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Salt Lake County DA under fire after finding fatal shooting by police justified

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Salt Lake County DA under fire after finding fatal shooting by police justified


Salt Lake County, Utah residents are experiencing déjà vu. Their District Attorney, Sim Gill, announced last week that he would not bring charges against the police officer who fatally shot Patrick Harmon in the back. The announcement comes just over a year after Gill declined to bring chargesagainst the officer who shot then 17-year-old Abdi Mohamed, a choice that attracted outrage from some community members. On Sunday, roughly 150 people gathered to protest his latest decision.

“[Gill] is not going to justify one more murder in this city, is he?” Lex Scott, an organizer with Black Lives Matter, asked the crowd. “We’re coming for your job, Sim. We’re coming for justice, Sim.”

Harmon, a 50-year-old black man, was stopped by police on August 13th while riding his bicycle. Police told Harmon they stopped him because he didn’t have a red rear taillight on his bike, and moved to handcuff him after learning of multiple open felony warrants for his arrest, according to The Salt Lake Tribune. Harmon allegedly pled with the officers not to take him to jail, then broke into a run.

Footage from three body cameras released last week shows what appears to be Officer Clinton Fox shooting Harmon in the back at close range after Fox yells “I’ll f — -ing shoot you.” Fox contends that at some point Harmon turned back toward him and pointed a knife. (A knife was recovered at the scene, according to Gill.)

“Officer Fox said that in 10 years of law enforcement and two military deployments, it was the scariest situation he had ever been in,” reads part of the DA’s report finding the shooting was legally justified.

On Tuesday afternoon, two days after community members called for his resignation, Gill announced that he had asked the FBI to review the incidentand his office’s finding that deadly force was justified, according to The Salt Lake Tribune. In a letter to the FBI obtained by the paper, Gill explained that “given the seriousness of the case and the considerable public interest in the matter, all issues must be completely examined to preserve the public’s trust in the criminal justice system and ensure the right measures are taken in this case.”

In June, Gill’s name appeared alongside other district and county attorneys in the state on an editorial in The Salt Lake Tribune entitled: “Utah prosecutors need no additional oversight.” The op-ed argues that the term “prosecutorial misconduct” is “cliché” and “misleading,” and notes that “creating new disciplinary committees and regulations to further constrain all prosecutors will not serve the public good.”

Protesters who rallied outside the city’s Public Safety Building on Sunday called for Gill to resign, and for body camera footage to be released within 24 hours of all police-involved shootings. Failing to charge Fox is seen by the groups protesting as part of a broader pattern in which police aren’t held accountable by Gill’s office.

Frustration over that lack of accountability is heightened by what groups like Utah Against Police Brutality and the Utah chapter of Black Lives Matter say is clear racial discrimination. In Utah, black residents comprise just 0.7 percent of the population, but 9.3 percent of the state’s adult prison population. Latino and Native American residents are also overrepresented in the state’s prisons and jails.

Harmon’s niece, Alisha Shaw, told The Guardian that her uncle’s death was clearly the result of racial profiling.

“Why do we have to fight so hard for justice?” Shaw asked. “All we want is to be treated equal as a black person instead of being profiled and looked at as if we were a threat.”

Utah Against Police Brutality has organized a sit-in at Salt Lake City Mayor Jackie Biskupski’s office on October 17th before a City Council meeting to demand “a new ordinance to make sure that cops cannot withhold body cam footage from the public.”

No Backlog: Why the Epidemic of Untested Rape Kits Is Not a Symbol of Insufficient Police Budgets But Instead a Failure to Investigate Rape

No Backlog: Why the Epidemic of Untested Rape Kits Is Not a Symbol of Insufficient Police Budgets But Instead a Failure to Investigate Rape


A sex crimes detective with the Memphis Police Department will keep her job despite leaking confidential investigative files to the family of a rape suspect, the Commercial Appeal reported last week. Before Detective Ouita Knowlton became the subject of a criminal investigation, she was the supervisor of the DNA Unit, which was formed in 2014 to investigate long-neglected rape cases involving untested rape kits.

A rape kit contains physical evidence collected from the body of a rape victim. In addition to using DNA to identify an unknown perpetrator, the results from testing can be used to corroborate or refute statements from the victim or suspect.

