Woman whom prosecutors called ‘slut puppy’ can challenge death sentence

When Brenda Andrew was on trial over allegations that she conspired with her lover to murder her estranged husband, witnesses testified about the revealing clothing she wore and prosecutors chronicled her relationship history, detailing extramarital affairs.

During closing arguments, a prosecutor showed the Oklahoma jury thong underwear Andrew had packed for a trip to Mexico shortly after her husband’s killing. The prosecutor suggested it was behavior unbecoming of a grieving widow. At another point during the trial, prosecutors had described Andrew as a “slut puppy,” according to her attorneys.

Andrew was convicted and sentenced to death.

But on Tuesday, 20 years after the trial, the Supreme Court ordered a lower court to reexamine the case. Andrew, the only woman on Oklahoma’s death row, has appealed her conviction for years, claiming the evidence presented against her violated her due process rights. The U.S. Court of Appeals for the 10th Circuit will now reconsider her case to determine whether the evidence rendered her trial fundamentally unfair.

“The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant,” the justices wrote in an unsigned opinion.

Justices Clarence Thomas and Neil M. Gorsuch dissented, writing that “Sex and marriage were unavoidable issues at Andrew’s trial.”

Such evidence was “irrelevant and blatantly sexist,” said Jessica Sutton, an attorney for Andrew.

“The prosecution invited the jury to convict and condemn Ms. Andrew to death because she was not a ‘stereotypical’ woman — her clothing was not modest enough, her demeanor was not emotional enough, and she was not chaste enough,” Sutton said in a statement Tuesday.

Andrew and her husband, Robert Andrew, an advertising executive, married in 1984. They lived together in Oklahoma and had two children. Over the years, their marriage became increasingly strained.

James Pavatt, an insurance agent, attended the same church as the Andrews. Pavatt and Brenda Andrew, who started teaching Sunday school together, eventually began an affair. Around that time, Robert Andrew set up a life insurance policy worth about $800,000 with Pavatt’s help, according to court records.

In September 2001, the Andrews separated, and Brenda Andrew began divorce proceedings.

Tension over the insurance policy added strain to the Andrews’ disintegrating marriage. Before he was killed, Robert Andrew had inquired about removing his estranged wife as the policy’s beneficiary, court records say, suspecting that she and Pavatt were trying to kill him.

On Nov. 20, 2001, he went to the Oklahoma home he had shared with Brenda Andrew to pick up their two children for Thanksgiving. She asked him to help her with the pilot light of her furnace in the garage, where he was fatally shot. Brenda Andrew, who was shot in the arm, later told investigators that two masked men had carried out the attack, court records say.

Afterward, Andrew and Pavatt went to Mexico together. Pavatt later confessed to the shooting, according to court documents, but said he had worked with a friend, not Andrew. Prosecutors brought conspiracy and capital murder charges against both Andrew and Pavatt.

During Andrew’s trial in 2004, prosecutors “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 justices wrote in Tuesday’s opinion.

Some of the witnesses were also asked “whether a good mother would dress or behave the way Andrew had,” the opinion said.

Andrew and Pavatt were convicted in separate trials. Both have been on Oklahoma’s death row for 20 years.

In 2007, the Oklahoma Court of Criminal Appeals rejected Andrew’s claim that her trial had been unfair, ruling that while some evidence — such as her dinner outfits — was irrelevant, it was ultimately harmless. The 10th Circuit court also denied her appeal. Across those decisions, multiple judges dissented.

Judge Robert Bacharach on the 10th Circuit court wrote that prosecutors had “portrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals.” Their focus on Andrew’s sex life, he wrote, took away “any realistic chance that the jury would seriously consider her version of events.”

In February, the Oklahoma attorney general’s office filed a brief requesting the Supreme Court not consider the case. The state argued that “much of the evidence was properly admitted to show Andrew’s motive to kill her husband.” The portion of evidence that was considered irrelevant was harmless “in light of the overwhelming evidence indicating her guilt,” prosecutors wrote.

On Tuesday, the Supreme Court gave Andrew another chance to challenge her conviction.

The court’s judgment recognized the “prejudicial impact of sex shaming and of gender stereotypes” against women facing the death penalty and other severe sentences in criminal cases, said Sandra Babcock, a Cornell law professor who represents Andrew in another case. Gender bias, Babcock said, is pervasive in the criminal legal system but was largely ignored until recently.

“Lawyers now have a basis to exclude this evidence at trial,” she said.