[00:00:00] Speaker 02:
15-6190, Andrew B. White.

[00:00:04] Speaker 02:
We've set aside a half hour for each side, but this is important.

[00:00:08] Speaker 02:
We're not going to be, I'm not going to be that strict about time as long as you're saying new and interesting things.

[00:00:15] Speaker 02:
So Mr. Greenfield, Ms.

[00:00:20] Speaker 02:
Greenfield.

[00:00:30] Speaker 01:
Good morning, Your Honours.

[00:00:31] Speaker 01:
Good morning, Mr Lockett and his crowd.

[00:00:34] Speaker 01:
I intend to reserve about five minutes for a bottle.

[00:00:38] Speaker 01:
From the outset of Brenda Andrews' capital trial, the state introduced evidence grounded in stereotypes about her as a wife, a mother, and a woman.

[00:00:48] Speaker 01:
The state repeatedly invited jurors to envisage her cleavage and clothing, picture her adulterous acts, and even infer guilt from the style and colour of her underwear.

[00:00:59] Speaker 01:
And at the penalty phase, prosecutors wielded this evidence to foreclose any meaningful consideration of a life outcome.

[00:01:07] Speaker 01:
This case is as extreme as it sounds.

[00:01:10] Speaker 01:
Ms.

[00:01:11] Speaker 01:
Andrew's case is back before you because the Supreme Court recognized that clearly established federal law prohibits the state's use of a duly prejudicial evidence that renders a trial fundamentally unfair.

[00:01:22] Speaker 01:
Stereotype-based evidence like that presented here surely fits the bill.

[00:01:27] Speaker 01:
Miss Andrew's trial was fundamentally unfair at both the guilt and penalty phases.

[00:01:32] Speaker 01:
At the OCCA, Judge Arlene Johnson clearly understood that Miss Andrew's claims fairly presented the impact of sex stereotyping evidence, writing that much of the state's evidence had no purpose other than to hammer home that Brenda Andrew is a bad wife, bad mother, and a bad woman.

[00:01:50] Speaker 01:
Indeed, judges on every panel considering this case

[00:01:53] Speaker 01:
have been disturbed by the sex stereotyping evidence that pervaded Miss Andrew's trial of both phases.

[00:01:59] Speaker 01:
I will address the impact of this evidence at each phase in turn.

[00:02:03] Speaker 01:
So turning first to the guilt face, the state tainted Miss Andrew's entire guilt face trial with its use of sex stereotyping evidence.

[00:02:12] Speaker 01:
It anchored the case in tropes about her as a woman, about her sexual behavior.

[00:02:18] Speaker 01:
From the outset, from its opening argument, the state made clear what it intended this trial to be about and then proceeded to do exactly that.

[00:02:27] Speaker 01:
Opening its case with pastors who spoke about Ms.

[00:02:30] Speaker 01:
Andrews' adultery, the very first witness for the state, explained to the court that adultery is against the teachings of the church.

[00:02:39] Speaker 03:
Can I ask you a question?

[00:02:42] Speaker 03:
Don't we need to evaluate if we apply a 2254D1 under Wellman versus CDLC based on the arguments that were presented in the Oklahoma Court of Criminal Appeals on direct appeal?

[00:02:53] Speaker 03:
Do you agree with that?

[00:02:55] Speaker 01:
Yes, Your Honor.

[00:02:55] Speaker 03:
And in the direct appeal, there were no arguments.

[00:02:59] Speaker 03:
Did John Carlson make any arguments when it was originally before the panel about the testimony of the three pastors?

[00:03:06] Speaker 03:
Is that a problem for you?

[00:03:08] Speaker 03:
How can we determine that the OCCA's determination on sex stereotypes was unreasonable under pain and clearly established federal law when the Oakland Court of Criminal Appeals didn't have the benefit of the argument that you're very well presenting to us

[00:03:27] Speaker 01:
Thank you, Your Honor.

[00:03:28] Speaker 01:
So this argument that the claim is exhausted, that the... Yes.

[00:03:33] Speaker 03:
No, I understand that the claim was exhausted.

[00:03:36] Speaker 03:
But I'm not asking you about exhaustion.

[00:03:39] Speaker 03:
I'm asking you, under 2250 or B2, even if a claim is unexhausted, we can, a habeas court can deny the claim on the merits, correct?

[00:03:49] Speaker 03:
Yes.

[00:03:50] Speaker 03:
And so assuming that it was exhausted, do you agree that with Ms.

[00:03:54] Speaker 03:
Crabb that the Oklahoma Court of Criminal Appeals did adjudicate this claim on the violation of the fundamentally unfair trial on the merits?

[00:04:04] Speaker 03:
Do you agree with that?

[00:04:04] Speaker 01:
Yes, Your Honor.

[00:04:05] Speaker 01:
All parties agree that this claim has been adjudicated on the merits.

[00:04:08] Speaker 01:
And with respect to your question about the pastors, to the extent that the claim now, we include additional

[00:04:15] Speaker 01:
record citations, additional examples, the nature and substance of the claim has not changed.

[00:04:20] Speaker 01:
And so in providing additional examples, the claim now was simply adding color to a claim that was presented below and that everybody agrees has been exhausted.

[00:04:30] Speaker 01:
And so at the OCCA, the claim that the OCCA heard was grounded in evidence about slurs used against Mr. Andrew, the word hoochie, for example.

[00:04:46] Speaker 02:
I'm surprised.

[00:04:47] Speaker 02:
That was objected to, and the judge sustained the objection to the use of hoochie.

[00:04:51] Speaker 02:
Isn't that right?

[00:04:52] Speaker 01:
That's correct, Your Honor, and the comment was not struck.

[00:04:56] Speaker 02:
So remain on.

[00:04:57] Speaker 02:
So that's your complaint, is it wasn't stricken, even though the judge said the objection is sustained?

[00:05:02] Speaker 01:
The judge said the objection is sustained and the jury still heard the word, and the word was not stricken from the record.

[00:05:07] Speaker 01:
In addition, the claim before the OCCA talked about evidence about Ms.

[00:05:12] Speaker 01:
Andrews' cleavage.

[00:05:14] Speaker 01:
That came in through David Ostro, a witness who presented testimony on the third day of trial.

[00:05:20] Speaker 01:
There was evidence about her dying her hair red.

[00:05:23] Speaker 01:
The claim was premised on many of the themes that we are discussing today, and that has been presented to this panel.

[00:05:30] Speaker 01:
And in adding additional examples,

[00:05:32] Speaker 01:
that the claim, we're adding more colour to that and that doesn't render the claim changed or different, there is not new evidence being presented, everything that is before this panel was before the OCCA, everything is drawn from the record and they had a full and fair opportunity to adjudicate that claim based on the record.

[00:05:53] Speaker 01:
Further the OCCA was required

[00:05:56] Speaker 02:
How was it before the OCCA, if there was no complaint that the evidence was inappropriate at the time, the specific evidence, if there was no mention, as Judge Bacharach was asking, about the impropriety of the testimony of the ministers and things like that, how was it actually presented to the OCCA?

[00:06:17] Speaker 02:
They weren't asked to consider that evidence in determining whether it was an unfair trial, were they?

[00:06:23] Speaker 01:
They were asked to consider that evidence, Your Honour, because... How?

[00:06:26] Speaker 01:
Because they had to... under the OCCA's own jurisprudence and under federal law, the OCCA had to evaluate the evidence that was enumerated in Miss Andrew's brief in the context of the trial.

[00:06:39] Speaker 01:
And the context of that trial is sex stereotyping evidence that came in every single day.

[00:06:45] Speaker 02:
For example, the claim... Was there even an argument that there was sex stereotyping evidence?

[00:06:51] Speaker 01:
Yes, Your Honour.

[00:06:52] Speaker 02:
That argument was made to the OCCA.

[00:06:54] Speaker 01:
That argument was made to the OCCA.

[00:06:56] Speaker 01:
Ms Andrews briefed before the OCCA in talking about evidence around her affairs, in talking about evidence around her clothing and hair, she argued that that evidence reduced her to a venal caricature in the eyes of the jury.

[00:07:10] Speaker 01:
That's at page 42 of her brief.

[00:07:12] Speaker 01:
She argued that this evidence made the trial more of a referendum on her life.

[00:07:17] Speaker 01:
That's also at page 42 of her brief to the OCCA.

[00:07:20] Speaker 01:
She argued that this evidence was presenting her as a bad person because she had affairs, and arguing that the evidence was presenting to the trial antiquated beliefs about the appropriate behavior of women.

[00:07:34] Speaker 01:
So while we agree and accept that Ms.

[00:07:37] Speaker 01:
Andrew does not use the term sex stereotyping, she does not use that particular label in her briefing before the OCCA, the claim was clearly presented as a claim grounded in sex-based stereotypes.

[00:07:49] Speaker 01:
And we need look no further than Judge Johnson's dissenting opinion at the OCCA to see that that was the case because she clearly understood what was being presented to the court there.

[00:08:00] Speaker 01:
She clearly understood that this was about evidence painting Miss Andrew as a bad woman.

[00:08:05] Speaker 01:
The first paragraph of her dissenting opinion

[00:08:09] Speaker 01:
talks about how much of the state's evidence had no purpose other than to hammer home that Brenda Andrew was a bad wife, a bad mother and a bad woman and that a defendant should be convicted, if at all, of the crime charged and not of being a bad woman.

[00:08:24] Speaker 01:
I don't think there's any way to read that dissent other than understanding the claim that was before her, which was about

[00:08:30] Speaker 01:
the evidence of sexualization of Ms.

[00:08:32] Speaker 01:
Andrew, the evidence of her hair, of her clothing, of her appearance, of the sex acts, of long history of her sex life, that that was about stereotyping, about painting her as a bad woman and inviting the jury to infer guilt because she is a bad woman and acted as a bad woman and therefore had the propensity to act as a bad woman on the day of Mr. Andrew's murder.

[00:08:55] Speaker 05:
Why wasn't it briefed and argued that way then?

[00:08:58] Speaker 05:
would have been simple to do what you're describing now.

[00:09:02] Speaker 01:
I think it was briefed that way, Your Honor.

[00:09:05] Speaker 01:
And we have the luxury here of multiple pages devoted to this single claim, because that's the only claim that's come down on remand.

[00:09:12] Speaker 01:
Nearly 20 claims were presented to the OCCA.

[00:09:15] Speaker 01:
So naturally, I think it's inevitable that there were fewer examples.

[00:09:19] Speaker 01:
Even in our briefing here, we didn't include all of the examples that we found in the trial transcript of this kind of evidence due to page constraints.

[00:09:29] Speaker 01:
The argument that she makes in her brief makes it very clear that this was what was presented to them.

[00:09:34] Speaker 01:
And Judge Johnson's dissent makes very clear that this is the claim that they considered and they denied, unreasonably so.

[00:09:42] Speaker 01:
And so the fundamental question that now is before this panel that has come back on remand is whether this unduly prejudicial evidence rendered Ms.

[00:09:53] Speaker 01:
Andrews' trial fundamentally unfair.

[00:09:56] Speaker 02:
Let me ask you about the nature of the evidence a little bit.

[00:10:00] Speaker 02:
The state could put on evidence of motive.

[00:10:07] Speaker 02:
You agree that that's appropriate?

[00:10:10] Speaker 02:
Correct, Your Honor.

