WASHINGTON, D.C. — Prosecutors relied on sexist stereotypes, attacks on a woman’s sexuality and criticism of her behavior as a mother to secure a conviction and death sentence in Oklahoma, according to a brief urging the U.S. Supreme Court to review whether gender-based prejudice deprived her of a fair trial.
In a brief filed in Brenda Evers Andrew v. Kelsey Fisher, Fair and Just Prosecution (FJP), an organization of elected prosecutors committed to criminal justice reform, argues that prosecutors violated their obligation to seek justice by encouraging jurors to judge Andrew against traditional expectations of womanhood rather than solely on evidence of criminal conduct.
Andrew was convicted and sentenced to death for the murder of her estranged husband, Rob Andrew, following a trial in which prosecutors repeatedly emphasized her clothing, sexual relationships, parenting and perceived failure to display appropriate grief.
According to the brief, prosecutors introduced testimony from two pastors who had not witnessed the shooting and offered no evidence about how the crime occurred.
Instead, the pastors testified about Andrew’s alleged adultery, inappropriate behavior and conduct that supposedly violated religious teachings.
Prosecutors also introduced testimony describing Andrew’s clothing as revealing and inappropriate for a mother, despite its limited relevance to the criminal charges.
During closing arguments, a prosecutor displayed Andrew’s thong underwear to jurors and questioned whether a properly grieving widow would have packed and worn it.
The prosecution also argued that Andrew could not be a woman of God because she had engaged in an extramarital relationship and referred to her as a “slut puppy.”
FJP contends that these arguments encouraged jurors to evaluate Andrew’s moral character rather than determine whether the evidence established her guilt beyond a reasonable doubt.
The Oklahoma Court of Criminal Appeals acknowledged that prosecutors had pursued a strategy of drawing attention to Andrew’s irrelevant conduct, including behavior portrayed as inconsistent with expectations of women and mothers.
Nevertheless, the state court upheld her conviction and death sentence.
FJP argues that the prosecution’s reliance on sexist stereotypes was not incidental but a deliberate strategy that continued throughout the trial and into the sentencing phase.
The brief emphasizes that prosecutors have a special obligation to ensure that criminal convictions and sentences rest on admissible evidence and constitutional principles.
In Berger v. United States, the Supreme Court recognized that prosecutors represent the government and have a duty to seek justice rather than merely secure convictions.
FJP argues that this obligation prohibits prosecutors from exploiting gender stereotypes to encourage jurors to draw conclusions about guilt or punishment from a woman’s perceived sexual or moral impropriety.
The brief also cites United States v. Virginia and J.E.B. v. Alabama, Supreme Court decisions rejecting government reliance on broad generalizations about gender roles and expectations.
According to FJP, such stereotypes can influence jurors even when prosecutors do not explicitly ask them to discriminate.
The organization argues that evidence concerning a woman’s clothing, sexual relationships, parenting or emotional responses can encourage jurors to substitute judgments about her character for an evaluation of the criminal allegations.
The brief cites People v. Cerda, in which New York’s highest court condemned a prosecutor’s attempt to undermine a woman’s credibility by portraying her as sexually promiscuous.
It also references State v. Carpenter, an Ohio appellate decision reversing a conviction after prosecutors encouraged jurors to judge an accused woman based on her parenting.
FJP contends that similar arguments were central to Andrew’s prosecution.
The organization also points to research examining how gender stereotypes influence jurors’ assessments of criminal defendants, including the potential for women who violate traditional expectations to be perceived as more culpable or less deserving of mercy.
The brief argues that these concerns are especially significant in capital cases, where jurors must determine not only guilt but whether a person should be sentenced to death.
In Buck v. Davis, the Supreme Court addressed the constitutional implications of racial prejudice influencing a capital sentencing decision.
FJP cites that ruling in arguing that discriminatory stereotypes can undermine the reliability and fairness required in death penalty proceedings.
The organization maintains that gender-based prejudice creates similar concerns when prosecutors encourage jurors to impose punishment based on perceived violations of traditional expectations of femininity.
In Andrew’s case, the brief notes that the penalty phase lasted less than a day and relied heavily on evidence introduced during the guilt phase.
Prosecutors again emphasized Andrew’s sexuality, perceived shortcomings as a mother and supposed lack of remorse, according to FJP.
The organization argues that these statements encouraged jurors to deny Andrew mercy because she failed to conform to expectations about how a woman, wife and mother should behave.
The case has already reached the Supreme Court once.
In Andrew v. White, the Court ordered further consideration of Andrew’s claims concerning the admission of prejudicial evidence and whether the prosecution’s use of gender stereotypes violated her constitutional rights.
Following additional proceedings, the U.S. Court of Appeals for the Tenth Circuit left her conviction and death sentence in place.
Andrew has again petitioned the Supreme Court for review, with FJP supporting her request.
“Prosecutors cannot fulfill their duty to seek justice and hold people accountable without first holding themselves to the highest standards of fairness and integrity,” said Aramis N. Donell, executive director of FJP.
“That means following the evidence, upholding the Constitution, and respecting the rights of every person who enters a courtroom,” Donell added.
FJP asks the Supreme Court to grant Andrew’s petition and address whether the prosecution’s use of gender stereotypes was consistent with constitutional protections governing criminal trials and capital sentencing.
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