Law enforcement encourages victims to submit to forensic examination as soon as possible after an assault to maximize the chances of evidence recovery. Exams, which typically last four to six hours, can be invasive, painful, and traumatizing for victims. The evidence collected varies depending on what happened during the assault, but rape kits generally include swabs, test tubes, microscopic slides, and evidence collection envelopes for hairs and fibers. The victim is swabbed for any biological matter that may contain the perpetrator’s DNA (e.g., skin, saliva, semen). The examiner photographs any bruising or other injuries and collects the victim’s clothing. The rape kit and other crime scene evidence, such as bedding, is transferred to law enforcement to log into its evidence facility. Then it is sent to a crime lab for DNA testing to solve the case.

But instead of sending rape kits to crime labs, police departments nationwide have often stashed rape kits wherever they could find space: in evidence warehouses, precinct closets, squad car trunks, some in environments with DNA-degrading high heat and moisture.

In 2009, a Human Rights Watch report exposed over 12,000 untested rape kits in law enforcement storage throughout Los Angeles County. That same year, inquiries by the Cleveland Plain Dealer about the failure of law enforcement to stop serial rapist and mass murderer Anthony Sowell spurredthe city’s police department to announce plans to process over 4,000 untested rape kits of its own. Also in 2009, after the FBI took control of the Detroit Police Department property room, officials revealed over 8,000 rape kits in police storage had never been submitted to a lab. In 2013, the Memphis Police Department admitted it had failed to test over 12,000 rape kits. In 2014, a New Orleans Police Commander who had been lauded in 2011 for testing at least 800 unprocessed rape kits revealed the department had failed to submit more than 400 rape kits collected since 2011. In 2017, the Wayne County Prosecuting Attorney’s office admitted at least 555 rape kits collected by Detroit Police since the 2009 public outcry weren’t tested until 2015, a fact that was never announced to the public.

In response to public criticisms, law enforcement blame their failure to submit rape kits on a lack of funding for DNA testing. But according to the National Institute of Justice, additional factors include victim-blaming beliefs by police, no written protocol for submitting kits to the lab for testing, high turnover in police leadership, and lack of community-based victim advocacy services.

It’s worth noting that today’s DNA technology has not always been available to law enforcement. In 1994, Congress authorized the National DNA Index System (NDIS), but modern DNA forensic analysis was not widely used until the late 1990s. Until at least the early 2000s, use of DNA databases was not common across the nation.

But when authorities began uploading DNA profiles from convicted offenders and arrestees and from missing persons and unidentified remains, they still failed to submit rape kits to labs for DNA testing.

Ohio Public Defender Tim Young, whose office has appealed convictions based on Cleveland’s neglected rape kits, told the Plain Dealer a false narrative has taken hold in the public imagination. “We’ve had DNA testing since the mid-1990s,” he said. “They (law enforcement) were dilatory in not using it. It’s a continuation of broken police culture that places the police first, not the victims, the defendants — or justice.”

Indeed, research at Michigan State University analyzed 1,268 police reports associated with Detroit’s untested rape kits. A report released in 2015 found “most cases were closed after minimal investigational effort.”

And even with advances in DNA technology, police solve fewer rapes than they did in the past.

Nationwide, the clearance rate for rape has declined sharply in the past decade, from 51% in 1995 to approximately 40%, where it has remained stable since 2005. In some cities the clearance rate for rape is in the single digits. During this same time period, clearance rates for murder and aggravated assault barely changed.

“Clearance” is a common way to measure an agency’s success in fighting crime. There are two types of clearance: arrest and exceptional clearance. The latter occurs due to circumstances outside law enforcement’s control, such as when the suspect dies or the victim stops cooperating. In these cases, despite being considered cleared, the suspect is never arrested, charged, or referred for prosecution.

Of the 111,241 rapes known to law enforcement in 2016, only 36% were cleared. And since the FBI counts exceptional clearance in the same tally as clearance by arrest, clearance rates likely overestimate how many rapists police are putting behind bars.

Untested rape kits are not indicative of underfunded police departments. Instead, they are symptomatic of a police culture that does not properly investigate sexual assault or take victims seriously.