[00:10:10] Speaker 02:
Sex is sometimes a very strong motive that causes people to do very bad things.

[00:10:15] Speaker 02:
You agree?

[00:10:17] Speaker 02:
Yes.

[00:10:17] Speaker 02:
So why wasn't the relationship between Miss Andrew and Mr. Provod relevant?

[00:10:26] Speaker 02:
And that's what the pastors, I'm not sure what the clergy would refer to it.

[00:10:32] Speaker 02:
That was the nature of the evidence there, showing this very strong relationship.

[00:10:36] Speaker 02:
This wasn't just a couple who were friends.

[00:10:39] Speaker 02:
They taught Sunday school together.

[00:10:40] Speaker 02:
Why the heck would they murder anybody in that circumstance?

[00:10:45] Speaker 02:
Why wasn't the relationship between the two relevant?

[00:10:51] Speaker 02:
And if the pastor said they were acting so affectionate toward each other and so on, that it was scandalous in the church.

[00:11:02] Speaker 02:
Why is that not relevant?

[00:11:04] Speaker 01:
I think the Supreme Court in its second footnote addresses this question somewhat as well.

[00:11:10] Speaker 01:
We agree that the fact of the affairs

[00:11:15] Speaker 01:
has provative value here for all the reasons that you've explained, Your Honour.

[00:11:19] Speaker 01:
It's the detail that is elicited from witnesses about those affairs that puts this trial over the pale.

[00:11:26] Speaker 01:
It's the detail about

[00:11:28] Speaker 01:
the sexual relationships, about where this happened, about... Well, speak specifically about what the first witnesses talked about.

[00:11:39] Speaker 02:
I'll call them the pastors.

[00:11:41] Speaker 02:
They were talking about what was done in public at church, essentially, right?

[00:11:46] Speaker 02:
Why was that over the top?

[00:11:49] Speaker 02:
Why wasn't that relevant?

[00:11:52] Speaker 02:
Could they just say, they seem very affectionate toward one another and leave it at that?

[00:11:56] Speaker 02:
Is that all the government's allowed to do?

[00:11:58] Speaker 01:
They could have said that, Your Honor.

[00:12:00] Speaker 01:
They could have said that there was behavior between the two observed and left at that.

[00:12:07] Speaker 01:
But the prosecutor's elicited testimony beyond that, inviting the pastor to condemn adultery as the first witness in the trial.

[00:12:15] Speaker 01:
This is on the first day of trial.

[00:12:17] Speaker 01:
And the problem here arises not from, less from, looking at each individual piece of evidence, but looking at the cumulative impact of this evidence

[00:12:26] Speaker 01:
on Miss Andrew's trial as a whole, which is the essence of the fundamental fairness inquiry here.

[00:12:31] Speaker 01:
building on the testimony from Pastor Seiner, who testified about how adultery is a sin and must be condemned as the first witness, the state built on that with further testimony about Miss Andrew's previous affairs, adding detail with the testimony of Mr. Higgins, who was presented on the second day of trial, that went into extensive detail, to an extent that it makes for very uncomfortable reading, and that's words on a page.

[00:12:59] Speaker 02:
It was relevant for him to say that she had told him she hated her husband and wished he were dead.

[00:13:08] Speaker 02:
You agree?

[00:13:09] Speaker 02:
Correct.

[00:13:09] Speaker 02:
That's a remarkable statement for a woman to say to a guy.

[00:13:14] Speaker 02:
Wasn't it relevant to bring out their relationship and how they met?

[00:13:19] Speaker 02:
That was done with all the other witnesses.

[00:13:22] Speaker 02:
They were told, okay, how do you know these people?

[00:13:24] Speaker 02:
How did you get involved with them?

[00:13:26] Speaker 02:
Why was that totally irrelevant?

[00:13:29] Speaker 02:
with respect to Mr. Higgins.

[00:13:31] Speaker 01:
So we agree, Your Honor, that the statements, I think there were three statements in the context of Mr. Higgins' entire testimony that have probative value, the one that you have isolated there in particular, and some context about why she might have shared that with this person is totally appropriate.

[00:13:49] Speaker 01:
But where did you have sex?

[00:13:51] Speaker 01:
Car.

[00:13:52] Speaker 01:
Whose car?

[00:13:52] Speaker 01:
My car.

[00:13:53] Speaker 01:
Where else did you have sex?

[00:13:54] Speaker 01:
Motel.

[00:13:55] Speaker 01:
She put the motel key in his hand.

[00:13:57] Speaker 01:
What was she wearing?

[00:13:58] Speaker 01:
How did they meet?

[00:13:59] Speaker 01:
She rubbed up against him.

[00:14:00] Speaker 01:
She touched him.

[00:14:01] Speaker 01:
She placed the key in his hand.

[00:14:03] Speaker 01:
This testimony is painting a picture for jurors.

[00:14:06] Speaker 01:
This goes far beyond establishing the nature of the relationship between the two.

[00:14:11] Speaker 01:
And Miss Andrew even stipulated to the existence of these relationships at page 338 of the trial transcript.

[00:14:17] Speaker 01:
But the gratuitous detail there, that's really painting this picture of Miss Andrew.

[00:14:23] Speaker 01:
and how exactly they had sex, and what she was wearing at the time, and how many times they went to the motel.

[00:14:30] Speaker 01:
That far exceeds anything that is necessary for the prosecution to establish the nature of that relationship there.

[00:14:39] Speaker 01:
And the same was done with Mr. Pavatt as we move further on in the trial, on the 12th day of trial, with witness Dean Gigsat, who was invited from the witness stand

[00:14:50] Speaker 01:
have a reenactment of sorts of an encounter that happened with Mr. Pavat.

[00:14:55] Speaker 01:
By that point, the existence of the relationship between these two parties had been well established, and there was no dispute about that.

[00:15:02] Speaker 01:
There was no dispute that this was a sexual relationship, but eliciting testimony from his daughter to speculate about how many people Miss Andrew may have slept with,

[00:15:11] Speaker 01:
added nothing to the nature of that relationship, having this reenactment with the witness of how close they might, Mr. Pavette and Ms.

[00:15:19] Speaker 01:
Andrew might have been on the decking, is again inviting jurors to really picture this, to paint a picture in their mind.

[00:15:26] Speaker 01:
And that's the impact of so much of this evidence.

[00:15:29] Speaker 01:
If I were to hold up a pair of women's underwear in this courtroom today, I'm fairly sure that that's the only thing that this argument would be remembered for, because it's incredibly emotional, incredibly emotive.

[00:15:41] Speaker 01:
And this isn't a theoretical exercise.

[00:15:43] Speaker 01:
That happened in Ms.

[00:15:44] Speaker 01:
Andrew's trial.

[00:15:45] Speaker 03:
I didn't mean to point at you.

[00:15:47] Speaker 03:
And I don't mean to interrupt you, so I apologize.

[00:15:50] Speaker 03:
But let's take your hypothetical that you hold up a pair of thong underwear and that may be a memorable image to us.

[00:15:57] Speaker 03:
But let's take that example.

[00:15:58] Speaker 03:
If this is a direct criminal appeal, and you hold that up, and that had not been argued in district court, but you raise that, and then your argument is that

[00:16:08] Speaker 03:
that the federal district trial may be conducted in this courtroom was so laden with inappropriate sexual innuendo and the like.

[00:16:19] Speaker 03:
And then you hold that up, and that is part of the record, but that was not presented in district court.

[00:16:26] Speaker 03:
And let's say hypothetically that the standard of review in a direct criminal appeal, and this is a hypothetical,

[00:16:32] Speaker 03:
is whether or not the district court unreasonably determined what, you know, made a conclusion based on what the evidence was presented.

[00:16:42] Speaker 03:
Wouldn't it be unfair in a sense to say, well, the district court failed to consider

[00:16:51] Speaker 03:
the fact that the defense lawyer held up a pair of thong underwear, and that that wasn't the transcript.

[00:16:59] Speaker 03:
It was never mentioned in the transcript, but we are privy to that as an appellate tribunal.

[00:17:04] Speaker 03:
And isn't that the problem that was enunciated in Wellman versus CDOC, that when a claim is adjudicated on the merits,

[00:17:13] Speaker 03:
that Oklahoma Court of Criminal Appeals does the same thing that we do, that every single appellate tribunal does, and that is the party presentation rule.

[00:17:22] Speaker 03:
We adjudicate issues and arguments based on the evidence that is elucidated.

[00:17:28] Speaker 03:
And so if we credit what you're saying, that these three pastors were in the record, not mentioned to the Oklahoma Court of Criminal Appeals,

[00:17:38] Speaker 03:
That that the let's say to follow up on Judge Hart's question, you know about the the the the hoochie comment, Mr. Oslo's testimony, and nobody has presented it sustained.

[00:17:54] Speaker 03:
Maybe not stricken, but isn't, at the end of the day, our inquiry under 2254D1, whether or not the Oklahoma Court of Criminal Appeals unreasonably adjudicated the arguments that were presented to us based on the arguments that were presented to them, just like we're not going to go looking for issues under the party presentation rule based on the arguments if we're going to confine ourselves to the arguments that you and Ms.

[00:18:18] Speaker 03:
Cramp present?

[00:18:20] Speaker 01:
Absolutely, Your Honour.

[00:18:22] Speaker 01:
The underwear in this situation was presented.

[00:18:24] Speaker 01:
That's Proposition 7.

[00:18:25] Speaker 01:
That was presented to the CCA.

[00:18:26] Speaker 03:
I understand.

[00:18:27] Speaker 03:
That was part of my hypothetical.

[00:18:29] Speaker 03:
I know Mr. Geiger raised that.

[00:18:32] Speaker 01:
I see.

[00:18:32] Speaker 02:
Let me ask one.

[00:18:34] Speaker 02:
I thought the only source of the fact of the allegation that he held it up to the jury was because of something in the newspaper.

[00:18:44] Speaker 02:
You have record evidence of that?

[00:18:46] Speaker 01:
Well, I think a reading of the record is clear what's going on.

[00:18:49] Speaker 01:
He's saying, would a grieving widow wear this?

[00:18:52] Speaker 01:
Would she wear this?

[00:18:52] Speaker 01:
And later says, the grieving widow wouldn't take her song on the way.

[00:18:57] Speaker 03:
You're not relying on the newspaper?

[00:18:58] Speaker ?:
OK.

[00:18:58] Speaker 01:
The colors of the underwear was never... The color of the underwear is from contemporaneous reports.

[00:19:04] Speaker 01:
Yes, that's true.

[00:19:05] Speaker 01:
But the words found on the underwear in the transcript, it's clear that's what he's talking about.

[00:19:08] Speaker 01:
And Exhibit 313 has photos of this evidence that went back to the jury.

[00:19:14] Speaker 02:
You think that was not at all relevant to the government's argument that this wasn't a grieving widow who needs to escape and get away from things?

[00:19:25] Speaker 02:
That's what it was offered for a trial.

[00:19:29] Speaker 02:
You don't agree that's at all relevant to that?

[00:19:31] Speaker 01:
No, Your Honour.

[00:19:32] Speaker 01:
I think that no fair-minded jurist could conclude that a trial that invites a jury to infer guilt from the style of women's underwear could be fair.

[00:19:41] Speaker 01:
There's no possible inference there from a piece of underwear.

