The following pending petitions involve issues of interest to capital habeas litigators:
Andrew v. White, 23-6573 (cert. petition filed Jan. 22, 2024)
(case below: 62 F.4th 1299 (10th Cir.))
Questions presented:
Brenda Andrew faces execution for the shooting death of her estranged husband. Her co-defendant, James Pavatt, confessed to plotting and committing the murder without her. To bolster its circumstantial case against Ms. Andrew, the State exploited sex-based stereotypes and presented concededly irrelevant evidence about her sexual history, gender presentation, demeanor, and motherhood. At trial, the prosecution relentlessly derided Ms. Andrew, using sexually-charged descriptions to cast her in the role of an unchaste wife. The State elicited testimony about Ms. Andrew’s “short skirt, low-cut tops, just sexy outfits,” “very tight” dresses, “a leather outfit” that was not “appropriate,” and otherwise “improper clothing.” The State’s sex-based argument peaked when the prosecution called Ms. Andrew a “slut puppy” and displayed her thong underwear during its guilt-phase closing argument.
The State similarly fixated on Ms. Andrew’s demeanor where it did not comport with stereotypically feminine standards. In just over one day of testimony, Ms. Andrew’s demeanor and lack of tears were referenced fifteen times. Subsequently, during the penalty phase closing arguments, the State relied on Ms. Andrew’s demeanor in comparing her to stereotypes of women generally. The State invited the jury to convict and condemn Ms. Andrew to die because she was a “hoochie,” was a bad mother and wife, did not cry publicly, and otherwise failed to adhere to feminine stereotypes. Judge Johnson’s dissent at the Oklahoma Court of Criminal Appeals (OCCA) observed this presentation had “no purpose other than to hammer home that Brenda Andrew is a bad wife, bad mother, and a bad woman.”
Judge Bacharach’s Tenth Circuit dissent identified a “slew of errors” affecting “the fundamental fairness” of the conviction. Among these was a Miranda violation that occurred when the police signed Ms. Andrew’s hospital discharge papers, placed her in the back of a police car, and interrogated her at the police station, where, clad only in two hospital gowns, she curled up in a fetal position and whimpered. Although police repeatedly refused her requests to leave, the OCCA held she was not in custody.
This petition presents the following questions:
1. Whether clearly established federal law as determined by this Court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment.
2. Whether this Court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings Miranda v. Arizona, 384 U.S. 436 (1966) requires.
Click here to view the certiorari petition.
Glossip v. Oklahoma, 22-6500 (cert. petition filed Jan. 3, 2023)
(case below: unpublished (Okla.Crim.App.))
Questions presented:
Petitioner, Richard Glossip, faces execution on February 16, 2023 for a conviction premised on the State’s theory that he hired Justin Sneed, who is the undisputed actual killer, to kill the owner of a motel where Mr. Glossip was the manager. Sneed’s testimony was the only evidence of any agreement, and his testimony, for which he received assurance he would not face a death sentence, was critical to this case where, as one federal judge put it, “the evidence of guilt was not overwhelming.”
At Mr. Glossip’s first trial, his attorney failed to undertake even rudimentary efforts in his defense, resulting in a full reversal. Chief among the failings was a failure to impeach Sneed with evidence he had been coached to implicate Glossip, whom the interviewing detective brought up six times before Sneed implicated him in the murder.
At retrial, Mr. Sneed was impeached to some extent about having been led to identify Mr. Glossip and about inconsistencies in his account of the murder.
Recently, in post-conviction proceedings, Mr. Glossip learned that prior to the retrial, Sneed had expressed his desire to “recant” and that immediately prior to meeting with Sneed during the second trial, the prosecutor wrote in a memo that the “biggest problem” with the case would be if Sneed repeated his initial statement to police and that she needed to “get to him” before he testified.
This petition presents the following questions:
1. Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland, 373 U.S. 83 (1963).
2. Whether suppressed impeachment evidence of the State’s key witness is per se non-material under Brady v. Maryland because that witness’s credibility had been otherwise impeached at trial.
Click here to view the certiorari petition. The case has been rescheduled for conference multiple time. On May 5, 2023, the Supreme Court granted Glossip's application for stay of execution pending disposition of this petition, and the petition filed in 22-7466.