Meaghan Ybos is the founder and executive director of People for the Enforcement of Rape Laws in Memphis, TN.

More in Explainers

Features: Sex-Shamed To Death

How Oklahoma Prosecutors Used Sex And Infidelity To Put A Woman On Death Row

Brenda Andrew

Features: Sex-Shamed To Death

How Oklahoma Prosecutors Used Sex And Infidelity To Put A Woman On Death Row


It was July of 2004 in Oklahoma City, and Brenda Andrew was on trial for killing her husband. The prosecutor had been speaking for two and a half hours, and he was wrapping up the closing argument by reading from Rob Andrew’s diary about his wife’s infidelity: “The first time was when I drove to her school in Kansas to surprise her and I found out she had spent the night in her old boyfriend’s dorm room. Second time was during the summer when she was teaching at summer camp she met a new boyfriend and then kept dating him on the side while we were engaged.” The prosecutor announced that the date of the diary entry was 1984, 17 years before the crime. But there was no objection from the defense, and no one questioned the relevance of the passage. The jury started deliberating only a few minutes later. The following day they returned with a verdict of guilty.

The conviction was not a surprise, as the evidence against her was considerable. But the jury’s work was not done — their next decision was whether Brenda Andrew should live or die.


Only once in American history have three women been executed by the same state in the same year — Oklahoma in 2001. To understand the odds against such an occurrence, consider that women are arrested for about 10 percent of the homicides in the United States, but make up less than 2 percent of death row. An even smaller percentage actually lose their lives at the hands of the state.

A number of theories have been proposed to explain the bias against executing women. Richard Dieter, the former head of the Death Penalty Information Center, puts it simply: “jurors just see women differently than men.” Law professor Victor Streib, a well-known historian of the death penalty, says that “it’s just easier to convince a jury that women suffer from emotional distress or other emotional problems more than men.” Such thinking extends beyond capital punishment, since studies show women less likely than men to be incarcerated for comparable crimes. But what explains the few death sentences that are imposed on women? Professor Streib and other academics have postulated the “evil woman” theory — that women who violate society’s beliefs about female behavior lose the protection that femininity typically affords them before juries, and thus subject themselves to punishments ordinarily reserved for men. This is not a new theory. In 19th century England a female awaiting execution was referred to as “the wretched woman.”

The Puritan ethos of moral condemnation had landed on America’s shore hundreds of years earlier. This was perhaps best described by Nathaniel Hawthorne in The Scarlet Letter when he wrote of Hester Prynne with the bright red ‘A’ “so fantastically embroidered and illuminated upon her bosom. It had the effect of a spell, taking her out of the ordinary relations with humanity, and enclosing her in a sphere by herself.” But Hawthorne’s novel was about sexual transgression, not murder. Today the hypocrisy — that we are more likely to harshly condemn women who violate sexual mores and less likely to sentence female murderers to death — might seem anachronistic. The combination of sexual impropriety and murder is still a very potent mix, however.

Two days after the jury convicted Brenda Andrew of her husband’s murder, they sentenced her to death. This was not a foregone conclusion; the great majority of murder convictions do not end in death sentences. How the prosecution sent her to death row is a matter of record, a page torn from the same demonizing playbook demagogues have relied on from biblical times through the 2017 Twitter feed. That the courts have looked the other way — and pushed Brenda Andrew closer to execution by doing so — is a testament to the continuing viability of the “evil woman” theory, and the ingrained sexism that persists as an acceptable and even legal veneer.


Parishioners at the North Pointe Baptist Church in Edmond, Oklahoma are pretty much the same as everybody else — if they see people acting differently than they believe they should act, they whisper about it. Certainly Brenda Andrew drew her share of whispers at the church she and her husband attended. She was a very pretty woman who favored short, tight dresses. She flirted with men who did work around her house. She once changed the color of her hair after learning that a man she liked was partial to redheads. And she slept with men other than her husband.

Her final affair, with a man named James Pavatt, led to both of them being convicted of murder. They had met in 1999 when both became members of the church. Soon they were teaching a Sunday school class together. Pavatt sold insurance, and, like a character in a 1930s potboiler, had arranged a life insurance policy for Rob Andrew worth $800,000. Brenda was the policy’s beneficiary.

