Amicus Curiae Brief — Brenda Evers Andrew, Petitioner v. Tamika White, Warden

No. 23-6573

IN THE

Supreme Court of the United States

BRENDA EVERS ANDREW,

Petitioner,

v.

TAMIKA WHITE, WARDEN,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

BRIEF OF A FORMER FEDERAL JUDGE,

FAIR AND JUST PROSECUTION,

17 LAW PROFESSORS, AND 4 DOMESTIC

VIOLENCE RESEARCHERS AND ADVOCATES

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Russ Falconer

Mark J. Cherry

Counsel of Record

Jialin Yang

Andrew LeGrand

Kasturi Mitra

GIBSON, DUNN & CRUTCHER LLP Suzana Kondic

1001 Ross Ave., Suite 2100

Amir Heidari

Dallas, TX 75201

GIBSON, DUNN & CRUTCHER LLP

(214) 698-3405

200 Park Ave.

RFalconer@gibsondunn.com

New York, NY 10166

(212) 351-3978

Timothy Zimmerman

Anna Ziv

Brandon Wolf

GIBSON, DUNN & CRUTCHER LLP GIBSON, DUNN & CRUTCHER LLP

1801 California St., Suite 4200 1050 Connecticut Ave. NW

Denver, CO 80202

Washington, DC 20036

(303) 298-5721

(202) 831-6071

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF THE ARGUMENT ............................3

ARGUMENT ...............................................................4

I.

Invocation of Gender Bias Can Severely

Prejudice Female Defendants. .............................4

II. Brenda Andrew’s Trial Was Tainted with

Irrelevant Evidence About Her

Appearance, Sexuality, and Fitness as a

Mother. ..................................................................8

A. The Prosecution’s Focus on Ms.

Andrew’s Appearance. ...................................8

B. The Prosecution’s Focus on Ms.

Andrew’s Sexual History. ..............................9

C. The Prosecution’s Focus on Ms.

Andrew’s Fitness as a Mother. ....................13

III. Ms. Andrew Was Severely Prejudiced by

the Gender Bias the Prosecution Invoked. ........15

A. The Prosecution’s Focus on Ms.

Andrew’s Sexuality Inflamed the Jury

Against Her. .................................................16

B. The Prosecution Prejudiced Ms.

Andrew by Painting Her as an Unfit

Mother. ......................................................... 17

CONCLUSION ..........................................................20

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Andrew v. State,

164 P.3d 176 (Okla. Crim. App. 2007) .............. 4, 8

Berger v. United States,

295 U.S. 78 (1935) .................................................. 7

Buck v. Davis,

580 U.S. 100 (2017) ................................................ 4

Lesley v. State,

606 So. 2d 1084 (Miss. 1992) ......................... 16, 17

People v. Cerda,

223 N.E.3d 308 (N.Y. 2023) ................................. 17

Timm v. Delong,

59 F. Supp. 2d 944 (D. Neb. 1998) ......................... 4

Turner v. Murray,

476 U.S. 28 (1986) .................................................. 4

United States v. Agurs,

427 U.S. 97 (1976) .................................................. 7

Other Authorities

Atwell, Wretched Sisters: Examining Gender

and Capital Punishment (2d ed. 2014) ............... 16

Baker, Women and Capital Punishment in

the United States: An Analytical History

(2016) .................................................................... 17

iii

Carroll, Images of Women and Capital

Sentencing Among Female Offenders:

Exploring the Outer Limits of the Eighth

Amendment and Articulated Theories of

Justice, 75 Tex. L. Rev. 1413 (1997) .................... 19

Cassidy, (Ad)ministering Justice: A

Prosecutor’s Ethical Duty to Support

Sentencing Reform,

45 Loy. Univ. Chi. L.J. 981 (2014)......................... 8

Collins, Too Feminine for Execution?:

Gender Stereotypes and the Media’s

Portrayal of Women Sentenced to Death,

University of South Carolina Scholar

Commons (2022)..................................................... 6

Colquitt, Evidence and Ethics: Litigating in

the Shadows of the Rules,

76 Fordham L. Rev. 1641 (2007) ......................... 17

De Sanctis, Bridging the Gap Between the

Rules of Evidence and Justice for Victims

of Domestic Violence,

8 Yale J.L. & Feminism 359 (1996) ....................... 5

Du, The Effect of Defendant Gender on

Jurors’ Decision-Making,

52 U. Balt. L. Rev. 1 (2023) ................................... 6

Epstein & Goodman, Discounting Women:

Doubting Domestic Violence Survivors’