[00:19:45] Speaker 05:
Council, what do we do if the OCCA says a piece of evidence is relevant?

[00:19:51] Speaker 05:
That's beyond us, isn't it?

[00:19:53] Speaker 05:
Is that not conclusive on us?

[00:19:56] Speaker 05:
State court ruling on state rules of evidence that are akin to the federal rules do not present a federal question for us, do they?

[00:20:05] Speaker 05:
That's right, Your Honor, and we agree with the state that this... All right, so, I'm sorry, your time's running and I know that you may get some extra, but once we say that, I'm trying to figure out how to analyze this, we say, here are the relevant facts, which we take as relevant because the OCCA said so, and then here are the irrelevant facts that everybody seems to concede, including that, and

[00:20:32] Speaker 05:
then our charge is to determine whether or not that evidence, that irrelevant evidence, not the relevant, including the affairs,

[00:20:42] Speaker 05:
But the irrelevant evidence is so unduly prejudicial that the trial was fundamentally unfair and then we call in weighing that we determine how strong was the evidence.

[00:20:55] Speaker 05:
If the evidence was overwhelming then presumably the prejudice diminishes with that.

[00:21:01] Speaker 05:
Is that the way you would analyze this too?

[00:21:05] Speaker 01:
I think with respect to looking at what the erroneous evidence is here that the panel is considering in way in the fundamental fairness question, there are three ways of looking at that.

[00:21:14] Speaker 01:
First, starting with our clearly established federal law, Payne says that the issue here is unduly prejudicial evidence that renders a trial fundamentally unfair, and the OCCA was presented both with the state law question and with the due process question, which deals with unduly prejudicial evidence.

[00:21:31] Speaker 01:
Second,

[00:21:32] Speaker 01:
Under Andrew vs. White, the Supreme Court has given really clear instructions to this panel in how to look at the evidence on remand, that we're looking at the disputed evidence and factors within that.

[00:21:44] Speaker 05:
Is it the disputed or is it the irrelevant evidence?

[00:21:47] Speaker 05:
You dispute relevant evidence, don't you?

[00:21:50] Speaker 05:
What the OCCA said was relevant evidence.

[00:21:53] Speaker 01:
So I think, Your Honour, even if we take just the irrelevant evidence, Ms Andrew wins, and to your question, Judge Baccarac as well, even if we're just looking at the evidence that was specifically enumerated before the OCCA.

[00:22:05] Speaker 01:
Miss Andrea prevails.

[00:22:07] Speaker 05:
When you say she wins, are you saying that this panel should say there was a 14th Amendment violation, that in fact she received a fundamentally unfair trial?

[00:22:17] Speaker 05:
Are you taking the extra step, which I think is required, that all fair-minded jurors would say that the OCCA's determination, and I assume you're conceding that it adjudicated the 14th Amendment question.

[00:22:31] Speaker 05:
Yes, Your Honor.

[00:22:32] Speaker 05:
All right.

[00:22:33] Speaker 05:
you would concede that by adjudicating that, that that's where you're left.

[00:22:40] Speaker 05:
That all fair-minded jurists would have to say the OCCA was unreasonably applied pain and

[00:22:53] Speaker 05:
That seems like a very tall order, especially in view of the previous history of this case.

[00:22:59] Speaker 05:
Could you respond to that?

[00:23:00] Speaker 01:
Yes, Your Honor.

[00:23:01] Speaker 01:
Because the concededly irrelevant evidence here includes a gendered slur.

[00:23:06] Speaker 01:
It includes evidence about her hair color.

[00:23:09] Speaker 01:
The state in footnote six of its response brief has now conceded that evidence about Ms.

[00:23:13] Speaker 01:
Andrews' hair and appearance is irrelevant.

[00:23:16] Speaker 01:
The evidence that the OCCA also found irrelevant includes

[00:23:21] Speaker 01:
testimony about her cleavage, about a dress that was tight and short.

[00:23:25] Speaker 05:
I concede the list, and we all have seen the list, and you can rattle it off, and I will nod my head affirmatively that a lot of irrelevant, prejudicial, maybe, evidence came in.

[00:23:38] Speaker 05:
But that's not really getting where I need to be, which is that focusing on that totally ignores all the evidence of guilt, and there's a lot of it.

[00:23:49] Speaker 05:
And so if you say that this irrelevant evidence prejudiced her, and it's a tough standard, so unduly prejudiced as to give a fundamentally unfair trial, that's a lot.

[00:24:03] Speaker 05:
For you to say that, first you have to address the overwhelming evidence or the evidence of guilt that's relied on by the panel previously as well as the jury in convicting.

[00:24:12] Speaker 05:
You have to acknowledge that.

[00:24:15] Speaker 05:
Here's the tie that I'm looking for and where I'm looking for help from you.

[00:24:21] Speaker 05:
I get that you say this prejudicial information, evidence to the jury, could have worn away on her credibility or made the jury not like her and therefore tilted the balance of the jury's deliberation in some fashion.

[00:24:37] Speaker 05:
But where I'm left is confused how that fits on anything that mattered in this case, whether it's the brake lines,

[00:24:45] Speaker 05:
Or it is the telephone calls, it's the shotgun, it's the gigstads where the ammunition is found.

[00:24:55] Speaker 05:
None of that has anything to do with her credibility, does it?

[00:24:59] Speaker 05:
What is her credibility that this is undermining that made that big of a difference in this case?

[00:25:05] Speaker 05:
That's where I'm stuck.

[00:25:06] Speaker 01:
Respectfully, Your Honor, I disagree.

[00:25:08] Speaker 01:
I think her credibility was hugely important to all of that.

[00:25:11] Speaker 05:
On which one?

[00:25:12] Speaker 05:
How?

[00:25:12] Speaker 05:
The shotgun.

[00:25:13] Speaker 05:
How was it important for that?

[00:25:16] Speaker 01:
Because all of this was contested evidence.

[00:25:18] Speaker 01:
Ms.

[00:25:19] Speaker 01:
Andrew contested everything in this trial, and so the case rose and fell on her credibility as a counter narrative, as a narrator,

[00:25:27] Speaker 01:
as somebody to present a testimony.

[00:25:31] Speaker 05:
What is contested specifically other than two masked gunmen instead of it, Mr. Povit?

[00:25:37] Speaker 01:
So, for example, the brake lines, Your Honour, that you mentioned, she had an alternative narrative to that, and that narrative stood no chance.

[00:25:44] Speaker 01:
This was compounded by a lack of mitigating instructions, the jury was given no way to understand

[00:25:52] Speaker 01:
permissible inferences that they could draw about her being a bad woman and a bad person and compounded by her excluded witnesses as well.

[00:25:59] Speaker 05:
That's my point, is you have to acknowledge the overwhelming evidence on that too, which is it's not just she said I didn't have anything to do with the breaks and the jury thought you're a bad woman so yes you did.

[00:26:09] Speaker 05:
There's a whole lot more to it than that.

[00:26:11] Speaker 05:
The telephone calls, the sequence,

[00:26:13] Speaker 05:
The previous threat, her mentioning to Rob before it was in the newspaper, hey, I saw in the newspaper that someone tried to cut your brakes.

[00:26:22] Speaker 05:
A lot of evidence of guilt there that has nothing to do with underwear or bikini bottoms or whatever we're talking about or hoochie or red hair.

[00:26:34] Speaker 05:
It just doesn't have anything to do with that.

[00:26:37] Speaker 01:
I think looking at how the state presented its own evidence is really illustrative here of how this trial went.

[00:26:46] Speaker 01:
The state started, very first line of its opening statement, with this is about a controlling woman who liked to cheat on her husband who had extracurricular activities.

[00:26:56] Speaker 01:
the state then presented days of testimony about that.

[00:26:59] Speaker 01:
And in closing, at both guilt and penalty phases, and at both bifurcated closing arguments here, the state chose to end with evidence of her affairs

[00:27:09] Speaker 01:
And explicitly, the last things that the jury heard before they went off to deliberate at guilt phase and at penalty phase were about how she was a bad woman who was having affairs in contrast to Rob, Mr. Andrew, who just wanted to love her.

[00:27:22] Speaker 02:
Let me ask one question about that.

[00:27:24] Speaker 02:
When you're talking about closing, was there any argument to the OCCA about improper closing argument?

[00:27:30] Speaker 01:
Yes, Your Honor.

[00:27:30] Speaker 01:
That's Proposition 13 before the OCCA.

[00:27:33] Speaker 02:
And what were the things complained of?

[00:27:35] Speaker 01:
The complaint out there was in Proposition 7 was the use of Ms.

[00:27:39] Speaker 01:
Andrews underwear in a closing argument and in Proposition 13 they presented a due process violation based on a closing argument, a penalty phase that invited jurors to conclude that she was a bad person because she invited workmen into her home.

[00:27:52] Speaker 02:
Closing argument at the penalty phase?

[00:27:54] Speaker 01:
Yes, both are presented to the OCCA.

[00:27:58] Speaker 02:
With respect to the guilt phase, the closing argument, the only issue was holding up the

[00:28:05] Speaker 02:
So underwear, is that right?

[00:28:08] Speaker 01:
From memory, Your Honor, I think that is one of two issues that were presented.

[00:28:13] Speaker 01:
Proposition 7 was divided into 7.1 and 7.2.

[00:28:16] Speaker 01:
I'm afraid I can't quite remember off the top of my head what was in 7.1.

[00:28:20] Speaker 01:
And I'm conscious of my clock ticking out.

[00:28:22] Speaker 01:
So if there are no further questions.

[00:28:23] Speaker 01:
There are further questions.

[00:28:25] Speaker 02:
OK.

[00:28:26] Speaker 03:
Go ahead.

[00:28:27] Speaker 03:
Did you go up?

[00:28:28] Speaker 03:
Yeah, but I want to hear yours.

[00:28:31] Speaker ?:
OK.

[00:28:32] Speaker 03:
You know, one of the things that I'm just a little unsure of from the umbrella briefing is, you know, and you mentioned Judge Johnson's dissent, partial dissent in the Oklahoma Court of Criminal Appeals opinion.

[00:28:44] Speaker 03:
Now, a lot of the evidence that you are relying on and your predecessor, Mr. Carlson, relied on to impugn the death sentence was actually evidence that was presented at stage one.

[00:28:55] Speaker 03:
And this is a little bit of a corollary to some of Judge Phillips' questions.

[00:28:59] Speaker 03:
With regard to the evidence that you contend was improperly elicited at stage one on Gilder Innocence, do you have to satisfy 2254 D1 or D2 with regard to the introduction of that evidence at stage one before we can consider

[00:29:21] Speaker 03:
the issue that Judge Johnson addressed, and that is whether or not, even if it didn't necessarily undermine the fundamental and fairness of the guilt innocence determination, that it could have impugned the imposition of the death penalty because it only takes one holdout juror.

[00:29:40] Speaker 03:
But don't, before we can address that, don't we have to ultimately determine that there was a violation of D1 or D2 with regard to the introduction of the evidence of the guilt stage?

[00:29:51] Speaker 01:
And so the instructions from the Supreme Court make clear that this panel is to consider the impact of unduly prejudicial evidence at both phases.

[00:30:00] Speaker 03:
And I agree with you that they said that.

[00:30:02] Speaker 03:
How do we do that?

[00:30:04] Speaker 01:
And so I think this comes back to the question of what is the erroneous evidence that we're looking at here?

