Brenda Andrew

On April 27, 2026, coun­sel for Oklahoma death-sen­tenced pris­on­er Brenda Andrew, the only woman on the state’s death row, filed a peti­tion ask­ing the U.S. Court of Appeals for the Tenth Circuit to recon­sid­er whether her con­sti­tu­tion­al right to a fair tri­al was vio­lat­ed by the prosecution’s use of ​“ram­pant gen­der bias” dur­ing her tri­al. In January 2025, the U.S. Supreme Court, in a per curi­am deci­sion, remand­ed the case for con­sid­er­a­tion of whether the state’s gen­dered evi­dence was so undu­ly prej­u­di­cial that it ren­dered her tri­al fun­da­men­tal­ly unfair and uncon­sti­tu­tion­al. In January 2026, a pan­el of Tenth Circuit judges ruled against Ms. Andrew, find­ing that the gen­dered evi­dence pre­sent­ed at tri­al did not under­mine her right to a fair tri­al and ​“that a fair-mind­ed jurist could doubt infec­tion of the tri­al with unfair­ness.” With this con­clu­sion, the Tenth Circuit upheld denial of habeas relief. Counsel’s new peti­tion for a rehear­ing alleges that the pan­el failed to com­ply with the Supreme Court’s instruc­tions and ​“dis­re­gard­ed weeks of prej­u­di­cial tes­ti­mo­ny that influ­enced jurors’ per­cep­tions of Ms. Andrew’s cred­i­bil­i­ty, her defense, and ulti­mate­ly, the val­ue of her life.”

“It is incon­ceiv­able that jurors would not have been influ­enced by hear­ing pros­e­cu­tors and wit­ness­es malign and sex shame Ms. Andrew every day of her tri­al, par­tic­u­lar­ly when it came to decid­ing whether her life was worth sparing.”

Sandra Babcock, Cornell Law Professor and expert on gen­der bias in the admin­is­tra­tion of the death penalty.

During Ms. Andrew’s 2004 tri­al for the mur­der of her hus­band, the pros­e­cu­tion called wit­ness­es to tes­ti­fy about her ​“provoca­tive” cloth­ing and pre­vi­ous sex­u­al rela­tion­ships and ques­tioned aloud ​“whether a good moth­er would dress or behave” in the ways Ms. Andrew had. The state alleged that Ms. Andrew, along with James Pavatt, a fel­low mem­ber of her church, fatal­ly shot Robert Andrew, and offered cir­cum­stan­tial evi­dence of her involve­ment. Mr. Pavatt con­fessed to shoot­ing Mr. Andrew and main­tained that Ms. Andrew was not involved in her estranged husband’s death. 

In their argu­ments to the jury, pros­e­cu­tors called Ms. Andrew a ​“hoochie” and a ​“slut pup­py.” They opened a suit­case and showed the jury Ms. Andrew’s under­wear, ask­ing, ​“The griev­ing wid­ow packs this in her appro­pri­ate act of grief?” The pros­e­cu­tor held up a thong and lace bra in front of the jury and stat­ed that a ​“griev­ing wid­ow doesn’t pack her thong under­wear and run off with her boyfriend.” Ms. Andrew’s jury sen­tenced her to death. In its 2025 rul­ing, the U.S. Supreme Court not­ed “[t]he State spent sig­nif­i­cant time at tri­al intro­duc­ing evi­dence about [Ms.] Andrew’s sex life and about her fail­ings as a moth­er and wife, much of which it lat­er con­ced­ed was irrel­e­vant,” includ­ing tes­ti­mo­ny from her pre­vi­ous sex­u­al part­ners, evi­dence of the kind of cloth­ing she wore before the crime, as well as attack­ing her fit­ness as a mother. 

“The pros­e­cu­tion invit­ed the jury to con­vict and con­demn Ms. Andrew to death because she was not a ​‘stereo­typ­i­cal’ woman — her cloth­ing was not mod­est enough, her demeanor was not emo­tion­al enough, and she was not chaste enough.”

Jessica Sutton, attor­ney for Brenda Andrew.

Following the Supreme Court’s 2025 remand, the Tenth Circuit held oral argu­ments and held that Ms. Andrew had not chal­lenged the intro­duc­tion of much of the evi­dence in ques­tion dur­ing her state appeals, and there­fore the state court could not have erred by not tak­ing into con­sid­er­a­tion evi­dence that she did not intro­duce. In its 2026 opin­ion, the Tenth Circuit pan­el wrote it could not ​“fault the Oklahoma court” for not search­ing the record to sup­port Ms. Andrew’s claim. Ultimately, the pan­el ​“conclude[d] that the alleged stereo­typ­ing did not sub­stan­tial­ly under­mine the fun­da­men­tal fair­ness of the trial.” 

Attorneys for Ms. Andrew argue in their new peti­tion that the pan­el failed to con­sid­er the cumu­la­tive effect of the gen­der-biased evi­dence and con­duct­ed only a ​“par­tial” review that exclud­ed sig­nif­i­cant por­tions of the sex-stereo­typ­ing record — includ­ing tes­ti­mo­ny about Ms. Andrew’s alleged affairs dur­ing col­lege and sex­u­al part­ners two decades ear­li­er. Her attor­neys also con­tend the pan­el looked too nar­row­ly at iso­lat­ed pieces of evi­dence, rather than assess­ing whether the tri­al as a whole was fundamentally fair. 

The peti­tion addi­tion­al­ly ques­tions the Tenth Circuit’s reliance on its own 2020 prece­dent, Wellmon v. Colorado Department of Corrections, which the pan­el used to lim­it its review to only argu­ments that Ms. Andrew raised dur­ing her state appeals. Her attor­neys describe Wellmon as irrec­on­cil­able with the Supreme Court’s remand instruc­tions and are ask­ing the Tenth Circuit to lim­it or over­rule it alto­geth­er, seek­ing a hear­ing before either the same pan­el or the full court.

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Sources

Marco Poggio, Death Row Inmate Seeks 10th Circ. Rehearing on Gender Bias, Law360, April 28, 2026; Amanda Pampuro, 10th Circuit affirms mur­der con­vic­tion of woman who claims pros­e­cu­tors slut-shamed her onto death row, Courthouse News Service, January 13, 2026.