Supreme Court issues capital opinions on failure to correct false evidence, presenting highly prejudicial evidence, and intellectual disability
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
The U.S. Supreme Court has issued opinions in three death penalty cases so far this Term.
In a case that received wide publicity, Glossip v. Oklahoma, decided February 25, the Court granted Richard Glossip a new trial because prosecutors failed to correct false testimony by its key witness, and failed to disclose other evidence about the witness which cast doubt on Glossip’s guilt.
In Andrew v. White, a per curiam opinion issued January 21, the Court held the 10th Circuit erred in denying habeas relief to Brenda Andrew on grounds that the Supreme Court had never held that admission of irrelevant, highly prejudicial evidence in a death penalty case violated due process.
And in Hamm v. Smith, a brief per curiam opinion issued November 4, the Court vacated an 11th Circuit opinion affirming a finding that Joseph Clifton Smith was ineligible for the death penalty because he was intellectually disabled, but remanded for clarification of basis of the Circuit’s opinion.
Glossip: False Evidence
Richard Glossip was convicted of murder in the death of his employer in Oklahoma.
At trial, Justin Sneed testified he beat the victim to death, but claimed Glossip had offered him thousands of dollars to do so.
Glossip admitted helping Sneed conceal the crime after-the-fact, but denied any involvement in the murder.
Nearly two decades later, the State disclosed eight boxes of previously withheld documents. The documents showed Sneed suffered from bipolar disorder which, combined with his drug use, could have caused impulsive violent outbursts.
The documents also showed that a jail psychiatrist prescribed lithium to Sneed to treat that condition, and the prosecution allowed Sneed to testify falsely at trial that he had never seen a psychiatrist.
The Oklahoma Attorney General confessed error based on Napue v. Illinois (1959), which held that prosecutors have a constitutional obligation to correct false testimony. The concession came after years of multiple postconviction and habeas petitions, and mounting evidence of Glossip’s innocence and State concealment of exculpatory evidence, as found in an investigation by an independent law firm hired by a bipartisan group of Oklahoma legislators.
But the Oklahoma Court of Criminal Appeals denied relief, holding the Attorney General’s concession was not “based in law or fact” and could not “overcome the limitations on successive post-conviction review.”
The Supreme Court reversed and remanded for a new trial, in a 5-3 opinion by Justice Sotomayor.
“In Napue v. Illinois, this Court held that a conviction knowingly ‘obtained through the use of false evidence’ violates the Fourteenth Amendment’s Due Process Clause”, Sotomayor said. “To establish a Napue violation, a defendant must show that the prosecution knowingly solicited false testimony or knowingly allowed it ‘to go uncorrected when it appear[ed].’”
A new trial is warranted if the false testimony “may have had an effect on the outcome of the trial” or if there is “any reasonable likelihood” it could have affected the jury’s judgment, the Court said.
Sneed’s trial testimony that he had never seen a psychiatrist was “false”, the Court said. “The evidence likewise establishes that the prosecution knew Sneed’s statements were false as he testified to them.”
“That leaves materiality”, the Court said. “Evidence can be material even it if ‘goes only to the credibility of the witness’” because the “jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.”
“Because Sneed’s testimony was the only direct evidence of Glossip’s guilt of capital murder, the jury’s assessment of Sneed’s credibility was necessarily determinative here”, the Court said. “Besides Sneed, no other witness and no physical evidence” connected Glossip to the murder.
“Had the prosecution corrected Sneed on the stand, his credibility plainly would have suffered”, the Court said.
“Even if Sneed’s bipolar disorder were wholly irrelevant”, the Court said, “his willingness to lie about it to the jury was not. ‘A lie is a lie, no matter what its subject.’”
Sneed’s diagnosis that he could have episodes of impulsive violence would also have “undermined” the prosecutor’s theory that Sneed was “harmless on his own – a Rottweiler puppy beholden to his trainer”, the Court said.
“Hence there is a reasonable likelihood that correcting Sneed’s testimony would have affected the judgment of the jury,” the Court said.
The Court rejected the argument that reversal wasn’t warranted because other impeaching evidence was before the jury.
“If the evidence impeaching Sneed’s credibility was already overwhelming, then no reasonable jury could have convicted Glossip in the first place, given that the prosecution’s case rested centrally on Sneed’s credibility”, the Court said. This argument “appears to assume the jury would have believed Sneed no matter what.”
“Such an assumption has no place in a materiality analysis, which asks what a reasonable decisionmaker would have done with the new evidence”, the Court said.
The Oklahoma Court of Criminal Appeals’ opinion was based on a “mistaken interpretation of Napue,” the Court said.