[00:30:08] Speaker 01:
What is in that bucket?

[00:30:09] Speaker 01:
And what was the impact when considered in the context of the entire phase one proceeding and phase two proceeding?

[00:30:18] Speaker 01:
And so even if

[00:30:20] Speaker 01:
we just take the concededly irrelevant evidence, the picture that was presented of Ms.

[00:30:25] Speaker 01:
Andrew, the drumbeat that was reinforced over and over again throughout the guilt phase bled into the penalty phase.

[00:30:32] Speaker 01:
This was not a foregone conclusion at the penalty phase.

[00:30:36] Speaker 01:
The state's penalty phase case lasted half a day, it incorporated its guilt phase evidence and continued its attacks on Ms.

[00:30:44] Speaker 01:
Andrew's failure to produce tears when asked for

[00:30:46] Speaker 01:
on her affairs, grilling witnesses about whether the fact she had affairs would change their opinion of her.

[00:30:52] Speaker 01:
So continue to base this case in gender-based stereotypes and in sex shaming.

[00:30:59] Speaker 01:
And at close in argument, the prosecutor continued to raise these issues.

[00:31:05] Speaker 01:
So even if we're only looking at the evidence that has been conceded before the OCCA and here,

[00:31:13] Speaker 01:
This still arises to the level of a due process violation because no fair-minded jurist could conclude that a trial which was made about a defendant's sex life was fair.

[00:31:22] Speaker 01:
No fair-minded jurist could conclude that a trial that trafficked in gendered slurs was fair, or that a trial that was focused on her cleavage, her clothing, her short skirt, her tight dress was fair.

[00:31:35] Speaker 01:
All of this evidence, as Judge Johnson said, trivialized the value of her life.

[00:31:41] Speaker 01:
The effect of stereotyping is to

[00:31:44] Speaker 01:
to flatten the defendant to a villainous archetype.

[00:31:48] Speaker 01:
And that's somebody on whom the jury could very readily pin the crime.

[00:31:53] Speaker 02:
Who raised the issue of whether she was a good wife or mother?

[00:31:57] Speaker 01:
The state argues that the defense opened the door to this.

[00:32:00] Speaker 02:
Yes, when they asked, I think it was Mr. Nunley.

[00:32:03] Speaker 01:
But this evidence started coming in far before that.

[00:32:06] Speaker 01:
Even the state's argument in its most recent round of briefing that the defense opening argument opened the door to all of this.

[00:32:13] Speaker 03:
well it was a mitigator it was a mitigator yes i mean the defense for mr mccracken and mr muskowski specifically asked at stage two for a mitigating circumstance i mean uh... this is no please don't get over the charge is just uh... uh... to put an explanation mark on this question you know that was something that uh... you know that uh... this firm and mr godfrey didn't do that was they were responding to a mitigator that was solicited by the defense counsel

[00:32:43] Speaker 01:
I think that argument becomes tenuous, Your Honor, when we think about what actually happened here and the nature of the evidence.

[00:32:49] Speaker 01:
It's not possible to open the door to prejudicial stereotyping.

[00:32:54] Speaker 01:
I think Buck v. Davis makes that very clear.

[00:32:56] Speaker 01:
The issue in Buck was a defense witness and testimony by a defense witness.

[00:33:01] Speaker 01:
And nevertheless, the Supreme Court concluded that that single comment grounded in the defendant's race rendered the proceeding unfair.

[00:33:08] Speaker 02:
If you say it's going on cross-examination, well,

[00:33:14] Speaker 02:
Let me get back to another point I'd like to follow up.

[00:33:17] Speaker 02:
I mentioned this earlier on.

[00:33:21] Speaker 02:
You acknowledge that sex could be a motive.

[00:33:25] Speaker 02:
That sex could be a motive?

[00:33:27] Speaker 02:
Yes, for doing very bad things.

[00:33:29] Speaker 02:
People do it all the time, right?

[00:33:31] Speaker 01:
Yes.

[00:33:32] Speaker 02:
This offense, if she was guilty of it, was cold-blooded murder of a husband.

[00:33:40] Speaker 02:
by a boyfriend and her working together.

[00:33:45] Speaker 02:
How could somebody do that?

[00:33:48] Speaker 02:
What would be the motive?

[00:33:52] Speaker 02:
Sex in part.

[00:33:54] Speaker 02:
So you just say, okay, they had an affair.

[00:33:57] Speaker 02:
Lots of people have affairs without killing spouses.

[00:34:00] Speaker 02:
The evidence of the intensity of this relationship, the fact that they would act this way so inappropriately in public, in church,

[00:34:09] Speaker 02:
Isn't that evidence of the intensity of the relationship between them which might be relevant to determining whether this was enough to make these two do this evil deed?

[00:34:22] Speaker 02:
Why is that not relevant?

[00:34:26] Speaker 02:
Why don't you answer that first and then I might have some follow-up questions.

[00:34:29] Speaker 01:
And I can see that I'm out of time.

[00:34:32] Speaker 02:
Don't worry.

[00:34:33] Speaker 01:
Great.

[00:34:33] Speaker 01:
Thank you, Your Honor.

[00:34:34] Speaker 01:
So I think we come back to the question of what is probative and what is so prejudicial that probative value is outweighed here.

[00:34:43] Speaker 02:
Well, sometimes probative evidence can be very prejudicial.

[00:34:48] Speaker 02:
That's what convinced me.

[00:34:49] Speaker 01:
It's the nature of it.

[00:34:50] Speaker 01:
Absolutely, Your Honor.

[00:34:50] Speaker 02:
Yes, yes.

[00:34:50] Speaker 02:
And when you've got sex as the motive, how are you going to keep out stuff that is sexual?

[00:34:57] Speaker 01:
And even if sex is the perceived motive or is what is being argued in the case.

[00:35:02] Speaker 02:
But there's no other motive.

[00:35:04] Speaker 02:
Well, money, money.

[00:35:05] Speaker 01:
I think there are other motives on the table here that were presented by the state and the nature of the relationship between the co-defendants being one of them.

[00:35:14] Speaker 01:
But that doesn't green light a trial to just be flooded with endless prejudicial testimony about.

[00:35:22] Speaker 02:
Well, and now you're going to mention hair and that stuff.

[00:35:26] Speaker 02:
I want to focus on the relationship between the two defendants.

[00:35:32] Speaker 02:
Why isn't any evidence of their inappropriate, publicly inappropriate sexual relationship, why isn't any of that, why isn't all of that relevant?

[00:35:44] Speaker 02:
Why does the government have to say, no, I'm not going to put on that because that's too damning of them?

[00:35:53] Speaker 02:
Why is that not the essence of the case in a way?

[00:35:56] Speaker 01:
I think I may have misspoken, Your Honour.

[00:35:59] Speaker 01:
Our position is not that any evidence about the nature of this relationship is irrelevant and has no probitin value.

[00:36:08] Speaker 01:
It's that the gratuitous nature of it doesn't get the jury any closer to it.

[00:36:15] Speaker 02:
Why is it gratuitous if it's about their relationship?

[00:36:17] Speaker 02:
There was gratuitous evidence.

[00:36:19] Speaker 02:
Everybody acknowledges that.

[00:36:21] Speaker 02:
But we have to look at that in light of what's already been introduced that's relevant.

[00:36:27] Speaker 02:
The fact that Mr. Nunley had an affair, and I think with Ms.

[00:36:32] Speaker 02:
Andrew, I think that's

[00:36:33] Speaker 02:
It's one statement.

[00:36:35] Speaker 02:
There's nothing about where they had sex or anything like that.

[00:36:38] Speaker 02:
That was relevant because why the heck would she be calling this guy 40 times the day before she leaves town or whatever the specific facts are?

[00:36:48] Speaker 02:
So you want to know that they had been very close at one time.

[00:36:53] Speaker 02:
That gets in.

[00:36:55] Speaker 02:
That wasn't inflammatory.

[00:36:58] Speaker 02:
It was an important point to explain their relationship.

[00:37:03] Speaker 02:
Why is, but that's been attacked repeatedly in your briefs when it seems to me that was totally relevant in that circumstance.

[00:37:13] Speaker 02:
So you have some of the sexual evidence seems to be quite relevant to motive here or to explain the relationship between a witness and Ms.

[00:37:27] Speaker 02:
Andrew.

[00:37:27] Speaker 02:
And we have to look at the gratuitous stuff

[00:37:32] Speaker 02:
in light of that.

[00:37:33] Speaker 02:
I mean, it'd be hard to explain a relationship with Mr. Provatt without seeing her in a bad light for her sexual behavior.

[00:37:42] Speaker 02:
But that was quite appropriate.

[00:37:45] Speaker 02:
I'd like to hear what you say about what was wrong with that.

[00:37:48] Speaker 01:
Yes, Your Honor.

[00:37:49] Speaker 01:
I think we're broadly in agreement that the nature, that the fact of her relationship has probative value.

[00:37:58] Speaker 01:
The fact that this was an intimate relationship has probative value.

[00:38:01] Speaker 01:
But we have to look at how this was presented in the context of the full trial, which is endless testimony about multiple sexual relationships.

[00:38:09] Speaker 01:
Going back to 1982, which is very attenuated time-wise, to build a picture of a woman who has this salacious sexual appetite and uses her sexuality in deviant ways to instand men or to lead men to their demise.

[00:38:26] Speaker 01:
And with respect to Mr. Pavat in particular,

[00:38:30] Speaker 01:
the nature of that relationship, understanding the relationship between the parties.

[00:38:37] Speaker 01:
We don't contest, that's important.

[00:38:39] Speaker 01:
But what was not required was speculation about how many sexual partners she might have had, about the reenactment that happened, testimony from Curtis Jones about how he was Twitter-pated with her because of their sexual relationship.

[00:38:53] Speaker 01:
It was reinforced day after day and in the context of a trial that began with testimony about previous sexual relationships and ended.

[00:39:01] Speaker 01:
with closing argument about two-decade-old sexual relationships.

[00:39:05] Speaker 05:
On that, as far as, and again, that list of things that everybody has said are irrelevant, trying to figure out your position for sure, and that was my chance to find out.

[00:39:15] Speaker 05:
So let me ask you, are you saying, regardless of the volume of criminal evidence, connecting her to a first-degree murder and a conspiracy to commit one,

[00:39:26] Speaker 05:
that if this quantum of that evidence comes in, that it is per se so unduly prejudicial that the trial is fundamentally unfair.

[00:39:39] Speaker 05:
Is that your position every time that this happens?

[00:39:43] Speaker 01:
Not every time, Your Honour.

[00:39:44] Speaker 01:
I think that's a very

[00:39:45] Speaker 01:
case-specific determination that the panel is undertaking here, weighing up how the prejudicial evidence affected the whole trial.

[00:39:53] Speaker 05:
And the stronger the evidence of guilt, the less important the other evidence.

[00:39:59] Speaker 05:
Do you agree with that?

[00:40:01] Speaker 01:
Not necessarily, because I think the Supreme Court has made clear that there are limits, and perhaps, like in the case of Burke... Well, now you seem to be arguing for a per se rule.

[00:40:12] Speaker 01:
I think our position, Your Honour, is

[00:40:15] Speaker 01:
that even in the face of in culprit re-evidence, which of course there was in this trial, there have to be limits to what the state can do.

