Amicus Curiae Brief — Crosley Alexander Green, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections, et al.

No. 22-686

In the

Supreme Court of the United States

CROSLEY ALEXANDER GREEN,

Petitioner,

v.

RICKY DIXON, SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS, ASHLEY MOODY,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of A ppeals

for the Eleventh Circuit

BRIEF FOR PROFESSORS OF CRIMINAL LAW,

CRIMINAL PROCEDURE, AND CONSTITUTIONAL LAW

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Dexter Hamilton

Counsel of Record

Michael Broadbent

Philip J. Farinella

K amille Perry

Emily Yu

Cozen O’Connor

One Liberty Place

1650 Market Street, Suite 2800

Philadelphia, Pennsylvania 19103

(215) 665-2000

dhamilton@cozen.com

Counsel for Amici Curiae

319209

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTERESTS OF AMICI . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE WRIT . . . . . . . . . . 4

I.

The Court should grant certiorari because

the Eleventh Circuit’s approval of the state

court’s materiality analysis under Brady

creates the illusion of uncertainty regarding

the impact of inadmissible evidence . . . . . . . . . . . 4

II. Adopting an admissibility threshold for

Brady materiality is inconsistent with this

Court’s decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Withheld evidence is “evidence” even

if it is not admissible . . . . . . . . . . . . . . . . . . . 9

B. The purported admissibility test

has no governing standard, further

proof that it is in violation of clearly

established law and that it w ill

create confusion and difficulty if

permitted to stand . . . . . . . . . . . . . . . . . . . 11

ii

Table of Contents

Page

C. An admissibility test undermines

Br a d y t h r ou gh a n u nwork able

standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

III. T he Elevent h Ci r c u it ’s e x hau st ion

analysis must be rev iewed to br ing

uniformity and fairness to federal court

review of habeas petitions . . . . . . . . . . . . . . . . . . 16

IV. The Eleventh Circuit’s decision misapplies

and undermines critical principles of

federalism that this Court must address . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Alcorta v. Texas,

355 U.S. 28 (1957) (per curiam) . . . . . . . . . . . . . . . . . 15

Baldwin v. Reese,

541 U.S. 27 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Banks v. Dretke,

540 U.S. 668 (2004) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Bradley v. Nagle,

212 F.3d 559 (11th Cir. 2000), cert. denied,

531 U.S. 1128 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,

. . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14, 15, 16, 19, 21

Bray v. Andrews,

640 F.3d 731 (6th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 18

Brown v. Davenport,

142 S. Ct. 1510 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Coningford v. Rhode Island,

640 F.3d 478 (1st Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 18

Dennis v. Sec’y, Pa. Dep’t of Corrs.,

834 F.3d 263 (3d Cir. 2016) . . . . . . . . . . . . . . . . . . . . 3, 5

iv

Cited Authorities

Page

Evans v. Ct. of Common Pleas,

959 F.2d 1227 (3d Cir. 1992) . . . . . . . . . . . . . . . . . . . . 18

Ex parte Royall,

117 U.S. 241 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Giglio v. United States,

405 U.S. 150 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Gordon v. Braxton,

F.3d 196 (4th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . . . 18

Gray v. Netherland,

518 U.S. 152 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Green v. Sec’y, Dep’t of Corr.,

28 F.4th 1089 (11th Cir. 2022) . . . . . . . . . . . . . 5, 12, 19

Harrington v. Richter,

562 U.S. 86 (2011) . . . . . . . . . . . . . . . . . . . . . . 12, 20, 21

Hernandez v. New York,

500 U.S. 352 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Hoke v. Netherland,

92 F.3d 1350 (4th Cir. 1996) . . . . . . . . . . . . . 6, 7, 12, 13

Honie v. Powell,

58 F.4th 1173 (10th Cir. 2023) . . . . . . . . . . . . . . . . . . . 19

v

Cited Authorities

Page

Jardine v. Dittmann,

658 F.3d 772 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . 6, 13

Kelly v. Trickey,

844 F.2d 557 (8th Cir. 1988) . . . . . . . . . . . . . . . . . . . . 18

Kyles v. Whitley,

514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . 4, 11, 16

Lucio v. Lumpkin,

987 F.3d 451 (5th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 18

Madsen v. Dormire,

137 F.3d 602 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 7

Martinez v. State,

761 So. 2d 1074 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . 12

Mooney v. Holohan,

294 U.S. 103 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Picard v. Connor,

404 U.S. 270 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Rosa v. McCray,

396 F.3d 210 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 18

Rose v. Lundy,

455 U.S. 509 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vi

Cited Authorities

Page

Schmidt v. Foster,

911 F.3d 469 (7th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 18

State v. Cousin,

710 So. 2d 1065 (La. 1998) . . . . . . . . . . . . . . . . . . . . . 14

State v. Moore,

969 So. 2d 169 (Ala. Crim. App. 2006) . . . . . . . . . . . 14

Teague v. Lane,

489 U.S. 288 (1989), overruled in part on

other grounds by Edwards v. Vannoy,

141 S. Ct. 1547 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Agurs,

427 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16

United States v. Bagley,

473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 16

United States v. Morales,

746 F.3d 310 (7th Cir. 2014) . . . . . . . . . . . . . . . . 7, 8, 10

Walden v. Shinn,

990 F.3d 1183 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . . 19

Wood v. Bartholomew,

516 U.S. 1 (1995) (per curiam) . . . . . 3, 5, 6, 7, 9, 10, 11

vii

Cited Authorities

Page

STATUTES

Antiterrorism and Effective Death Penalty Act

of 1996, U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . 1, 20, 21

28 U.S.C. § 2254(b)(1)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Fla. Stat. § 90.104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Fla. Stat. § 90.402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

RULES

Fed. R. Evid. 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Fed. R. Evid. 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

OTHER AUTHORITIES

Abigail B. Scott, Comment, No Secrets Allowed: A

Prosecutor’s Obligation to Disclose Inadmissible

Evidence, 61 Cath. U. L. Rev. 867 (2012) . . . . . . . . . . 8

Brian D. Ginsberg, Always Be Disclosing:

The Prosecutor’s Constitutional Duty to

Divulge Inadmissible Evidence, 110 W. Va.

