Federal appellate judges are reconsidering what will happen next for Brenda Andrew, the only woman on Oklahoma's death row.
They met at a federal courthouse in downtown Oklahoma City on Wednesday morning to take another look at Andrew's trial record, after the U.S. Supreme Court sent her case back to the circuit court in January.
The judges could uphold Andrew's conviction, her death sentence, or both, or they could ask the state to retry her case.
Until then, Andrew will remain incarcerated at the Mabel Bassett Correctional Center in McLoud, where she has been on death row for the last two decades. Though Andrew maintains her innocence, she was charged with murdering her estranged husband, Rob Andrew, in Oklahoma County.
Prosecutors allege Andrew and her then-lover, James Pavatt, shot her husband in a plot to claim a life-insurance payout in 2001. Pavatt and Andrew fled after he was killed, taking her two children with them to Mexico. After running out of money, the couple returned to the United States and were arrested at the border.
Pavatt's trial came first, and the jury sentenced him to death. Pavatt also faces execution but has exhausted all avenues for appeal.
Meanwhile, Andrew's case advanced all the way to the Supreme Court. Her defense argued her trial was unfairly influenced by prosecutors' repeated focus on her sexual history and personal life.
In an unsigned opinion in January, Supreme Court justices acknowledged state prosecutors "spent significant time at trial" focusing on details about Andrew's sex life and failings as a wife or mother.
"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," the opinion said.
During the trial, prosecutors brought out a book police found in Andrew's home called 203 Ways to Drive a Man Wild in Bed and held up her thong underwear in front of the jury.
The judges listening to Andrew's case Wednesday morning were not strangers to its details. In 2023, they disagreed with her defense in a 2-1 vote.
"It is evident that Ms. Andrew's trial was not perfect. But it is just as evident that her trial was fundamentally fair, and that is all she was entitled to," Circuit Judge Gregory Phillips wrote for the majority.
Phillips said the evidence of her guilt was overwhelming. Circuit Judge Robert Bacharach disagreed.
"This focus portrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals," he wrote in the dissent. "The drumbeat on Ms. Andrew's sex life continued in closing argument, plucking away any realistic chance that the jury would seriously consider her version of events.
In their new appearance before the judges, Andrew's defense asked them to overturn their previous ruling. The prosecution's sex-shaming rhetoric was used to "reduce her to a villainous archetype" and violated Andrew's due process rights, one of her attorneys said.
The prosecution acknowledged some evidence brought against Andrew was "irrelevant," but argued the jury's perception of guilt would have remained without it.
Bacharach said he couldn't imagine a man would face the same scrutiny in court. "This was an atrocious trial," he said.
Prosecution and defense disagreed about the volume of gender-based stereotyping used during Andrew's 17-day trial. Her attorneys argue her sexuality was mentioned or alluded to every single day, but the prosecution argued differently.
Judge Harris L. Hartz, who also voted to maintain Andrew's conviction in 2023, asked if sex could have been a motive in the case, which would have added relevance to the prosecution's tactics.
It is unclear what decision the appellate judges will make or how long a judgment on Andrew's case will take. They could require the state to conduct a new trial or restart the case's sentencing phase. They could also reaffirm their earlier decision that Andrew's sentencing and conviction were fair, once again sealing her fate as the only woman on Oklahoma's death row.
Oklahoma has executed three women since statehood. All three were put to death by lethal injection in 2001 for murder.
This report was produced by the Oklahoma Public Media Exchange, a collaboration of public media organizations. Help support collaborative journalism by donating at the link at the top of this webpage.
