Death row inmate may get retrial due to claim of 'sex-shaming' prosecutors
Oklahoma's only female death row inmate, whose attorneys argue was "sex-shamed" during her husband's murder trial, may have another day in court after a Tuesday Supreme Court ruling.
Brenda Andrew, now 61, was sentenced to death in 2004 for the murder of her estranged husband, Rob Andrew.
She was convicted in the 2001 murder, along with her lover and fellow Sunday school teacher, James Pavatt. Pavatt, who had sold Rob Andrew an $800,000 life insurance policy, had confessed to killing Rob with a friend. He denied that Brenda was involved.
Brenda Andrew told police after the shooting, during which she was shot in the arm, that two masked men attacked her and her husband while he was helping her ignite the pilot light on the furnace in their garage, according to court documents reviewed by Fox News Digital.
Her attorneys argue that evidence about her "plainly irrelevant sexual history" wasn't fair to use in court, where prosecutors called her a "slut puppy" and showed jurors one of her thongs, according to their court filings.
The prosecutor said the thong was strong evidence that Andrew had murdered her husband, the New York Times reported.
"The grieving widow packs this to run off with her boyfriend," he said, holding her garment. "Can’t twist the facts, folks. Can’t twist the evidence."
Andrew had packed the underwear for a trip to Mexico days after her husband's death. Andrew and Pavatt ran out of money three months after the murder, in February 2002, and re-entered the United States, according to the outlet, where they were arrested at the border. Andrew's two children, who were traveling with them, were put into their paternal grandparents' custody.
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Supreme Court justices wrote in their decision that the prosecutor "spent a significant amount of time at the trial" going over details about Andrew's sex life that were unrelated to her husband's murder.
"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," the majority wrote in their decision. "The ultimate question is whether a fair-minded jurist could disagree that the evidence 'so infected the trial with unfairness' as to render the resulting conviction or sentence a ‘denial of due process.’"
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However, Justice Clarence Thomas and Justice Neil M. Gorsuch dissented.
"Sex and marriage were unavoidable issues at Andrew's trial, and the state introduced a variety of evidence about her sexual behavior," Thomas wrote.
In a brief urging the Supreme Court not to hear Andrew's case, prosecutors argued that testimony regarding her appearance and sexuality were "but a drop in the ocean" of evidence against her. Before the Supreme Court's Tuesday decision, lower courts had suggested that while prosecutors' presentation of the case was inappropriate, the case against Andrew still stands.
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The 10th Circuit Court of Appeals in Colorado will now review Andrew's claims.
Andrew's attorney, Ed Blau, told KOCO News 5 that it will be up to the 10th Circuit Court of Appeals to determine whether evidence "regarding [his client's] sex life" and "regarding her qualities as a mother… should not have been given to the jury, and whether it rose to the level of violating her due process rights."
He said Andrew could be resentenced or get an entirely new trial based on the appeals court's findings. The court could also decide that no action is needed, and that Andrew should remain on death row.
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Jessica Sutton, another one of Andrew's attorneys, told The Oklahoman that she hoped the court would "stop this injustice."
"Wielding these gendered tropes to justify a conviction and punishment of death is intolerable and poses a threat to everyone who does not follow rigid gender norms," she told the outlet.
Although she doubts the court will acquit Andrew of murder, forensic psychologist Dr. Carole Lieberman told Fox News Digital said she is likely to get a retrial.
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"The evidence about her role in the murder was not enough to get the death penalty so [prosecutors} preyed on jurors‘ stereotypes of a ‘fallen woman’ and got them to despise her," Lieberman said. "The prosecution’s so-called evidence was more prejudicial than probative… I think it was inappropriate personal hatred of the prosecutors toward her or inappropriate personal revenge or a personal desire to punish her more severely instead of just giving her life in prison."
A three-judge panel voted 2-1 to reverse part of Pavatt's death sentence in June 2017. They determined that Andrew's husband died too quickly for his death to be considered "cruel and heinous," an aggravating circumstance that allowed the state to issue him the death penalty, Oklahoma City's KFOR reported.
Andrew's last appeal in 2008 was denied, according to the Oklahoma Department of Corrections.