L. Rev. 611, 623–35 (2008) . . . . . . . . . . . . . . . . . . . . . . 8

Jeremy Bentham & Etienne Dumont, A Treatise

on Judicial Evidence 230 (1825) . . . . . . . . . . . . . . . 10

viii

Cited Authorities

Page

N at ’ l R egi s t ry of E xon er at ions , A n n ua l

R eport (Apr. 12, 2022), https://w w w.law.

umich.edu/special/exoneration/Documents/

NRE%20Annual%20Report%202021.pdf . . . . . 15, 16

Noa m Bi a le , Be yo n d A Re a s o n a bl e

Disagreement: Judging Habeas Corpus,

83 U. Cin. L. Rev. 1337, 1375 (2015) . . . . . . . . . . . . . 20

Thomas Jefferson, President, First Inaugural

Address (Mar. 4, 1801), in Founders Online,

Nat’l Archs., https://founders.archives.gov/

documents/Jefferson/01-33-02-0116-0004 . . . . . . . . 17

The Federalist No. 84 (Alexander Hamilton) . . . . . . . 17

1

INTERESTS OF AMICI

In accordance with Supreme Court Rule 37, amici

respectfully submit this brief in support of the Petition

for Writ of Certiorari filed by Petitioner Crosley Green.1

Amici curiae are academics who focus on criminal

law, criminal procedure, constitutional law, and related

fields. (A list of the amici curiae is attached as Appendix

A.) Their principal interest in this case is the proper

application of Brady v. Maryland, 373 U.S. 83 (1963) and

its progeny, including the application of Brady vis-à-vis

the review requirements adopted by and as a result of

the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), 28 U.S.C. § 2254. Amici are concerned

that the Eleventh Circuit’s decision is a departure from

this Court’s guidance on prosecutorial suppression,

due process, and post-conviction review that will lead

to inconsistent and constitutionally erroneous results

if allowed to stand. Amici therefore write to provide a

historical and jurisprudential overview of key questions of

materiality, exhaustion, and federalism, and, importantly,

to encourage this Court to grant certiorari to bring clarity

to the issues presented by Mr. Green.

1. Pursuant to Rule 37.2, all parties received timely notice

of the intent to file this brief. In accordance with Rule 37.6, Amici

note that no counsel for any party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

one other than counsel for Amici made a monetary contribution

to the preparation and submission of this brief.

2

SUMMARY OF ARGUMENT

In Brady v. Maryland, 373 U.S. 83 (1963), this Court

adopted a framework for identifying and correcting

violations of the due process disclosure requirements

imposed on criminal prosecutors, whose “role transcends

that of an adversary.” United States v. Bagley, 473 U.S.

667, 675 n.6 (1985). Under Brady, a new trial is required

if the prosecution withholds material evidence that is

favorable to the defendant. Over the last sixty years,

this Court has continued to refine the Brady analysis by

establishing the standards to be applied in review of claims

of prosecutorial suppression. Congress has spoken as well,

enacting the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”) to address the post-conviction

review process and the critical relationship between state

and federal courts with respect to claims of constitutional

violations. Mr. Green’s Petition for Writ of Certiorari

raises important questions regarding Brady, AEDPA,

and the related underlying principles of federalism. This

Court should address those questions now by granting

certiorari.

As Mr. Green argues, the Eleventh Circuit’s decision

creates a circuit split on the specific issue here—i.e.,

whether a state court can end the materiality analysis

under Brady once it finds that the evidence at issue is

not admissible. Ignoring clearly established precedent,

the Eleventh Circuit found no error in the Florida

court’s decision to end its Brady materiality analysis

after it concluded that the evidence at issue was not

admissible. In contrast, the Third Circuit recognized

that Pennsylvania courts had erred in concluding that

admissibility is a threshold requirement for materiality.

3

Dennis v. Sec’y, Pa. Dep’t of Corrs., 834 F.3d 263, 30711 (3d Cir. 2016). Both circuit courts relied on Wood v.

Bartholomew, 516 U.S. 1 (1995) (per curiam), in which

this Court examined the materiality of inadmissible

polygraph evidence. Importantly, however, there is no

meaningful disagreement amongst the circuits over the

interpretation of Wood, which clearly established the

rule that admissibility was not a threshold question for

materiality. In fact, Wood included an analysis of “the

effect of suppressing the polygraph results, despite their

uncontroverted inadmissibility.” Dennis, 834 F.3d at

308. This Court has not changed the law in the nearly

thirty years since Wood was decided, and the Eleventh

Circuit should have recognized the Florida state court’s

error in ignoring this Court’s established precedent

on admissibility. Given the Court’s guidance on this

issue, the Eleventh Circuit should not have endorsed

the state court’s use of an unworkable and problematic

admissibility standard that contradicts the meaning of

the word “evidence” under Brady and runs contrary to

the approach in Wood and other decisions by this Court.

Mr. Green’s petition also invites consideration of

the exhaustion requirements under AEDPA, and the

Court should address this issue as well. Federal courts

throughout the country have applied different tests for

determining whether the state court had an opportunity

to address post-conviction claims without intervention by

the federal courts, but none of those tests have required

petitioners to plead their federal claim in substantially

the same way throughout the entirety of the state-court

process, as the Eleventh Circuit did here. In so holding,

the Eleventh Circuit has adopted a rule that allows and

encourages federal courts to ignore the state court’s own

4

conclusion that a specific claim had been exhausted. The

Eleventh Circuit’s disregard of the Florida court’s finding

that Mr. Green addressed his Brady claim in his first

post-conviction motion, and that the claim was affirmed

on appeal to the Florida appellate court, subverts the

principles of federalism underlying AEDPA.

For these reasons, and as further argued herein,

amici urge the Court to grant certiorari to address all

of the questions presented by Mr. Green’s petition.

REASONS FOR GRANTING THE WRIT

I.

The Court should grant certiorari because the

Eleventh Circuit’s approval of the state court’s

materiality analysis under Brady creates the

illusion of uncertainty regarding the impact of

inadmissible evidence.

In Brady v. Maryland, this Court held that a new

trial is required if the prosecution suppresses material

evidence that is favorable to the defendant. 373 U.S. 83,

87 (1963). As Brady doctrine has evolved, suppressed

evidence in criminal cases has been evaluated in terms

of materiality, such that it has come to serve both as a

threshold standard and as a necessary element to prove

harm. E.g., United States v. Agurs, 427 U.S. 97, 104 (1976).

The Brady doctrine is not a matter of ethics, although such

obligations do exist. 2 The prosecutor has a “constitutional

2. In Kyles v. Whitley, 514 U.S. 419 (1996), this Court

compared the burden of establishing materiality for purposes of

Brady and the standards imposed on prosecutors by the American

Bar Association. See id. at 436–37 (explaining that “the rule in

Bagley (and, hence, in Brady) requires less of the prosecution than

5

duty of disclosure” that is “based on the requirement

of due process,” and the Brady doctrine is designed

to identify and correct violations of that constitutional

requirement. United States v. Bagley, 473 U.S. 667, 675

(1985) (citation omitted).

