The Supreme Court found that prosecutors' gender bias prevented Brenda Andrew - seen here with her attorney Greg McCracken at her sentencing in 2004 - from receiving a fair trial. (AP Photo/The Oklahoman, Bryan Terry)
As she stood trial for orchestrating her estranged husband's 2001 murder, Brenda Andrew faced an uphill battle convincing an Oklahoma jury of her innocence. The evidence — ballistic, testimonial, and circumstantial — was stacked against her. A jailhouse informant even claimed Andrew had confessed to plotting with her boyfriend
But perhaps the most powerful weapon in the prosecutors' arsenal wasn't the evidence itself — it was their ability to portray her as a deviant, unfaithful woman who deserved to be executed.
To do so, they delved into her personal life, calling witnesses to testify about her extramarital affairs, displaying her thong in court, and branding her a "slut puppy."
Andrew was convicted of first-degree murder and conspiracy to commit murder, with aggravating factors that the crime was committed for financial gain and was especially cruel. She was sentenced to death in 2004 and has remained on death row ever since, maintaining her innocence.
More than 20 years later, on Jan. 21, the U.S. Supreme Court ruled that the prosecution's use of sex-shaming and gender stereotyping in Andrew's case prejudiced her jury, undermining her right to a fair trial.
The justices said that, at the time an Oklahoma state court upheld Andrew's conviction and sentence, legal precedent had already established that the due process clause of the 14th Amendment "forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair."
Andrew's attorney, John R. Mills of Phillips Black, said the ruling was "historic" because it marked the first time the Supreme Court recognized that gender bias and sexual stereotyping wielded against a criminal defendant can violate due process — a precedent that can affect all criminal defendants, not just people in capital cases, and not just women.
The ruling has an additional impact: it broadens prisoners' ability to access federal habeas corpus at a moment when it is increasingly restricted.
Just as the ruling could now upend numerous ongoing and concluded criminal prosecutions, the case involving Andrew, the only woman currently on death row in Oklahoma, serves as a prism into the gender-based prejudices that some legal experts say are pervasive in the justice system.
"What makes Brenda's case unique, but what makes it emblematic of broader patterns of bias and oppression, is the focus on her character, and in particular the gendered aspects of her character," Cornell Law School professor Sandra Babcock told Law360.
In a study looking at the trial transcripts of all women who were sentenced to death between 1990 and 2022 — 48 in total — Babcock and two fellow scholars pinned down "numerous" instances in which gender bias creeped into their proceedings. Some transcripts pointed to invasive, even graphic, lines of questioning, as well as judges' willingness to allow them.
During the trial of one of those women, for instance, prosecutors speculated as to whether she needed to use lubricant before she had sex with various men.
"Prosecutors do talk about women's sex lives. They talk about whether they've had abortions, they talk about the number of sex partners they've had, and they talk about the clothing that they wear," Babcock said. "That is reflective of deep-seated gender bias in our society."
Different Types of Gender Bias
Through her study, Babcock found that in their efforts to swing juries in favor of convicting and sentencing women to death, prosecutors appealed to different forms of gender bias. Two of them — hypersexualization and failure to be a good mother — are exemplified in Andrew's case, she said.
To justify the death sentence, Andrew's prosecutors argued she had a motive: a plan to cash in on Robert Andrew's life insurance and flee to Argentina with her boyfriend and children.
At trial, Fern Smith, the lead prosecutor, fleshed out an image of Andrew as an unfaithful, promiscuous woman by eliciting detailed testimony from witnesses about where she had sex, what she was wearing, how much skin she was showing, and how she was flirting.
Men testified of their sexual affairs with Andrew. One of them, a grocery store worker named James Higgins, talked about Andrew's low-cut tops, short skirts and described how she flirted with him in front of her son. Prodded by Smith's questions, Higgins went on to say he had sex with Andrew many times in her car. And to portray Andrew as deviant, Smith focused on her demeanor after her husband's death.
"The grieving widow packs this to run off with her boyfriend," Smith sarcastically told the jurors, holding up her thong.
"Does a good mother take their children and flee to Mexico, take them out of school and flee to Mexico when their father is lying in a coffin in a funeral home?" Smith asked rhetorically. "Brenda Andrew wasn't emotional three hours after she murdered Rob Andrew. That's because she's different."