The Pavatt and Andrew families went to dinners and bible study with each other; and it wasn’t long before James and Brenda came together, and both families came apart. In the summer of 2001, Pavatt got divorced, and all that whispering started at the church. Just a few months later, Rob moved out of his home, and the Andrews began their own divorce proceedings soon after. The elders asked them to stop teaching the Sunday school class.

Maybe it was the money, maybe it was the attraction, but as the late summer turned to fall it wasn’t hard to imagine that blood might be spilled. In late October someone cut the brake lines on Rob Andrew’s car, which prompted him to accuse Brenda and Pavatt of trying to kill him. Not surprisingly, he tried to remove his wife as the beneficiary of his life insurance policy. At her trial, the state presented evidence that before the brake lines had been cut, she and Pavatt had attempted to change the ownership of the policy from Rob to Brenda by forging Rob’s signature. Like all murder cases, things were coming to a head.

On November 20, 2001, Rob Andrew died from two shotgun blasts in the garage of the family home. He had gone there to pick up his two young children for a Thanksgiving vacation, but he never made it to the living room, where the children were watching television (at a louder volume than normal, the prosecution argued.) Brenda was with her estranged husband in the garage, and suffered a superficial gunshot wound to her arm. Evidence suggested that the injury was not caused by a shotgun, and was from close range, which contradicted her claim that two masked gunmen had shot them both from a distance. Attention almost immediately focused on her and Pavatt as the perpetrators. Before her husband’s funeral, Brenda fled to Mexico with Pavatt and her children. Both of them were charged with murder before the month ended. By late February of the next year they had run out of money, and they were taken into custody crossing back into the United States.

It was not long after Brenda’s arrest that the press began categorizing her as a woman who slept around. An article entitled “Church and Fate,” published in People magazine seven months after her arrest, quoted a colleague of Rob Andrew: “One time we were driving by a motel and Rob casually told me he found Brenda at the motel with a former boyfriend after he was engaged to her. I said, ‘Rob, wake up.’” The same article referenced two prior affairs she’d had before she and Pavatt “began to carry on like teenagers that summer, giggling and passing notes during [church] services.”

Pavatt’s 2003 trial, which came six months before Andrew’s, previewed the trial against her. Indeed, the evidence against him was in many ways identical to that facing his co-defendant. There was the relationship between the two of them, the attempted manipulation of the insurance policy, and the flight to Mexico. Pavatt’s own adult daughter testified about the affair between her father and Brenda. And there was one other crushing piece of evidence against Pavatt — a letter allegedly written by him to Brenda’s daughter accepting blame for the murder and exonerating Brenda. But while the state introduced the letter into evidence, both sides contested its veracity, the prosecution claiming it only told half the story while the defense suggested Pavatt hadn’t written it at all. It didn’t matter. Pavatt was convicted and sentenced to death.

The Pavatt trial also proved to be a dress rehearsal for the “evil woman” theory that was going to dominate Brenda’s trial. One of her ex-lovers, a man named Higgins, was called by the prosecution to testify that she had once told him she wished her husband dead for her own financial benefit. But the state’s questioning of Higgins, which was largely repeated at her trial as well, strayed far from the question of guilt:

Q: Where did you first meet Brenda Andrew?

A: I met her in a grocery store. I was working there and she came in.

Q: And how did you meet her?

A: Basically I was working there and she came in and was flirting, being friendly. And I just talked to her and made her acquaintance.

Q: What do you mean she was flirting?

A: She was just being friendly and came in dressed real sexy looking, short dresses, and that sort of thing. And just came on to me and I just reacted to it.

Q: And did you believe when she came in there and was flirting with you that she was coming on to you?

A: Yes, I did.

Q: No doubt in your mind?

A: None.

Q: As a result of her coming on to you did you then form a relationship with her?

A: Yes, I did.

Q: Were you a married man?

A: Yes.

Q: And did you have knowledge that Brenda Andrew was married as well?

A: Yes.

[…]

Q: How long did this flirtatiousness continue between you and Brenda Andrew before the relationship became more serious?

