Brenda Andrew
On August 14, 2026, the U.S. Court of Appeals for the Tenth Circuit declined to reconsider Brenda Andrew’s case and the totality of the evidence in determining whether her trial was fundamentally unfair — leaving in place a panel ruling that found gender-biased evidence at her trial did not amount to a constitutional violation. Ms. Andrew, the only woman on Oklahoma’s death row, asked the Tenth Circuit in April 2026 to rehear her case en banc, arguing that a three-judge panel had improperly limited its review of the “rampant gender bias” that permeated her trial and had failed to follow the U.S. Supreme Court’s 2025 remand instructions. In the August 14th per curiam decision, the full court denied Ms. Andrew’s request. The case dates to Ms. Andrew’s 2004 trial for the murder of her husband, Robert Andrew. The state alleged that Ms. Andrew, along with James Pavatt, a fellow member of her church, fatally shot Mr. 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.
Judge Richard Federico, who voted to grant a rehearing to Ms. Andrew, filed a dissent. He wrote that he could not agree with “how the panel resolved this appeal following the remand” from the Supreme Court, which held a year earlier that “the ‘mistaken admission of irrelevant evidence’ can be so unduly prejudicial as to render [a] trial ‘fundamentally unfair.’” Judge Federico argued that the panel’s test for measuring that unfairness — questioning whether the challenged evidence bore on “central jury issues”— inverted the constitutional principle it was supposed to apply: “[i]rrelevant evidence carries the risk of prejudice precisely because it never(emphasis original) tracks the central jury issues at trial, and instead lures the jury away from its appropriate task: ‘the determination of truth.’” In its 2025 ruling, the 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.
In his dissent, Judge Federico enumerates three separate grounds where he disagrees with the panel’s consideration. First, he argues the panel wrongly confined its review to only the “ten testimonial passages” that Ms. Andrew’s lawyers had specifically cited in her original state-court appeal, rather than the full trial record. This limitation, Judge Federico wrote, is unsupported by the law and the facts. He noted that, so far as he could tell, “no federal court has so narrowly confined federal habeas review to the specific record citations found in the briefs before the state court,” and warned that the Tenth Circuit “may have now split with both the Fifth and Ninth Circuits.” Second, Judge Federico argued the panel should not have treated Ms. Andrew’s related cumulative-error claim as abandoned because it was never warned that failing to re-brief the issue would forfeit it. Third, and perhaps most significantly, Judge Federico challenged the legal test the panel used to evaluate the question of fundamental unfairness. He wrote the panel’s reliance of the Supreme Court’s decision in Buck v. Davis was “misplaced,” and the panel’s “central jury issues” framework could not be squared with the Constitution’s prohibition on death sentences influenced by “race, religion, wealth, social position, or class, or sex.” Judge Federico questioned whether the panel adequately considered the risk that the prosecution’s sex-based evidence undermined the jury’s willingness to credit mitigating evidence during Ms. Andrew’s sentencing.
“Judge Federico recognized what should be obvious to any fairminded person, that the constant drumbeat of sex shaming and sex based stereotyping invited jurors to do what our constitution forbids, executing someone for who they are.”
Judge Federico’s dissent walks back through the trial record, citing testimony describing Ms. Andrew’s clothing as “sexy,” “provocative,” and not “appropriate for running errands,” a witness recalling being asked “who is the hoochie” upon meeting her, and a prosecutor’s closing argument description of her packing a thong and lace bra in “her appropriate act of grief.” He wrote that “these were not stray comments elicited in the heat of trial; they were part of a trial strategy to draw the jury’s attention to [Ms.] Andrew’s concededly irrelevant but, the state argued, unwomanly and unmotherly behavior.” The trial judge acknowledged this kind of evidence was admitted “only as it relate[d] to her ability to manipulate men.”
