SCOTUS Vacates Capital Case Conviction Involving Sexual Shaming

Consider if it is appropriate for a prosecutor to:

• Refer to a criminal defendant with rude and sexually suggestive terms
• Wave a pair of thong underwear in front of a jury
• Focus the jury's attention on someone who refers to her as a "hootchie"

It may sound like something from an unreleased David Lynch film, but all of the above took place during a trial in Oklahoma that sentenced a woman to death. On Tuesday, January 21, 2025, the Supreme Court of the United States (SCOTUS) issued a per curium order ruling that the prosecution had gone a step too far.

Or maybe several steps.

Did You See the Way She Was Dressed?

The original case took place in Oklahoma. Rob Andrew was shot and killed while picking up the couple's children on November 20, 2001. His estranged wife, Brenda Andrew, was shot in the arm. She told police the attack was perpetrated by a pair of masked assailants.

A police investigation determined that Andrew's boyfriend, James Pavatt, committed the murder. Pavatt and Andrew had left the country but were arrested by the FBI when they returned three months later. Pavatt confessed to the crime but insisted that Andrew wasn't involved. The State of Oklahoma disagreed and charged them both with capital murder.

Pavatt was convicted and sentenced to death by a jury. For Andrew's trial, the prosecution opted to paint the defendant as an immoral seductress with a lengthy string of sexual conquests who conspired to murder her husband for his life insurance benefits.

Witnesses testified about her sexual partners over the previous two decades, the "provocative" outfits she wore while grocery shopping, and whether or not a "good mother" would dress or behave the way the defendant did. One referred to her as a "hootchie" due to the cleavage on display.

During closing arguments, the prosecution waved a pair of Andrew's thong underwear in front of the jury and questioned whether a "grieving widow" would wear something like it. It also referred to Andrew as a "slut puppy."

While the prosecution claimed they had chosen that approach to counter Andrew's claims of being a good wife and mother, it can evoke images of Hester Prynne facing angry Puritans.

The jury convicted Andrew of conspiracy to murder and she was sentenced to death. Both the Oklahoma Court of Criminal Appeals and the 10th Circuit ruled against her appeals, deeming the irrelevant evidence offered at trial either harmless or not subject to any federal law.

Scarlet Letter of the Law

In a 7-2 decision, SCOTUS determined that the statements issued about Andrew's sexuality and conduct as a mother and wife were too potentially prejudicial to be overlooked under Payne v. Tennessee. Ruling that the unlawful gender stereotyping and erroneous admission of prejudicial evidence could have unduly affected the jury and violated the defendant's due process rights under the Fourteenth Amendment, they vacated the conviction.

Justice Clarence Thomas penned a dissent arguing that the majority improperly relied on "a one sentence aside" in Payne. Justice Neil Gorsuch joined the dissent.

High Stakes

It's entirely possible that James Pavatt lied to protect his lover and that Brenda Andrew was involved in the murder of her husband. But with this ruling, SCOTUS has indicated that being portrayed as a modern-day Jezebel can be unfairly prejudicial. Given that her life is at stake, SCOTUS believes it at least needs to be reconsidered in a new trial.

Related Resources

• When Must You Absolutely File an Appeal? (FindLaw's Practice of Law)
• Capital Punishment at the Federal Level (FindLaw's Criminal Law)
• State Capital Punishment Laws (FindLaw's State Criminal Laws)