Like most violent crimes, the November 2021 homicide of Rob Andrew was despicable. Andrew was killed with two blasts from a shotgun. The shooting took place in the garage attached to his former residence in Oklahoma City. Andrew and his wife, Brenda, were in the process of getting a divorce and lived separately. She lived in the house with their two young children.
The Andrew children’s father arrived to pick them up for a pre-arranged Thanksgiving weekend visit. The kids were watching television inside the house. They didn’t hear the gunshots that took his life.
Brenda Andrew, Rob Andrew’s wife, called 911. She reported to the police that masked intruders had accosted and shot her husband, causing his death. She claimed the same intruders had shot her while she was running into the house. She had a superficial gunshot wound to the arm and was treated at a local emergency room, telling the same story. Evidence would later show that she was lying.
Readers who lived in Oklahoma at the time surely remember the crime’s dramatic aftermath. News media covered it with tabloid-like sensation. In addition to local reporters, national outlets including America’s Most Wanted, People magazine, and the major news networks followed the story.
Details about the Andrews’ rocky marriage emerged. There were allegations of Brenda having had extra-marital affairs. The most recent was said to be ongoing still, with an insurance agent named James Pavatt.
The Andrews knew Pavatt from the Baptist church they attended. He and Brenda taught Sunday school together. They seemed to grow closer, raising eyebrows. Several months prior to the murder, Pavatt would persuade Rob to name Brenda as the sole beneficiary of a life insurance policy. He helped him with the paperwork. Brenda later asked for a divorce, and Rob moved out.
THE PLOT THICKENS
The plot thickens, as they say. Pieces fell into place, supporting a narrative of conspiracy between Pavatt and Brenda, his lover, to kill her husband for an $800,000 insurance payout.
Rob had previously filed police reports stating he suspected Brenda and Pavatt were planning to kill him. His car brake line had been cut, and he believed they were the culprits. Pavatt had interfered when Rob attempted to remove Brenda from his insurance policy, forging a document rescinding the change. After Rob’s murder, police investigators gathered sufficient evidence to file murder charges against Brenda and Pavatt.
The two suspects fled, launching an interstate search for the pair. Police had surmised that they were both complicit in Rob Andrew’s murder. Their abrupt disappearance reinforced this perception.
Brenda and Pavatt eluded capture for months, driving to Mexico with the two children. Law enforcement tracked their use of a credit card in Mexico. Finally, after running out of funds, the suspects crossed the border back into Texas. Having been placed on an FBI fugitive list, they were immediately apprehended.
GUILTY AS CHARGED
Pavatt and Andrew were tried separately. The state’s evidence convinced the two juries that Pavatt had ruthlessly killed Rob on Brenda’s behalf. They had planned the murder and staged the crime scene together.
Prosecutors showed that Brenda had lured Rob into the garage on the pretense of needing help with a pilot light, with Pavatt waiting nearby. Pavatt ambushed Rob, killing him with his shotgun. Pavatt then shot Brenda in the arm using a handgun. This flesh wound was part of their plan to prop up Brenda’s invented story about an intruder attack.
They were both found guilty as charged of murder in the first degree and of conspiracy to commit murder.
TWO-STAGE TRIALS
Capital murder trials have two phases. The first focuses on whether the defendant is guilty beyond a reasonable doubt. Evidence in the Andrew murder cases was conclusive, and the “trial by headlines” had already been won. The guilty verdicts came as expected.
Following a guilty verdict in a capital trial, the second stage – known as “the penalty phase” – unfolds. This is the prosecutor’s opportunity to persuade the jury that the defendant they just found guilty should be executed for the crime. Defense attorneys present mitigating factors to the jury, seeking a different sentence. The alternative to imposing the death penalty would be either a life sentence with the possibility of seeking parole after many years in prison, or life without the possibility of parole.
Andrew’s and Pavatt’s trials were prosecuted in Oklahoma County. Oklahoma County has imposed more death sentences than any other same-sized county in the United States, according to the Death Penalty Information Center. In fact, Oklahoma County has carried out more than three times the number of executions of the second-ranking county its size [St. Louis County, MO].
It comes as no surprise, then, that Oklahoma County prosecutors doggedly pursued death sentences for Andrew and Pavatt, and in both cases prevailed. Consistent with Oklahoma criminal law, this required unanimous death recommendations from both juries. In each case, the trial judge followed the jury’s recommendation.
Since being sentenced, Brenda Andrew and James Pavatt have been death row inmates. They are incarcerated at separate prisons.
UNAPPEALING APPEALS?
All individuals sentenced to death have automatic appeals under the law. The appeals process is not designed to stop innocent people from being executed per se. It is to review each case for a possible unfair trial and/or misapplication of the law in securing the sentence.
