Brenda Andrew, the sole woman on Oklahoma’s death row, is pinning her hopes for clemency on U.S. Supreme Court Justice Neil Gorsuch.

Brenda was convicted in 2004 for the murder of her husband, Rob Andrew, who was 39 at the time. Prosecutors argued that she, along with her then-lover James Pavatt, orchestrated the killing to collect an $800,000 life insurance policy. Both Andrew, now 62, and Pavatt, now 72, received death sentences.

Throughout her legal battles, Andrew has consistently claimed innocence. Her legal team has put forth a unique argument, suggesting that she was unjustly condemned due to being “sex-shamed” during her trial.

The Cornell Law School’s Center on the Death Penalty highlights how prosecutors presented male witnesses who depicted Brenda as a promiscuous woman, driven by sexual desires. This included testimony about her attire, with one witness describing a dress that was tight and revealing, while another commented on her “sexy” and “provocative” clothing choices.

In January 2025, the U.S. Supreme Court offered Andrew a temporary stay, agreeing to examine whether her trial unfairly scrutinized her personal life, potentially breaching her constitutional right to 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.