Marc Levin

Khalil Cumberbatch

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Richard Glossip has had his last meal served to him three times. Oklahoma set nine execution dates, but each was stopped by a series of interventions.[1]

He's set to go to trial for a third time this December on charges tied to the 1997 slaying of Barry Van Treese.[2] That follows the state's decision not to seek the death penalty and a recognition by the state's own attorney general that the original conviction was unjust.

Glossip's case demonstrates how a conviction can rest on evidence the defense never sees, and raises the question of how often the system catches the problem on its own. Three reforms already working in some jurisdictions may make such failures far less likely: opening prosecutors' files to the defense, putting judges in charge of disclosure from the first hearing and extending the duty to disclose beyond the verdict.

Long story short: Glossip was convicted on the testimony of Justin Sneed, a maintenance worker at the motel where Glossip was a manager. Sneed testified Glossip paid him to kill the motel owner, Van Treese, whom Sneed beat to death with a baseball bat. In return for his testimony, Sneed was spared the death penalty.

Sneed testified on the stand that he had never seen a psychiatrist. In fact, he had been prescribed lithium by a psychiatrist, but the prosecution let the lie ride. This proof was hidden in state files for more than 20 years, until a bipartisan group of Oklahoma lawmakers commissioned an independent investigation that found eight boxes of hidden documents.[3]

In Glossip v. Oklahoma, the U.S. Supreme Court reversed the conviction in February 2025 by a 5-3 vote,[4] citing its 1959 precedent in Napue v. Illinois, which held that prosecutors cannot knowingly let false testimony go uncorrected.[5]

Defense attorneys on a case that is similarly reliant on cooperating witnesses will want to have this precedent in their back pocket. The Napue standard requires only a reasonable likelihood that the falsehood could have affected the verdict — a far lower bar than that governing standard nondisclosure claims.

Most defendants will never have the advantages Glossip did: lawmakers willing to commission an independent review; a pro-death penalty Republican attorney general, Gentner Drummond, willing to admit the state got it wrong;[6] a documentary film;[7] and celebrities like Susan Sarandon[8] and Kim Kardashian in his corner, the latter of whom reportedly paid his bail.[9] If one of these factors had not been there, the case might never have come before the justices.

But for the legal community, the most troubling question is this: How many cases like Glossip's are out there with a flaw that is completely missed?

There are more than most people would probably imagine. In a 2020 study of 2,400 exonerations from 1989 to 2019, the National Registry of Exonerations found that in 54% of cases, "misconduct by government officials contributed to the defendants' wrongful convictions."[10]

The most common form of official misconduct was hiding evidence that would have helped the defendants, occurring in 44% of exonerations. And almost three-quarters of these were at least partly attributable to prosecutors.

Misconduct was most common in the most serious cases, yet it rarely led to punishment of officials.[11]

Lawyers who handle criminal cases will know Brady v. Maryland and Giglio v. U.S. — decided by the Supreme Court in 1963 and 1972, respectively — by heart. The doctrine in these landmark cases is consistent with the constitutional right to due process, but implementation too often falls short.

The Brady rule, which requires the government to disclose potentially exculpatory material evidence to the defense, essentially compels prosecutors to predict what evidence appellate courts will find material before trial. That prediction is made by the party with every incentive to construe the term narrowly.

Violations are often not discovered until someone looks for them, and it is usually only after a conviction that someone looks, when there is no constitutional right to counsel.[12]

Giglio, which requires prosecutors to disclose impeachment information about government witnesses, has its own blind spots. Under the Supreme Court's 2002 decision in U.S. v. Ruiz, prosecutors need not disclose impeachment evidence before a guilty plea, even though the vast majority of convictions stem from pleas.

And impeachment material often exists outside the prosecutor's own file, in police personnel records, an informant's history with other agencies or informal understandings with cooperating witnesses that were never memorialized. It goes undisclosed simply because no one sought it out.

Further, under the court's 1976 decision in Imbler v. Pachtman, prosecutors are entitled to absolute immunity from civil suits for damages for their conduct in the courtroom, foreclosing an additional potential pathway for relief.

A system that is difficult to enforce and that has almost no penalty for breaking it is, in practice, one that depends entirely on the honor code.

That honor is taken seriously by most prosecutors. But due process should not be a function of whether a defendant gets lucky with regard to the prosecutor assigned to their case. Three reforms, all of which are already in place somewhere, would help ensure that favorable evidence reaches the defense in time to matter; judges, rather than prosecutors alone, police the obligation; and the duty to disclose does not end when the jury goes home.

1. Open the files.

In 2013, Texas lawmakers passed the bipartisan Michael Morton Act after Michael Morton spent nearly 25 years in Texas prisons for the murder of his wife.[13] He was convicted after the prosecution suppressed evidence that implicated another man.

The law, codified in Article 39.14 of the Texas Code of Criminal Procedure, requires the state to produce offense reports, witness statements and other evidence upon request. It also requires prosecutors to turn over exculpatory, impeachment or mitigating evidence regardless of whether the defense requests it and without requiring the evidence to be material.

