To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Sunday, February 16, 2025

Observercast

UPDATE: The Executioner’s Thong

on

Last April attorneys for Brenda Andrew, Oklahoma’s only female on death row, filed a request with the U.S. Supreme Court. This final appeal to SCOTUS argued that to secure a conviction and death sentence, the prosecution included sexist, “slut-shaming” evidence which prejudiced the jury.

Andrews’ lawyers asked SCOTUS to consider this issue based on the precedent of overturning convictions secured through racism-tainted evidence. Should the taint of sexism not also be disqualifying?

As the New York Times has reported, SCOTUS did hear the case and has now issued their ruling. In an unsigned opinion, the majority agreed with the defense that emphasis on Andrews’ sex life and undergarments might have deprived Andrews of a fair trial. [Readers may recall that the prosecutor had luridly dangled Andrews’ thong panties in front of the jury during closing arguments.]

The SCOTUS opinion states, in part: “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.”

SCOTUS did not take the definitive step of declaring that this violated Andrews’ constitutional rights. The majority did find that as a reasonable possibility worth re-examining, however, and ordered a new appeal. SCOTUS kicked the case back down to a federal appeals court to rule specifically on whether using the salacious, irrelevant evidence was prejudicial enough to justify throwing out the death sentence and/or conviction.

Justices Clarence Thomas and Neil Gorsuch dissented. Thomas acknowledges that the evidence pertaining to Andrews’ sexual behavior was not relevant, but asserts it was not damaging enough to violate her right to a fair trial. [Appeals courts often use this justification to deny appeals, infusing their rationale with apparent psychic powers to determine that tainted evidence did not sway the jury].

If the majority had sided with Thomas, Andrews would likely be up for an execution date. She had exhausted all other available appeals. As it is, she will have at least one more day in court.

Her co-defendant, James Pavatt, is also on death row. His execution, scheduled for June 11, 2024, was among numerous pending executions stayed to reduce the frequency of state killings due to the stress it places on Oklahoma prison staff. His execution has not yet been rescheduled.

Previous article
Next article
Kevin Acers
Kevin Acers
Kevin Acers is a social worker, educator, and poet living in Oklahoma City. He is a former board member of the Oklahoma Coalition to Abolish the Death Penalty and the ACLU of Oklahoma.