Left: Brenda Evers Andrew (image via Oklahoma Dept. of Corrections). Right: Supreme Court Justice Neil Gorsuch (Erin Schaff-Pool/Getty Images).
The only woman on death row in Oklahoma will have to rely on U.S. Supreme Court Justice Neil Gorsuch for a chance at saving her life.
In 2004, Brenda Andrew, now 62, was found guilty of murdering her husband, Rob Andrew, 39, in what prosecutors described as a plot to obtain an $800,000 life insurance payout along with her then-lover, James Pavatt, now 72. Both were ultimately sentenced to death.
The condemned woman, for her part, has always maintained her innocence. And, in a somewhat novel argument, her capital counsel has centered appeals on the claim she was "sex-shamed to death."
"During Brenda's trial, prosecutors produced male witnesses who testified that Brenda was a sex-crazed 'hoochie' who would stop at nothing to satisfy her desires," according to the Cornell Law School Center on the Death Penalty. "That evidence included one man's opinion that Brenda once wore a dress that was tight, short and showed 'a lot of cleavage.' It included another man's opinion that she wore 'sexy,' 'provocative' outfits."
In January 2025, a majority of judges on the nation's highest court offered Andrew a brief reprieve, directly taking up the claim that the defendant's sex life had been impermissibly put under a microscope in violation of the U.S. Constitution's guarantee of due process.
The justices directed the U.S. Court of Appeals for the 10th Circuit to reexamine the prosecution for constitutional deficiencies after previously rejecting the defense's claim out of hand.
"The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process," the per curiam opinion reads. "That was wrong."
On Tuesday, the appellate court again rejected Andrew's claim.
"We are addressing this appeal for the second time," the court ruled. "The first time, Ms. Andrew presented multiple claims. This time, the claims have been winnowed to one: the denial of a fair trial based on evidence of a gender stereotype and promiscuity."
The three-judge panel identified some of the more controversial claims made by prosecutors, which formed the basis of the appeal:
In its opening statement, for example, the prosecution told that jury that "this case is about a controlling wife." In closing argument, the prosecution discussed Ms. Andrew's sex life and demeanor, calling her "an attractive woman" who had cheated with Mr. Pavatt for months and who had "failed to express sorrow when questioned by the police after the shooting." The prosecution then displayed a pair of underwear from a suitcase that Ms. Andrew had taken to Mexico, asking if a "grieving widow" would wear "this."
While acknowledging that some of the evidence presented by the state was "irrelevant," the panel found the remainder of the state's evidence against Andrew to be "overwhelming."
"Andrew's provocative appearance and flirtatious behavior couldn't rationally bear on whether she had plotted to kill her husband," the court mused, also finding evidence of prior affairs and her choice of packed underwear on a trip not germane to her guilt or innocence.
Meanwhile, the panel said "evidence of demeanor could bear on guilt," a reference to how Andrew acted immediately after the shooting.
Taking the entirety of the sex-shaming claims into account — and largely agreeing with Andrew that those claims should not have been made — the appeals court quickly dispensed with their impact on the jury trial itself, saying the state offered 24 other proper pieces of evidence directly bearing on her guilt.
"On remand, Ms. Andrew hasn't challenged the existence or strength of this evidence of guilt," the appeals court noted.
Notably, however, Andrew did attempt to address some of those claims in a supplemental briefing, the court explains in a footnote. But those arguments are again tersely dismissed because "the Supreme Court's opinion did not address these claims and Ms. Andrew hasn't argued that they remain viable on remand."
Now, barring a request for en banc review — which would be highly unusual, though not impossible — Andrew will have to place her fate in the Supreme Court once again. That battle starts with Gorsuch, who handles petitions for writs of certiorari from the 10th Circuit.
And such an effort is likely to be an uphill climb.
Last year, while a majority of the justices saw some merit in Andrew's sex-shaming claim, Gorsuch signed onto a dissent authored by Justice Clarence Thomas that flatly rejected the argument.