Credibility and Dismissing Their

Experiences, 167 U. Pa. L. Rev. 399 (2019) ........... 5

Farr, Defeminizing and Dehumanizing

Female Murderers: Depictions of Lesbians

on Death Row,

11 Women & Crim. Just. 49 (2000) ....................... 6

iv

Henry, Smoke but No Fire: When Innocent

People Are Wrongly Convicted of Crimes

That Never Happened,

55 Am. Crim. L. Rev. 665 (2018) ......................... 19

Herzog & Oreg, Chivalry and the Moderating

Effect of Ambivalent Sexism:

Individual Differences in Crime

Seriousness Judgments,

42 Law and Society Review 45 (2008) ............... 5, 7

Kelsey Collins, Too Feminine for Execution?:

Gender Stereotypes and the Media’s

Portrayal of Women Sentenced to Death,

University of South Carolina Scholar

Commons (2022)................................................... 16

Kennedy, Eve Was Framed (1992) .............................. 3

Lang, The Intersection of Wrongful

Convictions and Gender in Cases Where

Women Were Sentenced to Death or Life in

Prison Without Parole,

27 Mich. J. Gender & L. 403 (2020) .................... 16

Lewis & Sommervold, Death, but Is It

Murder? The Role of Stereotypes and

Cultural Perceptions in the Wrongful

Convictions of Women,

78 Alb. L. Rev. 1035 (2015) .............................. 7, 18

Miller, Inherent (Gender) Unreasonableness

of the Concept of Reasonableness in the

Context of Manslaughter Committed in

the Heat of Passion, 17 Wm. & Mary J.

Women & L. 249 (2010) ......................................... 5

v

Mogul, The Dykier, the Butcher, the Better:

The State’s Use of Homophobia and

Sexism to Execute Women in the United

States, 8 N.Y.C. L. Rev. 473 (2005) ..................... 18

Newby, Evil Women and Innocent Victims:

The Effect of Gender on California

Sentences for Domestic Homicide,

22 Hastings Women’s L.J. 113 (2011) ............. 6, 19

Potts & Weare, Mother, Monster, Mrs, I:

A Critical Evaluation of Gendered

Naming Strategies in English Sentencing

Remarks of Women Who Kill,

31 Int’l J. Semiotics L. 21 (2018) ......................... 16

Roberts, Motherhood and Crime,

79 Iowa L. Rev. 95 (Oct. 1993)....................... 18, 19

Simon-Kerr, Unchaste and Incredible: The

Use of Gendered Conceptions of Honor in

Impeachment, 117 Yale L.J. 1854 (2008) .............. 6

Swent, Gender Bias at the Heart of Justice:

An Empirical Study of State Task Forces,

6 S. Cal. Rev. L. & Women's Studies 1

(1996) ...................................................................... 4

Tasca et al., The Role of Parental Status and

Involvement in Sentence Length

Decisions: A Comparison of Men and

Women Sentenced to Prison,

65 Crime & Delinquency 1899 (2019) ................. 18

Tillyer et al., Differential Treatment of

Female Defendants,

42 Crim. Just. & Behav. 705 (2015) ...................... 6

vi

Trougako & Baker, Andrew Case in the

Hands of Jury Deliberation Will Resume

Today at 9 A.M., Oklahoman

(July 9, 2023) ........................................................ 13

Weis, The “Fool’s Gold” Standard of

Confession Evidence: How Intersecting,

Disadvantaged Identities Heighten the

Risk of False Confession,

22 Nev. L.J. 1179 (2022) ...................................... 18

1

INTEREST OF AMICI CURIAE1

Amici curiae are one retired federal judge, a nonprofit organization that works with elected prosecutors, seventeen law professors with expertise in gender and the law, habeas corpus, and criminal law, and

four domestic violence researchers and advocates.

While amici are not formally affiliated with each

other and come from a variety of professional fields,

they are all keenly aware of the pernicious effects of

gender bias against female defendants in American

courtrooms. Each is deeply familiar with the toll that

gender bias exacts not only on the individual women

whose interactions with the criminal legal system are

tainted by it, but also on the quality, reliability, and

fairness of the criminal legal system. Together they

have a distinct interest in ensuring that inflammatory

and prejudicial gendered stereotypes about how

women should look, act, and comport themselves are

eradicated from criminal prosecutions.



The Honorable Judge Mark Bennett (ret.) of

Drake University Law School;



Fair and Just Prosecution, a nonprofit project

of the Tides Center that brings together elected

prosecutors from around the nation as part of a

network of leaders committed to a justice system grounded in fairness, equity, compassion,

and fiscal responsibility.

1 Amici state that this brief was not authored in whole or in part

by counsel for any party, and that no person or entity other than

amici or their counsel made a monetary contribution intended to

fund the preparation or submission of this brief. Counsel of record for the parties received timely notice of amici’s intent to file

this brief.