Babcock said her research shows that prosecutors often turn defendants' womanhood against them by invoking social expectations of women's behavior, and showing how female defendants stray from them.
While society tends to forgive men for being attracted to women or for being attractive, as well as for having multiple sexual partners or having sex outside of relationships, women are often demonized for the same behaviors — and this dynamic plays out in criminal prosecutions, Babcock said
And when they don't play up a woman's sexuality, prosecutors use the opposite approach: They try to "defeminize" female defendants or portray them as more dangerous and deserving of the death penalty, for instance by focusing on their failures as partners and mothers.
Andrew's case is just one example of how prosecutors weaponize gender norms to push for the death penalty. Kerry Dalton, a woman on death row in California whose five children were all raised by other people, faced a similar strategy, though instead of being condemned for promiscuity, she was vilified for failing as a mother. During closing arguments, a male prosecutor justified the death penalty by arguing that "nothing will turn this woman around, not even carrying her own child. ... That's the type of person to be punished."
Babcock said that gender bias often intersects with other forms of prejudice, including racial discrimination.
Black women are particularly vulnerable to moral judgment based on how their identity veers away from preconceived ideas of femininity, Babcock said. For instance, in a case involving a Black woman, prosecutors said at trial that "she may be a woman, but she's no lady."
"The feminine ideal in the United States is deeply rooted in culture. It has always been racialized, and Black women have always been treated as less feminine, more inclined to be aggressive, more inclined to be violent," Babcock said. "Black girls tend to be adultified earlier than white girls — treated as older than they are — and more criminally responsible."
In two other death penalty cases Babcock researched, prosecutors appealed to racial bias when they pointed out at trial that the defendants, white women, had sex with men of color.
The highlighted sections of this court transcript from Andrew's 2004 murder trial show the gendered bias called out by the Supreme Court in ordering her conviction and sentence to be reviewed.
Gender Bias Plays A Part In Wrongful Convictions
Valena Beety, a professor at Indiana University Bloomington's Maurer School of Law and a former litigator focused on exoneration, said the justice system has become increasingly hostile toward women, mothers, and LGBTQ+ people. Recently enacted criminal laws, she noted, have even used their identities as aggravating factors in prosecutions
According to the National Registry of Exonerations, in about 73% of the cases in which women were exonerated in the past three decades, there was ultimately no crime found to have been committed at all. In comparison, only 37% of exonerated men were convicted of crimes that did not happen. Exonerations can happen for a number of reasons, such as official misconduct, fabricated evidence and false confessions among others. One key factor in these wrongful convictions is reliance on forensic sciences that were found to be inaccurate, such as studies of bite marks, blood spatter, and even autopsies. Another major factor, Beety said, is gender stereotyping.
"How does someone get convicted where there was no crime?" Beety said. "It's faulty science and gender bias."
The case of Kristine Bunch, an Indiana woman who spent 17 years in prison after being wrongfully convicted of murder by arson, illustrates how these factors can intersect. Bunch was charged after a state arson investigator concluded that the 1995 fire that killed her three-year-old son had been set intentionally.
At trial, a forensic analyst with the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives corroborated the theory that Bunch used an accelerant to spark the blaze. Then, in 2012, a court reversed her conviction, finding that advancements in fire science constituted new evidence warranting a retrial. The court also found that ATF had withheld documents contradicting the agency's trial testimony, violating the U.S. Supreme Court's 1963 ruling in Brady v. Maryland, which requires prosecutors to disclose any potentially exculpatory evidence to the defense.
While faulty fire science and the Brady violation were crucial in securing Bunch's conviction, so was trial testimony portraying her as a bad mother, Beety said.
"This is kind of how women get wrongfully convicted," she said. "You shouldn't be convicted based on who you are, but instead based on what you've done."
Gender bias doesn't just shape courtroom narratives—it can also influence how women are interrogated, sometimes leading to coerced confessions.
The case of Melissa Lucio, a Texas woman sentenced to death in 2008 for the death of her 2-year-old daughter, Mariah Alvarez, offers a stark example.
