Amicus Curiae Brief — Samuel Fields, Petitioner v. Laura Plappert, Warden

No. 25-5286

(CAPITAL CASE)

IN THE

Supreme Court of the United States

______

SAMUEL FIELDS, Petitioner,

v.

LAURA PLAPPERT, WARDEN, KENTUCKY STATE

PENITENTIARY, Respondent.

______

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Sixth Circuit

______

Brief of National Association of Criminal Defense

Lawyers, National Association for Public Defense,

Kentucky Association of Criminal Defense Lawyers,

and Scholars as Amici Curiae in Support of

Petitioner

_____

Stephen Ross Johnson

Counsel of Record

Anne E. Passino

RITCHIE, JOHNSON &

STOVALL, P.C.

606 W. Main Street,

Suite 300

Knoxville, TN 37902

(865) 637-0661

johnson@rjs.law

Counsel for Amici Curiae

SEPTEMBER 5, 2025

Jeffrey T. Green

Co-Chair Amicus

Committee

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1660 L Street NW,

12th Floor

Washington, DC 20036

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ii

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

INTRODUCTION AND

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

ARGUMENT ................................................................ 8

I. The Sixth Circuit Misunderstood the Inquiry for

Determining

What

Constitutes

“Clearly

Established Federal Law” ...................................... 8

II. The Sixth Circuit Misapprehended the “Clearly

Established Federal Law” Set Out in Turner v.

Louisiana, 379 U.S. 466 (1965) ............................ 14

CONCLUSION ........................................................... 23

Appendix A: List of Amici Scholars .......................... 1a

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Andrew v. White,

145 S. Ct. 75 (2025) ................... 5, 9, 10, 12, 13, 15

Brecht v. Abrahamson,

507 U.S. 619 (1993) ............................................... 7

Chapman v. California,

386 U.S. 18 (1967) ............................................... 20

Crawford v. Washington,

541 U.S. 36 (2004) ................................................. 6

Deck v. Missouri,

544 U.S. 622 (2005) ............................................. 14

Estes v. Texas,

381 U.S. 532 (1965) ............................................. 17

Gamache v. California,

562 U.S. 1083 (2010) ..................................... 14, 20

House v. Bell,

547 U.S. 518 (2006) ............................................... 7

In re Murchison,

349 U.S. 133 (1955) ............................................. 16

In re Oliver,

333 U.S. 257 (1948) ............................................. 15

Irvin v. Dowd,

366 U.S. 717 (1961) ........... 4, 11, 12, 14, 15, 16, 21

iii

Kyles v. Whitley,

514 U.S. 419 (1995) ............................................... 2

Lockyer v. Andrade,

538 U.S. 63 (2003) ..................... 4, 8, 13, 15, 21, 22

Lopez v. Smith,

574 U.S. 1 (2014) ................................................. 10

Marshall v. Rodgers,

569 U.S. 58 (2013) ............................................... 10

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ............................................... 6

