Brenda Andrew, the only woman on Oklahoma's death row, is again asking the Tenth Circuit to consider whether gender bias and misogyny in her 2004 murder trial violated her constitutional right to a fair trial, her attorneys confirmed on Tuesday.

In a petition seeking a rehearing filed on Monday, attorneys for Andrew asked the court to abide by a January 2025 per curiam ruling in which the U.S. Supreme Court found the Tenth Circuit "was wrong" in determining she had no legal path to obtain federal habeas corpus relief based on those claims.

With that ruling, the Supreme Court vacated the judgment and remanded after rejecting the Tenth Circuit's conclusion that there was no "clearly established federal law" prohibiting the admission of sex-based stereotyped evidence at trial.

On Jan. 13 of this year, a Tenth Circuit panel again denied Andrew federal habeas relief, holding that — even assuming some of the prosecution's sex-stereotyping and promiscuity evidence was irrelevant — a fair-minded jurist could still agree with the Oklahoma Court of Criminal Appeals that her trial was not so prejudiced as to violate due process under federal habeas law's highly deferential standard.

In the petition, the attorneys asked the appellate court to again review the case, saying the panel failed to consider the breadth and cumulative effect of crucial evidence in her case. They also argued the Tenth Circuit disregarded the high court's instructions to assess whether Andrew, who was sentenced to death for orchestrating the 2001 shooting death of her estranged husband, received a fair trial.

"For the second time, the panel's overly parsimonious adjudication of the due process violation at the heart of her capital trial violates Supreme Court jurisprudence — including the very decision remanding this case," says the petition, which asks for a rehearing either by the same panel or by the full court.

Andrew was convicted of first-degree murder and conspiracy to commit murder, and sentenced to death for conspiring to kill her husband, Rob Andrew, for financial gain tied in part to life insurance proceeds. The boyfriend, James Pavatt, later admitted that he shot Rob Andrew — though prosecutors maintained Brenda Andrew was a co-conspirator.

Prosecutors relied on a broad circumstantial case centered on financial motive tied to life insurance proceeds, accusations of premeditated planning and forensic evidence surrounding the killing.

But Andrew's legal team argues the state also "saturated" the trial with irrelevant and inflammatory evidence about her sexual history, demeanor and appearance to portray her as an unfaithful, promiscuous woman and failed mother who deserved the death penalty.

Prosecutors called witnesses to discuss everything from old relationships to revealing outfits, displaying thong underwear in court and even calling her slurs like "slut puppy."

The core issues of Andrew's habeas case became whether those tactics transformed the proceedings into what critics described as a referendum on Andrew's conformity to gender expectations rather than a fair adjudication of guilt. Legal scholars and advocates argued the prosecution exploited stereotypes about what a "good wife" or "good mother" should be, using moral condemnation to dehumanize her before jurors.

"It should be troubling to folks the way sex-based stereotyping was used to obtain a conviction and death sentence," John R. Mills of Phillips Black, who represents Andrew, told Law360 on Tuesday. "The way a person styles their hair or wears the kind of underwear they wear doesn't say much about whether they killed somebody. But that's what she was convicted on the basis of."

In its ruling in January, the Tenth Circuit addressed only the surviving due process claim centered on sex-stereotyping evidence, while declining to revisit other previously litigated claims, including that investigators violated her Miranda rights and that the trial court excluded witness statements that could have been exculpatory.

Citing its own 2020 ruling in Wellmon v. Colo. Department of Corrections , the Tenth Circuit said it reviewed the reasonableness of the Oklahoma Court of Criminal Appeals' ruling in Andrew's case by looking solely at the arguments she raised there.

While finding that some of the sexual evidence presented at trial was irrelevant, the Tenth Circuit concluded — like it did in 2023 when reviewing Andrew's habeas claims for the first time — that the strength of the properly admitted evidence against her outweighed the possible prejudice she suffered because of the introduction of gendered material at trial.

Mills said the Tenth Circuit failed to follow the Supreme Court's remand by conducting only a "partial" review, excluding significant portions of the sex-stereotyping evidence and failing to holistically assess whether Andrew's trial was fundamentally unfair.

The rehearing petition systematically rebuts several of the findings in the Tenth Circuit panel's opinion, including that Andrew had waived some of her claims.

Andrew's attorneys argued in the petition that the panel downplayed how harmful the sexist evidence may have been to the jury's view of her and looked too narrowly at isolated pieces of evidence instead of asking whether the trial as a whole was fair.

For instance, the petition says, the Tenth Circuit failed to consider specific facts from the record that had raised red flags at the Supreme Court, including evidence about Andrew's alleged affairs during college and her sexual partners reaching back two decades — as well as the trial prosecutor's use of the word "slut."

The petition argues the Supreme Court's remand demanded a more thorough analysis of prejudice than the Tenth Circuit conducted in the case.

"The panel ignored the cumulative impact of errors across the trial, including the impact of guilt-phase errors on the penalty phase. This limited prejudice analysis was both unnecessary and improper," the petition says.

Andrew's attorneys asked the Tenth Circuit to either limit or overrule Wellmon altogether, describing the precedent as "flawed" and arguing it is "inconsistent" with the Supreme Court's remand instructions.

"Wellmon cannot be reconciled with the remand instructions, which required the panel to address evidence that the panel held was beyond its reach because of Wellmon," the petition says. "Rehearing is required."

Andrew is represented by John Robert Mills, Meredith Huang, Nathalie Marie Greenfield, Jessica Sutton and Sarah Wishingrad of Phillips Black Inc. and John T. Carlson of Landy Leedy McGreevy & Winocur.

Warden Scott Tinsley is represented by Jennifer L. Crabb, Joshua L. Lockett and Jennifer B. Miller of the Office of the Attorney General for the State of Oklahoma.

The case is Andrew v. Tinsley, case number 15-6190, in the U.S. Court of Appeals for the Tenth Circuit.

--Editing by Philip Shea.