Justice Barrett concurred in part, and dissented in part. She agreed the Oklahoma court’s judgment should be reversed based on violation of Napue, but instead of granting a new trial, she would have remanded the case for further proceedings.
“Instead, the Court has drawn its own conclusions about what the record shows, thereby exceeding its role,” Barrett said.
“In exercising our appellate function, it is not our role to find facts; instead we review factual findings of lower courts, subject to a deferential standard of appellate review,” Barrett said. “In this case, however, the Court has chosen to function as the initial factfinder.”
Justices Thomas and Alito dissented. They believed the Court “lacked jurisdiction to hear” Glossip’s case since the Oklahoma court’s judgment was based on the independent state-law ground that Glossip had not satisfied Oklahoma’s requirements for successive postconviction petitions.
“The majority evades this straightforward conclusion by inventing a federal holding that the [Oklahoma court] never made”, they said.
They also believed Glossip had not established a meritorious Napue claim.
Justice Gorsuch did not participate.
Andrew: Prejudicial Evidence
Brenda Andrew was convicted of murdering her husband, and was sentenced to death.
At trial, the State introduced much evidence about Andrew’s sex life and her failings as a mother, much of which the State conceded in later appeals was irrelevant.
The State introduced evidence about Andrew’s sexual partners reaching back two decades; about provocative outfits she wore to dinner or at the grocery store; about the underwear she wore; and about how often she had sex in her car. The State asked witnesses to comment on whether a good mother would dress and behave that way.
The Oklahoma Court of Criminal Appeals concluded that even though most of the evidence was irrelevant and should not have been admitted, the trial court’s error harmless.
Andrew sought federal habeas relief, relying on Payne v. Tennessee (1991), a case involving admission of victim-impact evidence.
The District Court denied habeas relief.
The 10th Circuit affirmed on grounds that Andrew could not cite “clearly established federal law” that due process prohibited introduction of unduly prejudicial evidence. The 10th Circuit acknowledged that the Supreme Court, in Payne, had said that due process “provides a mechanism for relief” when unduly prejudicial evidence renders a trial “fundamentally unfair”, but the 10th Circuit said this was only a “pronouncement,” not a “holding.”
The Supreme Court reversed.
The Antiterrorism and Effective Death Penalty Act (AEDPA) allows a federal court to grant habeas relief if the state court unreasonably applied “clearly established Federal law, as determined by” the Supreme Court.
“When this Court relies on a legal rule or principle to decide a case, that principle is a ‘holding’ of this Court for purposes of AEDPA”, the Court said.
By citing Payne, “Andrew properly identified clearly established federal law”, the Court said.
“The legal principle on which Andrew relies, that the Due Process Clause can in certain cases protect against the introduction of unduly prejudicial evidence at a criminal trial, was … indispensable to the decision in Payne”, the Court said. “That means it was a holding of this Court for purposes of AEDPA.”
“Importantly, Payne did not invent due process protections against unduly prejudicial evidence”, the Court said. “The Court had several times before held that prosecutors’ prejudicial or misleading statements violate due process if they render a trial or capital sentencing fundamentally unfair.”
“To the extent that the Court of Appeals thought itself constrained by AEDPA to limit Payne to its facts, it was mistaken”, the Court said. “General legal principles can constitute clearly established law for purposes of AEDPA so long as they are holdings of this Court.”
“Although this Court has not previously relied on Payne to invalidate a conviction for improperly admitted prejudicial evidence … ‘certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt’”, the Court said.
The Court remanded the case for the lower courts to determine, in the first instance, whether Andrew’s guilt or penalty phases were, in fact, rendered “fundamentally unfair” due to admission of “unduly prejudicial” evidence.
Justices Thomas and Gorsuch dissented.
Smith: Intellectual Disability
Joseph Smith had five IQ tests, resulting in scores ranging from 72 to 78. The District Court had found that, given the standard range of error, Smith’s IQ could be as low as 69, which would be low enough to be intellectually disabled.
The Supreme Court has not specified how courts are to evaluate multiple IQ scores.
The 11th Circuit opinion could be read in “two ways,” the Supreme Court said. It could be read to create a per se rule that when the lower end of an IQ score – here 69 – is below 70, that that is dispositive of intellectual disability.
On the other hand, the opinion can be read to require a “more holistic approach” to multiple IQ scores that considers all relevant evidence, including expert testimony.
Since the 11th Circuit’s opinion was “unclear” on this point, and the Supreme Court’s assessment “may depend on the basis” of the Circuit’s opinion, the Supreme Court vacated the judgment and remanded the case for further consideration.