A: Till about March and at that time she came into the store and handed me … stuck her hand out to hand me something and I put my hand out and it was a key to a motel room. And she said meet me there when you get off work.

Q: Did you do that?

A: Yes, I did.

[…]

Q: Who paid for that motel?

A: She did.

[…]

Q: And without going into any detail, when you all went to the motel did you have a sexual relationship?

A: Yes, we did.

Q: Did that sexual relationship with Brenda Andrew continue for a period of time?

A: Yes, it did.

Q: How long?

A: Till May of the next year.

Q: So approximately —

A: Little over a year, yes.

Q: Little over a year? Now, during this year and a little over a year period of time that you were having a relationship with Brenda Andrew, did you always go to a motel?

A: Most of the time, yes.

Q: Were there other places where you went to meet her to have sex?

A: Her car.

Q: And did Brenda always pay for the motel room?

A: Almost all the time, maybe once or twice she didn’t.

Then there was the search warrant of Brenda’s home, which yielded a long list of items, among them microcassette answering machine tapes, insurance documents, financial paperwork, and a few handwritten notes. But one item stood out. Among the many certificates and reports and handwritten notes, the prosecution introduced into evidence a book found in the middle drawer of her bedroom dresser: 203 Ways To Drive A Man Wild In Bed.


It is reasonable to wonder why the prosecution felt the need to paint Brenda Andrew in scarlet, when the evidence against her was virtually the same as against Pavatt, for whom they had already obtained a death sentence. But the death penalty, and who gets it, is not subject to an algorithm. Serial murderers like the Green River Killer, the Unabomber, and the BTK killer are serving multiple life sentences after plea bargains, while those who choose to go to trial having committed far less egregious crimes often end up executed or on death row.

Nor are juries predictable when it comes to ascertaining who deserves the harshest punishment. Courthouse killer Brian Nichols avoided a death sentence after killing a judge, a court reporter, a deputy sheriff, and a federal agent after escaping during his trial for rape. James Holmes, who killed 12 and injured more than 70 in the Aurora movie theatre, will die a natural death as well.

Such absurdities have been extensively noted at the highest levels: Supreme Court Justice Stewart declared death sentences “cruel and unusual in the same way that being struck by lightning is” in 1972. Two decades later Supreme Court Justice Blackmun famously announced that he would no longer “tinker with the machinery of death” for much the same reason; and Justice Breyer catalogued the same arbitrariness in a lengthy dissent just two years ago.

While there is no formula to predict who will or won’t get a death sentence, statisticians would have no trouble drawing conclusions about the impact of gender on Oklahoma’s death penalty. Of its 200 executions since statehood, only the three from 2001 were women. No woman since Brenda Andrew has gone to Oklahoma’s death row; and she is currently the only woman among the 47 people on death row. Pavatt and Andrew might have committed the same crime, but there is little doubt that Pavatt was far more likely to receive a death sentence. Whether consciously or not, the prosecution surely understood that obtaining a death sentence for Brenda Andrew was going to require more than a straightforward presentation of relevant evidence regarding the murder of her husband.

But more what? The literature examining the intersection of gender and criminology is replete with examples of behavior that violates stereotypes of female norms and expectations. Modern feminist theorists refer to this as “double deviance:” the punishment of women for their crimes and for their lack of conformity to female gender expectations. When women are portrayed as violent, masculine, or victimizers of children, they are more likely to be considered “evil women” and condemned for criminality. Perhaps the most common deviation from stereotypically feminine behavior is promiscuity, and the prosecution had more than enough evidence of that.

It didn’t take long for them to use it, either. The second sentence of the state’s opening statement identified Pavatt as “one of her lovers.” Shortly after that, the prosecutor declared that “Brenda had extracurricular activities. She liked to cheat on Rob…throughout the marriage Brenda had a boyfriend on the side.” Before her trial was over, the jury learned that Brenda was “coming on” to Higgins’ sons, who were helping build a deck at her house; that when she appeared in a restaurant dressed in a revealing manner, someone from the bar asked who the “hoochie” was; and that her babysitter from several years before the crime had a problem with her choice of clothes:

A: [Brenda] was going to run, get some groceries and do some other errands.

Q: Is that what she told you?

A: Yes.