The Eleventh Circuit’s materiality analysis endorses

and imposes an admissibility threshold that does not

appear in this Court’s jurisprudence on prosecutorial

disclosure and suppression. The court declared, “the

State’s nondisclosure of the officers’ opinion was

immaterial—it would have been of no demonstrable

benefit to the defense . . . [b]ecause the opinions of Rixey

and Clarke were not admissible under state law.” See

Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1139 (11th

Cir. 2022) (citing Wood v. Bartholomew, 516 U.S. 1, 6–7

(1995)). Clarifying its restrictive view on materiality, the

Eleventh Circuit declared that the officers’ opinions were

“not ‘evidence’ at all.” Id.

This decision creates a circuit split on the specific issue

presented by Mr. Green: whether a state court can end

the materiality analysis under Brady once it finds that

the evidence at issue is not admissible. Compare Green,

28 F.4th at 1139, with Dennis v. Sec’y, Pa. Dep’t of Corrs.,

834 F.3d 263, 307–11 (3d Cir. 2016) (state court’s decision

that suppressed evidence was immaterial because it was

the ABA Standards for Criminal Justice, which call generally for

prosecutorial disclosures of any evidence tending to exculpate

or mitigate” (citations omitted)). In contrasting the burdens, the

Court indicated that Brady imposes a weaker burden than the

ABA, as Brady requires disclosure only of that evidence which

is “material” and not all evidence that merely “tends” to negate

guilt or punishment. Id. at 437 (emphasis added).

6

inadmissible was an unreasonable application of clearly

established law). At first glance, the Eleventh Circuit

seems to have given life to a dormant circuit split on the

interplay between admissibility and materiality based on

this Court’s decisions in Brady and Wood. Neither Brady

nor Wood expressly requires admissibility, however, and

the Eleventh Circuit cannot avoid the impact of clearly

established law by relying on paper-thin disagreements

among the federal courts.

To be clear, the vast majority of courts of appeal that

have considered the issue of an admissibility requirement

have rejected it. See Petition for Writ of Certiorari, at 30–

33 (collecting cases). Only two circuits, the Fourth Circuit

and the Seventh Circuit, have seriously entertained

requiring that evidence be admissible in addition to being

material in order to trigger a Brady violation. See Jardine

v. Dittmann, 658 F.3d 772, 777 (7th Cir. 2011) (per curiam)

(“Logically, inadmissible evidence is immaterial under [the

Brady] rule.”); Hoke v. Netherland, 92 F.3d 1350, 1356 n.3

(4th Cir. 1996) (statements inadmissible at trial were “as a

matter of law, ‘immaterial’ for Brady purposes”). Yet, even

in Jardine and Hoke, the courts ultimately considered

other factors in determining the absence of a Brady

violation and did not rely solely on whether the evidence

sought under Brady was inadmissible. See Jardine, 658

F.3d at 777 (determining no Brady violation occurred

only after evaluating alternate ways that inadmissible

evidence could be used besides impeachment); Hoke, 92

F.3d at 1355–56 (holding that the undisclosed information

about the murder victim’s sexual history would not have

been material given overwhelming physical and other

evidence). The Eighth Circuit came close, but it too went

far beyond the admissibility threshold endorsed by the

7

Eleventh Circuit in this case. See Madsen v. Dormire,

137 F.3d 602, 604–05 (8th Cir. 1998) (recognizing the

problem of inadmissible suppressed evidence under

Wood before analyzing materiality under the assumption

that the evidence was admissible). Thus, even the courts

purporting to adopt an admissibility standard conducted

a more thorough analysis than the Florida state court

did here.

Moreover, any inconsistency in the approach to

admissibility is a circuit split in name only, and it cannot be

grounds for sowing doubt regarding the clearly established

law announced by this Court. For example, in United

States v. Morales, 746 F.3d 310 (7th Cir. 2014), the Seventh

Circuit explored the split seeming to arise out of Wood,

finding that only itself and the Fourth Circuit held the

minority view of requiring admissibility. See id. at 314–15

(“Courts on both sides of this question look for support to

the Supreme Court’s opinion in Wood . . . .”). Stopping just

short of outright reversing its prior decisions, the Seventh

Circuit nevertheless made its view clear by observing

that “the [Supreme] Court’s methodology in Wood [is]

more consistent with the majority view in the courts of

appeals than with a rule that restricts Brady to formally

admissible evidence.” Morales, 746 F.3d at 315 (“[The

defendant] would lose no matter what circuit he was in, and

so [it was] not the occasion for any such reconsideration.”).3

3. The Seventh Circuit’s analysis leaves only Hoke as

potential authority in support of the minority view, but Hoke

carries little persuasive or analytical value. 92 F.3d 1350. Issued

just ten months after Wood, the Fourth Circuit assessed the

materiality of evidence of prior sexual conduct by mirroring the

language applied by Wood to inadmissible polygraph results. See

id. at 1357–1358, 1357 n.6. Thus, despite being one of the earliest

8

In fact, Morales specifically named the Eleventh Circuit as

one of the circuits adopting the clear majority view—i.e.,

that Wood does not require admissibility. Id. at 314; see

also Dennis, 834 F.3d at 310 (noting that the Morales court

interpreted Eleventh Circuit law as applying the majority

rule); Bradley v. Nagle, 212 F.3d 559, 566–67 (11th Cir.

2000), cert. denied, 531 U.S. 1128 (2001) (admissibility of

suppressed evidence not required).

The underlying state court decisions were issued at

a time when ending the Brady materiality analysis at

admissibility was contrary to this Court’s established

law as that law was interpreted and applied by the

Eleventh Circuit itself. The Eleventh Circuit nevertheless

found that the state court had not erred by ending its

materiality analysis at the admissibility gates. Unless this

Court grants the petition and confirms that a state court

acts in contravention of clearly established precedent by

ending the Brady analysis at materiality, federal courts

will remain free to deviate from their existing precedent

to redefine clearly established law in the Brady context,

just as the Eleventh Circuit did here. Academics and law

students have found cause to comment on the inconsistent

treatment of admissibility in the Brady materiality

analysis for many years. See, e.g., Brian D. Ginsberg,

Always Be Disclosing: The Prosecutor’s Constitutional

Duty to Divulge Inadmissible Evidence, 110 W. Va. L.

Rev. 611, 623–35 (2008); Abigail B. Scott, Comment, No

Secrets Allowed: A Prosecutor’s Obligation to Disclose

cases to interpret Wood, Hoke has found almost no support in

nearly twenty years, and it remains an outlier case given the

clear state law prohibiting the admission of almost all such sexual

conduct evidence.