[00:40:23] Speaker 01:
And the nature, the tenor, the frequency of this evidence was such that the jury was, that it tainted the entire trial.

[00:40:33] Speaker 01:
compounded by other errors that are accepted by the OCCA.

[00:40:37] Speaker 05:
A couple of questions.

[00:40:38] Speaker 05:
The first one, I have to say that the evidence is even stronger, that a neighbor walks by and sees exactly what happens in the garage and it's as the state portrays it, or has a video camera, and video is the whole thing.

[00:40:51] Speaker 05:
Would you still be saying today

[00:40:53] Speaker 05:
This was a fundamentally unfair trial despite that evidence too because of all this salacious details just contaminated the jury start over.

[00:41:03] Speaker 05:
Would that be your position or would you say that's enough evidence?

[00:41:08] Speaker 01:
I think it might depend on

[00:41:11] Speaker 01:
the nature of the evidence presented?

[00:41:13] Speaker 01:
Video tape.

[00:41:15] Speaker 01:
Certainly at the penalty phase, I think there would be, there is a discretionary inquiry.

[00:41:21] Speaker 01:
Turner versus Murray establishes that given the discretionary nature of that inquiry at the penalty phase, that there's plenty of room for bias to seep in.

[00:41:29] Speaker 05:
And that's my second question, penalty phase, which goes back to my original problem.

[00:41:35] Speaker 05:
And I'm open, but you have to help me here.

[00:41:38] Speaker 05:
I see a disconnect.

[00:41:40] Speaker 05:
Grant you everything that you say on the irrelevant evidence and why, why some of that was introduced is beyond me, but...

[00:41:49] Speaker 05:
just the same penalty-phase aggravators, remuneration, she has the evidence of the insurance policies, there's an eighty thousand dollar joint account, so forth, nothing to do with her sex life or sex conduct or anything else.

[00:42:04] Speaker 05:
The second, especially heinous, atrocious, and cruel, nothing to do with all of the things that you're complaining of with merit, has nothing to do with it.

[00:42:15] Speaker 05:
So essentially what I'm hearing is even though

[00:42:19] Speaker 05:
She was found guilty on strong evidence that this court has previously described as overwhelming.

[00:42:26] Speaker 05:
So what?

[00:42:27] Speaker 05:
It's a redo because this sort of thing just can't be permitted, even though it didn't have an effect on those aggravators.

[00:42:35] Speaker 01:
I think due process demands more, Your Honor.

[00:42:37] Speaker 01:
And with respect to the penalty phase, it's not simply the aggravating factors.

[00:42:41] Speaker 01:
There's then the weighing that has to happen.

[00:42:43] Speaker 01:
And the jury has to ask itself fundamentally, is this person the worst of the worst?

[00:42:47] Speaker 01:
Is this somebody who should be eradicated from society?

[00:42:51] Speaker 01:
And Ms.

[00:42:52] Speaker 01:
Andrew's case, she had no prior offenses.

[00:42:55] Speaker 01:
She had no violent history.

[00:42:57] Speaker 02:
This was an awful murder.

[00:43:02] Speaker 01:
Yes, Your Honor.

[00:43:02] Speaker 02:
Okay.

[00:43:05] Speaker 02:
That affects how jurors decide whether or not to impose the death penalty.

[00:43:13] Speaker 01:
Absolutely, Your Honor, and there's so many factors that go into juries' determinations at sentencing phases, as this Court has recognized, as the Supreme Court has recognized, and when this much bias floods a trial, we can't be certain that that wasn't what tipped the scales here, that that wasn't the hatred inspired for her, the strong emotion from this

[00:43:34] Speaker 01:
sexualizing evidence, the picture painted of her from the outset of trial over the course of five weeks was not what tipped the scales here for jurors when deciding whether or not she should live or die.

[00:43:47] Speaker 01:
They didn't find the third aggravating factor, which may suggest that this was a close call.

[00:43:51] Speaker 01:
The future dangerousness is often something that matters to juries.

[00:43:54] Speaker 01:
Scholarship establishes that a lot.

[00:43:57] Speaker 01:
And nevertheless, they didn't find that aggravating factor.

[00:44:01] Speaker 01:
And in spite of the other two aggravating factors, there's still a weighing that happens at the penalty phase.

[00:44:07] Speaker 03:
Is it okay if I ask a question?

[00:44:09] Speaker 03:
So it is okay?

[00:44:11] Speaker 03:
Yes.

[00:44:11] Speaker 03:
Okay.

[00:44:13] Speaker 03:
And I apologize for interrupting, but I do want to follow up on what you just said.

[00:44:16] Speaker 03:
So, you know, I don't have the photographic memory, but I think he said something to the effect that we can't say that it didn't take place.

[00:44:25] Speaker 03:
Isn't that actually the problem?

[00:44:27] Speaker 03:
Because the Supreme Court in the recent inquiry decision put it in the positive, not in the double negative.

[00:44:34] Speaker 03:
And we have the gloss of 2254D1.

[00:44:37] Speaker 03:
And so isn't the question whether or not the evidence that we can say that the Oklahoma Court of Criminal Appeals unreasonably determined that the evidence was not so unduly prejudicial as to render the trial fundamentally unfair.

[00:44:54] Speaker 03:
And in order to accomplish that, we have to do more than overcome a double negative.

[00:45:01] Speaker 03:
to overcome the possibility that it may have tipped the scales, we have to affirmatively determine not only did it tip the scales, but nobody, fair-minded jurists, as Judge Phillips mentioned, could find otherwise.

[00:45:16] Speaker 03:
And so we have basically, I think, three layers that we have talked about.

[00:45:21] Speaker 03:
I think you've talked about with Judge Phillips, with the phrase, in the Supreme Court's opinion and in Andrew,

[00:45:28] Speaker 03:
that it has to be unduly prejudicial.

[00:45:31] Speaker 03:
Do you agree with, I think, the premise of Judge Phillips' question, and that is we have to consider the impact of the improper evidence as it relates to the legitimately considered evidence.

[00:45:46] Speaker 03:
It's overwhelming evidence that was legitimately presented that was exclusive of gender that we have to take into account under the remand instructions.

[00:45:56] Speaker 03:
Do you agree with that?

[00:45:57] Speaker 04:
Yes, Your Honor.

[00:45:58] Speaker 03:
And then we have to take into account, I think, the very first question Judge Hertz mentioned, and that is, you know, if you look through the question of Mr. Osloff's testimony about didn't somebody call her a hoochie, the objection here says sustained.

[00:46:12] Speaker 03:
You know, we have to then consider if, even though it wasn't stricken, if that objection is sustained, can that be so unreasonable on the OCCA's part

[00:46:27] Speaker 03:
that in applying plain error, or at least they should have applied plain error, that that would unreasonably taint the fundamental fairness of the trial, right?

[00:46:39] Speaker 03:
We have to consider whether there was a contemporaneous objection, right?

[00:46:44] Speaker 03:
Yes.

[00:46:44] Speaker 03:
And then we have to consider, I think under Wellman, whether or not

[00:46:47] Speaker 03:
the direct appeal presented those arguments, just like the example that if you make arguments to us, can we say, well, the district court didn't consider that, but they didn't have the benefit under the party presentation rule.

[00:47:01] Speaker 03:
So it seems like you have sort of a triple difficult burden under D1.

[00:47:08] Speaker 03:
You have to overcome the lack of a contemporaneous objection to much of this evidence.

[00:47:12] Speaker 03:
I don't know that there was any evidence, any objections to the sexualized nature of the evidence.

[00:47:18] Speaker 03:
There were Burke's objections, there were relevance objections, but none of the objections that were presented to Judge Bragg seemed like the same objections you're presenting to us.

[00:47:28] Speaker 03:
And then you have, you know, the problem of unwellment.

[00:47:31] Speaker 03:
How can we say that an argument was unreasonably dismissed by the Oklahoma Court of Criminal Appeals when they didn't have the benefit of that argument?

[00:47:39] Speaker 03:
Seems like a very difficult burden when you have those layers

[00:47:43] Speaker 03:
that are, you know, entrenched into 2254 D1.

[00:47:46] Speaker 03:
I know that's a long compound question, but that's, to be honest with you, that's just what I'm struggling with.

[00:47:52] Speaker 03:
So if you can kind of help me out.

[00:47:55] Speaker 01:
And the version on the D1 is high.

[00:47:58] Speaker 01:
We completely recognize that.

[00:48:00] Speaker 01:
The no-fair-minded jurist standard is a hard one.

[00:48:04] Speaker 01:
It's also been expressed as

[00:48:07] Speaker 01:
D1 relief is reserved for extreme malfunctions of the criminal justice system.

[00:48:10] Speaker 01:
And I would call this case an extreme malfunction of the criminal justice system, where a defendant has been condemned to die in a trial that was so flooded in judgments, debasing testimony about her as a woman.

[00:48:27] Speaker 01:
And nevertheless, with the D1 standard, we maintain that no fair-minded jurist could have reached

[00:48:34] Speaker 01:
this conclusion when looking at the evidence in the context of the proceedings as a whole at both guilt and penalty phases.

[00:48:42] Speaker 01:
Because of how this evidence is compounded by testimony that comes in day after day, because of how the state used its own evidence, opening the case with this, closing the case with this, leaving jurors right before deliberations of both phases with images of Ms.

[00:49:00] Speaker 01:
Andrew as an adulterer, which was condemned on the first day,

[00:49:03] Speaker 01:
that the fundamental fairness of this trial is beyond dispute, and the framework of the sex stereotyping continues to pervade this case.

[00:49:13] Speaker 01:
We still haven't got away from that, which I think shows the power of this kind of testimony.

[00:49:20] Speaker 01:
So absolutely, D1 is a high bar, and I have no qualms arguing before you that this case does arise to that.

[00:49:26] Speaker 01:
It is so extreme.

[00:49:27] Speaker 02:
You'll get five minutes for rebuttal.

[00:49:29] Speaker 02:
Do you have any questions now?

[00:49:30] Speaker 02:
No, thank you.

[00:49:33] Speaker 02:
Thank you, Your Honor.

[00:49:34] Speaker 02:
But when you have five minutes, it's to respond to the government's arguments.

[00:49:38] Speaker 02:
It's rebuttal.

[00:49:40] Speaker 04:
Thank you.

[00:49:46] Speaker 02:
Ms.

[00:49:46] Speaker 02:
Crabb?

[00:49:47] Speaker 00:
Good morning.

[00:49:48] Speaker 00:
May it please the court?

[00:49:49] Speaker 00:
I'm Jennifer Crabb, Assistant Attorney General.

[00:49:52] Speaker 00:
Excuse me.

[00:49:52] Speaker 00:
Oh, yeah, Kelly.

[00:49:54] Speaker 00:
I plan to begin my argument

[00:49:56] Speaker 00:
by focusing solely on the evidence that was contested in front of the Court of Criminal Appeals.

[00:50:02] Speaker 00:
I may, depending on how the argument goes, get to the proper scope of the evidence, and of course at any time I'm happy to take the Court's questions about that.

[00:50:10] Speaker 00:
The guilt stage in this case lasted 17 days.

[00:50:14] Speaker 00:
The state called 50 witnesses and its case alone, not including voir dire, including opening statements through the state's witnesses was 3,250 pages.

[00:50:26] Speaker 00:
The contested evidence covered approximately 26 pages of that, 26.

