The Supreme Court on Tuesday ordered lower courts to review the case of the only woman on Oklahoma’s death row over concerns that prosecutors’ discussion of her sexual history rendered her trial unfair in the murder of her estranged husband.
The court, over two dissenting votes, threw out a federal appeals court ruling that upheld the sentence and conviction of Brenda Andrew for her role in the killing of advertising executive Rob Andrew in 2001.
James Pavatt, Andrew’s lover, also is on death row after he was convicted of killing Andrew with a shotgun in the family garage in Oklahoma City.
In an unsigned opinion, the justices ordered the Denver-based 10th U.S. Circuit Court of Appeals to re-examine Andrew’s prosecution to determine if judges “reviewing this record could disagree with Andrew that the trial court’s mistaken admission of irrelevant evidence was so ‘unduly prejudicial’ as to render her trial ‘fundamentally unfair.'”
Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote that the state produced overwhelming evidence that Andrew participated in her husband’s murder and would have left the conviction and death sentencing in place. Thomas said that the discussion of Andrews’ sexual history and mothering was relevant because she described herself as a “good mother” as part of her defense.
“In presenting evidence to the contrary, the State was simply rebutting a point that Andrew had placed in issue, as it clearly is entitled to do,” Thomas wrote.
Lawyers for Andrew argued that the state had a circumstantial case that it buttressed by presenting evidence about “her sexual history, gender presentation, demeanor, and motherhood.”
At trial, the lawyers wrote, “the prosecution relentlessly derided Ms. Andrew, using sexually-charged descriptions to cast her in the role of an unchaste wife,” including a prosecutor’s reference to her as a “slut puppy” and, during closing arguments, the display of her thong underwear.
A three-judge appellate panel affirmed a state appellate ruling that sustained the conviction and death sentence. A dissenting judge on the 10th Circuit wrote that the evidence rendered the trial unfair. Judge Robert Bacharach wrote that the court focused “from start to finish on Ms. Andrew’s sex life,” which he said had taken away “any realistic chance that the jury would seriously consider her version of events.”
“The evidence not only lacked relevance but also cast Ms. Andrew as a woman fixated on seducing nearby men,” Bacharach wrote.