Q: Did you notice anything at that point that you thought was unusual in regards to what she just told you?

A: Yes. She wasn’t wearing attire that I would consider appropriate for running errands. She had on a leather —

Defense Attorney: Objection, Judge, as to what this witness thinks is appropriate or not appropriate. Judge, it’s not being relevant to any issue that we’re here on in this case.

The Court: Overruled. Go ahead.

The Witness: Okay. It was a leather outfit. It was a leather skirt and leather button-up top and she had rolled her hair and it was really, really big…

There was even speculation from Pavatt’s own daughter that her father had not likely been Brenda’s only affair.

But the final piece of the puzzle was not yet in place. For all the talk of affairs and leather outfits, of really big hair and “hoochies,” the jury had not actually seen physical evidence to support the testimony of sexual promiscuity. The prosecutor thought he had some, though, and he waited until his closing argument to divulge it. This in itself was highly unusual. Evidence cannot magically appear of its own accord at the end of a trial; it must have been previously introduced through a witness. But the prosecution cunningly skirted the rules in the Andrew case. With no fanfare at all, the state had earlier presented suitcases seized from Pavatt and Andrew upon their return from Mexico. It was not until the prosecutor brandished the contents of the suitcases near the end of his final speech — several pairs of thong underwear and lace bras — that the true impact of such evidence was felt:

“This is what we found in [the suitcase]. It’s been introduced into evidence. The grieving widow packs this [displaying underwear] to run off with her boyfriend. The grieving widow packs this [displaying another pair] to go sleep in a hotel room with her children and her boyfriend. The grieving widow packs this [again] in her appropriate act of grief.”

The spectacle of a prosecutor parading a woman’s underwear in front of the jury dumbfounded the defense attorneys, who later claimed they were too shocked to even object. The portrait of Brenda Andrew as an evil woman was complete.


Much of the country has become disenchanted with the death penalty, and executions and death sentences are at national 40 year lows. But Oklahomans still seem partial to the punishment. While Trump won the statewide vote handily in the 2016 election, a ballot question ensuring the constitutionality of the death penalty passed by an even greater margin. Oklahoma ranks first in per capita executions since the reinstatement of capital punishment in 1976, and was the last state to execute a juvenile and an uncontested intellectually disabled person before both actions were declared unconstitutional in the early 2000’s. Brenda Andrew would have to navigate this difficult terrain for her appeal.

Her first stop was the Oklahoma Court of Criminal Appeals, where she found a tribunal unbothered by the prosecutor’s display of her underwear. Such evidence showed “the extent and the nature of the relationship between Pavatt and [Andrew], and their intentions in fleeing to Mexico — not as a grieving widow, but as a free fugitive living large on a Mexico beach.” The court was less cavalier about other evidence, however, finding that a number of mistakes had been made in her trial. Indeed, the court’s opinion noted that it was “struggling to find any relevance” to the evidence of her provocative dress, her change of hair color, her coming on to young men at her house. The state fared no better in defending that evidence itself, often veering into the ridiculous, such as its argument that her prior affairs “illustrate [Andrew]’s assertiveness when dealing with, and her ability to manipulate and control, men.” Did this sort of evidence have anything to do with a murder trial or a death sentence?

But ridiculous or not, Brenda Andrew was about to learn a hard lesson about legal mistakes, by way of a doctrine that is the bane of appellate lawyers’ existence: harmless error. Judges and prosecutors and defense attorneys make mistakes, the doctrine says, but not all mistakes are created equal; and only those mistakes that would have affected the verdict require a new trial. The majority of the Court of Criminal Appeals found that none of the errors would have made the jury vote differently.

The Court’s opinion was not unanimous, however. Judge Arlene Johnson believed that Andrew should receive a new sentencing. She articulated and condemned the “evil woman” theory at the same time:

“The first stage of this capital murder trial is rife with error. That error, at its most egregious, includes a pattern of introducing 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 jury was allowed to consider such evidence…in violation of the fundamental rule that a defendant must be convicted, if at all, of the crime charged and not of being a bad woman.”