2



Jamie Abrams of the American University

Washington College of Law, Valena Beety of Indiana University Bloomington Maurer School

of Law, Leigh Goodmark of the University of

Maryland Francis King Carey School of Law,

Aya Gruber of the University of Southern California Gould School of Law, Mallika Kaur of the

University of California Berkeley Law School,

Carla Laroche of Tulane Law School and The

Murphy Institute, Cortney E. Lollar of the

Georgia State University College of Law,

Nancy Lemon of the University of California

Berkeley Law School, Benjamin Levin of Washington University in St. Louis School of Law,

Justin Marceau of the University of Denver

Strum College of Law, Daniel S. Medwed of the

Northeastern University School of Law, Joan S.

Meier of the George Washington University

Law School, Priscilla Ocen of Loyola Law

School, Maybell Romero of Tulane Law School,

Dan Simon of the University of Southern California Gould School of Law, Jonathan Simon of

the University of California Berkeley Law

School, and Greg Swygert of Northwestern

Pritzker School of Law; and



Jacquelyn Campbell of Johns Hopkins School of

Nursing, Mindy Mechanic of the California

State University, Fullerton, Amanda Potts of

Cardiff University, and Susan Sharp of the

University of Oklahoma.

3

SUMMARY OF THE ARGUMENT

Brenda Andrew’s capital murder prosecution was

tainted with irrelevant and prejudicial evidence that

spoke not to her criminal culpability, but to her failure

to comply with society’s gender-biased expectations

about how women should and should not behave. Repeatedly, the prosecution elicited testimony designed

to paint Ms. Andrew as a hypersexual seductress and

an uncaring mother. The prosecution’s leitmotif of

gender deviance was an implicit theme and an explicit

exhortation at trial: because Ms. Andrew did not behave as a “virtuous” woman should, the jury should

convict her and subject her to the harshest punishment possible. By the time the case was submitted to

the jury, the prosecution had deflected the jury’s focus

from an inquiry into Ms. Andrew’s guilt or innocence

to a referendum on Ms. Andrew’s femininity and morality.

Ms. Andrew’s case is an exceptional example of the

Oklahoma County District Attorney’s office weaponizing gender bias to poison proceedings against a female

defendant who had no prior criminal record, in a case

that involved no allegation of torture or exceptional

cruelty. This brief includes a portion of the trove of

sexualizing evidence in Ms. Andrew’s trial, and presents scholarship demonstrating how prejudicial that

evidence was. Until these prosecutorial tactics are

eradicated from American courtrooms, “[j]ustice is

likely to remain a lottery while so much depends on

the woman’s fulfillment of society’s expectations.”

Kennedy, Eve Was Framed 215 (1992). Amici urge

this Court to grant Ms. Andrew’s petition for a writ of

certiorari.

4

ARGUMENT

When it comes to racial prejudice, this Court has

recognized that “[t]he risk of racial prejudice infecting

a capital sentencing proceeding is especially serious.”

Turner v. Murray, 476 U.S. 28, 35 (1986). In referring

to the use of a racial stereotype in a capital murder

sentencing proceeding, the Court acknowledged that

“[s]ome toxins can be deadly in small doses.” Buck v.

Davis, 580 U.S. 100, 122 (2017).

A broad array of scholarship makes clear that the

risk of prejudice at a capital trial—which is made irreparable by the “complete finality of the death sentence,” Turner, 476 U.S. at 35—is just as great for gender bias as it is for racial bias. And here, the gender

bias the prosecution injected into Ms. Andrew’s trial

did not come in a “small dose.” The prosecution’s case

was dripping with inflammatory, irrelevant, and prejudicial evidence depicting Ms. Andrew as “a bad wife,

a bad mother, and a bad woman.” Andrew v. State,

164 P.3d 176, 206 (Okla. Crim. App. 2007) (A. Johnson, J., concurring in part and dissenting in part). To

fully appreciate the ability of this evidence to deprive

Ms. Andrew of a fair trial, it must be placed in the

context of scholarship that sheds light on the dangers

gender bias poses to female defendants.

I.

Invocation of Gender Bias Can Severely

Prejudice Female Defendants.

There is “overwhelming evidence that gender bias

permeates the court system.” Timm v. Delong, 59 F.

Supp. 2d 944, 959–60 (D. Neb. 1998) (citation omitted). Gender bias has been defined as “sex stereotypes, the perceived relative worth of women . . . and

misconceptions about their economic and social positions,” Swent, Gender Bias at the Heart of Justice: An

Empirical Study of State Task Forces, 6 S. Cal. Rev.

