Brief of Two Organizations and Twelve Scholars as Amici Curiae in Support of Petitioner

Document Type

Amicus Brief

Publication Date

10-29-2026

Case Name

Brenda Evers Andrew v. Kelsey Fisher, Warden

Abstract

INTRODUCTION AND SUMMARY OF ARGUMENT

This Court is already familiar with the irrelevant, sexualized evidence that pervaded Ms. Andrew’s prosecution and sentencing. Less than two years ago, it took the rare step of summarily vacating the Tenth Circuit’s judgment in this very case. The Court recognized that “[t]he State spent significant time at trial introducing evidence about [Ms.] Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant.” Andrew v. White, 604 U.S. 86, 87 (2025) (per curiam). It held that “clearly established law provided that the Due Process Clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair.” Id. at 96. The Court then remanded with a specific charge. The Tenth Circuit was to decide, “separately for the guilt and sentencing phases,” whether a fairminded jurist could disagree that the irrelevant evidence “so infected the trial with unfairness” as to render the resulting conviction or sentence “a denial of due process.” Id. (quoting Romano v. Oklahoma, 512 U.S. 1, 13 (1994)).

Amici bring decades of legal and social-science scholarship to bear on that question. This research shows that evidence that portrays a female defendant as violating society’s expectations of wives and mothers leads jurors to see her as immoral and especially deserving of severe punishment. Women perceived to defy gender norms receive harsher sentences, up to and including death. The State’s evidence here was designed to produce exactly that effect. As one judge of the Oklahoma Court of Criminal Appeals recognized, the State’s “egregious . . . pattern” of evidence served only “to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman,” and it “trivialize[d] the value of her life in the minds of the jurors.” Andrew, 604 U.S. at 90 (quoting Andrew v. State, 164 P.3d 176, 206–07 (Okla. Crim. App. 2007) (Johnson, J., concurring in result in part and dissenting in part)).

The State spent a month casting Ms. Andrew as a hypersexual seductress and an unfit mother. Yet the Tenth Circuit panel did not ask whether that campaign rendered her sentencing fundamentally unfair. It asked instead whether the challenged evidence “coincided precisely with the central question[s] at sentencing,” and it treated those questions as limited to whether the State had proven the statutory aggravating circumstances. Andrew v. Tinsley, 164 F.4th 789, 804 (10th Cir. 2026) (emphasis added) (quoting Buck v. Davis, 580 U.S. 100, 121 (2017)). Because the inflammatory sexual evidence was irrelevant to the prosecution’s case, see, e.g., id. at 799; Andrew, 164 P.3d at 192, the Tenth Circuit panel concluded that “a fair-minded jurist could reasonably conclude that the challenged evidence hadn’t infected the sentencing proceedings.” Tinsley, 164 F.4th at 804. But the fact that the sex-stereotyping evidence was presented to the jury despite its admitted irrelevance is precisely the problem; if the State had only introduced relevant, non-prejudicial evidence, the instant petition would not be before this Court.

The panel’s test is the result of a misreading of this Court’s decision in Buck v. Davis and produces a perverse result. The more irrelevant and inflammatory the evidence, the less likely it is to “coincide” with any statutory question, and thus, under the Tenth Circuit’s test, the less likely it is to be legally prejudicial. Under that framework, the due process protection recognized in Payne v. Tennessee, 501 U.S. 808 (1991), would rarely, if ever, apply where it is needed most.

The panel’s reasoning also ignores what a capital sentencing jury actually decides. A capital jury does not stop at finding aggravators. It must make an individualized moral judgment about whether the person before it deserves to live. See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion). Evidence of Ms. Andrew’s sexual history, her allegedly provocative clothing, and her motherhood goes to the heart of that sentencing decision.

If even the extreme gender-based stereotyping in this record cannot render a sentencing fundamentally unfair unless it maps directly onto an element or aggravating factor, the consequences reach well beyond Ms. Andrew. Prosecutors would be free to invite juries to sentence women to death for “who they are” rather than for “what they do.” Buck, 580 U.S. at 123.

This Court has not hesitated to intervene a second time when a lower court on remand fails to give effect to its decision in a capital case. See Moore v. Texas, 586 U.S. 133 (2019) (per curiam). It should do so again here. The Court should grant the petition for two reasons. First, granting would ensure that the protection this Court recognized in Andrew v. White is applied as the Court directed. Second, it would allow the Court to make clear that unduly prejudicial evidence grounded in sex-based stereotypes—as with evidence grounded in racial stereotypes, Buck, 580 U.S. at 123—must be assessed for its effect on the jury’s ultimate decision: whether the defendant should live or die.

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