Supreme Court throws out murder conviction tainted by female defendant's sex life

Yes, the modern Supreme Court is conservative, but no, it does not always issue conservative rulings. This decision came down a few weeks ago and got no national attention, to my knowledge. But the Court actually grants a habeas corpus petition because the murder defendant did not receive a fair trial.

The case is Andrew v. White, issued on January 21. This case is like something out of a movie. Brenda Andrew was charged with killing her husband for the insurance money. This happened nearly 25 years ago. Husband Rob was fatally shot in his garage, and Brenda was shot in the arm, She blamed it all on two armed assailants. Brenda by then was separated from Rob and was seeing someone else, Pavatt, who later admitted he and a friend were the shooters. Pavatt got the death penalty. Brenda, meanwhile, took her case to trial.

At trial, a lot of evidence came in that the jury never should have heard, The prosecutors put on evidence about Brenda's past sex life, including prior sex partners, the underwear she packed for vacation, how often she had sex in the car, what she wore to dinner and while grocery shopping. The jury also heard this:

At least two of the prosecution’s guilt-phase witnesses took the stand exclusively to testify about Andrew’s provocative clothing, and others were asked to comment on whether a good mother would dress or behave the way Andrew had. In its closing statement, the prosecution again invoked these themes, including by displaying Andrew’s “thong under- wear” to the jury, by reminding the jury of Andrew’s alleged affairs during college, and by emphasizing that Andrew “had sex on [her husband] over and over and over” while “keeping a boyfriend on the side.”

One judge who heard the case on the Tenth Circuit (which upheld the conviction) dissented and "condemned the State’s focus 'from start to finish on Ms. Andrew’s sex life,' a move he argued 'portrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals . . . plucking away any realistic chance that the jury would seriously consider her version of events.'”

But we are getting ahead of ourselves. The jury convicted Brenda of murder and gave her the death penalty. She appealed the conviction and then filed a habeas corpus petition, claiming her conviction violated the U.S. Constitution. These efforts failed, as the lower courts said the Supreme Court has never squarely held the Due Process Clause bars criminal convictions on the basis of irrelevant evidence, and to be sure, the evidence was so irrelevant that the state of Oklahoma conceded along the way that all this was not relevant, but the state courts upheld the conviction anyway.

The Supreme Court grants the habeas petition, noting that it has in fact held that the Due Process Clause bars criminal convictions on the basis of irrelevant evidence. One case standing for this proposition was Payne v. Tennessee, from 1991. Payne was famous at the time because the Supreme Court in that case had overturned a criminal procedure precedent from 1987 and said that stare decisis, which is Latin for "we adhere to precedent" is not always decisive, which drew an angry precedent from Justice Thurgood Marshall. But the Court in this case cites Payne as a precedent that helps Brenda.

Justices Thomas and Gorsuch dissent. Thomas provides more lurid details about Rob and Brenda's marriage and how things fell apart between them. He concludes that the legal principles upon which the majority rely in this case were not sufficiently "clearly established" to favor Brenda, which is the standard guiding habeas corpus petitions. That legal standard is so difficult to meet that Thomas notes this is the first case the Court has ever "summarily set aside a lower curt decision for failing to find that a legal rule is clearly established" under the habeas corpus statute.