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This post summarizes a criminal law decision published by the U.S. Supreme Court on Jan. 21, 2025. Due process protection against highly prejudicial and irrelevant evidence was clearly established; denial of habeas petition reversed

Andrew v. White, 604 U.S. ___; ___ S. Ct. ___; 2025 WL 247502 (Jan. 21, 2025) (per curiam). The petitioner was convicted of first-degree murder in Oklahoma state court and sentenced to death. She was allegedly a part of a conspiracy to murder her estranged husband, along with a man she was dating at the time and another person. The boyfriend eventually confessed that he and another man had killed the victim but denied that the petitioner was involved in the crime. That man was also convicted of the murder and sentenced to death. During the petitioner’s trial, the State presented a voluminous amount of irrelevant and salacious evidence relating to the petitioner’s private life.

Among other things, the prosecution elicited testimony about Andew’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 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.’ Andrew Slip op. at 2.

The petitioner appealed, arguing that this evidence was so irrelevant and prejudicial that its admission violated due process protections of the state and federal constitutions. A divided state appellate court denied relief and the petitioner sought federal habeas relief based on the same arguments. Federal habeas relief from a state court conviction is only available where the state court “relied on an unreasonable determination of the facts or unreasonably applied clearly established federal law . . .” Andrew Slip op. at 5 (citing 28 U.S.C. 2254(d)(1)-(2)). The federal district court denied the petition, and the 10th Circuit affirmed that denial, finding that there was no clearly established federal constitutional claim applicable to the due process claim. A divided 10th Circuit acknowledged U.S. Supreme Court precedent stating that a due process remedy was available when extremely prejudicial evidence taints the fundamental fairness of a trial. Payne v. Tennessee, 501 U.S. 808, 825 (1991). The 10th Circuit nonetheless found that this was merely a “pronouncement” of the Court, and not a holding in Payne. Because a majority of the 10th Circuit panel determined there was no clear federal right at issue, it declined to consider whether the Oklahoma state court had unreasonably applied federal law. A dissenting judge at the 10th Circuit believed the petitioner’s trial was fundamentally unfair and would have reversed the denial of the petition.

The petitioner sought review at the U.S. Supreme Court. The Court granted review and determined that the 10th Circuit had erred in finding no clearly established due process protection from unduly prejudicial evidence. “The legal principle on which Andrews relies, that the Due Process Clause can in certain cases protect against the introduction of unduly prejudicial evidence at a criminal trial was . . . indispensable to the decision in Payne.” Andrew Slip op. at 6. The Court had recognized this protection in cases preceding Payne, and this federal constitutional right was clearly established at the time of the petitioner’s direct appeal. While the Court has never overturned a conviction based on this rule, “certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.” Id. at 8. The Court therefore remanded the matter to the 10th Circuit for it to consider whether the Oklahoma state appellate court unreasonably applied clearly established federal law as to both the guilt-innocence phase of the trial, as well as to the penalty phase. “The ultimate question is whether a fair-minded jurist could disagree that the evidence ‘so infected the trial with unfairness’ so to render the resulting conviction or sentence a ‘denial of due process.’” Id. at 10.

Justice Alito concurred separately. He agreed that due process protects against the admission of extremely prejudicial and irrelevant evidence but expressed no opinion on whether the challenged evidence in the petitioner’s case rose to the level of such a violation.

Justice Thomas dissented, joined by Justice Gorsuch. They would have ruled that the due process protection from Payne was not clearly established and would have affirmed the 10th Circuit.

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