That is a significant departure from Brady, which requires disclosure only of favorable evidence that is material, meaning there is a reasonable probability it would have changed the outcome. That in and of itself gives the defense no right to see the rest of the file.

The Texas law also imposes a continuing duty: If the state discovers such evidence "before, during, or after trial," it must promptly disclose it.[14] Before a plea is entered or a trial begins, both sides must put on the record what has been disclosed. That way, there is a paper trail if something goes missing.

For more than a decade, Texas has operated under this law. Cases are still resolved, and plea bargaining goes on.

In an open-file system, prosecutors don't have to guess what counts as Brady material anymore. In a system like Texas', the defense would know the details, for instance, of a cooperating witness's psychiatric treatment before trial, not two decades after the fact. States adopting this system can and should follow Texas in providing reasonable safeguards for the safety of witnesses, but disclosure should be the basic rule.

In 2004, North Carolina became the first state to adopt a full open-file discovery system after the prosecution withheld witness statements in the case of Alan Gell, who was exonerated from death row.[15]

Research suggests the model makes a difference. A 2016 study published in the Washington and Lee Law Review of prosecutors and defense attorneys in North Carolina and Virginia, which has more restrictive rules, found that North Carolina's open-file regime produced broader disclosure before guilty pleas, fewer discovery disputes and faster case processing, with little evidence of heightened danger to witnesses.[16]

Experiments point the same way. A 2020 study published in the Journal of Experimental Criminology found that participants playing the roles of prosecutors under an open-file policy turned over substantially more evidence, including significantly more exculpatory items, than those under restrictive rules.[17]

And a study published the same year in the Wrongful Conviction Law Review demonstrated that access to fuller discovery shaped how mock defendants assessed the strength of the case against them, which in turn influenced whether they accepted a plea offer.[18]

Open files are not a panacea, however. The North Carolina and Virginia survey found that some impeachment evidence, such as prosecution witnesses' prior convictions, was still not reliably disclosed, and a 2017 study of several million North Carolina and Texas cases published in the Connecticut Law Review found that open-file laws on their own did little to affect case outcomes.[19] That is why two additional reforms are also important.

2. Make the judge an active participant from day one.

Look at the Due Process Protections Act, which Congress passed without opposition in 2020 and President Donald Trump signed into law. Its sponsors, Sens. Dan Sullivan, R-Alaska, and Dick Durbin, D-Ill., pointed to the 2008 false-statements prosecution of the late Sen. Ted Stevens, R-Alaska, whose conviction was overturned after it came to light that prosecutors had withheld evidence favorable to his defense.[20]

At the initial scheduled hearing, the act mandates that federal judges issue both an oral and written order to prosecutors, reminding them of the duties they owe to defendants under the Brady rule and the consequences of a failure to meet those duties, including the exclusion of evidence, adverse jury instructions, case dismissal, contempt of court charges and referral for discipline.[21]

State courts could implement the same requirement at virtually no cost, either through legislation or a court rule, which would allow trial judges to enforce the rule themselves, rather than leaving the matter for an appellate court to address years later.

A Brady violation discovered on appeal surfaces long after the damage is done, when witnesses may have died, memories have faded and the only remedy is a cumbersome retrial. A judge who issues the order at the first hearing, by contrast, can ask at each pretrial conference whether disclosure is complete, resolve disputes over whether a particular item must be turned over, and impose sanctions while there is still time to remedy the problem before the defendant is prejudiced.

Just as important, the order puts prosecutors on notice that the court, and not just their own conscience, is watching.

3. Maintain the obligation to disclose exculpatory evidence after the verdict.

Most of the evidence that is kept back emerges long after the jury has gone home. Nearly half of states have adopted versions of the American Bar Association's Model Rules 3.8(g) and 3.8(h), which require prosecutors who become aware of new, credible evidence that a defendant may be innocent to disclose and investigate it, and seek to remedy the conviction where the evidence is clear and convincing.[22] All other states should do the same.

The duty to correct a wrongful conviction should not hinge on which side of a state line the conviction happened. In District Attorney's Office v. Osborne, the Supreme Court in 2009 declined to extend Brady's disclosure requirement to postconviction proceedings, so in states without these rules, a prosecutor who comes across credible evidence of innocence after a conviction has no clear obligation to act.

The rules are also measured: They are triggered only by new, credible and material evidence, and they leave prosecutors discretion over how to investigate it.

The value of these rules goes beyond enforcement. As Fordham University law professor Bruce Green noted in a 2023 Texas A&M Law Review article, "the rules contribute to prosecutors' education and socialization and to the culture of prosecutors' offices by giving concrete expression to the idea that a prosecutor's job is not to pile up convictions, as some might think, but to seek justice."[23]

This duty requires two elements to function: enforcement and defense counsel. Texas again provides a useful model for enforcement. In 2013, the statute of limitations for filing a disciplinary complaint against a prosecutor for withholding exculpatory evidence was amended to not begin until the wrongly convicted person is released.[24] The Imbler rule effectively forecloses civil litigation, so the main accountability left is professional discipline, which should not expire while the victim of the misconduct remains in prison.

The same law barred private reprimands for these violations, so discipline, when it comes, is public.

Every state should adopt both changes.