5

L. & Women’s Stud. 1, 35 (1996) (citation omitted),

and has been repeatedly linked to sexism, which “involves . . . discrimination based on hostility toward,

and negative stereotyping of, women,” Herzog & Oreg,

Chivalry and the Moderating Effect of Ambivalent

Sexism: Individual Differences in Crime Seriousness

Judgments, 42 L. & Soc’y Rev. 45, 50 (2008). Some

degree of gender bias is effectively baked into the

“many layers of the male-dominated legal system,

from the prevalence of male decision-makers, to the

inherent sex-bias in jury selection, to . . . male-oriented laws.” Miller, Inherent (Gender) Unreasonableness of the Concept of Reasonableness in the Context of

Manslaughter Committed in the Heat of Passion, 17

Wm. & Mary J. Women & L. 249, 249–50 (2010) (footnotes omitted). And its effects are especially pernicious on the witness stand, where finders of fact often

consider women to be “less rational,” “less trustworthy,” and “more willing to exaggerate” than men. De

Sanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8

Yale J.L. & Feminism 359, 373 (1996); see also Epstein & Goodman, Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing

Their Experiences, 167 U. Pa. L. Rev. 399, 405 (2019)

(“gatekeepers unjustly discount women’s personal

trustworthiness, based on inaccurate interpretations

of survivors’ courtroom demeanor, as well as negative

cultural stereotypes about women and their motivations for seeking assistance” (emphasis omitted)). But

the repercussions of gender bias are at their most devastating when they are weaponized against female

criminal defendants.

While womanhood can be a talisman for female defendants who are presented as delicate members of

the “gentler sex,” shielding them from the harshest

6

punishments, see, e.g., Tillyer et al., Differential

Treatment of Female Defendants, 42 Crim. Just. & Behav. 705 (2015), it is a millstone around the neck of

women who are painted as failing to meet societal expectations for proper femininity.

Abundant scholarship has shown that any “advantage conferred by femininity,” Newby, Evil Women

and Innocent Victims: The Effect of Gender on California Sentences for Domestic Homicide, 22 Hastings

Women’s L.J. 113, 120 (2011), is afforded only to

women who “conform to traditional gender roles” and

stereotypes, Tillyer at 705, which dictate that a

woman should be “kind and loving,” Du, The Effect of

Defendant Gender on Jurors’ Decision-Making, 52 U.

Balt. L. Rev. 1, 16–27 (2022), raise children, “remain

chaste, . . . [and] remain true to her husband,” SimonKerr, Unchaste and Incredible: The Use of Gendered

Conceptions of Honor in Impeachment, 117 Yale L.J.

1854, 1862 (2008). No such advantage is given to

women perceived to be “evil,” Newby at 119, because

they deviate from cultural expectations of motherhood, sexuality, and fidelity, and are instead portrayed as “representing the evil side of heterosexual

female nature—ruthless, manipulative, seductive and

often lustful,” Farr, Defeminizing and Dehumanizing

Female Murderers: Depictions of Lesbians on Death

Row, 11 Women & Crim. Just. 49, 56 (2000). In fact,

women who fail to adhere to gendered expectations

“will . . . be treated more severely” than men. Tillyer

at 706. And the “harshest sentence, capital punishment,” is reserved for female defendants who fail to

“embody traditional feminine ideals.” Collins, Too

Feminine for Execution?: Gender Stereotypes and the

Media’s Portrayal of Women Sentenced to Death, University of South Carolina Scholar Commons, at 8

(2022).

7

The noxious effects of gender bias pack a powerful

punch in the courtroom—and prosecutors know it.

Some prosecutors, including those that tried Ms. Andrew, deliberately invoke gender bias, strategically

emphasizing a woman’s departure from feminine ideals “to turn jurors against female defendants,” rather

than meeting their burden of proof with actual evidence. Lewis & Sommervold, Death, but Is It Murder?

The Role of Stereotypes and Cultural Perceptions in

the Wrongful Convictions of Women, 78 Alb. L. Rev.

1035, 1048 (2015). In so doing, prosecutors “perpetuate [gender] stereotypes to juries,” id., by presenting

for “consideration not only what the woman has done

but also who she is with respect to her position in the

family and in society,” Herzog & Oreg at 49 (emphasis

omitted).

When prosecutors stoop to weaponizing gender

discrimination to ensure convictions, they violate

their duties as public servants. A prosecutor “is the

representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern

impartially is as compelling as its obligation to govern

at all; and whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but that

justice shall be done.” Berger v. United States, 295

U.S. 78, 88 (1935); see also United States v. Agurs, 427

U.S. 97, 110–11 (1976) (prosecutors “must always be

faithful to [their] client’s overriding interest that ‘justice shall be done’”) (quoting Berger, 295 U.S. at 88).