9

Inadmissible Evidence, 61 Cath. U. L. Rev. 867 (2012).

A clear consensus regarding Wood and admissibility has

emerged, however, and, by diverging from the views of

other circuits (as well as its own precedent), the Eleventh

Circuit’s decision could be read to give new life to that old

disagreement at the circuit level. Amici urge this Court

to grant certiorari to bring clarity and finality on the

question presented by Mr. Green.

II. Adopting an admissibility threshold for Brady

materiality is inconsistent with this Court’s

decisions.

Even if Mr. Green’s petition squarely presented the

question of admissibility, this Court would find that the

Eleventh Circuit’s approach—permitting states to create

an admissibility threshold—would make little sense under

controlling law.

A.

Withheld evidence is “evidence” even if it is not

admissible.

The Eleventh Circuit’s opinion creates a second

problem independent of the circuit split: the information

withheld by the prosecutor here is clearly “evidence”

regardless of its admissibility, meaning it must be

analyzed when evaluating materiality under Brady.

The law consistently treats the question of whether

certain information or materials may be “evidence” as

separate from the question of admissibility. The current

Federal Rules of Evidence exemplify this approach,

eschewing a definition of “evidence” in favor of guidance

regarding the admissibility and usage of such material

10

at trial. For example, Rule 103 addresses “Rulings on

Evidence,” observing that error can arise “in a ruling

to admit or exclude evidence,” recognizing the existence

of “evidence” beyond its admissibility. Fed. R. Evid.

103. Perhaps more to the point in showing that evidence

exists regardless of its admissibility, Rule 402 states that

“[r]elevant evidence is admissible” and “[i]rrelevant

evidence is not admissible.” Fed. R. Evid. 402. The Florida

Evidence Code adopts a similar approach. See Fla. Stat.

§§ 90.104, 90.402.

The Eleventh Circuit’s reliance on Wood converts

a common shorthand use of the word “evidence” into

a bright-line rule that is inconsistent with this Court’s

approach to potential Brady violations. Generally, it is true

that “evidence” can be used to refer to both the information

potentially available for admission at trial as well as the

evidence actually admitted in the proceedings. Compare

Fed. R. Evid. 402 (discussing admissible and inadmissible

evidence), with Jeremy Bentham & Etienne Dumont,

A Treatise on Judicial Evidence 230 (1825) (testimony

that “does not serve to prove the fact in question . . . is not

evidence”). In declaring the officers’ opinions immaterial

under Brady, the Eleventh Circuit declared them to be

“not ‘evidence’ at all,” citing Wood, 516 U.S. at 6.

Importantly, Wood went on to examine the materiality

of the polygraph results despite their inadmissibility,

which the Court concluded could be part of the materiality

analysis but was clearly not determinative. 516 U.S. at

5-8; cf. Morales, 746 F.3d at 315 (“[T]he Court [in Wood]

did not end its opinion with that observation [regarding

admissibility], as it would have done if inadmissibility

were the end of the matter.”). In Wood, “[d]isclosure of the

polygraph results, then, could have had no direct effect on

11

the outcome of trial, because [Bartholomew] could have

made no mention of them either during argument or while

questioning witnesses.” 516 U.S. at 6 (emphasis added).

Contrary to the Eleventh Circuit’s analysis here, Wood

did not require a finding that the suppressed evidence

or information be admissible or even likely to lead to

admissible evidence; instead, this Court reasoned that

the disclosure could have had an indirect effect if it would

have led to admissible evidence or led counsel to prepare

in a different way. Id.

Limiting the Brady analysis to whether the withheld

information was itself evidence or likely to lead to

admissible evidence is an impermissibly narrow standard

at odds with Wood and other decisions of this Court. See

e.g., Giglio v. United States, 405 U.S. 150, 154 (1972)

(otherwise-inadmissible credibility evidence could form

the basis of a Brady claim “[w]hen the reliability of [that]

witness may well be determinative of guilt or innocence”)

(quotations omitted); Kyles v. Whitley, 514 U.S. 419,

446 (1995) (evidence can be material under Brady if

the defense can use it to “attack[] the reliability of the

investigation”). Wood confirms this result, even if its use

of the word “evidence” could be ambiguous.

B. The purported admissibility test has no

governing standard, further proof that it is

in violation of clearly established law and

that it will create confusion and difficulty if

permitted to stand.

The Eleventh Circuit’s decision fails to identify or

elaborate on the scope and application of an admissibility

requirement, and no such requirement exists under federal

law, creating an unfair and unworkable procedural burden

12

on courts and petitioners alike. The Eleventh Circuit

did not explain, for example, whether the admissibility

requirement would be considered and reviewed under an

ex-ante or ex-post approach to the undisclosed evidence.

Nor did the Eleventh Circuit explain whether the burden

of admissibility would be satisfied upon a showing of

admissibility for all purposes, admissibility for a limited

purpose, or the absence of any potential objection to

admissibility.

Regardless of the standard applied, by limiting the

scope of potentially-material evidence to evidence it

deemed admissible, the state court had carte blanche to

ignore the concealed evidence without justification, and

subsequent courts were required by law to defer to that

finding in determining whether a due process violation

had occurred. This creates an additional and risky

proposition, because, under Harrington v. Richter, 562

U.S. 86 (2011), federal courts must engage in a process

of so-called gap-filling, and apply AEDPA deference to

whatever reasonable “arguments or theories . . . could have

supported[] the state court’s decision,” if that decision does

not provide reasoning for its conclusions. Id. at 102-04. In

Mr. Green’s case, for example, the federal district court

assumed that the circuit court had relied on Martinez v.

State, 761 So. 2d 1074 (Fla. 2000) (per curiam), because the

opinion offered no authority or reasoning for its analysis.

The Eleventh Circuit went on to criticize the district court

as having “mind read the Circuit Court” in reaching that

conclusion. Green, 28 F.4th at 1132 n.93 (citing 761 So. 2d

at 1079). If the state court can rule on a Brady violation

by offering nothing beyond the mere admissibility or

inadmissibility of the evidence, even on discretionary

questions of admissibility, federal district courts and

13

appellate courts will be compelled to conduct an even more

thoroughgoing review of the record, thereby risking an

invasion of the state’s authority to rule on constitutional

defects before habeas review is allowed.

