SCOTUS Grants Reprieve to ‘Slut Shamed’ Woman on Oklahoma’s Death Row

Screengrab from KOCO tv

Let’s talk about something other than politics. How about this:  Oklahoma’s only female death row inmate and the Supreme Court decision that may, possibly, or maybe not, spare her life.

Of course SCOTUS often weighs in on capital cases, but this one is interesting for a few reasons. There’s the relative novelty of a condemned woman, but also the fact that her story was memorialized in an episode of everyone’s favorite hotel room binge watch, Forensic Files (Season 10, episode 32 if you’re interested,)

Her name is Brenda Andrew, and she was convicted in 2004 of conspiring to have her estranged husband shot to death in her garage. She’s accused of having arranged to have herself shot, also, to add authenticity to her tale of two masked intruders. Her alleged motive? An $800,000 life insurance policy — issued by her lover, James Pavatt, with whom she’d openly been having an affair for quite some time.

The 2006 episode of Forensic Files featuring Andrew focuses on the ballistic and blood spatter evidence, along with an allegedly forged life insurance form leaving Brenda the money. But while the show focused on her relationship with Pavatt, the prosecutor in her trial went much further in his depiction of Brenda’s extracurriculars.

At trial, the state’s evidence included details of men she’d slept with over the span of two decades, her affair with Pavatt and at least two other men during the course of her marriage, but also the way Brenda dressed, how she acted around men, and when, where, and how many times she had sex with men other than her husband. The prosecution went so far as to provide an accounting of how many times Brenda had sex in her car.

If all of this was not enough to make sure the jury knew just what kind of Jezebel Brenda Andrew was, the state hammered the point home by waving her thong underwear at the jury, asking whether they looked like something a grieving widow would wear:

At Andrew’s trial, the prosecution sought to prove that Andrew had conspired with Pavatt, an insurance agent, to murder her husband for the proceeds of his life insurance policy. 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. At least two of the prosecution’s guilt-phase witnesses took the stand exclusively to testify about Andrew’s provocative clothing, and others were asked to comment on whether a good mother would dress or behave the way Andrew had. In its closing statement, the prosecution again invoked these themes, including by displaying Andrew’s “thong underwear” to the jury… (Emphasis added.)

The jury had no trouble convicting Brenda of the murder and sentencing her to die.

In the twenty years since, her appeals have slowly made their way through the court system. The defense strenuously believes that the prosecution’s emphasis on Brenda’s behavior with men, the very effective “slut-shaming”, prejudiced her so egregiously as to amount to a denial of due process. The Oklahoma Court of Criminal Appeals conceded that most of the evidence of Brenda’s promiscuity was indeed irrelevant, but found it was “harmless error.” Two of the state court judges disagreed. From the (spoiler alert) SCOTUS per curiam order on Andrew’s case :

Judge Johnson dissented in part. In his view, the “egregious . . . pattern of introducing evidence that ha[d] no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman . . . trivialize[d] the value of her life in the minds of the jurors.” Id., at 206–207. He would therefore have vacated her sentence. Judge Chapel dissented separately, indicating that he would have reversed the conviction and remanded for a new trial. Id., at 208.  Andrew v White 604 U.S. ___ (2025) (per curiam).

In a petition to the District Court, the defense cited language from SCOTUS’s 1991 decision in Payne v. Tennessee, arguing that “[I]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”  The District Court was not persuaded; nor was the Tenth Circuit, finding that this statement from Payne was mere dicta, related to victim impact statements at sentencing hearings, and was not a holding that would amount to “clearly established law.”

SCOTUS last week issued a per curiam (unsigned, but my guess is either Jackson or Sotomayor wrote it) opinion remanding the case to the Tenth Circuit for reconsideration. The majority rejects the Appeals Court’s holding that the language in Payne was non-controlling dicta and that thus, no clearly established law existed at the time of Andrew’s trial that would support her argument. The Court acknowledges that “clearly established law” means holdings, not dicta, and defines “holding” as a legal rule or principle relied upon by a court in deciding a case, a description it states fits the relevant language from Payne. 

In Payne, the state presented testimony from surviving family members of a murdered woman and her child during a death penalty sentencing hearing. At the time, existing precedent barred “victim impact” evidence from being presented at the penalty phase of a capital case.  The Court in Payne opted to overturn their precedent, reasoning that a per se exclusion of such testimony was unnecessary because the Due Process Clause provided relief against unduly prejudicial evidence. Chief Justice Rehnquist writes in Payne:  “In the event that victim impact evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Fourteenth Amendment’s Due Process Clause provides a mechanism for relief.” Intrinsic in that statement is the premise that the Due Process Clause protects against the admission of unduly prejudicial evidence. Thus, reasons the Court in Andrew’s case, this was the principle relied upon in deciding Payne and is therefore a clearly established law, existing at the time of Brenda Andrew’s trial.

