The Trial
Throughout trial, prosecutors repeatedly vilified Brenda for her gender expression, including her clothing and demeanor. Prosecutors produced male witnesses who testified that Brenda wore “improper,” “sexy,” and “provocative” clothing. One man testified that Brenda once wore a dress that was tight, short, and showed “lots of cleavage.”Prosecutors further dehumanized Brenda before the jury by attacking her value as a mother and homemaker. They elicited irrelevant witness testimony that Brenda’s home was “filthy,”“unkept,” and “shocking.” The prosecutors also weaponized gender-based stereotypes to compare Brenda to “normal” women, asking one witness no fewer than nine times about what a “good mother” would do and whether Brenda failed in this regard.
Prosecutors produced male witnesses who testified that Brenda wore “improper,” “sexy,” and “provocative” clothing.
Finally, the prosecution portrayed Brenda as a sexual deviant by focusing on prurient and irrelevant details about Brenda’s sexual history. In addition to questioning Brenda’s former boyfriends about the specifics of particular sexual encounters, the prosecution read aloud Mr. Andrew’s journal entries about an alleged sexual relationship that Brenda had while she was an unmarried freshman attending an out-of-state college–almost twenty years before the shooting.
The prosecutors’ case led dissenters in the state and federal courts to conclude that Brenda Andrew was convicted and condemned to die not for the offense, but because the prosecution maligned her as a gender transgressor who failed to conform to sex-stereotypes of a chaste and moral woman. Tenth Circuit Judge Robert Bacharach observed that such “evidence not only lacked relevance but also cast Ms. Andrew as a woman fixated on seducing nearby men.” He further noted the prosecution’s choice to begin and end trial with “evidence of [Ms. Andrew’s] infidelity closed the loop, creating ‘an outsized effect due to [its] temporal proximity to temporal proximity to jury deliberations.’” Oklahoma Judge Arlene Johnson stated that the prosecution’s arguments and testimony served “no other purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman.”
Oklahoma Judge Arlene Johnson stated that the prosecution’s arguments and testimony served “no other purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman.”
The Case
In September 2001, after multiple failed attempts at marriage counseling and consultation with spiritual advisors, Brenda and Robert Andrew separated. Over the next few months, the two navigated the emotional and practical complexities of divorce and custody proceedings, with Brenda serving as the primary caretaker for their children. During this turbulent period, Brenda and James Pavatt—a fellow congregant at her church—realized they shared a romantic connection and began a relationship.
On November 20, 2001, Mr. Andrew arrived at the home to pick up their children for visitation. Before leaving, he went into the garage with Brenda to light the pilot light on the furnace. While in the garage, Mr. Andrew was shot twice by a shotgun and Brenda was shot in her arm with one .22 round. James Pavatt later confessed to shooting Mr. Andrew and insisted that Brenda had no involvement in it.
During Brenda’s trial, prosecutors alleged that either Brenda or her co-defendant fatally shot Mr. Andrew, then staged the gunshot injury to Brenda. Prosecutors offered circ*mstantial evidence of Brenda’s involvement, including a dispute over the beneficiary of Mr. Andrew’s life insurance policy and her romantic involvement with her co-defendant, both of which prosecutors argued provided motive. A prosecution witness testified that powder burns on Brenda’s shirt and skin established that her gunshot wound was inflicted at close range and was therefore staged. Prosecutors also claimed that the blood spatters on Brenda’s clothing came from Mr. Andrew, a claim which DNA testing has since disproved.
To bolster their largely circ*mstantial case, prosecutors introduced testimony attacking Brenda’s sexual history, demeanor and appearance, and value as a wife and mother.
To bolster their largely circ*mstantial case, prosecutors introduced testimony attacking Brenda’s sexual history, demeanor and appearance, and value as a wife and mother. For example, among the first witnesses called were two of Brenda’s former sexual partners: James Higgins and Rick Nunley. The prosecution used their testimony to elicit salacious and irrelevant details about Brenda’s sexuality, opening both witnesses’ testimonies with a series of questions about their sexual relations with Brenda. According to the prosecution’s own evidence, Brenda had stopped seeing Mr. Higgins over six months before the crime, and, while she spoke with Mr. Nunley over the phone, she had ended her sexual relationship with him several years earlier. Yet the prosecution asked Mr. Higgins a series of questions about their sexual encounters to portray Brenda as a sexual deviant in front of the jury, inquiring “was it always the same motel” and “how many occasions did you have sex with her in her car?” Oklahoma Court of Criminal Appeals Judge Arlene Johnson recognized the dehumanizing impact of this tactic, concluding that the “effect was to trivialize the value of her life in the minds of the jurors.” Judge Robert Bacharach of the Tenth Circuit agreed. In his dissent, Judge Bacharach stated that, by harping on Ms. Andrew’s sex life throughout the trial, the prosecution “portrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals.”
During the guilt phase of the trial, prosecutors asked four separate witnesses to describe the clothing Brenda wore years before the offense, repeatedly urging them to comment on Brenda’s modesty (or lack thereof). Prosecutors also denigrated Brenda for being an emotionless widow. In just over a day of testimony, Ms. Andrew’s demeanor or lack of tears was brought up 15 times, and at least 30 times throughout the trial. And, in its guilt phase closing argument, the prosecutor opened one of the suitcases Brenda had taken with her when she traveled to Mexico after her husband’s death.
The prosecutors plucked several pairs of underwear from Brenda’s suitcase and flourished them before the jury.
The prosecutors plucked several pairs of underwear from Brenda’s suitcase and, flourishing them before the jury, repeatedly asked whether a “grieving widow” would wear “this.” Prosecutors then dubbed Brenda a “slu*t puppy,” leaving the slur hanging in the air shortly before the jury began deliberations.
“slu*t puppy”
As part of its effort to dehumanize Brenda by portraying her as a promiscuous, immoral and deviant woman, the prosecution attacked Brenda as a mother. For example, prosecutors admitted into evidence a book found in Ms. Andrew’s possession called “203 Ways to Drive a Man Wild in Bed.” When Ms. Andrew’s attorneys objected, the prosecution conceded the testimony was intended to attack Ms. Andrew’s character and to put in doubt whether Ms. Andrew “was a good person, if she was a good mother.”In another instance, on the last day of the trial, the prosecution pressed a female witness nine times about what a “good mother” would do, and insinuated that no “good mother” would allow her children to read murder mysteries. When the witness refused to succumb to this line of questioning, the prosecutor attempted to change her mind—to no avail—by dredging up lurid details about Brenda’s romantic past. Tenth Circuit Judge Robert Bacharach noted that the prosecutor’s weaponized this evidence from start to finish, gradually “plucking away any realistic chance that the jury would consider [Ms. Andrew’s] version of events.”
After learning of Ms. Andrew’s petition and reviewing the facts of Ms. Andrew’s case, the Inter-American Commission on Human Rights (IACHR) concluded that “there is a serious and urgent risk of irreparable harm to Ms. Andrew’s right to life and personal integrity.” The Commission has called on the United States to refrain from carrying out Ms. Andrew’s execution and to “adopt necessary measures to protect [her] life” while it considers the application of binding human rights law to her case.
The Supreme Court is now poised to hear Brenda’s last appeal. If the Supreme Court denies Brenda’s petition for a writ of certiorari, she will be at risk of receiving an execution date.