Prosecutors sacrifice public trust in inflaming juries

with gender bias and these tactics should not be tolerated. Prosecutors have a duty as “‘ministers of justice’

to go beyond seeking convictions and legislatively authorized sentences in individual cases, and to think

about the delivery of criminal justice on a systemic

level, promoting criminal justice policies that further

8

broader societal ends.” Cassidy, (Ad)ministering Justice: A Prosecutor’s Ethical Duty to Support Sentencing Reform, 45 Loy. Univ. Chi. L.J. 981, 983 (2014).

II. Ms. Andrew’s Trial Was Tainted by

Irrelevant

Evidence

About

Her

Appearance, Sexuality, and Fitness as a

Mother.

The prosecution’s invocation of gender bias pervaded Ms. Andrew’s trial, with multiple witnesses

seemingly called for the sole purpose of labeling her a

temptress, an adulteress, and an unfit mother. This

evidence was entirely irrelevant to the case presented

against her. Indeed, the prosecution itself conceded

on appeal that pieces of this evidence were “irrelevant

to any issue in [Ms. Andrew’s] case.” Andrew v. State,

164 P.3d 176, 192 (Okla. Crim. App. 2007).

Amici present the most troubling examples of this

irrelevant, extremely prejudicial evidence in three

categories relating to Ms. Andrew’s: (A) appearance;

(B) sexual history; and (C) fitness as a mother.

A. The Prosecution’s Focus

Andrew’s Appearance.

on

Ms.

Though the jury was not asked to resolve any

question relating to the identification of Ms. Andrew,

the prosecution repeatedly invoked her physical appearance at trial. In response to specific questions by

prosecutors, witnesses repeatedly commented on Ms.

Andrew’s body or clothes, characterizing both as provocative. Witnesses testified that Ms. Andrew wore:



clothes that were “very tight, very short with a

9

lot of cleavage . . . exposed”;2



“short skirt[s], low-cut tops, just sexy outfits,

provocative”;3



revealing clothing to a restaurant, where she

was called a “hoochie”;4



a leather skirt and a leather button-up top

while running errands.5

At one point, a witness commented that Ms. Andrew wore nothing at all, testifying that she went

skinny dipping in the hot tub at her private residence.6 This recurring sexualized testimony describing the way Ms. Andrew looked and dressed transformed her from a presumptively innocent woman

into a sexual object.

B. The Prosecution’s Focus

Andrew’s Sexual History.

on

Ms.

In addition to eliciting descriptions of Ms. Andrew’s clothing and cleavage, the prosecution also

prompted witnesses to share vivid accounts of her sexual encounters with multiple men. Prosecutors repeatedly asked witnesses to provide details of Ms. Andrew’s sexual history, including her extra-marital affairs and flirtations. For example, the prosecution

called James Higgins, an assistant manager at a store

where Ms. Andrew shopped, to testify in detail about

Ms. Andrew’s outfits, flirtatious behavior, and the

2 Trial Transcript, Volume 2 (“Vol._” throughout), 323.

3 Id. 247.

4 Id. 323.

5 Id. 353.

6 Vol.12, 2848, 2858.

10

frequency and locations that the couple had sex despite the fact that Ms. Andrew had not had sex with

Mr. Higgins at least half a year prior to Rob Andrew’s

death.7 When Higgins testified that they met for sex

at motels and at her house, the prosecution chose to

pry further, seeking utterly irrelevant details:

Q. Did you have sex with her any other places

than at her house and at the motels?

A. Car.

Q. How many occasions did you have sex with

her in her car?

A. Several.

Q. Was it her car or your car?

A. Her car.8

Other witnesses reinforced the image of Ms. Andrew as a seductress. The prosecution repeatedly

asked its witness, David Ostrowe, about how Ms. Andrew presented herself on the only occasion he met

her. Eventually, the prosecution was able to get the

witness to say that Ms. Andrew did not look “conservative” like a wife should.9 The prosecution questioned witness Rick Nunley, who testified about a

“sexual relationship” with Ms. Andrew.10 In addition,

prosecutors:

• discussed how Ms. Andrew went to a motel

“several times a week” for “[a] couple of hours”

7 Vol.2, 249–51.

8 Id.

9 Id. 320–24.

10 Id. 361–67.

11

with a sexual partner;11

• elicited testimony that Ms. Andrew “[a]lmost

always”12 paid for those motel rooms;13

• asked a witness whether Ms. Andrew had an

affair with the witness’s sons over objections of

the defense;14

• introduced evidence that Ms. Andrew’s husband would find lingerie that he never saw Ms.