[00:50:33] Speaker 00:
On the second day of trial, which is the day that Mr. Higgins and Mr. Nunley testified, 20 pages out of 300 was devoted to the contested evidence.

[00:50:44] Speaker 00:
And beyond that, there were three days where there were two pages.

[00:50:49] Speaker 00:
The red hair,

[00:50:52] Speaker 00:
Ms.

[00:50:52] Speaker 00:
Larson's testimony about her suspicions that Ms.

[00:50:56] Speaker 00:
Andrew had been unfaithful with persons other than her father.

[00:51:00] Speaker 00:
And so that's it.

[00:51:01] Speaker 00:
Twenty-six pages added.

[00:51:03] Speaker 02:
The statement was made, I think in that brief, that every day there was evidence of this.

[00:51:08] Speaker 02:
I didn't read all the forensic evidence

[00:51:14] Speaker 02:
thoroughly, but it seemed to me there were days when there was no reference to sex in any way.

[00:51:22] Speaker 02:
It was forensic evidence, finding the gun in the neighbor's attic, the trajectory of the bullets, whether she could have shot herself, things like that.

[00:51:37] Speaker 02:
Was there, when you've gone through about where the contested evidence was, were there days when there was nothing about that?

[00:51:47] Speaker 00:
There were many days where there was nothing about that.

[00:51:50] Speaker 00:
There was the fifth day, the sixth day of trial, the seventh day there were no witnesses, it was a very brief transcript, no witnesses.

[00:51:57] Speaker 00:
the eighth day, the ninth day, the tenth day, the eleventh day, the thirteenth, and the fourteenth.

[00:52:03] Speaker 00:
On every one of those days, there was none of the contested evidence.

[00:52:07] Speaker 02:
Well, not just contested, maybe at the time, but contested now.

[00:52:11] Speaker 02:
Were there any references that they're complaining of during those days?

[00:52:16] Speaker 00:
So I didn't specifically note everything that is now contested.

[00:52:22] Speaker 00:
However, I can just give you an overview

[00:52:30] Speaker 00:
For instance, day five of the trial, the witnesses were related to the insurance policy, somebody from Prudential.

[00:52:42] Speaker 00:
They were Mr. Andrews divorce attorney, Craig Box.

[00:52:47] Speaker 00:
There was the woman who worked with Mr. Pravat, who it appears that Mr. Pravat used her notary stamp for some paperwork.

[00:52:55] Speaker 00:
And then there was somebody who was higher up at Prudential talking about the policy.

[00:53:00] Speaker 00:
That was the fifth day of trial.

[00:53:02] Speaker 00:
The sixth day of trial was a continuation of the Prudential employee.

[00:53:07] Speaker 00:
There was the taking of writing samples from Mr. Pavatt to compare to the confession letter.

[00:53:14] Speaker 00:
And then there was handwriting expert David Parrott.

[00:53:17] Speaker 00:
That was the sixth day of trial.

[00:53:19] Speaker 00:
So certainly, again, I can't tell you with absolute certainty that none of this was referenced in cross-examination or anything like that, but the focus of

[00:53:30] Speaker 00:
Most of the days of trial was on the evidence of guilt and not anything aside from the motive being sexual.

[00:53:41] Speaker 03:
Did you have a poem?

[00:53:48] Speaker 03:
Isn't the counter argument to that, and I can't remember the great aphorism from Justice Roberts, you know, toxins can be deadly in small doses,

[00:54:00] Speaker 03:
We're talking about a murder that happened, you know, not yesterday, but 24 years ago, November 20th, 2001.

[00:54:06] Speaker 03:
And isn't it the elephant in the room that that trial was absolutely laden with nothing but gender, including from the trial judge telling the defendant in the middle of trial she can't wear pantyhose.

[00:54:24] Speaker 03:
in saying that you can't wear makeup because you're really pretty.

[00:54:30] Speaker 03:
It would be different if you weren't pretty.

[00:54:34] Speaker 03:
It's hard to imagine that a county judge would say that to a male defendant, that you can't wear cologne because you're already a really handsome guy.

[00:54:46] Speaker 03:
This is a case where we start with, as I think your adversary pointed out, we start with a lengthy marriage, but it starts with college.

[00:54:57] Speaker 03:
These are grown individuals, and then when Rob goes to visit her in college, he finds out that she was sweeping around.

[00:55:03] Speaker 03:
They weren't.

[00:55:05] Speaker 03:
married and then finds out that she had cheated on him another time before they were married.

[00:55:13] Speaker 03:
There are episodes where, you know, how many times did she go to bed with, what's his name, Tracy Higgins in the car where they had sex in, you know,

[00:55:27] Speaker 03:
What reason could there possibly be, even if it were relevant, but to say what was the overarching lesson from that trial, this woman is terribly promiscuous.

[00:55:46] Speaker 03:
She does not deserve your sympathy.

[00:55:50] Speaker 03:
And I think it's really hard to overlook that.

[00:55:55] Speaker 03:
I mean, I think he probably, I'm not trying to put you on the spot, but I think anybody listening to that trial or reading the trial would think no male would ever have encountered any of that.

[00:56:07] Speaker 03:
Now, you have good arguments.

[00:56:09] Speaker 03:
Maybe it might have been the same thing if parts of those, if the defendant were assigned a role as a controlling male.

[00:56:18] Speaker 03:
Maybe it wasn't gender related.

[00:56:20] Speaker 03:
But then again, a flat affect for a male?

[00:56:27] Speaker 03:
How many times did the male screw his mistresses in the car?

[00:56:34] Speaker 03:
This was an atrocious trial.

[00:56:38] Speaker 00:
I respectfully, very strongly disagree with that, Your Honor.

[00:56:40] Speaker 00:
I would start by just reminding, Your Honor, of the proper scope.

[00:56:43] Speaker 00:
The idea that some toxins are deadly in small doses was not an argument that was made before the court of criminal appeals.

[00:56:50] Speaker 00:
The argument in the Court of Criminal Appeals was not focused on the sexual nature of other crimes evidence.

[00:56:56] Speaker 00:
As I pointed out in the brief, the proposition covered all kinds of alleged other crimes evidence.

[00:57:01] Speaker 00:
But as far as the tenor of the trial as a whole, and that's what I spent the last several days doing, is rereading the entire trial.

[00:57:09] Speaker 00:
And it's very isolated.

[00:57:11] Speaker 00:
The references that are improper,

[00:57:16] Speaker 00:
are very, very isolated.

[00:57:19] Speaker 00:
And I don't agree, you know, the demeanor.

[00:57:22] Speaker 00:
We cited cases in our brief where it was used against men.

[00:57:27] Speaker 00:
I'm old enough to remember Scott Peterson and that was one of the biggest red flags that led police to suspect him was his lack of care that his wife was missing.

[00:57:37] Speaker 00:
And so I don't agree that that's gendered, and I very strongly disagree that that was the focus of this trial.

[00:57:44] Speaker 00:
Now, I will also put it in the context of what the defense was.

[00:57:48] Speaker 00:
The defense in both stages was a character defense.

[00:57:52] Speaker 00:
As I believe Judge Hartz pointed out, or maybe it was Judge Phillips, Mr. Nunley was asked by defense counsel, you think she was a good mother, right?

[00:57:59] Speaker 00:
Yes.

[00:58:00] Speaker 00:
You don't think she was the type of person that would do this, do you?

[00:58:03] Speaker 00:
No, I don't.

[00:58:05] Speaker 00:
Defense counsel talked about where Mr. Andrew had written in his journal that Brenda Andrew was a good mother and she was the spiritual leader of the house.

[00:58:14] Speaker 00:
Ron Stump was asked by defense counsel, you told me you think that Ms.

[00:58:19] Speaker 00:
Andrew is a good Christian woman, right?

[00:58:21] Speaker 00:
Yes.

[00:58:22] Speaker 00:
And that's all first stage evidence.

[00:58:24] Speaker 00:
And we quoted extensively in our brief from defense counsel's opening statement.

[00:58:29] Speaker 00:
where it is, they met in college.

[00:58:31] Speaker 00:
Guess what?

[00:58:32] Speaker 00:
Petitioner was going to a Christian college.

[00:58:34] Speaker 00:
But guess what?

[00:58:35] Speaker 00:
She got pulled away from her Christian college by Mr. Andrew.

[00:58:39] Speaker 00:
And then she was, you know, living her best life, one of the best employees her company, her bank, had ever had until, guess what, Mr. Andrew pulled her away and made her move.

[00:58:49] Speaker 00:
And then she did it reluctantly.

[00:58:50] Speaker 00:
She rebuilt her life, and then guess what?

[00:58:52] Speaker 00:
Mr. Andrew made her move again.

[00:58:53] Speaker 00:
And so character was the foundation

[00:58:58] Speaker 00:
of the defense in both stages of this trial.

[00:59:03] Speaker 05:
But some evidence you acknowledged was irrelevant.

[00:59:06] Speaker 00:
Yes.

[00:59:07] Speaker 05:
And your position is, yes, it was irrelevant, but it didn't matter.

[00:59:10] Speaker 00:
Correct.

[00:59:11] Speaker 00:
Absolutely.

[00:59:11] Speaker 00:
In light of the overwhelming evidence that the court has acknowledged several times is there.

[00:59:17] Speaker 00:
We went through it, a lot of it in our brief, but frankly, it wasn't even all of it.

[00:59:25] Speaker 00:
Barbara Mercer

[00:59:26] Speaker 00:
Barbara Mercer-Green, who worked with Mr. Andrew, heard Ms.

[00:59:31] Speaker 00:
Andrew say, if you file for joint custody, I will see you dead.

[00:59:36] Speaker 00:
Also that, I'm not afraid to do whatever I have to do to keep the children from being with you.

[00:59:43] Speaker 00:
The plumber, Mr. Head, overheard petitioner tell Mr. Andrew, I'm going to kill you or have you killed.

[00:59:50] Speaker 00:
We know that she asked Mr. Fabbat to kill him, or if there was somebody who would do it for her.

[00:59:56] Speaker 00:
Rod Lot said that Mr. Andrew told her that Brenda wished him dead.

[01:00:01] Speaker 00:
She was having him stalked.

[01:00:03] Speaker 00:
She knew what time he left his apartment, things like that.

[01:00:08] Speaker 00:
She was calling him 30 to 40 times a day harassing him.

[01:00:11] Speaker 02:
The stalking wasn't to find when it would be easier to kill him.

[01:00:16] Speaker 02:
It was to see whether he was himself having an affair.

[01:00:19] Speaker 02:
Isn't that right?

[01:00:21] Speaker 00:
That's correct, Your Honor, but it is also relevant to her motive.

[01:00:26] Speaker 00:
absolute obsession with Mr. Andrew and getting him out of her life, and particularly out of her children's lives.

[01:00:34] Speaker 00:
She told her friend, they are my children, they're not his, and I don't want them to have a relationship with him.

[01:00:42] Speaker 00:
So that was an overwhelming motive that has nothing to do with her affairs, as well as, of course, the $800,000.

[01:00:48] Speaker 00:
She got angry when a witness suggested that, well, when you get divorced, maybe you just get a part-time job.

[01:00:53] Speaker 00:
And she was angry at the idea that she might have to do that.

[01:00:57] Speaker 00:
She wanted that money.

[01:00:59] Speaker 05:
Let me take a quick legal detour for a couple of questions.

