DENVER (CN) - On remand from the U.S. Supreme Court, the 10th Circuit on Tuesday affirmed the murder conviction of a woman who claimed Oklahoma prosecutors slut-shamed her onto death row for the 2001 murder of her husband.

"Following the Supreme Court's instructions, we have considered the relevance of the evidence challenged by Ms. Andrew, the degree of prejudice to her and the trial court's failure to provide mitigating instructions about the evidence," wrote U.S. Circuit Judge Robert Bacharach in a 32-page opinion. "We conclude that a fair-minded jurist could doubt infection of the trial with unfairness. As a result, we uphold the denial of habeas relief."

An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob, on Nov. 20, 2001. Although it was Andrew's lover, James Pavatt, who shot and killed Rob, prosecutors convinced the jury that Pavatt was acting on Andrew's behalf.

Andrew was also shot in the attack, which Oklahoma prosecutors argued was staged to evade her culpability.

After failing to convince the Oklahoma Court of Criminal Appeals, Andrew applied for federal habeas relief, which was rejected, prompting her to appeal to the 10th Circuit. The 10th Circuit initially reviewed claims including improper use of sexual evidence and exclusion of defense witnesses before affirming the federal court's dismissal of her case in 2023.

The U.S. Supreme Court revived Andrew's case in January 2025, ordering the 10th Circuit to reconsider her appeal on the basis of unlawful gender stereotyping.

In a per curiam order, the high court found statements about Andrew's sex life and her apparent "failings as a mother and wife" could have been so prejudicial that the state violated her due process and rendered the trial fundamentally unfair.

In addition to calling two lovers to testify during the state trial, prosecutors called in five people to tell jurors that Andrew "dressed sexy [with] short skirts, low-cut tops." Other witnesses called her a "hoochie," speculated that she skinny-dipped in her hot tub and even claimed Andrew dyed her hair red after learning that another woman's husband preferred the color.

Prosecutors also referred to Andrew as a "slut puppy" for having an affair with a married man and showed the jury her underwear, arguing "a grieving widow doesn't pack her thong underwear and run off with her boyfriend."

Following the Supreme Court's order, the 10th Circuit heard oral argument in Oklahoma City over the summer, but remained unconvinced that Andrew was entitled to federal relief under its narrow ability to review the case.

"In our appeal, Ms. Andrew challenges the introduction of evidence that she didn't challenge in the state court appeal," Bacharach wrote. "In the state court appeal, for example, she didn't mention evidence about her use of 'foul' language, her skinny-dipping in a hot tub, Mr. Pavatt's holding his face within inches of Ms. Andrew's, Ms. Andrew's relationship with another man in college, Ms. Andrew's attractiveness, her blank demeanor when questioned at the police station or characterization of her as a 'slut puppy.'"

Bacharach said the state court of appeals couldn't have erred for not considering evidence Andrew didn't introduce.

"The Oklahoma Court of Criminal Appeals relies on the evidence identified by the parties rather than search the record to find support for a defendant's claim. We can't fault the Oklahoma court for this approach because we do the same thing," Bacharach said.

The 10th Circuit also found the state court of appeals had properly considered other evidence of Andrew's guilt, including that she told people she hated her husband, had forged his signature on a life insurance policy and had previously tried to cut the brakes on his car.

Ultimately, the federal appeals panel concluded, even if prosecutors did gender stereotype Andrew before the jury, the jury was instructed to weigh all of the evidence, in which the slut-shaming played a minor role.

"We thus conclude that the alleged stereotyping did not substantially undermine the fundamental fairness of the trial," wrote Bacharach, who was appointed by Barack Obama.

U.S. Circuit Judge Harris Hartz, a George W. Bush appointee, signed onto the majority opinion while Obama-appointed U.S. Circuit Judge Gregory Phillips added a four-page concurring opinion.

A spokesperson for the Oklahoma Attorney General's Office applauded the decision.

"We are pleased with the court's decision. Her execution will be requested by the Attorney General's Office after all appeals are exhausted," press secretary Leslie Berger told Courthouse News over email.

Andrew's attorney, John Mills of the Oakland firm Phillips Black, declined to comment.

Source: Courthouse News Service