Compared to the facts here, Wood arose under

markedly different circumstances in which the questions

of admissibility were clearly resolved and questions

of materiality were extensively explored for evidence

that was inadmissible. 516 U.S. at 5–8. Jardine and

Hoke are similar, arising out of sexual conduct evidence

which was clearly inadmissible except in highly limited

circumstances. Jardine, 658 F.3d at 777; Hoke, 92 F.3d at

1356 n.3. Thus, there was no doubt that the evidence in

Wood was inadmissible for any purpose whatsoever and

the parties did not argue for admissibility—eliminating

any need to rely on a trial court’s discretionary authority

for the Brady due process analysis. And, as noted above,

this Court in Wood did not stop at admissibility, further

evidencing that the state court’s approach should not have

survived federal review.

C.

An admissibility test undermines Brady

through an unworkable standard.

Imposing a Brady admissibility requirement further

restricts the already limited oversight of a prosecutor’s

power and the protections offered to criminal defendants

seeking to exercise their constitutional right to due process.

As the Brady doctrine—and its corresponding protections

for criminal defendants—is actualized through the

prosecutor, with little to no input from the defense, there

is a significant risk of consequential error or misconduct.

The trial court also plays only a minimal, and sometimes

14

non-existent, role in the prosecutor’s disclosure decisions,

while simultaneously affording “great deference” to the

prosecutors’ integrity. See Hernandez v. New York, 500

U.S. 352, 364–65 (1991) (explaining that the deference

awarded to prosecutors in the context of peremptory

jury strikes, with which courts assume prosecutors act

with great integrity and credibility). The lack of judicial

oversight makes it nearly impossible to prevent Brady

violations during the trial phase.

Indeed, absent extraordinary circumstances, it is very

likely that the defense will never learn of the existence

of favorable evidence. The very nature of the act of

withholding evidence ensures that the defense does not

know that such evidence is contained in the prosecutor’s

nonpublic case file. Rather, in the majority of cases, the

defense learns of Brady evidence by pure accident. See

e.g., Banks v. Dretke, 540 U.S. 668, 674-75, 683-86 (2004)

(noting that “long-suppressed evidence came to light”

after attorneys for death row defendant received affidavits

from government witnesses detailing that, contrary to

trial testimony, and the representations of prosecutors,

witnesses were coached, paid for their testimony and

threatened with incarceration if they did not provide

false inculpatory testimony against the defendant);

State v. Moore, 969 So. 2d 169, 173 (Ala. Crim. App.

2006) (stating that defense was alerted to exculpatory

information by witness who contacted defense counsel

after trial); State v. Cousin, 710 So. 2d 1065, 1066 & n.2

(La. 1998) (stating that the defense learned “through an

anonymous communication” during the penalty phase of

a capital case that eyewitness who identified defendant

as murderer previously told police that she could not

identify the gunman because “she did not get a good look

15

at [him],” “she was not wearing her glasses” and could

only see patterns and “shapes”). This Court has even

recognized that “[a] rule thus declaring ‘prosecutor may

hide, defendant must seek,’ is not tenable in a system

constitutionally bound to accord defendants due process.”

Banks, 540 U.S. at 696.

The hide-and-seek approach also invites wrongful

convictions, creating doubt in the criminal justice system

and forcing life-changing consequences on individuals

like Mr. Green. There is substantial evidence that

prosecutorial misconduct and failure to comply with

the obligations of Brady contribute to the problem of

wrongful convictions. See, e.g., Alcorta v. Texas, 355 U.S.

28, 30–32 (1957) (per curiam) (describing a case in which

the prosecutor instructed a testifying witness to not

volunteer exculpatory evidence); Mooney v. Holohan, 294

U.S. 103, 110 (1935) (per curiam) (considering a petition

for clemency based on the prosecutor’s use of perjured

testimony and suppression of evidence that would impeach

the lying witnesses). Raw data provided by The National

Registry of Exonerations (the “Registry”)4 clearly shows

a continuing national problem of prosecutorial misconduct.

See generally Nat ’l Registry of Exonerations , 2021

A nnual Report (Apr. 12, 2022), https://www.law.umich.

edu/special/exoneration/Documents/NRE%20Annual%20

Report%202021.pdf. According to the Registry, 2021 was

a record year with 161 exonerations, 102 of which were

cases of official misconduct. Id. at 3. The Registry further

4. The National Registry of Exonerations is a project of the

University of California Irvine Newkirk Center for Science &

Society, the University of Michigan Law School, and the Michigan

State University College of Law.

16

reported that of the 161 exonerated persons 2021, 77 were

persons convicted of murder and manslaughter, and a

staggering 59 of those 77 cases were instances of official

misconduct. Id. at 3, 7.

When prosecutors err, the system itself becomes

suspect, and, while this Court has expressed its hope that

“the prudent prosecutor will resolve doubtful questions

in favor of disclosure,” there is no assurance that all

prosecutors will heed the Court’s caution and err on the

side of disclosure. Agurs, 427 U.S. at 108; accord Kyles, 514

U.S. at 439. Limiting the Brady analysis to only evidence

that is both material and admissible—putting aside

the mystery of what “admissibility” might mean in this

context—will, at best, further challenge prosecutors that

seek to resolve “doubtful questions.” At worst, it will invite

wrongdoing by allowing prosecutors to withhold evidence

they deem inadmissible to deny the defendant and defense

counsel any opportunity to pursue admissible evidence

or theories based on the suppressed information. Either

result would undermine criminal defendants’ due process

rights under the Fifth and Fourteenth Amendments

requiring prosecutors to disclose information that is

material, and the Eleventh Circuit’s authorization of the

state court’s approach adds another layer of analysis and

requirement that Brady and Bagley do not impose.

III. The Eleventh Circuit’s exhaustion analysis must

be reviewed to bring uniformity and fairness to

federal court review of habeas petitions.

The writ of habeas corpus is an “essential principle[]

of our Government,” and a “greater securit[y] to

liberty and republicanism than any [the Constitution]

contains.” Thomas Jefferson, President, First Inaugural

17

Address (Mar. 4, 1801), in Founders Online, Nat’l

A rchs., https://founders.archives.gov/documents/

Jefferson/01-33-02-0116-0004; see also The Federalist

No. 84 (Alexander Hamilton). For states and state

prisoners, the writ of habeas corpus lands on a fault line

of federalism by authorizing federal intervention into the

state’s own criminal proceedings. Accordingly, this Court

and Congress each adopted exhaustion requirements to

give the state court the “opportunity to pass upon and

correct alleged violations of its prisoners’ federal rights.”

