In an unsigned per curiam opinion, the justices summarily vacated a Tenth Circuit decision upholding Brenda Evers Andrew's murder conviction and death sentence related to the 2001 shooting death of her estranged husband, Robert Andrew. She claimed prosecutors violated her due process rights by using evidence and testimony critiquing her dating history, appearance and parenting style to convince a jury that she and her then-boyfriend, James Pavatt, killed Robert Andrew to collect his life insurance policy. Pavatt, in fact, was the insurance agent who sold the policy, with Brenda Andrew as the beneficiary.
The justices said that, at the time that an Oklahoma state court upheld Andrew's conviction and sentence, "clearly established law provided that the due process clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair."
Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from the majority, chiding the court for "steamrolling settled [Antiterrorism and Effective Death Penalty Act of 1996] principles to set aside an entirely correct Tenth Circuit decision." The law permits courts to grant habeas relief in a limited set of circumstances — one of them being when a state court has adjudicated a case in a way that runs afoul of "clearly established federal law."
"We have instructed lower courts to avoid framing our precedents at too high a level of generality; to carefully distinguish holdings from dicta; and to refrain from treating reserved questions as though they have already been answered," Justice Thomas said. "The Tenth Circuit followed these rules. The court today does not."
Phillips Black attorney Nathalie Greenfield, who represents Andrew, said the justices' decision to summarily vacate the Tenth Circuit decision without oral arguments or additional briefing "is a testament to the strength of the arguments that were being made — especially around the use of sex stereotypes in Brenda's trial."
According to Andrew's petition, which was filed with the court in January 2024, Oklahoma state prosecutors elicited testimony about her prior sexual partners, made various derogatory comments, called her names like "slut puppy" and "hoochie" due to her clothing choices and hairstyle, and questioned her style of grieving because she hadn't broken down in tears during the murder trial.
"The state's narrative culminated in Hawthorne-inspired public shaming when, in its guilt phase closing argument, the prosecutor plucked a pair of thong underwear from Ms. Andrew's suitcase and, with a flourish, asked whether a 'grieving widow' would wear 'this,'" the petition said.
Oklahoma state officials had urged the Supreme Court, in a February response brief, not to take up the case. They said the so-called bad acts evidence "was both relevant and but a drop in the ocean" of state prosecutors' case against Andrew. And in any event, the state said, Andrew's allegations before the Supreme Court were much broader in scope than what she had presented on appeal to the Oklahoma Court of Criminal Appeals, the state's highest criminal court.
The state appeals court in 2007 rejected claims that the prosecution's evidence and arguments were irrelevant and biased the jury, and a divided Tenth Circuit panel later denied a request for a new trial after finding no federal law prohibits the introduction of irrelevant and prejudicial evidence about a defendant's sexual history and behavior.
Before the high court, Andrew argued that she's entitled to a new trial under the Supreme Court's 1991 decision in Payne v. Tennessee. The court held there that victim impact statements are admissible during the sentencing phase of a capital criminal case, but stated that evidence deemed so harmful that it could render the trial "fundamentally unfair" is barred under the 14th Amendment's due process clause.
The Supreme Court said Tuesday that the latter legal principle — regarding "unduly prejudicial" evidence — was "indispensable to the decision in Payne." The Tenth Circuit nevertheless ruled in March 2023 that Payne merely established that the U.S. Constitution's Eighth Amendment does not categorically prohibit victim impact statements in capital cases.
That decision was incorrect, the Supreme Court said, and must be revisited on remand.
"Specifically, the question now is whether a fair-minded jurist reviewing this record could disagree with Andrew that the trial court's mistaken admission of irrelevant evidence was so 'unduly prejudicial' as to render her trial 'fundamentally unfair,'" the opinion said.
"The court of appeals must ask that question separately for the guilt and sentencing phases," the justices said.
Lawyers for Andrew said that their client is the only woman on death row in Oklahoma and has been housed in solitary confinement for nearly a year. As the case returns to the Tenth Circuit, they will continue to press the court to "hold that this was a fundamentally unfair trial due to the admission of this highly prejudicial evidence," Jessica Sutton of Phillips Black said.
Cornell University Law School professor Sandra Babcock, who specializes in gender bias in death penalty cases and represents Andrew in a related proceeding before the Inter-American Commission on Human Rights, described the ruling as a "historic victory for gender justice."
"The Supreme Court has never before commented on prosecutors' invocation of irrelevant gender stereotypes in women's capital cases, but we know that that is a practice that is pervasive, so it is difficult to understate the significance of this ruling," Babcock told Law360.
The Oklahoma Attorney General's Office did not immediately respond to a request for comment Tuesday.
Justice Thomas, however, defended the state's case against Andrew and agreed with prosecutors' assertion that the sexual nature of some evidence presented against Andrew was relevant to the case. For instance, "the prosecution's reference to the underwear Andrew brought to Mexico . . . bore on Pavatt's and Andrew's 'intentions in fleeing to Mexico,' a key issue in the case," Justice Thomas said.
Furthermore, Justice Thomas said, "contrary to the majority's insinuations, the State presented 'overwhelming evidence' that Andrew participated in the murder of her husband," he wrote. "In fact, the State presented an 'unusually strong evidentiary case,' which leaves little or no doubt that [Andrew] is guilty of the crimes charged, crimes committed after methodical planning."
Brenda Andrew is represented by John R. Mills, Jessica Sutton, Meredith Huang and Nathalie Greenfield of Phillips Black Inc., John T. Carlson of Ridley McGreevy & Winocur PC, and Josh Toll of King & Spalding LLP.
Oklahoma Department of Corrections Warden Tamika White is represented by Joshua L. Lockett and Jennifer L. Crabb of the Oklahoma Attorney General's Office.
The case is Andrew v. White, case number 23-6573, in the Supreme Court of the United States.
--Editing by Robert Rudinger.
Update: This article has been updated with additional details and comment from Brenda Andrew's attorneys.
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