by Dick Hall-Sizemore

Ken Cuccinelli, a former Virginia state senator, Attorney General and candidate for governor, has long been the bệte noire of Democrats. Nevertheless, he deserves a lot of credit for his recent stand.

In a guest essay in yesterday’s New York Times, he reminds us of a legal concept that is often forgotten. In 1935, the U.S. Supreme Court declared that the interest of the prosecution in a criminal case “is not that it shall win a case, but that justice shall be done.” The Court went on to elaborate that, although the prosecutor “may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Cuccinelli brings this up in the context of a case before the current Supreme Court. Richard Glossip was convicted in Oklahoma in 1998 of arranging for the murder of his employer and was sentenced to death. Glossip has always maintained his innocence and gone through a succession of appeals. His conviction was overturned, but, on re-trial, he was again found guilty in 2004. However, the current Oklahoma Attorney General, in his investigation of the case, uncovered major misconduct by the prosecutors in the second case.

The prosecutors’ entire case depended on the credibility of one witness (the man who actually committed the murder). The Attorney General has revealed that the prosecution in the second trial withheld evidence that their star witness had a serious psychiatric disorder and they knowingly allowed him to lie in court and deny that he did. Cuccinelli declares, “If the jury had heard the suppressed evidence about [the witness’s] psychiatric condition, or if prosecutors had fulfilled their obligation to correct what the attorney general now says is false testimony, there is little doubt that the result of the trial would have been very different.”

The Oklahoma Attorney General filed a brief with the Oklahoma Court of Criminal Appeals supporting Glossip’s request to vacate his conviction and retry him. Despite the evidence of prosecutorial misconduct presented by him, the court refused to grant Glossip a new trial. It justified its ruling by saying that Glossip had “exhausted every avenue” in his prior appeals and “we have found no legal or factual ground which would require relief in this case.”

The U.S. Supreme Court agreed to hear Glossip’s appeal and put his execution on hold. The case will be heard next Wednesday. Cuccinelli has filed an amicus brief with the Supreme Court asserting that the Oklahoma Court of Criminal Appeals “threatens to force the state to execute an individual whose conviction was infected by admitted constitutional violations.” In his essay, Cuccinelli declares that such an outcome is “unconscionable” and would be a “travesty.” 

Good for him.