Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland

QUESTIONS PRESENTED Petitioner, Richard Glossip, faces execution on February 16, 2023 for a conviction premised on the State’s theory that he hired Justin Sneed, who is the undisputed actual killer, to kill the owner of a motel where Mr. Glossip was the manager. Sneed’s testimony was the only evidence of any agreement, and his testimony, for which he received assurance he would not face a death sentence, was critical to this case where, as one federal judge put it, “the evidence of guilt was not overwhelming.” At Mr. Glossip’s first trial, his attorney failed to undertake even rudimentary efforts in his defense, resulting in a full reversal. Chief among the failings was a failure to impeach Sneed with evidence he had been coached to implicate Glossip, whom the interviewing detective brought up six times before Sneed implicated him in the murder. At retrial, Mr. Sneed was impeached to some extent about having been led to identify Mr. Glossip and about inconsistencies in his account of the murder. Recently, in post-conviction proceedings, Mr. Glossip learned that prior to the retrial, Sneed had expressed his desire to “recant” and that immediately prior to meeting with Sneed during the second trial, the prosecutor wrote in a memo that the “biggest problem” with the case would be if Sneed repeated his initial statement to police and that she needed to “get to him” before he testified. This petition presents the following questions: 1. Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland, 373 U.S. 83 (1963). 2. Whether suppressed impeachment evidence of the State’s key witness is per se non-material under Brady v. Maryland because that witness’s credibility had been otherwise impeached at trial. i