The U.S. Court of Appeals for the Tenth Circuit has affirmed the denial of federal habeas corpus relief to Brenda Andrew, convicted and sentenced to death for the first-degree murder of her husband, Rob Andrew. The court’s decision centered on Ms. Andrew’s sole remaining claim: that the introduction of evidence related to her sexual conduct and perceived gender stereotypes rendered her trial fundamentally unfair.
The case, which has seen multiple rounds of appeals, including a review by the U.S. Supreme Court, returned to the Tenth Circuit after the Supreme Court vacated a prior judgment. On this second look, the circuit court concluded that the Oklahoma Court of Criminal Appeals (OCCA) reasonably applied existing Supreme Court precedent in finding that Ms. Andrew received a fundamentally fair trial.
The Narrowed Focus: Gender Stereotypes and Sexual Evidence
The current appeal is significantly streamlined compared to the initial federal review, where Ms. Andrew raised ten claims, including issues related to excluded witnesses, *Miranda* violations, and cumulative error. Following a grant of *certiorari* by the Supreme Court, the focus narrowed primarily to the introduction of sexual evidence.
The Tenth Circuit noted that the parties on remand agreed to limit the review to whether the OCCA’s decision on the denial of a fair trial—specifically concerning sexual evidence—was an unreasonable application of Supreme Court precedent or based on an unreasonable determination of fact, as required under 28 U.S.C. § 2254(d).
A Flood of Challenged Evidence
Ms. Andrew challenged a wide array of evidence admitted during her trial, which the court categorized as “sex-stereotyping evidence.” This included testimony detailing her extramarital affairs with James Higgins and Rick Nunley, as well as her relationship with James Pavatt, the man who ultimately admitted to shooting her husband.
The evidence presented by the prosecution was extensive and focused heavily on Ms. Andrew’s personal life, appearance, and demeanor:
* Sexual Conduct: Testimony about affairs with Higgins and Nunley, and interactions suggesting intimacy with Pavatt.
* Appearance and Demeanor: Witnesses described her as wearing “sexy,” “provocative” clothing, having “very Gothic, long black hair,” and being called a “hoochie” by one observer.
* Prosecutorial Statements: During closing arguments, the prosecution questioned whether a “grieving widow” would pack “thong underwear” taken to Mexico and explicitly labeled Ms. Andrew a “slut puppy” for sleeping with a married man.
The court also reviewed the prosecution’s arguments during the sentencing phase, where she was characterized as “different,” having people “under her spell,” and being a poor mother.
Procedural Hurdles and Deference to State Court
Before diving into the merits, the court addressed procedural issues. Ms. Andrew’s attempt to challenge the OCCA’s factual findings regarding testimony about her affair with Mr. Nunley was deemed forfeited because she failed to raise it properly in the district court. The Tenth Circuit emphasized that casual references in footnotes during appellate briefing are insufficient to preserve a claim under § 2254(d)(2).
Crucially, the court reiterated the highly deferential standard required for habeas review when a state court has already decided the claim on the merits. Relief can only be granted if the state court’s decision was contrary to, or involved an unreasonable application of, clearly established Supreme Court law. The court noted that when applying the general rule regarding fundamental fairness, state appellate courts are afforded “considerable leeway.”
Assessing Fundamental Fairness: Guilt Phase
The core of the decision involved applying the Supreme Court’s standard: whether the admission of evidence was so “unduly prejudicial as to render a criminal trial fundamentally unfair.”
The Tenth Circuit first analyzed the evidence presented to the jury during the guilt phase. While acknowledging that much of the sexual evidence—such as her provocative clothing or changing her hair color—was irrelevant to the core issue of whether she conspired to murder her husband, the court looked at the context provided by the Supreme Court’s remand order.
The court compared the situation to *Buck v. Davis*, where racial stereotypes directly intersected with the central sentencing issue (future dangerousness). Here, the court found that the gender-based stereotyping about promiscuity did *not* “coincide precisely with the central question” before the jury: whether Ms. Andrew conspired with Pavatt to commit the murder.
Furthermore, the court found that even if some evidence (like testimony about affairs with Higgins and Nunley, or the underwear) was irrelevant, the evidence supporting Ms. Andrew’s guilt was “overwhelming.” The court cataloged 24 specific pieces of evidence pointing to her motive (life insurance money), intent (hating her husband), conspiracy with Pavatt, staging the crime scene, and fleeing to Mexico. Given this strong evidence, the court determined that a fair-minded jurist could reasonably conclude the trial was not fundamentally infected by unfairness. The trial court’s failure to issue a limiting instruction, while potentially error, was deemed harmless in light of the strong evidence of guilt.
Sentencing Phase Review
Ms. Andrew also challenged the fairness of her sentencing, focusing on the prosecution’s argument that she was a poor mother. However, the Tenth Circuit noted that Ms. Andrew had introduced the issue of motherhood herself during her defense by arguing she was a good mother who loved her children. Given this context, the court found that a fair-minded jurist could reject the claim of prejudice regarding her parental shortcomings.
Regarding other attacks on her character during sentencing, the court pointed out that Ms. Andrew failed to raise several arguments concerning prosecutorial statements (such as being “under her spell” or “not like you and me”) in her initial appeal to the OCCA, thus limiting the scope of federal review.
Ultimately, the Tenth Circuit concluded that a fair-minded jurist could reasonably uphold the OCCA’s determination that the evidence, even if some was irrelevant, did not render either the guilt phase or the sentencing phase fundamentally unfair under federal constitutional standards. The denial of habeas relief was affirmed.