[01:01:03] Speaker 05:
Sure.

[01:01:04] Speaker 05:
Page 15, you talk about Chapman as though that fits within our analysis.

[01:01:09] Speaker 05:
Chapman doesn't apply here, does it?

[01:01:12] Speaker 00:
Your Honor, it's not entirely clear because the Court of Criminal Appeals did say that the evidence that it found to be wrongly admitted was harmless.

[01:01:20] Speaker 05:
But not harmless beyond reasonable doubt, which would be required for Chapman, right?

[01:01:25] Speaker 00:
True, but it is not clear from the language of the Court of Criminal Appeals whether they were saying it was harmless as a matter of state law or whether they were saying it was harmless in terms of the due process analysis.

[01:01:36] Speaker 05:
Other places they use those magic words beyond a reasonable doubt for harmless.

[01:01:41] Speaker 05:
There they did not.

[01:01:43] Speaker 00:
Sure.

[01:01:43] Speaker 05:
So are you really, really asserting Chapman?

[01:01:48] Speaker 00:
I think it's relevant.

[01:01:49] Speaker 00:
I think that you can look at the cases where it's been argued that they misapplied the prejudice prong of Strickland because they use differing language at different points in the opinion, and you can't necessarily infer.

[01:02:00] Speaker 00:
But I don't need Chapman.

[01:02:02] Speaker 00:
Certainly under 2254D and the Supreme Court's decision, the fundamental fairness analysis, we still win.

[01:02:10] Speaker 05:
And secondly, good question.

[01:02:12] Speaker 05:
Do you acknowledge or agree that the Supreme Court in the opinion that sent us here today

[01:02:19] Speaker 05:
has said that pain does apply to the guilt phase even though it was a sentencing phase case.

[01:02:25] Speaker 05:
Yes.

[01:02:26] Speaker 05:
Okay.

[01:02:26] Speaker 05:
Thank you.

[01:02:28] Speaker 03:
Sure.

[01:02:30] Speaker 03:
Judge Phillips, do you have a follow-up question?

[01:02:32] Speaker 03:
No.

[01:02:33] Speaker 03:
I just want to make sure I understand the answer to your first question, Judge Phillips.

[01:02:37] Speaker 03:
I'm still not clear why Chapman or Brown v. Davenport would have anything to do with this unless this is an alternative argument to affirm assuming that

[01:02:49] Speaker 03:
We credit the petitioner's claim under D1 and D2 and determined that it was not a fundamentally fair trial.

[01:02:59] Speaker 03:
Are you saying that my alternative argument to affirm is underground versus Davenport and Chapman, that the denial of a fundamentally unfair trial would have been harmless beyond a reasonable doubt?

[01:03:12] Speaker 00:
No, Your Honor, my argument is that the Court of Criminal Appeals found the admission of some of this evidence to be harmless.

[01:03:18] Speaker 03:
I get that, but how does that, but if you're not arguing harmlessness as an alternative argument to affirm, I guess I'm just not understanding how Chapman or Brown versus Davenport fit into the element of whether or not the evidence was unduly prejudicial so as to create a fundamentally unfair trial under a remand instruction.

[01:03:39] Speaker 00:
I think I see two ways to look at the way this court is analyzing this claim.

[01:03:44] Speaker 00:
And the first is pain.

[01:03:47] Speaker 00:
But the second is that the Court of Criminal Appeals found constitutional error, but found it harmless.

[01:03:53] Speaker 00:
And in that case, this court's review would be under Chapman and Davenport.

[01:03:58] Speaker 03:
Because what is... Yes, which is solely harmless.

[01:04:03] Speaker 03:
They don't address it fundamentally in fair trial, right?

[01:04:07] Speaker 00:
expressly that's correct that that we know that they decided the merits of the due process claim and so it's unclear from their opinion when they said harmless where they say this shouldn't have been admitted as a matter of state law but it was harmless or where it were they saying this may have constituted federal constitutional era but if so it was harmless in which case this court's would be browners that report okay uh... i think i'll hit on a couple of points uh...

[01:04:37] Speaker 00:
responding to Petitioners Council's argument

[01:04:41] Speaker 00:
Judge Johnson's dissent, I would submit to you that that is not a proper indication, at least not a complete indication of the claim that was exhausted.

[01:04:51] Speaker 00:
And for that point, I would point you to the Donald Grant case and also to the Scott Eisenberg case.

[01:04:57] Speaker 00:
In both of those cases, the dissenting judge raised an argument that hadn't been raised by the majority.

[01:05:04] Speaker 00:
And in one case, it was specifically like, was this exhausted or wasn't it?

[01:05:08] Speaker 00:
And this court said that we can't rely on the dissent to tell us whether something was exhausted or not.

[01:05:15] Speaker 03:
Okay, so your argument is that this claim is unexhausted.

[01:05:19] Speaker 00:
The claim as it is currently presented.

[01:05:22] Speaker 00:
Yes.

[01:05:23] Speaker 03:
All right.

[01:05:23] Speaker 03:
Denton Moore versus Shulman in 2002 specifically say we cannot deny a relief on the merits of the 2254 claim based on some claims.

[01:05:34] Speaker 03:
Judge Murphy called it a hybrid adjudication and dismissed other claims without prejudice for non-exhaustion.

[01:05:44] Speaker 03:
And his rationale, as I recall, was that now what do we do with a future petition?

[01:05:52] Speaker 03:
Is it second or successive?

[01:05:53] Speaker 03:
Well, how do we say that if we ultimately say that the unexhausted claims were dismissed without prejudice, which is what we'd have to do?

[01:06:02] Speaker 03:
So isn't your argument of non-exhaustion of this claim specifically foreclosed by Moore versus Shulman?

[01:06:09] Speaker 00:
Your Honor, I'm not familiar with that case.

[01:06:11] Speaker 00:
However, I would say that you can deny a claim on the merits even when it's unexhausted.

[01:06:16] Speaker 03:
That's right, but not because of an exhaustion.

[01:06:20] Speaker 03:
Then we'd have to reject it on the merits.

[01:06:22] Speaker 03:
And if it was unexhausted, how can we say that the Oklahoma Court of Criminal Appeals adjudicated the claim on the merits if I thought the Oklahoma Court of Criminal Appeals abided by the party presentation rule as we do.

[01:06:35] Speaker 03:
But if you're right,

[01:06:37] Speaker 03:
Isn't it an anomaly that you're saying, well, this claim was unexhausted?

[01:06:43] Speaker 03:
Well, your whole argument in applying D1 or D2 assumes that it was adjudicated on the merits.

[01:06:50] Speaker 03:
Well, how could this fundamentally unfair trial claim have been adjudicated on the merits if it wasn't exhausted?

[01:06:57] Speaker 00:
It wasn't exhausted because when, under Donald Grant, as for one example, when you so change the nature of a claim with new evidence, new arguments, new case law, then it, there may have been a claim that was exhausted in state court, but that is not the same claim that was, that is now in front of this court.

[01:07:17] Speaker 03:
Yeah, and so, but that's, I guess, I don't mean to beat a dead horse, but isn't that,

[01:07:24] Speaker 03:
The problem, you know, the theoretical anomaly of your argument is you're saying the claim that these petitioners are presenting to us was unexhausted.

[01:07:36] Speaker 03:
And yet, because they transformed the claim from what had been presented in the direct appeal to the Oklahoma Court of Criminal Appeals, and yet your argument on D1 and D2 presume that the claim that they are presenting to us was adjudicated on the merits.

[01:07:52] Speaker 03:
well how could the court of appeals adjudicated the claim of merits of the claim that they're presenting to us if it had never been presented i think your honor recognized when you cited wellman the claim that's presented now is not the one that the court of appeals adjudicated but isn't that yet isn't wellman the only way you could address that and to apply wellman you would have to assume because wellman you know uh...

[01:08:22] Speaker 03:
Wellman deals with the application of D1, so wouldn't, to apply Wellman, we have to reject actually what you just said, that is, they didn't exhaust it, they did exhaust it, which would be a precondition of applying Wellman versus CDOC.

[01:08:40] Speaker 03:
Do you understand what I'm asking?

[01:08:41] Speaker 00:
I think I understand your honor, although I'm not, I don't know how you can reconcile that with Donald Grant and the fundamental changes to this claim.

[01:08:51] Speaker 00:
I certainly agree, you know, I'm willing to set aside, although not waive, set aside for the purpose of the discussion, of this discussion, exhaustion, but I would say that under Sexton versus Bodro and under Wellman,

[01:09:04] Speaker 00:
this court is still limited to the arguments that were made to the Court of Criminal Appeals.

[01:09:09] Speaker 02:
What is the basic principle behind exhaustion?

[01:09:15] Speaker 00:
To give the state court a fair opportunity to decide the merits of the claim.

[01:09:20] Speaker 02:
And you're saying because there was no reference to this particular evidence or the closing or things like that,

[01:09:28] Speaker 02:
in the presentation to the OCCA that those portions, at least, of the claim were not exhausted.

[01:09:36] Speaker 02:
Is that your position?

[01:09:37] Speaker 00:
That is.

[01:09:37] Speaker 00:
And I believe Gray versus Netherland says that the facts, in order to exhaust the facts, do have to be before the state court.

[01:09:45] Speaker 00:
Now I understand that this court has held, and I think the Supreme Court as well, that a fact or two here or there that doesn't significantly change the nature of the case

[01:09:54] Speaker 00:
doesn't implicate exhaustion, but here we have far beyond that.

[01:09:59] Speaker 02:
And does the same argument, it's not just the fact, but you have to say that, you can't say before the OCCA that evidence was inadmissible because it was hearsay and now give a different argument for why.

[01:10:13] Speaker 00:
That's correct.

[01:10:14] Speaker 00:
Yes, the arguments, the facts, the focus, the degree of focus, you know, was this, was this Burke's, is the state case, was this Burke's evidence, other crimes evidence, or was this an all-out assault on Miss Andrew's femininity?

[01:10:32] Speaker 00:
Those are also very different focuses.

[01:10:40] Speaker 00:
I want to kind of put in context for the court how incredibly difficult it's going to be for a petitioner to establish a right to relief on this claim.

[01:10:53] Speaker 00:
Under Oklahoma's statute, section 2403, which mirrors this court's 403, the admissibility of evidence, and not as a constitutional matter, but just the admissibility of evidence, you have relevance and you have unfair prejudice.

[01:11:10] Speaker 00:
And evidence can be admissible even if it's more unfairly prejudicial than probative.

[01:11:18] Speaker 00:
To be inadmissible, the unfairly prejudicial effect has to substantially outweigh the relevance.

[01:11:25] Speaker 05:
Are you suggesting that we can review that decision?

[01:11:29] Speaker 00:
No, I'm not.

[01:11:30] Speaker 00:
I'm going to go on to the next two layers to explain how difficult the standard is in this case.

[01:11:37] Speaker 00:
But then you go beyond that to the fundamental fairness analysis.

[01:11:40] Speaker 00:
And you may already have this.

[01:11:42] Speaker 00:
Well, to prove a fundamentally unfair trial, you have to prove that the prejudicial nature so overwhelmed the irrelevance that it rendered the entire trial fundamentally unfair.

[01:11:54] Speaker 00:
But this case has a third layer, and that's AEDPA.