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see

also Rose v. Lundy, 455 U.S. 509, 515 (1982) (observing

that exhaustion requirements are in furtherance of

principles of federalism and comity). This Court initially

addressed the question of exhaustion directly, holding

that a state prisoner must “exhaust available state judicial

remedies before a federal court will entertain his petition

for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275

(1971) (citing Ex parte Royall, 117 U.S. 241 (1886)). The

exhaustion requirement was then codified by Congress

in AEDPA, 28 U.S.C. § 2254(b)(1)(A), and this Court has

continued to explore and define what petitioners must do

in order for their federal claims to be considered “fairly

presented” for purposes of satisfying the exhaustion

requirement.

This Court’s fair presentation jurisprudence seems

straightforward. For example, in Gray v. Netherland, 518

U.S. 152 (1996), this Court explained that a petitioner need

only make a “reference to a specific federal constitutional

guarantee, as well as a statement of the facts entitling a

petitioner to relief” to fairly present a federal claim to the

state courts for purposes of the exhaustion requirement.

Id. at 162–63. In Baldwin, this Court further explained

that to fairly present a claim for purposes of exhaustion,

18

a petitioner must present the federal claim, and the federal

source of law on which the petitioner relies, in their

briefing such that the state court need not “read beyond

a petition or a brief (or a similar document)” to be alerted

“to the presence of a federal claim.” 541 U.S. at 32.

Yet courts throughout the country have applied

several different tests for determining whether a federal

claim has been fairly presented—and thus whether the

state court had an opportunity to address the issue itself

without intervention by the federal courts. The Second,

Third, and Seventh Circuits employ a set of four factors to

aid in determining whether a claim has been exhausted,

namely whether the petitioner: (i) “‘relied on federal cases

that engage in a constitutional analysis’”; (ii) “‘relied on

state cases which apply a constitutional analysis to similar

facts’”; (iii) “‘framed the claim in terms so particular

as to call to mind a specific constitutional right’”; and

(iv) “‘alleged a pattern of facts that is well within the

mainstream of constitutional litigation.’” Schmidt v.

Foster, 911 F.3d 469, 486 (7th Cir. 2018) (citation omitted);

see also Rosa v. McCray, 396 F.3d 210, 217–18 (2d Cir. 2005)

(applying same four-factor test); Evans v. Ct. of Common

Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992) (same). The First

and Eighth Circuits have adopted similar factor-based

tests with a focus on identifying a specific constitutional

right and specific constitutional provision. See Coningford

v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011); Kelly

v. Trickey, 844 F.2d 557, 558 (8th Cir. 1988). The Fourth,

Fifth, Sixth, Ninth, and Tenth Circuits have chosen not

to adopt any particular test and, instead, simply recite

general statements related to fair presentation. See, e.g.,

Gordon v. Braxton, 780 F.3d 196, 201 (4th Cir. 2022); Lucio

v. Lumpkin, 987 F.3d 451, 463–64 (5th Cir. 2021); Bray v.

19

Andrews, 640 F.3d 731, 734–35 (6th Cir. 2011); Walden v.

Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021); Honie v. Powell,

58 F.4th 1173, 1184 (10th Cir. 2023).

As more fully explained in Mr. Green’s petition, the

Eleventh Circuit has now added a new consideration—

i.e., whether petitioners have plead their federal claim

in substantially the same way throughout the entirety

of the state-court process. Compare Petition for Writ

of Certiorari at 27–28, with Green v. Sec’y, Dep’t of

Corr., 28 F.4th 1089, 1128–30, 1134–37 (11th Cir. 2022).

The Eleventh Circuit analyzed the briefs and opinions

throughout the entire procedural history of Mr. Green’s

appeals to re-characterize his claims, rather than simply

determine whether the substance of his Brady claim

was fairly presented by his brief to the Florida Supreme

Court or rely on the state court’s decision regarding

exhaustion. Green, 28 F.4th at 1135–37. None of the

existing appellate court approaches have required such

uniformity in pleading and briefing because it is clearly

problematic for both courts and petitioners. Mr. Green

exhausted his claims according to Florida law, yet the

Eleventh Circuit somehow found that he had not done so

based on the numbering of his claims. State courts, not

federal appellate courts, should decide when a petitioner

has presented his claim under the state processes.

IV. The Eleventh Circuit’s decision misapplies and

undermines critical principles of federalism that

this Court must address.

Each erroneous holding of the Eleventh Circuit is

based on a misunderstanding of the principles of federalism

that underlie the role of federal courts of appeal in AEDPA

20

inquiries like the ones here. These misunderstandings—

and their life imprisonment consequences for Mr.

Green—put into perspective how important it is for the

Court to continue to provide guidance to lower courts on

applying the amorphous concepts of “comity, finality, and

federalism” in their analyses of AEDPA claims. These

ideals have indisputably proven difficult for federal courts

to make sense of. This Court need look no further than

the number of AEDPA cases for which it has granted

cert in recent years. See e.g., Brown v. Davenport, 142 S.

Ct. 1510 (2022); Harrington, 562 U.S. 86. The Eleventh

Circuit turned a blind eye to the state court’s perversion of

this Court’s case law on whether admissibility determines

Brady materiality, and then it ignored that same state

court’s clear pronouncement of exhaustion. This cannot

be what federalism under AEDPA entails.

Throughout the years and through different avenues,

federal courts have utilized the federalism principle

underlying AEDPA to incentivize state courts to get

cases right the first time. As one scholar put it, AEDPA

inherently contains “a system where federal courts can

incentivize more robust state process[es] to protect

the rights of defendants consistently with [AEDPA’s]

federalism and comity purposes.” Noam Biale, Beyond A

Reasonable Disagreement: Judging Habeas Corpus, 83 U.

Cin. L. Rev. 1337, 1375 (2015). Indeed, this Court endorsed

a similar view in Teague v. Lane, in which it recognized

that one of the purposes of federal habeas corpus review

is to incentivize state courts to “‘conduct their proceedings

in a manner consistent with established constitutional

standards.’” 489 U.S. 288, 306 (1989) (citation omitted),

overruled in part on other grounds by Edwards v.

Vannoy, 141 S. Ct. 1547 (2020). This is especially true

when it comes to procedural issues underlying AEDPA

21

cases, and it is why the Eleventh Circuit’s non-exhaustion

determination is an especially offensive affront to the

principle of federalism: it is a rejection of the state court’s

view of its own proceedings without any constitutional

purpose. Although the state court found that Mr. Green

had fully exhausted his claim in Florida, the Eleventh

Circuit concluded otherwise, thereby calling into question

the state court’s analysis of the matter before it despite

also finding that federal intervention was not necessary

to protect the due process rights afforded to Mr. Green.

