to the killing. The majority found prosecutors had not corrected false testimony Sneed provided at trial; had they, his credibility would have suffered, undercutting his testimony – the lodestar of the prosecution’s case.

While Drummond left the door open to all possibilities at Wednesday’s news conference, he also appeared to signal that – however prosecutors move forward – they may have little appetite for pursuing a capital sentence.

“I believe that under today’s standard, very few prosecutors would seek a death penalty,” he said, reiterating he does not believe Glossip is innocent. By the inmate’s own admission, Drummond said, he would be guilty of accessory to murder after the fact, for initially lying to police about having knowledge of Van Treese’s killing.

Robin Maher, the executive director of the Death Penalty Information Center, called the Supreme Court ruling a “valuable opportunity” for state prosecutors “to fulfill their ethical and professional duties to ‘seek justice’ and not merely pursue another conviction.”

“In light of all the compelling evidence of Mr. Glossip’s innocence,” she told CNN, “I think it would be very difficult to justify another capital prosecution.”

In the meantime, Glossip remains in prison. On Tuesday, Drummond requested the inmate be moved off death row, but he asked the state Department of Corrections maintain custody of Glossip until there is a decision about whether to retry him.

The murder of Barry Van Treese

Glossip’s case dates to January 7, 1997, when Van Treese, a 54-year-old father of seven, was beaten to death at his motel by Sneed, then 19, court records state. At the time, Sneed was staying at the motel while doing maintenance work in exchange for a room.

Glossip, after initially denying knowledge of the killing, eventually admitted Sneed had told him about killing Van Treese. He said he had feared telling the truth because failing to notify police immediately might mean he was “already involved in it.”

Glossip was at first charged with accessory after the fact. But Sneed implicated Glossip, saying he asked Sneed to kill Van Treese so he could run the motel himself. His charge was upgraded to capital murder, and when Glossip refused a deal for a life sentence, insisting on his innocence, prosecutors offered Sneed the same deal. At trial, they cast Glossip as the engineer of the murder-for-hire plot.

Glossip was convicted and sentenced to death in 1998, but that initial outcome was overturned on appeal due to ineffective counsel. He was retried again in 2004, and he was once again convicted and sentenced to die.

Years later, however – after two independent investigations cast serious doubt on Glossip’s conviction – the state disclosed evidence that Sneed told prosecutors he was under the care of a jail psychiatrist who had diagnosed him with bipolar disorder and prescribed him lithium.

But when Sneed claimed at trial he had never seen a psychiatrist and the lithium was prescribed after he asked for cold medicine, prosecutors did not correct him. Doing so would have undermined his credibility, Justice Sonia Sotomayor wrote for the majority.

“Besides Sneed,” Sotomayor wrote, “no other witness and no physical evidence established that Glossip orchestrated Van Treese’s murder.”

Doubt undercuts key testimony

The court’s ruling would further undercut Sneed’s testimony if he took the stand in a retrial, although it’s unclear if he would.

One of the independent reviews, conducted by law firm Reed Smith at the Oklahoma legislature’s request, uncovered statements Sneed made indicating he might want to recant his testimony. In 2007, he wrote to his attorney, “There are a lot of things right now that are eating at me,” and, “I think you know were (sic) I’m going it was a mistake.”

CNN was unsuccessful in its attempts to reach Sneed for comment through the Oklahoma County Public Defender’s Office, which represented him at trial. He remains in prison.

Plus, many of the revelations in recent years would be admissible in a retrial, including the withholding and destruction of evidence and Sneed’s letter, according to Robert Dunham, director of the Death Penalty Policy Project. (Dunham is also special counsel at Phillips Black, a nonprofit law firm that specializes in post-conviction legal representation and was involved in Glossip’s case, but Dunham was not involved in the case, he said.)

“This would be a very difficult case to retry, but not for the traditional reasons – not because memories fade and evidence gets lost,” Dunham said. “They’ve already destroyed the evidence, and the case depends on the memory of one person who has already given multiple contradictory statements.”

All of these factors would “hang over Sneed’s testimony,” he said, and “everything hinges on him.”

“Sneed’s testimony is the ballgame,” Dunham added.

In similar cases, he said, prosecutors have had three options: First, they might offer a defendant a life sentence – but Glossip rejected that offer twice, Dunham said. Second, prosecutors might offer a plea deal for time served, which would allow the state to avoid the embarrassment of admitting Glossip is innocent, while he would secure his freedom.

Or they could go to trial, Dunham said. But in doing so, prosecutors would risk “the kind of withering cross-examination they avoided when they fabricated testimony and destroyed exculpatory evidence.”

Van Treese’s family is opposed to lesser charge

Were prosecutors to pursue a lesser charge, Drummond indicated Tuesday it might not result in Glossip’s immediate release.

“I believe a lesser crime would be a 35-year-plus sentence,” he said. “(Glossip has) only been in prison 28 years.”

Van Treese’s family is opposed to a plea deal, his son said this week, and they are confident Glossip would be convicted of his murder again.

“While it may be difficult to start fresh on a 28 year old case, I urge the Attorney General and the Oklahoma County District Attorney’s office to demonstrate the same perseverance that our family has shown throughout this process,” Derek Van Treese said in a written statement. “We pray that they exhibit the fortitude to take politics out of the equation and process this case as the death penalty case it is, and not take the easy road of a lesser charge.”

Asked Tuesday about his confidence that Glossip would be found not guilty in a new trial, Don Knight, his attorney, told CNN’s Jake Tapper it was difficult to know how a jury would respond.

“I can only tell you that, since 1997, a lot has happened, and the prosecution’s case over the years has not gotten better,” he said. “We certainly feel better about the chances that we would have if the case went to a jury trial, and at this point in time, it’s just too soon to say whether that will actually happen.”

There is hope among Glossip’s advocates that Drummond and Behenna will avoid a new prosecution.

“They have to make a decision there: Are we going to bring this to trial again? Look how old the case is,” said Sister Helen Prejean, the prominent anti-death penalty activist and author of “Dead Man Walking,” who has been Glossip’s spiritual adviser for a decade now.

“Hopefully what’s going to happen is that they’ll simply give him time served and set him free and not do the new trial,” she told CNN. “That’s what we’re hoping for.”

CNN’s Brynn Gingras contributed to this report.

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