As for counsel, anyone making credible claims of suppressed evidence should have a lawyer appointed; a rule requiring disclosure after conviction is not much help if the other side does not have the time or expertise to act on what is revealed.

Conclusion

After nine execution dates, three last meals and years of celebrity backing, Glossip won the opportunity to have a new trial. The next defendant facing similar circumstances probably won't get the same support.

Open-file policies, early judicial intervention and a duty of disclosure beyond the verdict would give defendants a fair chance and make it more likely that courts get the verdict right the first time.

As America marks its 250th anniversary, taking these steps would be one way of renewing the commitment to due process that is enshrined in our founding documents.

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Marc Levin is chief policy counsel, and co-leader of the Centering Justice Initiative, at the Council on Criminal Justice.

Khalil Cumberbatch is director of engagement and partnerships, and co-leader of the Centering Justice Initiative, at CCJ.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.cnn.com/2026/05/16/us/oklahoma-richard-glossip-story.

[2] https://www.news9.com/richard-glossip/richard-glossip-retrial-pushed-back-until-december.

[3] https://www.americanbar.org/groups/committees/death_penalty_representation/
project_press/2025/year-end-2025/richard-glossip-wins-new-trial-from-scotus/.

[4] https://www.supremecourt.gov/opinions/24pdf/22-7466_5h25.pdf.

[5] https://supreme.justia.com/cases/federal/us/360/264/.

[6] https://oklahoma.gov/oag/news/newsroom/2023/april/drummond-remarks-on-clemency-denial-for-glossip.html.

[7] https://www.imdb.com/title/tt6674310/.

[8] https://www.pbs.org/newshour/world/oklahoma-judge-allows-former-death-row-prisoner-to-be-released-on-bond-while-awaiting-retrial.

[9] https://okcfox.com/news/local/how-did-richard-glossip-post-bond-a-celebrity-may-have-had-a-hand-in-it.

[10] https://exonerationregistry.org/sites/exonerationregistry.org/files/documents/
Updated%20CP_Government_Misconduct_and_Convicting_the_Innocent%20(1).pdf.

[11] Id.

[12] In Pennsylvania v. Finley (1987), the Supreme Court held that the Constitution guarantees a lawyer at trial and on a first appeal, but not in later state post-conviction proceedings, which is where most Brady claims are raised. Two years later, in Murray v. Giarratano, the court refused to make an exception for death row inmates. So the people who would most need to uncover withheld evidence often have to do it without a lawyer.

[13] https://www.sciencedirect.com/science/article/abs/pii/S0362331914000494.

[14] Tex. Code Crim. Proc. art. 39.14(h), (k).

[15] N.C. Gen. Stat. § 15A-903, as amended by 2004 N.C. Sess. Laws 154 (S.L. 2004-154); see also "North Carolina Governor Signs Open Discovery Bill Into Law," Death Penalty Information Center (Aug. 5, 2004), https://deathpenaltyinfo.org/north-carolina-governor-signs-open-discovery-bill-into-law.

[16] Jenia I. Turner & Allison D. Redlich, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison, 73 Wash. & Lee L. Rev. 285 (2016).

[17] Samantha Luna & Allison D. Redlich, The Decision to Provide Discovery: An Examination of Policies and Guilty Pleas, 17 J. Experimental Criminology 305 (2021).

[18] Samantha Luna & Allison D. Redlich, Unintelligent Decision-Making? The Impact of Discovery on Defendant Plea Decisions, 1 Wrongful Conviction L. Rev. 314 (2020).

[19] Ben Grunwald, The Fragile Promise of Open-File Discovery, 49 Conn. L. Rev. 771 (2017).

[20] Due Process Protections Act, Pub. L. No. 116-182, 134 Stat. 894 (2020) (amending Fed. R. Crim. P. 5); Press Release, Sen. Dan Sullivan, "Sullivan, Durbin Due Process Protections Act Signed Into Law" (Oct. 22, 2020), https://www.sullivan.senate.gov/newsroom/press-releases/sullivan-durbin-due-process-protections-act-signed-into-law.

[21] Implementation varies: Some federal courts issue orders that do little more than recite the rule, while others spell out key Brady holdings, require prompt disclosure and warn that violations can lead to dismissal of charges or vacated convictions. See "Courts Adopt Varying Approaches to Implementing Due Process Protections Act," Subject to Inquiry (Apr. 2021), https://www.subjecttoinquiry.com/2021/04/courts-adopt-different-approaches-implementing-due-process-protections-act/ (comparing United States v. Ryan (E.D. La. 2021) with United States v. Shalon (S.D.N.Y. 2020)).

[22] Bruce A. Green, Should Prosecutors Be Expected to Rectify Wrongful Convictions?, 10 TEX. A&M L. REV. 167 (2023). Available at: https://doi.org/10.37419/LR.V10.I2.1.

[23] Id.

[24] Tex. S.B. 825, 83d Leg., R.S. (2013); see House Comm. Report, Bill Analysis, Tex. S.B. 825, 83d Leg., R.S. (2013), https://capitol.texas.gov/tlodocs/83R/analysis/html/SB00825H.htm.