Judge grants new trial for former Oklahoma death row inmate over 1974 murder

A former death row inmate has been granted a new murder trial over a fatal shooting during a liquor store robbery in Edmond in 1974.

Now prosecutors must decide if they will retry Glynn Ray Simmons, 70, who has always said he was in Louisiana on the night of the shooting.

On Wednesday, Oklahoma County District Judge Amy Palumbo vacated his first-degree murder conviction "in the interest of justice."

The judge granted the retrial because defense attorneys were never given a key report about a police lineup. "This error was prejudicial as it denied Petitioner a fundamentally fair trial," she found.

Simmons, who reportedly has cancer, was freed on a medical own recognizance bond. His retrial was set for Oct. 23.

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Simmons had wanted the judge to find him innocent and bar prosecutors from trying him again.

Oklahoma County's new district attorney, Vicki Behenna, had asked the judge in April to grant the new trial because of the withheld report.

"The role of a prosecutor is to ensure a defendant's right to a fair trial," the district attorney said after the ruling. "We have as much responsibility ensuring that as defense counsel does, and I think we fulfilled that obligation, that ethical and constitutional obligation, today.

"The next step is to evaluate the case for retrial."

What to know about Glynn Simmons' case

Killed during the Dec. 30, 1974, robbery was Carolyn Sue Rogers, a liquor store clerk.

An Oklahoma County jury in 1975 convicted Simmons even though alibi witnesses testified he was playing pool in Harvey, Louisiana, that day.

The jury also convicted a second man, Don Roberts, despite testimony he was in Texas.

Both were found guilty after a customer, Belinda Sue Brown, identified them as the two robbers. She testified she walked past them and "the next thing I knew I was sitting on the floor, I had been shot in the head."

A second clerk said she "wasn't looking at anything except the gun" and could not identify anyone.

Simmons testified in his own defense, telling jurors he moved to Oklahoma for the first time in January 1975 to look for work.

He said the same thing at an evidentiary hearing in April. Asked at the hearing if he had ever been to Edmond, he said, "No, I have not."

Jurors chose death as punishment for both men. Their sentences were modified to life in prison in 1977 because of U.S. Supreme Court rulings on capital punishment.

Roberts, 70, was released on parole in 2008. He testified at the evidentiary hearing in April that he did not commit the murder.

"I've been saying it for 48 years," he told the judge.

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New report came to light after conviction

New alibi witnesses also testified at the evidentiary hearing about seeing Simmons on New Year's Eve 1974 in Louisiana.

Defense attorneys contend the withheld police report shows the eyewitness identified two other people during the lineup, not Simmons.

The report came to light after Simmons hired a private investigator with his own money two decades after his conviction. A federal judge in 1998 agreed the report had been withheld but found it was not material to the outcome.

The trial prosecutor, Bob Mildfelt, testified at the evidentiary hearing that he doesn't recall seeing the report himself at the time in the information provided by police. He said he would have turned it over to Simmons' trial attorney if he had.

Mildfelt wrote Simmons a letter in 1993 acknowledging that the evidence was thin and the case had holes.

"Your case has troubled me these many years because of the many questions unanswered by the evidence we had," he wrote.

Simmons free, for now, after 48 years

The judge had sheriff deputies remove his shackles in the courtroom. "That's the most beautiful thing I've ever seen in a courtroom," defense attorney John Coyle said. "It was really a special deal."

After leaving court, Simmons told a KFOR reporter he was happy and ready to try to make something out of his life.

Simmons will live in Oklahoma City for now, his attorney said.

"The first thing he wanted to eat was a Shrimp Po Boy sandwich," Coyle said.

Asked if he got it, the attorney said, "He sure did. At Pearl's."

This article originally appeared on Oklahoman: Judge grants new trial for Glynn Simmons in 1974 Edmond murder case