Executing The “Bad Woman”

The Supreme Court will soon hear argument in the capital case of Brenda Andrew, the only woman on death row in Oklahoma. Whether she murdered her estranged husband is one question, central to her conviction. But whether she wore thong underwear, as put on display to the jury during the prosecution’s summation? Not so much.

During his closing argument in the 2004 murder trial of Brenda Andrew in Oklahoma, a prosecutor dangled her thong underwear before the jury. She had packed the undergarment for a trip to Mexico a few days after her estranged husband was killed.

The prosecutor, Gayland Gieger, said the item was strong evidence that Ms. Andrew had murdered her husband. “The grieving widow packs this to run off with her boyfriend,” he said, holding her underwear.

“That’s enough,” he said. “Can’t twist the facts, folks. Can’t twist the evidence.”

For reasons I struggle to explain, I hear the drawl of Nancy Grace in the back of my head saying, “where there’s smoke, there’s fire,” which was about as strong an argument as she could muster. But it wasn’t just about a thong.

During Brenda’s trial, prosecutors produced male witnesses who testified that Brenda was a sex-crazed “hoochie” who would stop at nothing to satisfy her desires. That evidence included one man’s opinion that Brenda once wore a dress that was tight, short and showed “a lot of cleavage.” It included another man’s opinion that she wore “sexy,” “provocative” outfits. It included extensive details about the places and times in which she had engaged in flirtatious behavior with other men, as well as testimony about her affairs—including relationships that ended more than seventeen years before the crime. It even included testimony that Brenda once dyed her hair red to please a man.

After reviewing this evidence, Judge Arlene Johnson of the Oklahoma Court of Criminal Appeals concluded that Brenda Andrew had been sentenced to die based on “evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman.

The argument by Andrew’s lawyer, Nathalie Greenfield (who may or may not be a twelfth cousin) is that the trial was infected by sexism.

Nathalie Greenfield, one of Ms. Andrew’s lawyers, said gender stereotypes infected the trial and poisoned the jury.

“Every single day the state was presenting gendered evidence about her appearance, about her clothing, about her sexual practices, about her skills as a mother,” she said. “We’ve got someone who is at risk of execution for not conforming to gender stereotypes.”

While the evidence presented in Andrew’s case was obviously directed at her being a “bad wife, a bad mother, and a bad woman,” is the fault that she was subject to capital punishment for “not conforming a gender stereotypes,” such as being a “hoochie”? Or was this merely the mechanism employed in this particular capital trial to dirty up the defendant, to prejudice the jury against her, using whatever evidence of her conduct was available to denigrate her as a person undeserving of the jury’s concern?

Curiously, in her defense, a more favorable characterization of Andrews is proffered.

Certain characteristics remained constant throughout Brenda’s life. Many people noted her wonderful relationship with her children, stating that she was kind and gentle with them and would always make time for them. Brenda was the “glue that held the family together” after her father’s death. Her cousin describes her as a caring and loving support for her severely mentally impaired brother throughout their childhood. A neighbor describes Brenda as the one who would cook for neighbors who were ill, and would walk with a neighbor with Alzheimer’s so he could get out. Her former employer testified that she was voted “Employee of the Year” not only for her work, but also for spending a great deal of time helping others with their work. Brenda’s aunt reported that even when Brenda was in jail, she helped her following the death of her husband, including sending her dozens of letters. Her Christian faith remains central to her identity to this day.

Are people who are wonderful with children, whose faith in Christianity is strong, who win employee of the year, a better kind of murderer than the slutty kind? Perhaps this gives a very clear understanding of our old pal, Rule 404(b), which prohibits introduction of evidence that is more prejudicial than probative.

The question at trial is whether the defendant committed the crime with which she’s charged, not whether she wore thong underwear too soon after her estranged husband’s death. This is not to say that under chaos theory, jurors could infer that she was inappropriately callous about the murder, but that she’s no more guilty because of her underwear than she’s innocent because she loves puppies.

But the thrust of the appellant’s case isn’t the wrongful tainting of a capital defendant, but the far more fashionable gender bias.

“Gender bias is normalized and tolerated to an extent that racial bias no longer is in the administration of the death penalty,” said Sandra Babcock, a law professor at Cornell who represents Ms. Andrew in a related case. “Women on trial for capital murder have been subjected to similar shaming tactics for hundreds of years.”

Defendants of all genders have been subject to tainting by the prosecution for hundreds of years. Some defendants did not live stellar lives. Some were pretty awful people, giving the prosecution a great many things with which to smear them. But the question is not whether the defendant is a great person, but whether the defendant committed the crime.

Whether the trendy use of gender bias in defense of Andrew will fare better than the more mundane prejudicial taint that commonly infects a trial remains to be seen, but it raises the specter that there should be special rules for female defendants, leaving their undies out of it, while the tainting of other defendants goes on unabated.

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