At Brenda Andrew’s 2004 trial in Oklahoma for the murder of her husband, the prosecutor called witnesses to testify about her “provocative” clothing and her previous sexual relationships, and questioned “whether a good mother would dress or behave” the way she had. Jurors heard Ms. Andrew called a “hoochie” and a “slut puppy.” In his closing argument, the prosecutor opened a suitcase and showed the jury Ms. Andrew’s underwear, asking, “The grieving widow packs this in her appropriate act of grief?” He held up a thong and lace bra in front of the jurors and declared that a “grieving widow doesn’t pack her thong underwear and run off with her boyfriend!” The jury sentenced Ms. Andrew to death.
On January 21, the Supreme Court issued a relatively rare per curiam decision and summarily reversed the decision below, holding that Ms. Andrew properly relied on an earlier Supreme Court case when she argued that the state’s evidence was so prejudicial that it violated her rights under the Due Process Clause of the Fourteenth Amendment. The Court now sends the case back down to the Tenth Circuit Court of Appeals to determine whether the prosecutor’s evidence about Ms. Andrew’s sexual behavior and clothing was so prejudicial that it warrants a new trial.
The prosecution “portrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals…plucking away any realistic chance that the jury would seriously consider her version of events.”
During federal habeas appeals, a death-sentenced prisoner must show that the state court “relied on an unreasonable determination of the facts or unreasonably applied ‘clearly established Federal law.’” Ms. Andrew relied on the Court’s statement in Payne v. Tennessee (1991) that when “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.” However, the Tenth Circuit ruled that this statement was a “pronouncement” rather than a “holding,” and therefore was not “clearly established federal law.” The Tenth Circuit therefore declined to consider the merits of Ms. Andrew’s claim: “whether a fairminded jurist could hold that the admission of irrelevant evidence about Andrew’s demeanor as a woman was not so prejudicial as to deprive her of a fundamentally fair trial.”
Judge Robert Bacharach of the Tenth Circuit dissented, writing that the prosecution focused “from start to finish on Ms. Andrew’s sex life” and “portrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals…plucking away any realistic chance that the jury would seriously consider her version of events.” Oklahoma Court of Criminal Appeals Judge Arlene Johnson had earlier dissented that the trial was “rife with error,” which “at its most egregious, includes a pattern of introducing evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman.”
The Supreme Court held that Payne and other cases had “made clear” that “the Due Process Clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair.” Justice Samuel Alito concurred, agreeing that “a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence,” but “express[ed] no view on whether that very high standard is met here.” Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented, crediting the state’s case and arguing that the Payne excerpt was a “lone sentence” without the necessary specificity to be clearly established federal law.
Andrew v. White speaks to larger disagreements among attorneys and scholars over how to interpret Supreme Court opinions. Here, the Court embraced a broad view of a “holding” to be a “legal rule or principle” the Court “relies on…to decide a case.” The Court held that its reasoning in Payne “that the Due Process Clause can in certain cases protect against the introduction of unduly prejudicial evidence at a criminal trial” was “indispensable” to that decision, which removed a per se ban on victim impact evidence in part because the Due Process Clause could provide a “mechanism for relief” when victim impact evidence became too prejudicial. Therefore, that reasoning was a “holding” and not merely dicta.
“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.”
Ms. Andrew is the only woman on death row in Oklahoma. In the modern era, eight women have been sentenced to death in the state; four have been resentenced to life or less and three have been executed. In addition to Oklahoma, seven states (Georgia, Idaho, Kentucky, Louisiana, Mississippi, Pennsylvania, and Tennessee) have only one woman on death row, which may result in disparate negative treatment compared to men on death row and even functional solitary confinement.
“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,” said Jessica Sutton, an attorney for Ms. Andrew, in a statement following the decision. “Wielding these gendered tropes to justify a conviction and punishment of death is intolerable and poses a threat to everyone who does not follow rigid gender norms.” Said Sandra Babcock, a Cornell Law professor, member of Ms. Andrew’s defense team, and international authority on gender and the death penalty: “With this decision, the U.S. Supreme Court has for the first time signaled that prosecutors may not use, and courts may not admit, prejudicial evidence attacking women’s abilities as mothers and their private sex lives without violating women’s constitutional rights.”
To learn more about women sentenced to death, listen to DPI’s 2023 podcast interview with Ms. Babcock.
Andrew v. White, 604 U.S. ___(2025); Cornell Center on the Death Penalty Worldwide, “Brenda Andrew: Sex-Shamed to Death in Oklahoma,” Cornell Law School, accessed January 22, 2025; Andrew v. White (10th Cir. 2023); Andrew v. State, 164 P.3d 176 (Okla. Court. Crim. App. 2007).
Oklahoma
Dec 10, 2024