Both Congress in crafting AEDPA and this Court in

its prior decisions have endorsed an application of AEDPA

that allows for habeas cases to reach its court of last

resort with a clear line of denials of relief stretching as

far back as necessary into the appropriate state courts.

The Eleventh Circuit’s disregard of the Florida trial

court’s finding that Mr. Green addressed his Brady claim

in his first post-conviction motion, and that the claim

was affirmed on appeal to the Florida appellate court, is

not only a gross misapplication of AEDPA’s underlying

federalism principle, but it also dis-incentivizes state

courts from making such clear pronouncements in future

decisions. This erodes the foundation that this Court and

other federal habeas courts have built in their previous

efforts to encourage state courts to act swiftly to decide

matters that are eligible for federal habeas review. In

rejecting the state court’s view of the proceedings, the

Eleventh Circuit “illustrate[d] a lack of deference to the

state court’s determination and an improper intervention

in state criminal processes, contrary to the purpose and

mandate of AEDPA and to the now well-settled meaning

of and function of habeas corpus in the federal system.”

Harrington, 562 U. S. at 102.

22

CONCLUSION

For the foregoing reasons, Amici respectfully submit

that the Court should grant Petitioner’s Petition for a Writ

of Certiorari.

Dated: February 23, 2023

Respectfully submitted,

Dexter Hamilton

Counsel of Record

Michael Broadbent

Philip J. Farinella

K amille Perry

Emily Yu

Cozen O’Connor

One Liberty Place

1650 Market Street, Suite 2800

Philadelphia, Pennsylvania 19103

(215) 665-2000

dhamilton@cozen.com

Counsel for Amici Curiae

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX — LIST OF AMICI CURIAE . . . . . . . . . 1a

1a

Appendix

APPENDIX — LIST

OF AMICI CURIAE1

Deborah Ahrens

Professor of Law and Vice Dean for Intellectual Life

Seattle University School of Law1

Hadar Aviram

Thomas E. Miller ’73 Professor of Law

University of California College of the Law,

San Francisco

Lisa Avalos

Associate Professor of Law, Hermann Moyse,

Sr. Professorship

Louisiana State University Paul M. Hebert

Law Center

Bridgette Baldwin

Professor of Law

Western New England University School of Law

W. David Ball

Professor of Law

Santa Clara University School of Law

Barbara Barron

Professor of Skills

Hofstra University Maurice A. Deane School of Law

1. This brief presents the views of the individual signers.

Their institutional affiliations are listed here for identification

purposes only.

2a

Appendix

Valena Beety

Professor of Law and Deputy Director of the

Academy for Justice

Arizona State University Sandra Day O’Connor

College of Law

Aliza Hochman Bloom

Faculty Fellow

New England Law | Boston

Robert Bloom

Professor of Law

Boston College Law School

John Blume

Samuel F. Leibowitz Professor of Trial Techniques

Cornell Law School

Michael Boucai

Professor of Law

University at Buffalo School of Law

Melissa L. Breger

Professor of Law and President William McKinley

Distinguished Professor in Law and Public Policy

Albany Law School

Katherine S. Broderick

Professor of Law, Dean Emerita, and

Joseph L. Rauh, Jr. Chair of Social Justice

University of the District of Columbia

David A. Clarke School of Law

3a

Appendix

Gilbert Paul Carrasco

Professor of Law Emeritus

Willamette University College of Law

Kami Chavis

Professor of Law and Director of the Center for

Criminal Justice Policy and Reform

William & Mary Law School

Gabriel J. Chin

Edward L. Barrett Jr. Chair of Law,

Martin Luther King Jr. Professor of Law,

and Director of Clinical Legal Education

UC Davis School of Law

Donna Coker

Professor of Law

University of Miami School of Law

Doug Colbert

Professor of Law

University of Maryland Francis King Carey School

of Law

James E. Coleman, Jr.