Nevada v. Jackson,

569 U.S. 505 (2013) ....................................... 10, 11

Panetti v. Quarterman,

551 U.S. 930 (2007) ............................................... 8

Parker v. Gladden,

385 U.S. 363 (1966) ............... 11, 12, 13, 14, 17, 21

Payne v. Tennessee,

501 U.S. 808 (1991) ............................................... 9

Ross v. Oklahoma,

487 U.S. 81 (1988) .............................................. 19

Sheppard v. Maxwell,

384 U.S. 333 (1966) ............................................. 18

Smith v. Arizona,

602 U.S. 779 (2024) ................................... 4, 21–22

Strickland v. Washington,

466 U.S. 668 (1984) ............................................... 5

iv

Stringer v. Black,

503 U.S. 222 (1992) ............................................. 22

Taylor v. Kentucky,

436 U.S. 478 (1978) ....................................... 13, 19

Teague v. Lane,

489 U.S. 288 (1989) ............................................. 22

Thompson v. Louisville,

362 U.S. 199 (1960) ............................................. 16

Tumey v. Ohio,

273 U.S. 510 (1927) ............................................. 15

Turner v. Louisiana,

379 U.S. 466 (1965) ................... 3, 4, 5, 6, 7, 11, 12

14, 16, 17, 20, 21, 22

United States v. Cronic,

466 U.S. 648 (1984) ............................................. 10

Wiggins v. Smith,

539 U.S. 510 (2003) ............................................... 8

Williams v. Taylor,

529 U.S. 362, 405 (2000) ............. 4, 8, 9, 10, 13, 22

Woods v. Donald,

575 U.S. 312 (2015) ............................................. 10

Yarborough v. Alvarado,

541 U.S. 652 (2004) ............................................... 9

Constitutional Provisions

U.S. Const. amend. V ...................................... 3, 13, 14

U.S. Const. amend. VI .................................... 3, 13, 14

v

U.S. Const. amend. XIV .................................. 3, 13, 14

Statutes

28 U.S.C. § 2254 ........................................ 3, 4, 8, 9, 20

Rules

S. Ct. R. 37................................................................... 1

Other Materials

Anthony G. Amsterdam & James S. Liebman, Loper

Bright and the Great Writ, 56 Colum. Human

Rights L. Rev. 54 (2025) ........................................ 3

William W. Blume, The Place of Trial of Criminal

Cases: Constitutional Vicinage and Venue, 43

Mich. L. Rev. 59 (1944)........................................ 19

Randy Hertz & James S. Liebman, Federal Habeas

Corpus Practice and Procedure (7th ed. 2025) ... 14

John H. Langbein, Historical Foundations of the Law

of Evidence: A View from the Ryder Sources, 96

Colum. L. Rev. 1168 (1996). ................................ 18

INTEREST OF AMICI CURIAE1

Founded in 1958, the National Association of

Criminal Defense Lawyers (NACDL) is a non-profit,

voluntary professional bar association that works on

behalf of criminal-defense attorneys to ensure justice

and due process for those accused of crime or

misconduct. NACDL’s thousands of members include

private criminal-defense lawyers, public defenders,

military defense counsel, law professors, and judges,

as well approximately 40,000 affiliates, including the

Kentucky association (KACDL). NACDL files

numerous amicus briefs each year in this Court and

other federal and state courts, seeking to provide

assistance in cases of broad importance to criminal

defendants, criminal defense lawyers, and the

criminal-legal system. Consistent with its mission,

NACDL has an important interest in ensuring that

habeas law functions as intended—safeguarding the

rights of those seeking relief and guaranteeing

meaningful access to judicial review—and that no

person tried before a jury is punished based on

evidence not subjected to the adversarial system’s

protections.

The National Association for Public Defense

(NAPD), which consists of more than 25,000

professionals, includes attorneys, investigators, social

workers, administrators, and other support staff who

1 Counsel of record for all parties received timely notice of the

intention to file this brief. Pursuant to Supreme Court Rule 37,

amici state that no counsel for any party authored this brief in

whole or in part, and that no entity or person other than amici

and their members made any monetary contribution toward the

preparation and submission of this brief.

2

are responsible for executing the constitutional right

to effective assistance of counsel in a wide range of

criminal matters, including on appeal.

Amici are current and former law professors (listed

in Appendix A) who teach and write about habeas

corpus, capital punishment, and constitutional law.

Amici offer their diverse perspectives and deep

knowledge to draw this Court’s attention to a

certiorari-worthy case and explain what conclusions

the Sixth Circuit should have reached under the

proper application of this Court’s precedent. Amici

sign this brief in their individual capacities and not on

behalf of their institutions; institutional affiliations

are provided solely for identification purposes.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Samuel Fields, who has maintained his innocence

for more than three decades, was convicted and

sentenced to death for the murder of his girlfriend’s

landlord because—behind the jury room’s closed

doors—jurors reached their verdict based on an

experiment they devised to test the prosecution’s

central theory of guilt, not evidence developed at trial.

See (Pet. App. 6a–7a, 40a–41a). This new evidence

purported to confirm how Mr. Fields accessed the

victim’s residence by unscrewing a storm window, but

it was neither subjected to our adversarial system’s

basic procedural safeguards nor the heightened

standards demanded in capital cases. See Kyles v.