By the numbers
The Role of Gender in Death Row Cases
A Cornell School of Law study of women sentenced to death between 1990 and 2022 found that women are almost always prosecuted, tried and represented by men.
96%
were prosecuted under a male district attorney
88%
were tried before a male judge
69%
were defended by all-male defense teams
Source: Women on Death Row in the United States (2024), by Sandra Babcock, Nathalie and Greenfield, and Kathryn Adamson.
During the initial police investigation, officers relied on a doctor's statement concluding that Mariah's injuries were the result of abuse to pressure Lucio into a confession. After repeated interrogations, she eventually admitted to the killing.
"She finally breaks down," Beety said. "Melissa herself is a survivor of domestic violence. Her partner, at the time, was abusive to her… That makes her particularly susceptible to capitulating to law enforcement. She has five male investigators who are interrogating her, so it makes her more vulnerable to conceding what they want her to concede."
Beety, who was among the scholars who filed a friend-of-the-court brief in support of Andrew, said the same 'bad mother' narrative is at play in her case. However, it is further compounded by other gender-biased tropes—such as having extramarital affairs, being flirty, and wearing revealing outfits
While not suggesting that Andrew was wrongfully convicted, Beety said other prosecutions of women who were convicted of heinous crimes and later exonerated also focused on the same kind of "deviant woman" stereotype used against her. Historical research of death penalty prosecutions going back to 1632 — the year of the first recorded execution of a woman — adultery was used as evidence against at least 42 women, despite it having no direct connection to the crime they were charged with.
"Some prosecutors continue to use the 'evil woman' tactic for a simple reason: it works," the brief says.
Prosecutors' Biases Are Not Just About Women
Research on capital prosecutions involving female defendants suggests that it is harder for juries to sentence a woman to death than it is for a man.
Ethan Rice, an attorney with Lambda Legal, a nonprofit advocating for LGBTQ rights, said that for jurors to sentence a woman to death, they must view her as evil and fundamentally at odds with their expectations of her sexuality.
Rice said that similar biases rooted in societal norms about sexuality have impacted LGBTQ defendants, citing past cases where jurors or prosecutors used stereotypes to justify severe sentences.
While urging a jury to impose the death penalty on Calvin Burdine, a Texas gay man convicted in 1984 of killing his male sex partner, prosecutor Ned Morris said that "sending a homosexual to the penitentiary certainly isn't a very bad punishment for a homosexual" and adding that a prison sentence would have been like "paradise" for him.
Similarly, as jurors debated whether life in prison or execution was the appropriate sentence for Charles Rhines, who was convicted of stabbing a former coworker to death during a 1992 burglary, some suggested that, because he was gay, Rhines would enjoy being incarcerated with other men. Despite repeatedly raising the issue of anti-LGBTQ bias on appeal, he was ultimately executed by lethal injection in 2019.
Rice, who authored a Lambda Legal amicus brief in support of Rhines, said the bias seen in his case was a recurring issue in capital cases during the 1990s and early 2000s — and that it continues to surface in criminal cases today.
"We do see, unfortunately, a lot of bias in LGBTQ+ cases," Rice said. "We tend to find out about those cases in post-conviction."
The Supreme Court's recent ruling in the Andrew case, Rice said, is significant because it reaffirms that prejudicial, irrelevant evidence — such as gender or sexuality-based attacks — can render a trial unfair under the 14th Amendment's Due Process Clause.
Rice noted that prosecutors in Andrew's appeal admitted some of the evidence used against her was irrelevant, yet earlier courts still upheld her conviction. The Supreme Court's decision to send the case back to the lower court could lead to a new trial if the court finds the prejudicial evidence made her trial fundamentally unfair.
"People should know that the Constitution does protect against actions from the state that tries to perpetuate this kind of identity-based, or gender stereotypes," he said
Beety said the Andrew ruling goes well beyond simply addressing gender bias. The court, she said, clarified that any prejudicial evidence can now be excluded at trial — meaning that the defense can object to it, or a judge can dismiss it voluntarily. As such, the ruling could serve as a basis for challenging pending and concluded criminal cases where irrelevant evidence was used by prosecutors.
"The ruling absolutely affects every single case," she said. "That's fundamental."
--Graphics by Jason Mallory and Ben Jay.
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