While she found the proof of Andrew’s guilt too strong to disturb the guilty verdict, she refused to “stretch that rationale far enough to find this jury was unaffected by that evidence in deciding whether this defendant should live or die.” Another judge on the court agreed with Johnson and would have gone further, granting Andrew a new trial as well. But those two were not a majority. Brenda Andrew remained on death row.


The next appellate stop was the federal district court of western Oklahoma, a jurisdiction that carried a devastating legacy from the Oklahoma City bombing of 1995. The crime prompted an almost immediate response from the United States Congress, and various bills were debated only weeks after the bombing. Civil rights and civil liberties groups spoke eloquently against acting hastily. One speaker begged Congress not to practice the “politics of the last atrocity,” a phrase that had originated during The Troubles in Northern Ireland: “Destroying constitutional rights is not the way to build a memorial to the dead in Oklahoma City, nor is it the way to protect Americans from terrorism, nor is it the way to fight terrorism.” Others pointed out the country’s unfortunate history in the wake of traumatic events — the Smith Act and its subsequent prosecutions to lock up Communists at the beginning of the Cold War, the internment of Japanese Americans after the attack on Pearl Harbor — and urged caution in the face of a nearly universal demand for action. Such calls went unheeded, however, and almost exactly one year after the bombing the Anti-Terrorism and Effective Death Penalty Act was signed by President Clinton.

The Act, soon to be known as AEDPA, addressed international terrorism, weapons restrictions, criminal alien removal, and various other issues; but its greatest impact by far was on the federal writ of habeas corpus, often called the Great Writ because of its historical role in the protection of individual liberties against government overreach. AEDPA spurred an enduring rash of legal condemnation for its narrowing of the rights of the accused, and more specifically for its requirement that the federal courts defer to state court decisions, even when those courts made clear constitutional errors. It was with this backdrop that Brenda Andrew pursued her federal death penalty appeal, and one of her significant arguments was that the testimony of her sexual history had rendered the trial fundamentally unfair.

Of all the irrelevant evidence of Andrew’s promiscuity, perhaps the most extraneous was her affair with a man named Rick Nunley, a sexual relationship that had ended four years before the murder and was labeled “remote” even by the Oklahoma Court of Criminal Appeals. But the court dismissed the importance of the Nunley testimony out of hand:

“Evidence of their sexual affair was limited to one question during his testimony. Thus, even though the evidence of a sexual affair between Nunley and [Andrew] was remote, its significance was a minimal part of the relationship, and the mention of it was harmless in this case.”

There was only one problem with the court’s analysis — it was wrong. There had been an entire series of questions about their sexual relationship:

Prosecutor: When did you begin to have a more than friendly relationship with the Defendant Brenda Andrew?

A: In the late Fall of ’97, probably late October or early November of ’97.

Q: Was there something that (sic) particular that caused that relationship to escalate?

A: Brenda seemed to experience common marital problems that I also experienced and we shared those things over the years, that may have contributed to it.

[…]

Q: Now, at the time you began your affair with Brenda Andrew were you married, sir?

A: I was married, however, we had filed for divorce I think on October 1 of 1997.

Q: And was Brenda Andrew married?

A: Yes.

Q: Was she married to Rob Andrew?

A: Yes.

Q: Did Rob Andrew know about your relationship with Brenda Andrew at the time it was going on?

A: Not to my knowledge.

Nunley was then questioned about the more relevant insurance policy and the controversy over its ownership. But just in case the earlier point had been missed, the prosecutor returned to the relationship again a few minutes later:

Q. Had your affair ended with Brenda at the time you’re testifying about, around the 1st of October of 2001?

A. Yes. We had stopped seeing each other that way for a number of years.

Q. And while you were having an affair with Brenda Andrew was that a sexual relationship?

A. Yes.

And then there was this line of questioning in response to Nunley’s testimony that Brenda was “an intelligent person, one that loved her kids dearly, very hospitable hostess, good cook, nice person I thought:”

Q: You testified that Brenda Andrew was a very hospitable person. She was really hospitable to you, wasn’t she, Mr. Nunley?

A: Yes.

Q: And she was hospitable to Mr. James Higgins as well, wasn’t she?

A: I haven’t heard his testimony.

Q: She was hospitable to Mr. Pavatt as well, wasn’t she?

