THEY WAVED HER UNDERWEAR IN FRONT OF A JURY AND CALLED HER A "SLUT PUPPY"

Now Brenda Andrew is on death row, and the Supreme Court could weigh in

BY NEDA TOLOUI-SEMNANI

The U.S. Supreme Court will decide this Friday if it will hear the case of Brenda Andrew, the only woman currently on death row in Oklahoma. The Andrew case is the second Oklahoma capital punishment case vying for the court’s attention this term, and it has potentially far-reaching ramifications—not just for the state, but for the rights of women and queer people everywhere.   

The background on the case is this: Andrew, along with James Pavatt, her former partner, were found guilty of first-degree murder in the 2001 shooting death of Andrew’s estranged husband, Rob, but the jury rejected the state’s charge that Andrew would be a “continuing threat to society.” Nonetheless, both Andrew and Pavatt were sentenced to death. Throughout Andrew’s 2004 trial, her sexuality, her dress, her demeanor, and, ultimately, her behavior as a wife, mother, and Christian were dissected and condemned. In an amicus brief filed with the Supreme Court, a former federal judge, 17 law professors, and four domestic violence advocates argue that the Andrew case was rife with gender bias that unfairly prejudiced the jury against her. 

“At a time when women’s rights generally are on the chopping block—also the rights of queer people and civil rights of minority communities—we’ve got a case that’s at the extreme end of what it means when we dehumanize these communities when we strip people of their humanity,” says Nathalie Greenfield, a lawyer with the non-profit firm Phillips Black, which filed the writ of certiorari to the Supreme Court on Andrew’s behalf. She argues that if the Supreme Court does not review the case, the justices would sanction using “assumptions, stereotypes, and tropes about people who dare to transgress perceived norms,” especially when it comes to gender, race, and identity. 

The trial transcript, for example, reveals that witnesses were encouraged to describe Andrew’s appearance in detail, from her dresses (“very tight, very short, with a lot of cleavage,” said one) to her make-up choices (“gothic”), and also to say whether they thought those choices were appropriate. Prosecutors also waved Andrew’s underwear in front of the jury and called her a “slut puppy,” one of the last things members of the jury heard before they began to deliberate. 

“There [were] just so many recorded instances of gendered evidence being presented every single day [of the Andrew trial],” says Greenfield. “And a lot of this was about her appearance and her extramarital affairs. The focus was on the fact that this was a woman who was transgressing gender norms by not being this chaste Christian wife.”

Oklahoma is a particularly deadly state: It has executed 124 people since 1976, when the U.S. lifted its moratorium on capital punishment. (Only Texas has killed more people.) Of these, just three were women—two of whom were prosecuted by district attorney Bob Macy, who is considered the second deadliest prosecutor in United States history. He’s responsible for 54 death sentences—more than any other prosecutor who was practicing law between 1980 and 2001. He resigned in 2001 after evidence of prosecutorial misconduct was found in 18 of those 54 cases, resulting in three exonerations. 

However, his shadow still stretches over Oklahoma’s justice system—and Macy’s assistant district attorney and protege, Fern Smith, was a prosecutor in the Andrew case. According to transcripts, Smith repeatedly asked witnesses to describe Andrew’s dress, opine over Andrew’s behavior, and state whether or not Andrew was, in Smith’s words, a “good mother.” 

This isn’t the first time a case Smith has prosecuted has been challenged. She has been repeatedly accused of failing to disclose exculpatory evidence—evidence that could be favorable to the defendant—and even of destroying evidence. In fact, she was accused of prosecutorial misconduct by name in the case of Richard Glossip, the other Oklahoma capital punishment case that will be in front of the U.S. Supreme Court this year.

At a time when women’s rights generally are on the chopping block—also the rights of queer people and civil rights of minority communities—we’ve got a case that’s at the extreme end of what it means when we dehumanize these communities when we strip people of their humanity.

The Supreme Court has already delayed deciding whether to hear Andrew’s case twice. Tomorrow, they could do one of three things: agree to hear it, decline to hear it, or “vacate and remand,” which means the Supreme Court could return her case to the appellate court to reconsider without hearing an oral argument. 

Since Andrew was sentenced, she has been the sole woman on death row; consequently, she has served the majority of her sentence—more than 16 years—in solitary confinement. According to the United Nations, prolonged solitary confinement, or more than 15 days without meaningful human contact, is defined as torture. 

In February 2020, Andrew was moved to the general population, where, according to her lawyers, she thrived. She got a job and joined a quilting circle. In January, two days after her attorneys filed the writ of certiorari with the Supreme Court, Andrew was returned to solitary. She wasn’t given a reason.

“The gender bias is just so finely woven into the trial that you can’t extricate it,” argues Jessica Sutton, another attorney with Phillips Black. “It’s unique in that way. However, the real issue implicates the due process clause of the 14th Amendment. We have to ensure that trials are fundamentally fair. We want to make sure that, for the ultimate punishment, we have a reliable trial, a reliable process, a reliable conviction, and sentencing. What the prosecution did is undermine every aspect of the entire trial.” 

Neda Toloui-Semnani is an Emmy-winning journalist and the author of They Said They Wanted Revolution: A Memoir of My Parents.