Andrew v. White, USSC No. 23-6573 (per curiam), 1/21/25, vacating Andrew v. White, 62 F.4th 1299 (10th Cir. 2023); Scotusblog page (with links to briefs and commentary)
In a rare defense win (of sorts) on federal habeas in the US Supreme Court, SCOTUS clarifies that its decision in Payne v. Tennessee “clearly established” the rule that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”
This case arises from a 2001 homicide. (p.4). The victim was Andrew’s husband. (Id.). Her alleged co-conspirator was a man with whom she had allegedly been having an affair. (Id.). At her capital murder trial, the prosecution elicited copious evidence about Andrew’s sex life:
Among other things, the prosecution elicited testimony about Andrew’s sexual partners reaching back two decades; about the outfits she wore to dinner or during grocery runs; about the underwear she packed for vacation; and about how often she had sex in her car. 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 underwear” 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.” Tr. 4103, 4124–4125 (July 12, 2004). At both the guilt and sentencing phases, prosecutors contrasted Andrew with the victim, whom they asserted had been “committed to God.” Id., at 4124; see also, e.g., Tr. 4402 (July 14, 2004) (suggesting nothing could mitigate murder of Rob Andrew because he just “wanted to love God”).
(p.5).
Andrew’s consistent argument on appeal through both state and federal court has been that the introduction of this evidence was so unfairly prejudicial that it violated her right to due process. (p.6). On federal habeas review, however, the 10th Circuit rejected Andrew’s reliance on Payne, asserting that this case did not create “clearly established law” proving that the introduction of unfairly prejudicial evidence can violate due process. (p.7). Although it acknowledged language suggesting such a rule in Payne, the 10th believed this was a “pronouncement” rather than a “holding” for the purposes of AEDPA analysis. (Id.)
SCOTUS disagrees with the 10th Circuit’s reading of its precedents. Reviewing Payne, SCOTUS asserts that the case held “’the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief’ against the introduction of evidence “’that is so unduly prejudicial that it renders the trial fundamentally unfair.’” (p.9). Thus, while Payne is better known for allowing the admission of victim impact statements, SCOTUS clarified that this holding was dependent upon the existence of the due process protection against unfairly prejudicial evidence afforded to criminal defendants. (Id.). Payne, in its view, “removed one protection for capital defendants (the per se bar on victim impact statements) in part because another protection (the Due Process Clause) remained available against evidence that is so unduly prejudicial that it renders the trial fundamentally unfair.” (Id.).
Accordingly, the 10th Circuit got a crucial piece of the AEDPA analysis wrong; accordingly SCOTUS remands the case for consideration as to whether Andrew is entitled to relief under a proper framing of the relevant case law.
This per curiam order from SCOTUS is a good reminder for litigators to not forget about the federal dimensions of § 904.03 arguments and to include citations to Payne when making such claims in trial or on appeal.
