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Left: Brenda Evers Andrew (image via Oklahoma Dept. of Corrections); Right: U.S. Supreme Court Justice Clarence Thomas (image by Erin Schaff/Pool/Getty Images).
The Supreme Court ruled Tuesday that the only woman on death row in Oklahoma may have received an unfair trial because prosecutors introduced a slew of irrelevant evidence against her that presented her as an adulterous “slut puppy” to the jury.
The justices issued a per curiam decision ordering the U.S. Court of Appeals for the 10th Circuit to reexamine the prosecution of Brenda Evers Andrew to determine if Andrew was deprived of due process when prosecutors used much of their tine at the proceedings introducing irrelevant evidence about her sex life, her purported failings as a mother and wife, and her alleged propensity for wearing sexy clothes.
Justices Clarence Thomas and Neil Gorsuch, however, were not nearly as troubled by the potentially prejudicial evidence introduced against Andrew, and dissented from the Court’s ruling.
Brenda Andrew was convicted of the capital murder of her husband, Robert Andrew. Brenda Andrew’s extramarital lover — who was also her Sunday school teaching partner — James Pavatt, a life insurance agent with whom both Andrews were acquainted, was also convicted of the murder.
On Nov. 20, 2001, Robert Andrew was fatally shot in his garage. His wife was also shot in the arm during the incident, and she later told police that two armed assailants carried out the shooting. After Robert Andrew’s death, Pavatt and Brenda Andrew traveled to Mexico, then became suspects in the murder, until eventually, Pavatt confessed to committing the shooting with a friend. He denied that Brenda Andrew had been involved.
Nonetheless, the state of Oklahoma prosecuted Pavatt and Andrew separately, each for capital murder. At Brenda Andrew’s trial, the prosecution’s theory was that she conspired with Pavatt to murder Robert Andrew in order to receive proceeds from the $800,000 life insurance policy the couple had purchased from Pavatt. Pavatt was convicted and sentenced to death, and has spent the last 20 years on Oklahoma’s notably problematic death row.
After Brenda Andrew’s conviction, she filed a federal habeas petition in which she argued that irrelevant evidence introduced at her trial had been so prejudicial that it violated the due process clause of the Constitution. Prosecutors agreed that much of the evidence in question had lacked relevance, but disagreed that including it amounted to a due process violation.
In their ruling Tuesday, the justices recounted some of the problematic evidence introduced at Brenda Andrew’s trial:
Among other things, the prosecution elicited testimony about Andrew’s sexual partners reaching back two decades; about the outfits she wore to dinner or during grocery runs; about the underwear she packed for vacation; and about how often she had sex in her car. At least two of the prosecution’s guilt phase witnesses took the stand exclusively to testify about Andrew’s provocative clothing, and others were asked to comment on whether a good mother would dress or behave the way Andrew had. In its closing statement, the prosecution again invoked these themes, including by displaying Andrew’s “thong underwear” to the jury, by reminding the jury of Andrew’s alleged affairs during college, and by emphasizing that Andrew “had sex on [her husband] over and over and over” while “keeping a boyfriend on the side.”
Her lawyers later raised objections to the prosecutors’ “relentless” derision of their client, including referring to her as a “slut puppy” during the proceedings.
Though a split panel of the Tenth Circuit ruled against Brenda Andrew, one dissenting judge wrote that the state was focused “from start to finish on Ms. Andrew’s sex life,” in order to portray the defendant as “a scarlet woman, a modern Jezebel,” with “loose morals … plucking away any realistic chance that the jury would seriously consider her version of events.”
To hear Thomas and Gorsuch tell it, though, there was no issue with the fairness of Brenda Andrew’s trial. Thomas wrote in dissent that he rejected the majority’s recitation of facts as just one of the “errors” his fellow justices committed. Rather, Thomas noted, “the State presented ‘overwhelming evidence’ that Andrew participated in the murder of her husband,” with whom she had been entangled in a difficult divorce. Given the “unusually strong evidentiary case, which leaves little or no doubt that [Brenda Andrew] is guilty of the crimes charged,” the inclusion of evidence about her sexual history did not render the trial unfair, the dissent said.
As if to underscore his point, Thomas devoted nearly a quarter of his 17-page dissenting statement to providing his own statement of facts. Thomas detailed the victim’s discovery shortly before his death that his car’s brake lines had been cut, his receipt of phone calls falsely claiming that his wife was in the hospital, and the detailed plan hatched between Brenda Andrew and Pavatt to kill Robert Andrew. Thomas argued that much of the information about Brenda Andrew’s habits and history were relevant to establish her motive and intent.
While Thomas allowed that some of the evidence at trial may have been irrelevant — such as evidence of the particular clothing the defendant wore to dinner — introduction of that evidence had been harmless. Thomas also said that the prosecutor’s evidence that about Brenda Andrew’s “failings as a mother” were nothing more than rebuttal to her own evidence that she was a good mother. Thomas noted that while evidence of Brenda Andrew’s sexual history may have been introduced at trial, the prosecutors did not mention it during closing arguments.
Likewise, Thomas dismissed the “slut puppy” comment as a nonissue, explaining that prosecutors had not been calling Andrew a “slut puppy,” but rather, had been merely recounting an “abusive” phone call between Brenda Andrew and her husband in which she “baselessly” accused him of having an affair and used the term to refer to the other woman.
Oklahoma resumed executions in 2022 after a six-year hiatus following the botched lethal injections of two inmates. The state currently has 32 inmates on death row, of which Brenda Andrew is the only woman. Recently, an Oklahoma Court of Criminal Appeals judge said in open court that rather than pacing executions far enough apart to give corrections staff time to recover from an “unsustainable” pace of back-to-back deaths, the employees involved should simply “man up” and “suck it up.”
You can read the Supreme Court’s full ruling here.