A: I haven’t heard his testimony either.

The Oklahoma court justified the admissibility of the Nunley affair by noting that Brenda shared with him “her hatred for Rob Andrew and her wish that he was dead.” This too was incorrect. Indeed, his testimony was quite the opposite:

Q: Were there any discussions with her about how she disliked Rob so much she wanted him dead or anything of that nature?

A: No.

Q: She certainly didn’t leave you with any impression….that she was going to hurt or harm or kill Rob in any way, did she sir?

A: No, never.

Had the Oklahoma state court actually read the transcript of the trial? If so, they had made some very significant errors. But what consequence did such a casual approach to a judicial opinion have in a federal court?

Much has been written about how the federal courts have been neutered by AEDPA, but even within its restrictive confines the statute makes an exception for what it terms an “unreasonable determination of the facts” by the state court. Since the Oklahoma court had made such clear mistakes in its opinion, how could it possibly have credibly decided whether Brenda Andrew had gotten a fair trial? The task fell to federal Judge Russell of the Western District of Oklahoma to sort out fact from fiction.

Russell’s opinion did no such sorting, however, and this was very bad news for Brenda Andrew. Quoting the state decision at great length, the judge did not correct a single factual error made by the Oklahoma Court of Criminal Appeals. Referring over and over again to the deference federal courts owe state decisions, and utilizing the double negative that is the hallmark of AEDPA, Russell did not find the Oklahoma court’s determination of the facts to be unreasonable. Put in plain English, Andrew had lost every claim.

But her chance of prevailing on appeal was about to take an even worse turn. Ordinarily there is one last stop before you reach the United States Supreme Court itself, and that is the federal court of appeals. In Andrew’s case she would turn to the Tenth Circuit, but Judge Russell had precluded this appeal by denying something called a Certificate of Appealability — he found that not a single issue in her case was “debatable among jurists of reason.” In other words, the judge had determined that her appeal was pointless.


Now what? Andrew had been waiting 11 years for her number to be called, and her options were rapidly shrinking. What was more, the jangled nerves of Oklahoma’s death row had been further shattered by a botched execution that gave pause to even the hardiest capital punishment proponent. After a medical team struggled to get a catheter into one of Clayton Lockett’s veins for almost an hour, eyewitnesses watched him writhing and bucking on the gurney for 30 minutes before the governor called off the execution by telephone from the Oklahoma City Thunder basketball game she had been attending. This did not save Lockett, however; he died of a heart attack while still in the execution chamber ten minutes later.

The ghastly combination of state ineptitude and the inverse of the late Justice Scalia’s description of lethal injection as an “enviable…quiet death” prompted a law suit by a death row inmate named Charles Warner. He had been scheduled for execution the same night as Lockett, but was spared by the governor’s phone call, and now he was the lead plaintiff in a legal effort to persuade the state to change its lethal injection protocol. Andrew and 19 other death row inmates had joined the suit, but the litigation did not stop executions in Oklahoma. Warner was put to death in early 2015. His demise, while not as outwardly grotesque as Lockett’s, was marred by the state’s later concession that it had used the wrong drug in violation of its own protocol. The state has not executed anyone since, and a grand jury is investigating the Lockett and Warner debacles. In the meantime, Oklahoma is exploring the firing squad and nitrogen gas as alternative avenues for capital punishment. No one believes that the results of the investigation will end the death penalty in the state.

A glimmer of hope has crept into the Andrew case, however. A year after Judge Russell found none of her claims worthy of debate, the Tenth Circuit disagreed and granted an appeal on eight different issues. The law is very clear that such a ruling does not herald a winning argument, but at least she now gets to make one. The lead claim charges “that the trial was rendered fundamentally unfair by the admission of irrelevant and salacious facts about Brenda Andrew’s sexual appetites and her past adulterous affairs.”

According to her lawyer, there might be a decision by the Circuit Court before the year is out. To a very real extent, however, her fate has already been determined. As death penalty lawyers like to say, she has been “othered;” that is, the prosecution has successfully vilified her character as well as her crime. Deciding whether Brenda Andrew is wretched or evil is not the issue. What we really have to face is our willingness to execute a woman for behavior that has nothing at all to do with criminality.

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