Brenda Evers Andrew v. Kelsey Fisher, Warden

Brenda Andrew again seeks relief from this Court due to the pervasive bias that rendered her capital trial fundamentally unfair. Armed only with a circumstantial case against a defendant with no prior convictions, the State of Oklahoma hinged its case on harmful stereotypes of women, infecting every day of Ms. Andrew’s trial with evidence and argument “to focus the jury’s attention on . . . Ms. Andrew’s allegedly unwomanly and unmotherly behavior.” App. 4a (Federico, J., dissenting). The evidence sending Ms. Andrew to the execution chamber includes: • Testimony and argument that she was a “hoochie” and a “slut.” • Detailed testimony about where, when, and how she had sex. • Testimony about her previous relationships going back two decades. • Testimony about her “cleavage,” “short skirt[s]” and “sexy outfits.” • A prosecutor’s reenactment with a witness of an intimate interaction between Ms. Andrew and her co-defendant. • The “thong underwear” she wore after the shooting, which the prosecutor dangled before the jury to argue that Ms. Andrew was not a “grieving widow.” “Altogether, Oklahoma put forward a scene at trial that would make Nathaniel Hawthorne blush.” App. 7a (Federico, J., dissenting). On remand, the Tenth Circuit panel again affirmed, determining that in habeas it could only consider evidence explicitly cited in the briefing before the state court, thereby splitting with two other circuit courts. The panel also applied a novel prejudice standard not used by any other federal court: requiring irrelevant evidence to relate to a “central question” for it to be harmful, then focusing on a central question that excluded Ms. Andrew’s humanity from consideration. Altogether, the panel ignored this Court’s remand instructions and jurisprudence to avoid assessing how a month of evidence reducing Ms. Andrew to an archetype affected the ultimate question before jurors: whether Ms. Andrew should live or die. This petition presents the following questions:

1. Whether a federal habeas court is empowered to review the same record that the state court reviewed when it assessed the fundamental fairness of a capital trial.

2. Whether a court must assess the impact of unduly prejudicial evidence and argument grounded in sex-based stereotyping in light of (a) the whole trial record and (b) as it relates to penalty, its effect on the jury’s ultimate decision.