The Court sent Andrew’s case back to the lower courts to reconsider Andrew’s arguments, this time to consider whether the slut-shaming evidence infected her trial with undue prejudice.

Justice Alito concurred with the majority, but wrote a separate paragraph to emphasize that he has no opinion as to whether or not Andrew has met the “very high burden” to show such undue prejudice.

Justice Thomas dissented, joined by Gorsuch which is a bit of a surprise as the latter more often than not lands on the defense side of criminal law matters. Thomas emphasizes that courts are generally to refrain from interpreting Supreme Court precedent at “too high a level of generality,” which he accuses the majority of doing here. Thomas says the Court has adopted “the broadest possible interpretation of a one sentence aside” in Payne. Further, Thomas notes, the issue of Due Process as a remedy for unduly prejudicial evidence arose again in cases before the Court in the months after Payne, and those cases explicitly reserved the question for another time, indicating it was not an established principle of law.

Thomas sets forth in more detail the case against Brenda Andrew, and in doing so cannot resist outlining all the other, non-murderous ways in which she sucked as a wife, mother, and person in general, much like the prosecution in her case did before the jury.¹ Thomas’s lengthy discussion of the evidence against Andrew suggests that, to the extent any of the contested evidence was unduly prejudicial, it did not matter in the grand scheme of things; it was blue on black, match on a fire, cold on ice, etc. In other words, it made no difference in the ultimate verdict.

He does, eventually, get around to discussing the legal arguments. Thomas says that the Tenth Circuit was correct to affirm the Oklahoma court’s interpretation of Payne (that the pronouncement in Payne (that due process is a remedy to the admission of unduly prejudicial evidence) applied only to victim impact statements like those at issue in that case). Because that interpretation is “reasonable”, Thomas argues, the Circuit Court’s decision should not have been disturbed by the majority here. In response, the majority points out that the Court need not defer to the Tenth Circuit’s interpretation of SCOTUS precedent where the lower courts failed to recognize that said precedent existed at all:

Because the Tenth Circuit nonetheless held that no relevant clearly established law existed (a ruling this Court reviews de novo) it never considered whether the state court’s application of that law was reasonable. On remand, the Court of Appeals should conduct that inquiry in the first instance. Specifically, the question now is whether a fairminded jurist reviewing this record could disagree with Andrew that the trial court’s mistaken admission of irrelevant evidence was so “unduly prejudicial” as to render her trial “fundamentally unfair.”

The headlines following the release of the per curiam decision in Brenda Andrew’s favor suggest that SCOTUS took a hardline against slut-shaming a defendant at trial. But more accurately, the Court merely says that the state court should have recognized the potential for such evidence to have been unduly prejudicial and considered whether, in fact, it was in this case, and that if it was, it amounted to a Due Process violation. In other words, slut-shaming evidence can still be okay, so long as it doesn’t unfairly sway a jury. Remember that by its nature, all evidence against a defendant is prejudicial against a defendant; the question is whether it is unfairly so. Would it so enrage or inflame a jury as to prevent them from considering other relevant facts? Did learning about Brenda’s lack of moral character alone cause the jury to despise, convict, and condemn her? Keep in mind that character evidence is not generally admissible to prove a person’s propensity to commit a specific crime (though exceptions apply, of course.)

As it stands now, Brenda Andrew is still facing death. She has not reached an ultimate prevailing in her appeal, only a reprieve for further consideration. The Oklahoma Court of Criminal Appeals will review the evidence again with SCOTUS’s directives in mind, and can still find that the jury was not so heavily swayed by the evidence of Brenda’s promiscuity as to render the trial unfair; if the rest of the evidence — the physical evidence, forensics, and testimony not related to Brenda being a ho — was strong enough to render the rest superfluous.

Personally, I think the legitimate, relevant evidence against her is strong, without having to resort to draping a scarlet letter around her neck. Evidence of her affair with Pevatt is probably relevant to motive, without going into detail about her wanton sluttiness. And there is other damning physical evidence; one such detail: Brenda says she was shot in the arm from a distance of 15 to 20 feet away, but the powder burns show it was nearly point-blank. So in the end, it is possible that even a retrial won’t save her. But if we are going to kill her, let’s make sure it’s because of the crime she committed, and not because she’s a “hoochie”, as one witness proclaimed at her trial.

1. I admit, she makes it easy. The trip to Mexico with Pevatt in lieu of attending the funeral of her children’s father was not a decision that flatters her.