Andrew wear;15 and

• elicited testimony that Ms. Andrew changed

her hair color because she heard a man liked

redheads.16

This repeated testimony about Ms. Andrew’s sexuality had no bearing on her guilt or innocence in the case

against her and yet was offered to convict her.

Taking care to paint Ms. Andrew not as a passive

participant but a sexual aggressor, prosecutors elicited testimony that she would “rub up against” and

“touch” men.17 The prosecution underscored this testimony by introducing into evidence, over Ms. Andrew’s objection, a book found in her possession called

203 Ways to Drive a Man Wild in Bed.18 Conversely,

Ms. Andrew’s partners were portrayed as naïve men

11 Id. 249–51.

12 Id. 249.

13 Id. 251.

14 Id. 278.

15 Vol.4, 1101–02.

16 Vol.3, 498.

17 Vol.2, 247.

18 Vol.10, 2318.

12

who were often “shocked”19 by Ms. Andrew or “just

ma[king] conversation” with her before getting pulled

into an affair.20

The prosecution’s hypersexualization of Ms. Andrew reached its zenith during perhaps the most critical part of the trial: closing statements at the culpability phase. At this stage, when it should have been

summarizing its case to the jury, the prosecution took

time to remind the jury that Ms. Andrew was “an attractive woman.”21 The prosecution told the jury that

Mr. Andrew “wanted desperately to be a man who was

committed to God,” in contrast to Ms. Andrew who

“can’t be a woman of God because she’s sleeping with

a married man.”22 The prosecution called Ms. Andrew a “slut puppy” who had “no twinge of conscience”

after “she . . . had sex on [Mr. Andrew] over and over

and over and . . . [kept] a boyfriend on the side.”23

Astonishingly, the prosecution used its closing argument to hold up in front of the jury the thong underwear Ms. Andrew wore on vacation after her husband had been killed.24 The sensational, shameful action generated media coverage, with a local newspaper noting that the prosecutor “drew gasps from the

crowded courtroom when he pulled red, black and

pink lingerie from a suitcase Brenda Andrew had

19 Vol.2, 248.

20 Id. 246.

21 Vol.17, 4121.

22 Id. 4124–25.

23 Id.

24 Id. 4101–03.

13

taken to Mexico.”25 With Ms. Andrew’s underwear on

display, the prosecutor told the jury:

The grieving widow packs this to run off with

her boyfriend. The grieving widow packs this

to go sleep in a hotel room with her children and

boyfriend. The grieving widow packs this in

her appropriate act of grief. Going to the

beach. . . . Going to the beach a lot.26

In the same breath, the prosecutor told the jury

they need not consider other evidence in the case.

“You got all the evidence. That’s enough. That’s

enough.”27 The prosecution encouraged the jury to

view Ms. Andrew’s underwear worn after her husband’s death as the single most critical piece of evidence in the case, despite its complete irrelevance to

her guilt or innocence.

C. The Prosecution’s Focus on

Andrew’s Fitness as a Mother.

Ms.

During the penalty phase, the prosecution reinforced its repeated references to Ms. Andrew’s purported sexual transgressions by linking her sexuality

to her supposed failures as a mother. The prosecution

used these attacks on Ms. Andrew’s mothering to portray her as an unfit caregiver who prioritized her sexuality over her children. Over and over, the prosecution asked different witnesses whether Ms. Andrew

behaved like a “good mother” when she spent time

with men who were not the children’s father. A few

examples demonstrate the extent to which the

25 Trougako & Baker, Andrew Case in the Hands of Jury Deliberation Will Resume Today at 9 A.M., Oklahoman (July 13, 2004).

26 Vol.17, 4101 (emphases added).

27 Id.

14

prosecution went to solidify this characterization.



After asking Higgins to describe Ms. Andrew’s

“sexy” clothing and flirtatious manner, the

prosecution asked, “[w]here were the children

when she was doing this rubbing against you

and flirting with you?” to which Higgins responded, “I believe just the son was there when

that was going on.”28



In questioning state’s witness Nunley, the prosecution repeatedly elicited his opinion that

“good mother[s]” don’t have affairs.29



Later, the prosecution asked state’s witness

Janna Larson, “Were you concerned about the

fact that your dad and Brenda Andrew were

having an affair and being around [Brenda’s

children]?”30



After Ms. Andrew’s neighbor, Alma Garrison,

testified that Ms. Andrew was a generous

neighbor who had a wonderful relationship

with her children, the prosecution questioned

her about Ms. Andrew’s intimate partners, asking if it “[w]ould . . . change [her] opinion” of

Ms. Andrew if she knew Ms. Andrew was having “an affair with her handyman” or “insurance salesman?”31 And then, “Do you believe a

good mother would run off with her boyfriend

28 Vol.2, 246–48.

29 Id. 420 (“Does a good mother invite her boyfriends over while

the children are in the home?”).

