The Supreme Court on Tuesday gave the only woman on death row in Oklahoma a fresh opportunity to challenge her sentence and conviction, saying that prosecutors may have violated her right to a fair trial by introducing lurid evidence about her sexual activities.
The woman, Brenda Andrew, was convicted of murdering her husband. Her trial was tainted, the majority said in an unsigned opinion, by “evidence about Andrew’s sex life and about her failings as a mother and wife.”
“Among other things,” the opinion added, “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.”
During closing arguments in 2004, a prosecutor dangled Ms. Andrew’s thong underwear before the jury. She had packed the undergarment for a trip to Mexico a few days after her estranged husband was killed.
The prosecutor said the item was strong evidence that Ms. Andrew had murdered her husband. “The grieving widow packs this to run off with her boyfriend,” he said, holding her underwear.
“That’s enough,” he said. “Can’t twist the facts, folks. Can’t twist the evidence.”
The spectacle “drew gasps from the crowded courtroom,” a local newspaper reported.
The Supreme Court sent the case back to a federal appeals court for a new look. “The ultimate question,” the majority wrote, quoting an earlier opinion, “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.’”
Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, dissented. “Sex and marriage were unavoidable issues at Andrew’s trial,” Justice Thomas wrote, “and the state introduced a variety of evidence about her sexual behavior.”
Much of the evidence was relevant, he wrote. “But not all of it was so,” he wrote, such as “the sort of outfits Andrew wore to dinner outings.” Given the overwhelming evidence of guilt, Justice Thomas wrote, the irrelevant evidence was harmless.
A brief supporting Ms. Andrew from a former federal judge and others said the volume of prejudicial evidence portraying her as “a hypersexual seductress” warranted review. “The prosecution introduced reams of inflammatory evidence about Ms. Andrew’s sexuality,” the brief said, including “lurid details of her multiple affairs, her suggestive clothing and lingerie, her cleavage and even a book on how to ‘Drive a Man Wild in Bed.’”
In urging the Supreme Court not to hear the case, Andrew v. White, No. 23-6573, prosecutors said almost nothing to justify using evidence about Ms. Andrew’s appearance and sexuality. They argued instead that it was “but a drop in the ocean” in the case against her. State and federal appeals courts have more or less agreed, suggesting that the prosecutors’ presentation was regrettable but that there was ample evidence of Ms. Andrew’s guilt.
The Oklahoma Court of Criminal Appeals, for instance, said in 2007 that it was “struggling to find any relevance” for much of the contested evidence but added that “even so, the introduction of this evidence was harmless.”
The U.S. Court of Appeals for the 10th Circuit said in 2023 that it shared the state court’s “concerns about some of the ‘sexual and sexualizing’ evidence admitted at trial” but that Ms. Andrew could not overcome the high hurdles to challenging a state-court conviction in federal court.
Ms. Andrew’s boyfriend, James Pavatt, admitted to shooting her husband and said he had acted alone. But there was reason to think Ms. Andrew was involved, as part of a plot to obtain the proceeds of a life insurance policy, and the authorities charged both of them with capital murder. Mr. Pavatt was also sentenced to death.
In a partial dissent from the state court’s ruling in 2007, Judge Arlene Johnson, the only woman on the court at the time, said she would have let Ms. Andrew’s conviction stand. But, she wrote, “I find it impossible to say with confidence that the death penalty here was not imposed as a consequence of improper evidence and argument,” adding that the evidence served “to trivialize the value of her life in the minds of the jurors.”
In dissent from the 10th Circuit’s decision, Judge Robert E. Bacharach went further, saying he would have overturned not only her death sentence but also her conviction.
“The state focused from start to finish on Ms. Andrew’s sex life,” Judge Bacharach wrote. “This focus portrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals. The drumbeat on Ms. Andrew’s sex life continued in closing argument, plucking away any realistic chance that the jury would seriously consider her version of events.”
The post Supreme Court Questions Prosecutors’ Focus on Sex in Capital Case appeared first on New York Times.