[01:11:56] Speaker 00:
And so then the question is, is it the case that no fair-minded jurist could conclude that we didn't get to here, to the

[01:12:06] Speaker 00:
so substantially outweighed that she was denied a fundamentally fair trial.

[01:12:11] Speaker 00:
And we submit in light of the evidence in this case, particularly the overwhelming nature of guilt, and our position is the very limited nature of the improperly admitted evidence that petitioner cannot meet that threshold.

[01:12:25] Speaker 05:
What about the failure to provide limiting instructions?

[01:12:29] Speaker 05:
That needs involved in that analysis, too, doesn't it?

[01:12:32] Speaker 00:
It does.

[01:12:32] Speaker 00:
And the Court of Communal Appeals addressed that and found it harmless.

[01:12:36] Speaker 00:
This court addressed it in its first decision and also found it to be harmless.

[01:12:40] Speaker 00:
And the jury wasn't completely left without any guidance.

[01:12:45] Speaker 00:
There was the instruction in both stages that told them that they were not to render their verdict based on sympathy or prejudice, except in the second stage they could have sympathy for a petitioner.

[01:12:54] Speaker 00:
So they were told that defense counsel made the point, look what the state's trying to do here is they're trying to make you think that she's guilty.

[01:13:04] Speaker 00:
by making you think that she's a bad person.

[01:13:07] Speaker 00:
Basically the implication was don't let them do that, look at the evidence.

[01:13:10] Speaker 00:
And the state's closing arguments, sure they referenced affairs, they had to, it was part of the motive in this case, but the state's closing arguments did not focus on the contested irrelevant evidence, not in the least.

[01:13:24] Speaker 00:
And I don't think that I can do any better

[01:13:33] Speaker 00:
than to say what this court already said in this case, which is as to cumulative error.

[01:13:39] Speaker 00:
Now, this first part that I'm talking about, this court did not consider the irrelevant evidence because you had found a lack of clearly established law.

[01:13:46] Speaker 00:
So I'm going to caveat it with that.

[01:13:48] Speaker 00:
But you found it evident that the trial was fundamentally fair.

[01:13:54] Speaker 00:
And you said that you were confident that she was not, that cumulative error relief was not required.

[01:14:01] Speaker 00:
You found that the errors were of minor significance when viewed against the backdrop of the entire proceeding and the overwhelming evidence.

[01:14:11] Speaker 00:
But you didn't leave it there because you also, the majority responded to the dissent.

[01:14:16] Speaker 00:
And the dissent had found cumulative error based on the evidence that's contested today, the lack of the instruction, three exploded defense witnesses, which aren't before the court anymore, that's law of the case,

[01:14:30] Speaker 00:
and a Miranda violation.

[01:14:31] Speaker 00:
So all of that and the dissent's review was de novo.

[01:14:35] Speaker 00:
And this court said in footnote 56, even if the dissent's unprecedented approach were justified by a Supreme Court holding, we would still rule that the overwhelming evidence of Ms.

[01:14:47] Speaker 00:
Andrew's guilt would outweigh any harm from the dissent's combined constitutional violations.

[01:14:55] Speaker 00:
You didn't phrase it in the negative.

[01:14:58] Speaker 00:
We would still find that the unfairly prejudicial effect didn't so overwhelm the relevance as to establish a fundamentally unfair trial.

[01:15:08] Speaker 00:
No, you said that the overwhelmings of guilt would outweigh any harm, so the inverse.

[01:15:15] Speaker 03:
Is that law of the case?

[01:15:19] Speaker 00:
That is a very good question, Your Honor.

[01:15:23] Speaker 02:
No.

[01:15:24] Speaker 02:
I believe, yeah, no, no.

[01:15:28] Speaker 02:
So far it's one to one.

[01:15:32] Speaker 02:
Let me ask you a question about limited instructions.

[01:15:35] Speaker 02:
Sure.

[01:15:36] Speaker 02:
Does it matter whether limiting instructions were requested by the defendant?

[01:15:41] Speaker 00:
They were requested.

[01:15:43] Speaker 00:
I don't believe it.

[01:15:44] Speaker 02:
For all of the evidence we're talking about, they asked for limiting instructions on all of it.

[01:15:51] Speaker 00:
They didn't at the time the evidence was introduced.

[01:15:53] Speaker 00:
They did ask for limiting instructions, I believe, at the beginning of the trial and certainly in the instruction conference.

[01:16:01] Speaker 00:
Now, I don't recall whether they specifically pointed it to each item of contested evidence.

[01:16:08] Speaker 00:
Of course, a lot of it wasn't even objected to a trial.

[01:16:12] Speaker 00:
However, state law does require the instruction to be given even if not requested.

[01:16:19] Speaker 00:
Now, it's not clear, too.

[01:16:20] Speaker 00:
The state had argued that some of the evidence was res gesta, for which the limited instruction is not required.

[01:16:28] Speaker 00:
So when the court of criminal appeals found error in not giving that instruction, it's not clear which particular pieces of evidence they were pointing to, but even assuming that all of the evidence that is properly before the court and that was improperly admitted

[01:16:45] Speaker 00:
is considered with the lack of the instruction.

[01:16:48] Speaker 00:
This court has already determined that that's harmless.

[01:16:51] Speaker 02:
Did the trial judge explain, give any response to why she didn't give the limited instruction?

[01:17:01] Speaker 00:
Not in great detail.

[01:17:02] Speaker 00:
The state objected, said that it was rest jest day.

[01:17:05] Speaker 00:
I presume that may have been, but that's a presumption on my part.

[01:17:10] Speaker 02:
She didn't add anything additional.

[01:17:12] Speaker 02:
Correct.

[01:17:14] Speaker 05:
Would a limiting instruction have been required in every instance on count one, a conspiracy count?

[01:17:22] Speaker 05:
In other words, do you see what I'm saying?

[01:17:25] Speaker 00:
As to the... No, I'm sorry.

[01:17:28] Speaker 05:
That it wouldn't be 403.

[01:17:30] Speaker 05:
For the conspiracy, it would be evidence of crime.

[01:17:34] Speaker 00:
Probably not with respect to the affairs with Mr. Nunley and Mr. Higgins.

[01:17:42] Speaker 00:
Certainly much of the evidence that established the relationship between, all of the evidence that established the relationship between Petitioner and Mr. Pavatt was helpful to establish the conspiracy, yes.

[01:18:00] Speaker 00:
If the court doesn't have any further questions, we would respectfully ask you to follow what you did in your first opinion and to affirm the district court's decision.

[01:18:12] Speaker 00:
Thank you.

[01:18:26] Speaker 01:
We just have three quick points, Your Honor, and I don't want to

[01:18:31] Speaker 01:
Try the court's patience discussing things we've already been talking about.

[01:18:34] Speaker 01:
First, the state continues to argue that this case wasn't really about sex stereotyping, and nothing could be further from the truth.

[01:18:41] Speaker 01:
Counting up days on one side that have more evidence of gender bias and days on another is not the inquiry that's before this panel.

[01:18:49] Speaker 01:
It's the fundamental fairness of the whole proceedings.

[01:18:52] Speaker 02:
You did say in your brief, though, that every day.

[01:18:54] Speaker 02:
Yes.

[01:18:55] Speaker 02:
Is that accurate?

[01:18:56] Speaker 01:
Yes, Your Honor.

[01:18:57] Speaker 01:
We've provided the string site with examples of those every day.

[01:19:03] Speaker 01:
I'm afraid I don't have every day at the tip of my tongue, but day 11 was one that was cited, for example.

[01:19:08] Speaker 01:
On day 11, Dean Giggstad was testifying about whether or not Ms.

[01:19:11] Speaker 01:
Andrew went skinny dipping in a hot tub on her property, and the prosecution followed up with another question about whether she was skinny dipping.

[01:19:18] Speaker 01:
That evidence cannot but

[01:19:22] Speaker 01:
put an image of her body in the minds of jurors, and our brief has a string site as to other examples that came in every single day.

[01:19:33] Speaker 01:
The state acknowledges that this case was about Ms.

[01:19:37] Speaker 01:
Andrew's character.

[01:19:39] Speaker 01:
We agree it was about her character as a woman and her transgressions on the basis of an immutable trait.

[01:19:46] Speaker 02:
And there has to be limits to what the... The argument here was that she was the one who raised character.

[01:19:55] Speaker 02:
So the fact that it was a trial regarding character, if that's how the defense

[01:20:01] Speaker 02:
frames it and is arguing that she was a good wife, a good mother, a good Christian, etc.

[01:20:06] Speaker 02:
That is important to the context of what the state is arguing.

[01:20:13] Speaker 02:
Is it not?

[01:20:14] Speaker 01:
Yes, Your Honour.

[01:20:15] Speaker 01:
Ms Andrew cannot open the door to things that came in in the state's opening argument and the structure of the state's case was about

[01:20:24] Speaker 01:
far more than responding to a comment, was she a good?

[01:20:27] Speaker 01:
It's a two-word question.

[01:20:29] Speaker 01:
Good mother, he confirms good mother.

[01:20:30] Speaker 01:
This is not late on the start of trial.

[01:20:34] Speaker 01:
And nevertheless, before all of that, there's the testimony from Mr. Higgins, which we've talked about.

[01:20:40] Speaker 01:
We don't need to go over that again.

[01:20:41] Speaker 01:
But saying that the flooding of this trial with gender bias, with evidence designed to sex shame her,

[01:20:53] Speaker 01:
By saying that she opened the door to that with one question, I think it's not an argument that holds water here.

[01:21:00] Speaker 01:
And my third point is the limiting instruction.

[01:21:05] Speaker 01:
on page 105 to 106 of the trial transcript is the first time that the defence requested a limiting instruction and specifically requested it with respect to the affairs and asked that the trial judge instruct the jury on the permissible influences that they could draw about Ms Andrew's affairs.

[01:21:25] Speaker 01:
I don't have anything further so if there were no questions from the panel we would respectfully ask that this court remand ground the writ and order issue for a new trial for Ms Andrew.

[01:21:34] Speaker 02:
Thank you, counsel.

[01:21:38] Speaker 03:
It's really not a substantive question.

[01:21:39] Speaker 03:
It's really a record question because one of the things that I was looking for, because both of you disagree about a particular recording call and whether or not you can hear Brenda Andrews' voice on the recorded call on November 19th, the day before the murder.

[01:21:56] Speaker 03:
There was differing interpretations of whether or not you can hear Mr. Andrews' coaching fricity.

[01:22:04] Speaker 03:
I look for the audio and I don't know if that's, I know obviously part of the trial court record, you know, was played for the district trial court.

[01:22:14] Speaker 03:
Are you all confident that that is in our record?

[01:22:16] Speaker 03:
I may have overlooked it.

[01:22:18] Speaker 01:
I'm afraid I haven't heard that recording, Your Honour, but we can absolutely look for that and submit a 28-year letter advising if it's part of the record.

[01:22:25] Speaker 01:
Please do so.

[01:22:26] Speaker 01:
Yeah, thank you.

[01:22:27] Speaker 01:
Thank you.

[01:22:32] Speaker 02:
Thank you, counsel.

[01:22:33] Speaker 02:
The case was very well argued.

[01:22:36] Speaker 02:
Makes our job just that much harder.

[01:22:41] Speaker 02:
Thank you.

[01:22:43] Speaker 02:
Counselor excused and the court is adjourned.