30 Vol.12, 2958.

31 Vol.19, 4344.

15

five days after her husband is killed?”32

Consistent with that theme, the prosecution elicited

testimony from a witness that Ms. Andrew had

“trained” her children to be discreet about men visiting her home.33

The intent of the prosecution’s rhetoric was clear:

the prosecution invited the jury to pass judgment on

Ms. Andrew’s character explicitly through the lens of

allegedly deficient motherhood34 and to help free her

children from the “spell” they had been put under by

their mother.35

III. Ms. Andrew Was Severely Prejudiced by

the Gender Bias the Prosecution Invoked.

The prosecution’s repeated references to Ms. Andrew’s appearance, sexuality, and motherhood were,

on their face, inflammatory. Any jury subjected to

this drumbeat of sexualizing evidence would come to

see Ms. Andrew not as one of their peers, entitled to

fair and impartial treatment, but as a one-dimensional and callous seductress, undeserving of their

compassion. A robust catalogue of scholarly research

confirms this fact, and makes clear that the flames of

gender bias the prosecution fed throughout trial were

so prejudicial as to have deprived Ms. Andrew of a fair

trial.

32 Id. 4346.

33 Vol.12, 2959.

34 Vol.2, 419–20; Vol.19, 4312–14, 4345–46.

35 Vol.19, 4411.

16

A. The Prosecution’s Focus on Ms.

Andrew’s Sexuality Inflamed the Jury

Against Her.

At Ms. Andrew’s trial, the prosecution set out to

paint her as a “sexually deviant” woman deserving of

the harshest punishment. Collins at 78. They succeeded in that goal with devastating effect. The prosecution introduced reams of inflammatory evidence

about Ms. Andrew’s sexuality—lurid details of her

multiple affairs, her suggestive clothing and lingerie,

her cleavage, and even a book on how to “Drive a Man

Wild in Bed.” The purpose of such testimony was to

show the jury that “[Ms. Andrew] was a ‘bad woman,’”

Lesley v. State, 606 So. 2d 1084, 1090 (Miss. 1992),

“promiscuous, selfish, [and] aggressive,” Lang, The Intersection of Wrongful Convictions and Gender in

Cases Where Women Were Sentenced to Death or Life

in Prison Without Parole, 27 Mich. J. Gender & L. 403,

412 (2020), so as to invoke “jurors’ fears of a society

out of control, one where women’s sexuality ran

amok,” Atwell, Wretched Sisters: Examining Gender

and Capital Punishment 19 (2d ed. 2014).

Research shows that this sort of improper evidentiary attack is especially prejudicial when levelled

against a married woman on trial for murder. Married women are expected to adhere to “appropriate

femininity.” Potts & Weare, Mother, Monster, Mrs, I:

A Critical Evaluation of Gendered Naming Strategies

in English Sentencing Remarks of Women Who Kill,

31 Int’l J. Semiotics L. 21, 52 (2018). When wives on

trial do not conform to those standards, prosecutors

can vilify them by arguing that their infidelity “proves

a character fault[,] such as promiscuity or immorality,” that the jury can rely on “to find that the wife is

a person of evil nature, and thereby is more likely to

17

have engaged in a homicide.” Colquitt, Evidence and

Ethics: Litigating in the Shadows of the Rules, 76

Fordham L. Rev. 1641, 1651 (2007); see also Lesley,

606 So. 2d at 1090 (“The fact that Loretta Lesley had

extramarital affairs was offered to show that she was

an immoral woman. The State intended to show that

Loretta Lesley was an immoral woman and that she

therefore tried to have her husband killed.”).

The New York Court of Appeals recently described

prosecutorial attempts to present female witnesses as

“promiscuous” to damage their credibility as “a tactical attack based on now-rejected views of female sexuality.” People v. Cerda, 223 N.E.3d 308, 315 (N.Y.

2023). But some prosecutors continue to use the “evil

woman” tactic for a simple reason: it works. In a

study of 42 cases of women sentenced to death for

spousal murder between 1632 and 2014, the accused’s

“adulterous” behavior was a major component of the

evidence against her, even where it bore no relation to

the crime. Baker, Women and Capital Punishment in

the United States: An Analytical History 81, 94–99,

153 (2016).

B. The Prosecution Prejudiced Ms.

Andrew by Painting Her as an Unfit

Mother.

In addition to deviating from society’s expectations for how a married woman should behave sexually, the prosecution also charged Ms. Andrew with

failing to properly perform the ultimate stereotypical

gender role: motherhood. This is in spite of the fact

that Ms. Andrew was not charged with abusing or in

any way harming her children—and there is no evidence to suggest she did. Even though Ms. Andrew’s

role as a mother was unrelated to whether she committed the crime for which she was accused,

18

prosecutors repeatedly asked witnesses whether Ms.