Ironically, the U.S. Supreme Court has found that executing someone who is innocent – without evidence of procedural errors during the trial – is not “cruel or unusual punishment” and therefore would not be unconstitutional. The late Antonin Scalia made this assertion in the 1993 case of Herrera v. Collins. The majority opinion written by then-Chief Justice William Renquist did not contradict Scalia’s stance. Since then, Justices Clarence Thomas and Samuel Alito have cited this controversial finding in other cases.
Even without claims of innocence, the appeals process causes lengthy delays. To the consternation of death penalty proponents, these delays are expensive, typically take years if not decades, and can only add to the distress of murder victims’ loved ones.
At the same time, the appeals are there for a reason. If not for the appeals process, unacceptable errors in the judicial system would go unchecked. In Oklahoma alone, for example, 10 prisoners under sentence of death have been exonerated on appeal.
In 2017 a bipartisan commission studied Oklahoma’s use of the death penalty and recommended numerous changes. Their findings “led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death.” Their recommendations have been largely ignored.
BACK TO THE CASE AT HAND
Pavatt’s murder conviction was affirmed on appeal. His death sentence, however, was briefly overturned in 2018. This decision was made by a three-judge panel of the Denver-based Tenth Circuit Court of Appeals. The state then requested a full-panel hearing, which was granted. After this review by all 13 Tenth Circuit Court judges, Pavatt’s death sentence was re-imposed. The U.S. Supreme Court has declined to hear further appeals. Pavatt’s execution is scheduled for this July.
Brenda Andrew’s conviction and death sentence were also unsuccessfully appealed at the state and federal level. She is presently the only woman on Oklahoma’s death row. She still has one appeal pending before the U.S. Supreme Court. SCOTUS is expected to announce in the next few days whether they will hear her case. If not, her death sentence will stand.
SLUT-SHAMING AT TRIAL: A SALACIOUS DOG-AND-PONY SHOW
Brenda Andrew’s murder conviction was an open and shut case. There are serious concerns, however, about why she was sentenced to death.
Prosecutors from the Oklahoma County District Attorney’s office used a scarlet-letter strategy against Brenda Andrew at trial. They portrayed her as a wanton, promiscuous woman, an unfaithful wife, and even the owner of scandalous panties.
Assistant District Attorney Gayland Gieger theatrically waved a pair of Andrew’s thong underwear during his closing arguments. These were among the items, he declared, that Brenda Andrew had taken with her to Mexico. “The grieving widow packs this to run off with her boyfriend,” he sarcastically intoned. There were audible gasps in the courtroom. The jury was being told, in not so many words, that Brenda Andrew was a shameless slut.
Andrew’s appeals attorney raised this sexist stunt in an earlier, unsuccessful appeal. They argued that gender stereotypes and displaying her underwear unfairly biased the jury against her. It is criminal behavior, not whether the defendant fits a feminine stereotype, that the jury should be weighing in a capital murder trial.
One Tenth Circuit judge agreed. He wrote that “introducing [this] evidence has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother and a bad woman.” He recommended her death sentence be overturned. He was in the minority, however, and the death sentence stands.
Even the appeals court’s majority indicated in their ruling that prosecutors had been in the wrong. Still, they opined that the errors were not so serious as to make a difference to the jury. In other words, mistakes were clearly made, but it didn’t matter. The court speculated that the jury would have sentenced Andrew to death even without the prosecutors’ antics. This exercise of judicial clairvoyance is fairly common in Tenth Circuit rulings.
Andrew is hoping that the U.S. Supreme Court will disagree.
WAITING FOR THE SUPREMES
There is precedence for SCOTUS to overturn a death sentence based on findings that prosecutors secured the death penalty through a racist presentation to the jury. Might it be consistent to make a similar finding in the case of a sexist prosecution? Is it not worth the Supreme Court’s consideration, at least?
A petition has been filed on Andrew’s behalf to pursue this line of argument. The court could decline to consider the appeal. This would clear the way for scheduling Brenda Andrew’s execution.
If, on the other hand, the Supreme Court decides to hear the case and rules in Andrew’s favor, her death sentence would be vacated. The state could either pursue another trial [for sentencing only], or they could opt out of pursuing the death penalty. In this case, she would receive a life sentence, most likely without parole.
Regardless of one’s opinion about the death penalty, there is general consensus that even people who are guilty deserve a fair trial. Brenda Andrew’s guilt is not in dispute. There are strong indications that she did not receive a fair trial during the penalty phase, and that the prosecutors’ unseemly and prejudicial, sexist strategy inappropriately swayed the jury. If a racist legal strategy is unacceptable to the court, it is reasonable to argue that a sexist one is, too.
Will SCOTUS agree to hear this argument? The announcement of that decision is expected any day.
For additional information see:
https://www.nytimes.com/2024/04/01/us/supreme-court-death-penalty-sex-shaming.html?unlocked_article_code=1.hE0.5cKi.eruJuugXndw9&ugrp=c
Oklahoma crime case included sexism. What will US Supreme Court say? (oklahoman.com)
Brenda-Andrew.pdf (deathpenaltyworldwide.org)