John S. Bradway Professor of the Practice of Law

and Director of the Center for Criminal Justice and

Professional Responsibility

Duke University School of Law

Anna G. Cominsky

Associate Professor of Law and Director of the

Criminal Defense Clinic

New York Law School

4a

Appendix

John M. Copacino

Professor of Law and Director of the

Criminal Justice Clinic

Georgetown Law Center

Joseph Daly

Emeritus Professor of Law

Mitchell Hamline School of Law

LaJuana Davis

Professor of Law and Director of the Cumberland

Innocence Clinic

Samford University Cumberland School of Law

Brittany L. Deitch

Assistant Professor of Law

Capital University Law School

Hannah Demeritt

Clinical Professor of Law

Duke University School of Law

Brett Dignam

Clinical Professor Emerita of Law

Columbia Law School

Don L. Doernberg

Professor of Law Emeritus

Pace University Elisabeth Haub School of Law

Jules Epstein

Professor of Law and Director of Advocacy Programs

Temple University Beasley School of Law

5a

Appendix

Charles P. Ewing

SUNY Distinguished Service Professor

University at Buffalo School of Law

Bryan K. Fair

Thomas E. Skinner Professor of Law

University of Alabama School of Law

Anthony Paul Farley

James Campbell Matthews Distinguished Professor

of Jurisprudence

Albany Law School

Linda C. Fentiman

Professor of Law Emeritus

Pace University Elisabeth Haub School of Law

Todd Fernow

Professor of Law Emeritus

University of Connecticut School of Law

Claire Finkelstein

Algernon Biddle Professor of Law and Professor

of Philosophy

University of Pennsylvania Carey Law School

Keith Findley

Professor of Law

University of Wisconsin Law School

Alison Flaum

Clinical Professor of Law

Northwestern University Pritzker School of Law

6a

Appendix

Eric M. Freedman

Siggi B. Wilzig Distinguished Professor of

Constitutional Rights

Hofstra University Maurice A. Deane School of Law

Sarah Gerwig-Moore

Professor of Law

Mercer University School of Law

Evan S. Glasner

Clinical Fellow, Center for Criminal Justice

& Professional Responsibility

Duke University School of Law

Sarah Gottlieb

Clinical Teaching Fellow

University of Baltimore School of Law

Cynthia Godsoe

Professor of Law

Brooklyn Law School

Rashmi Goel

Associate Professor

University of Denver Sturm College of Law

Phyllis Goldfarb

Jacob Burns Foundation Professor of

Clinical Law Emeritus

George Washington University Law School

7a

Appendix

Catherine M. Grosso

Professor of Law

Michigan State University College of Law

Angela P. Harris

Distinguished Professor of Law

UC Davis School of Law

Janet C. Hoffel

Catherine D. Pierson Professor of Law

Tulane University Law School

Darrell D. Jackson

Professor of Law

University of Wyoming College of Law

Marcia Johnson

Professor of Law

Texas Southern University Thurgood Marshall

School of Law

E. Lea Johnston

Professor of Law

University of Florida Levin College of Law

Julie Jonas

Professor of Law

University of St. Thomas School of Law

Irving L. Joyner

Professor of Law

North Carolina Central University School of Law

8a

Appendix

Lewis Katz

John C. Hutchins Professor of Law Emeritus

Case Western Reserve University School of Law

Rachel Kincaid

Assistant Professor of Law

Baylor University Law School

Alexandra L. Klein

Assistant Professor of Law

St. Mary’s University School of Law

Richard Klein

Bruce Gould Distinguished Professor Emeritus

of Law

Touro University Jacob D. Fuchsberg Law Center

Margery Koosed

Law Professor Emeritus

The University of Akron School of Law

Corinna Barrett Lain

S.D. Roberts & Sandra Moore Professor of Law

University of Richmond School of Law

Jamie T. Lau

Clinical Professor of Law (Teaching) and Deputy

Director of the Center for Criminal Justice and

Professional Responsibility

Duke University School of Law

9a

Appendix

Sylvia Lett

Associate Clinical Professor of Legal Writing

University of Arizona, James E. Rogers College

of Law

Laurie L. Levenson

Professor of Law and founder of Loyola’s Project

for the Innocent

Loyola Marymount University Loyola Law School

Ken Levy

Professor of Law

Louisiana State University Paul M. Hebert

Law Center

Cortney E. Lollar

Norman and Carole Harned Law and

Public Policy Professor

University of Kentucky J. David Rosenberg College

of Law

Karen Pita Loor

Clinical Professor of Law and Associate Dean

for Experiential Education

Boston University School of Law

Katherine Mattes

Clinical Professor of Law and Director of the

Criminal Justice Clinic

Tulane University Law School

10a

Appendix

Julie E. McConnell

Professor of Law and Legal Practice and Director

of the Children’s Defense Clinic University of

Richmond School of Law

Bill Merkel

Professor of Law

Charleston School of Law

Colin Miller

Professor of Law

University of South Carolina School of Law

Binny Miller

Professor of Law and Co-Director of the

Criminal Justice Clinic

American University Washington College of Law

David Mills

Professor in the Practice of Law

Stanford Law School

Isis Misdary

Associate Professor of Law

Seton Hall University School of Law

David A. Moran

Clinical Professor of Law, and Founder and

Co-Director of the Michigan Innocence Clinic

University of Michigan Law School

11a

Appendix

Caren Morrison

Associate Professor of Law

Georgia State University College of Law

Steven R. Morrison

Professor of Law

University of North Dakota School of Law

Tiffany Murphy

Professor of Law

University of Arkansas School of Law

Theresa A. Newman

Charles S. Rhyne Clinical Professor Emerita of Law

Duke University School of Law

Kenneth B. Nunn

Professor of Law and the Dr. Patricia Hilliard-Nunn

Memorial Racial Justice and the Associate Director

of the Center on Children and Families

University of Florida Levin College of Law

Sean O’Brien

Professor of Law

University of Missouri-Kansas City School of Law

Michelle Oberman

Katherine and George Alexander Professor of Law

Santa Clara University School of Law

Bernard Ortwein

Professor Emeritus

Suffolk University Law School

12a

Appendix

Michael Perlin

Professor of Law, Emeritus

New York Law School

LeRoy Pernell

Professor of Law

Florida A&M University College of Law

Jean K. Gilles-Phillips

Clinical Professor of Law, Connell Teaching Professor

of Law, Director of the Project for Innocence

& Post-Conviction Remedies, and Director

of Clinical Programs

The University of Kansas School of Law

Ellen S. Podgor

Gary R. Trombley Family White-Collar Crime

Research Professor of Law

Stetson University College of Law

Mae C. Quinn

Professor of Law and Associate Dean

for Experiential Education

Pennsylvania State University Dickinson Law

Melanie Regis

Assistant Professor

Charleston School of Law

Glenn Harlan Reynolds

Beauchamp Brogan Distinguished Professor of Law

University of Tennessee College of Law

13a

Appendix

Judith L. Ritter

Professor of Law

Widener University Delaware Law School

Ira P. Robbins

Professor of Law and Barnard T. Welsh Scholar

American University Washington College of Law

Susan D. Rozelle

Professor of Law

Stetson University College of Law

David Rudovsky

Senior Fellow

University of Pennsylvania Carey Law School

Stephen A. Saltzburg

Professor of Law

The George Washington University Law School

Barry Scheck

Professor of Law and Co-Founder and Special

Counsel at the Innocence Project

Yeshiva University Benjamin N. Cardozo School

of Law

Brenda V. Smith

Professor of Law

American University Washington College of Law

Stephen F. Smith

Diane & M.O. Miller II Professor of Law

Notre Dame Law School

14a

Appendix

David A. Sonnenshein

Professor Emeritus

Temple University Beasley School of Law

Vincent Southerland

Assistant Professor of Clinical Law

New York University School of Law

Erica Suter

Professor of the Practice and Director of the

Innocence Project Clinic

University of Baltimore School of Law

Kim A. Taylor-Thompson

Professor of Clinical Law Emerita

New York University School of Law

Katie Tinto

Clinical Professor of Law

and Director of the Criminal Justice Clinic

UC Irvine School of Law

Leslie Y. Garfield Tenzer

Professor of Law and Luk-Cummings Family

Faculty Scholar

Pace University Elisabeth Haub School of Law

Rachel A. Van Cleave

Professor of Law and Dean Emerita

Golden Gate University School of Law

15a

Appendix

Anna VanCleave

Associate Professor and Director of UConn’s

Criminal Defense Clinic

University of Connecticut School of Law

Madalyn K. Wasilczuk

Assistant Professor of Law

University of South Carolina School of Law

Lindsey Webb

Associate Professor of Law

University of Denver Sturm College of Law

Robert Weisberg

Edwin E. Huddleson, Jr. Professor of Law, Faculty

Co-Director of the Stanford Criminal Justice Center,

and Associate Dean for Curriculum

Stanford Law School

C. Jackson Williams

Professor of the Practice of Law

The University of Mississippi School of Law

Kenneth Williams

Professor of Law

South Texas College of Law Houston

Dr. T. Anansi Wilson

Associate Professor of Law

Mitchell Hamline School of Law

16a

Appendix

Samuel R. Wiseman

Professor of Law

Penn State Law – University Park

Steven Zeidman

Professor of Law

CUNY School of Law