OKLAHOMA CITY - A three judge panel for the United States Court of Appeals for the Tenth Circuit has reversed part of the sentence for a convicted killer in Oklahoma.
James Pavatt was sentenced to death for the 2001 murder of Rob Andrew, an Oklahoma City advertising executive.
Rob was gunned down in the garage of his Oklahoma City home as he was picking up his two kids for the Thanksgiving holiday.
Rob and his wife, Brenda Andrew, were separated at the time of his death.
Prosecutors said Brenda and Pavatt killed Rob for the insurance money, and both were sentenced to death for the murder.
In order to receive the death penalty, the state must prove at least one aggravating circumstance.
In Pavatt's case, they alleged the crime was heinous, atrocious or cruel.
However, not everyone agrees.
Earlier this month, the federal appeals court found the state did not prove one of the aggravating factors for the death penalty in Pavatt’s case.
“What they basically found was that the state did not or the Court of Criminal Appeals did not find the especially heinous, atrocious and cruel aggravator in a way to sufficiently narrow it to warrant the death penalty,” said Jennifer Miller, deputy of the Criminal Appeals Division for the Oklahoma Attorney General’s Office.
In fact, the three judge panel said the "supporting evidence is slim" for the crime to be ruled as especially heinous, atrocious or cruel.
They pointed out the medical examiner “said only that Mr. Andrew could have experienced pain while dying.”
The judges also focused on the 911 call Brenda made, in which she said Rob was still breathing and trying to talk to her.
"She did not mention any sign of suffering or pain," the decision read.
“You have to have conscious physical suffering or mental torture, and what we had in this case really was both,” Miller said.
The Oklahoma Attorney General’s Office has appealed the decision, asking for a hearing before the full appeals court.
“We’ve gone through a lot of the appeal process, and then to have this decision is very disappointing,” Miller said.
Local defense attorney David McKenzie, though, said it’s very important to have this kind of scrutiny in all convictions.
“They want to make sure that all the t’s are crossed and the I’s dotted before they put somebody in the death chamber and take their life,” McKenzie said.
There are still several steps before Pavatt’s death sentence could be overturned.
If the three judge panel’s decision stands, it could mean a new sentencing trial for Pavatt.
Mike Arnett represented Pavatt in his trial. He said they would have preferred the appeals court reverse the entire case but they are happy and pleased with the decision.