Andrew behaved like a “good mother.” Research

shows that stereotypes about women’s roles as mothers prejudice female defendants during criminal investigations and at trial.

In part due to paternalistic stereotypes of mothers,

women wrongfully confess to crimes at higher rates

than men, Weis, The “Fool’s Gold” Standard of Confession Evidence: How Intersecting, Disadvantaged

Identities Heighten the Risk of False Confession, 22

Nev. L.J. 1179, 1191 (2022), women are more often

wrongfully convicted for “no-crime” cases involving

sudden illness or death of children, id.; see also Lewis

& Sommervold at 1050 (“No-crime cases that have

been uniquely susceptible to stereotype-driven theories include arson, shaken baby syndrome, and sudden illness or death.”), and courts tend to impose more

severe sentences against mothers than fathers, and

against uninvolved mothers than attentive mothers,

other things being equal, Tasca et al., The Role of Parental Status and Involvement in Sentence Length Decisions: A Comparison of Men and Women Sentenced

to Prison, 65 Crime & Delinquency 1899 (2019); see

also Mogul, The Dykier, the Butcher, the Better: The

State’s Use of Homophobia and Sexism to Execute

Women in the United States, 8 N.Y.C. L. Rev. 473, 482

(2005) (“The women on death row are the ones who

are easily portrayed as unfeminine, aggressive, possessed of poor mothering skills, or sexually promiscuous.”). In general, the criminal legal system holds

mothers to a higher standard than other defendants,

as “criminal law is more likely to impose an affirmative duty on mothers than other classes of people.”

Roberts, Motherhood and Crime, 79 Iowa L. Rev. 95,

95–96 (1993).

19

Juries tend to reward female defendants who can

successfully portray themselves as loving and nurturing mothers. Carroll, Images of Women and Capital

Sentencing Among Female Offenders: Exploring the

Outer Limits of the Eighth Amendment and Articulated Theories of Justice, 75 Tex. L. Rev. 1413, 1446

(1997). But mothers who are perceived as deviating

from these stereotypes receive harsher sentences.

One 2019 study of convicted criminals in Arizona

found that mothers who lived with their children prior

to arrest received shorter sentences than mothers who

were uninvolved in their children’s lives. Id. Parental

involvement did not affect fathers’ sentence lengths.

Id.

“If women are stereotyped as nurturers and natural caregivers, then women who are perceived to have

violated that role are re-cast as a ‘flawed mother,’ . . .

or even a ‘monster.’” Henry, Smoke but No Fire: When

Innocent People Are Wrongly Convicted of Crimes That

Never Happened, 55 Am. Crim. L. Rev. 665, 693–94

(2018) (citations and footnote omitted). This pervasive bias is captured in the criminal legal system’s

harsh treatment of women who commit so-called maternal crimes, in which women are accused of harming

their own children. Roberts at 107–08. Indeed, commentators have theorized that women sentenced to

death are disproportionately charged with domestic

crimes in part because the legal system views crimes

of mothers against their families as particularly heinous. See Newby at 124.

By capitalizing on deeply ingrained biases against

women whose conduct deviates from the stereotype of

an ideal wife and mother, prosecutors strategically

turned the trial on Ms. Andrew’s guilt or innocence

into a referendum on Ms. Andrew’s femininity and

20

morality. Prosecutors’ invocation of inflammatory

and prejudicial gendered stereotypes against Ms. Andrew tainted the jury’s view of Ms. Andrew, depriving

her of a fair trial.

CONCLUSION

For the foregoing reasons, amici urge the Court to

grant the petition for a writ of certiorari.

Respectfully submitted,

Russ Falconer

Mark J. Cherry

Counsel of Record

Jialin Yang

Andrew LeGrand

Kasturi Mitra

GIBSON, DUNN & CRUTCHER LLP Suzana Kondic

1001 Ross Ave., Suite 2100

Amir Heidari

Dallas, TX 75201

GIBSON, DUNN & CRUTCHER LLP

(214) 698-3405

200 Park Ave.

RFalconer@gibsondunn.com

New York, NY 10166

(212) 351-3978

Timothy Zimmerman

Anna Ziv

Brandon Wolf

GIBSON, DUNN & CRUTCHER LLP GIBSON, DUNN & CRUTCHER LLP

1801 California St., Suite 4200 1050 Connecticut Ave. NW

Denver, CO 80202

Washington, DC 20036

(303) 298-5721

(202) 831-6071

Counsel for Amici Curiae

February 22, 2024