Supreme Court Justice Clarence Thomas is voicing dissent after the top court ruled in favor of a woman on death row for murdering her husband.
In a shock ruling this week, the court ordered a review of the trial of Brenda Andrew, finding her right to due process was likely violated by prosecutors' focus on her sex life.
An Oklahoma jury convicted Andrew for the November 2001 murder of her husband and sentenced her to death. Andrew's lawyers claim that she was unfairly characterized as a promiscuous woman in front of the jury, but appeals courts at the state and federal level upheld her conviction.
In its unsigned opinion, the Supreme Court ordered a review of the case, finding lower courts improperly analyzed Andrew's due process claim.
"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," they wrote.
The prosecution later conceded much of its evidence was "irrelevant," the Supreme Court said, but Thomas - joined by Neil Gorsuch - sharply disagreed with that description. Sex and marriage were unavoidable issues during the trial, Thomas said, noting the defense portrayed Andrew as a "good mother."
"In presenting evidence to the contrary, the State was simply rebutting a point that Andrew had placed in issue, as it clearly is entitled to do," Thomas wrote.
Additionally, Thomas said, the state produced "overwhelming evidence" that Andrew conspired to kill her husband with his life insurance agent, Jim Pavatt, with whom she was having an affair. Pavatt was separately found guilty of the murder and sentenced to death.
Andrew's husband, Rob, was shot dead in his estranged wife's garage after she asked for help lighting her furnace.
"Police discovered substantial evidence linking Andrew and Pavatt to the murder. Rob owned a 16-gauge shotgun, but had told friends that Andrew refused to let him take it with him when he moved out," Thomas wrote.
"Rather than attend her husband’s funeral, Andrew traveled with Pavatt and her children to Mexico. She apparently had no plans to return," Thomas added.
A state appeals court found much, but not all, of the sexual evidence "probative" and "highly relevant," Thomas noted. The Oklahoma Court of Criminal Appeals decided the introduction of irrelevant evidence was harmless, given the "overwhelming" proof of guilt.
A divided panel of the 10th Circuit also upheld the conviction. One judge dissented, arguing prosectors portrayed Andrew as a "modern Jezebel," removing "any realistic chance that the jury would seriously consider her version of events.”
The Supreme Court's ruling kicks the case back to the 10th Circuit to decide if "the trial court's mistaken admission of irrelevant evidence was so 'unduly prejudicial' as to render her trial 'fundamentally unfair.'"