Whitley, 514 U.S. 419, 422 (1995) (affirming, in habeas

case, “duty to search for constitutional error with

painstaking care is never more exacting than it is in a

capital case”) (citation omitted). Consequently, on

3

appeal, Mr. Fields challenged the jury’s consideration

of extrinsic evidence as a violation of his rights to

confrontation, due process, and a fair trial, as

guaranteed by the Fifth, Sixth, and Fourteenth

Amendments, relying on this Court’s holdings in a

series of decisions that instruct: “In the constitutional

sense, trial by jury in a criminal case necessarily

implies at the very least that the ‘evidence developed’

against a defendant shall come from the witness stand

in a public courtroom where there is full judicial

protection of the defendant’s right of confrontation, of

cross-examination, and of counsel.” Turner v.

Louisiana, 379 U.S. 466, 472–73 (1965); see (Pet. App.

15a–17a, 42a). However, a majority of the Sixth

Circuit sitting en banc reversed a panel’s conditional

grant for writ of habeas corpus because it concluded

that Turner and its kin are not “clearly established

federal law,” thereby revealing a misunderstanding of

both this Court’s precedent and the required inquiry

under Section 2254 of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). For these

reasons, this Court should grant review and expose

the Sixth Circuit’s cramped view of habeas relief as an

unwarranted curtailment of the Great Writ, even

under the restrictions AEDPA places on Article III

courts’ power to enforce the federal Constitution as the

supreme law of the land. Cf. Anthony G. Amsterdam

& James S. Liebman, Loper Bright and the Great Writ,

56 Colum. Human Rights L. Rev. 54, 61 (2025) (“From

Williams forward, the full Court has never addressed

the constitutionality of ‘AEDPA deference.’”).

Under AEDPA, if a state court “adjudicated” a

claim “on the merits,” habeas corpus relief is available

when the petitioner establishes that the adjudication

“resulted in a decision that was contrary to, or

4

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. §

2254(d)(1). As a practical matter, a court must first

determine “what constitutes ‘clearly established

Federal law,’” then, if there is relevant “clearly

established federal law,” determine whether the state

court decision was “contrary to, or involved an

unreasonable application of,” that clearly established

federal law. See Lockyer v. Andrade, 538 U.S. 63, 71

(2003) (citation omitted). The phrase “clearly

established federal law” “refers to the holdings” or

“governing legal principle or principles” of the

Supreme Court “as of the time of the relevant statecourt decision.” Id. at 71–72 (citing Williams v. Taylor,

529 U.S. 362, 405, 413 (2000)). Cf. Smith v. Arizona,

602 U.S. 779, 794 (2024) (“federal constitutional rights

are not typically defined—expanded or contracted—by

reference to non-constitutional bodies of law like

evidence rules”).

In Turner, this Court addressed the same “basic

question” about the “nature of the jury trial”

prescribed by the Fourteenth Amendment as it did in

Irvin v. Dowd, 366 U.S. 717 (1961), even though

Turner involved conduct during a trial and Irvin

involved prejudice “before the actual trial proceedings

had commenced.” Turner, 379 U.S. at 471. Irvin was

nonetheless “controlling” in Turner. Id. In both capital

cases, this Court relied on a unifying principle tied to

the “fundamental integrity” of criminal adjudications:

a verdict must be based on “evidence developed at the

trial.” Turner, 379 U.S. at 472; Irvin, 366 U.S. at 722.

This principle has deep roots in English law and early

American trials, see Irvin, 366 U.S. at 721–22, and the

holdings in both cases relied upon factually distinct

5

precedent to show that a fair trial which comports

with the requirements of due process means, at

minimum, evidence of guilt must be present and

publicly demonstrated. E.g., Turner, 379 U.S. at 472.

In holding that verdicts “must be based upon evidence

developed at the trial,” Turner articulated “clearly

established federal law.”

To qualify for a merits review under AEDPA, the

Sixth Circuit required Mr. Fields to point to a specific

holding from this Court that defines when “a jury

experiment change[s] from a (valid) ‘examination of

proper evidence’ into a (perhaps impermissible)

‘production of new evidence[.]’” (Pet. App. 21a). With

its artificially narrowed framing, the court whittled

away a key constitutional principle established by this

Court and misapplied the required inquiry under

AEDPA. And, despite this Court’s recent and

emphatic confirmation that general legal principles

can constitute clearly established law under AEDPA,

see Andrew v. White, 145 S. Ct. 75 (2025) (per curiam),

a majority of the Sixth Circuit declined to revisit its

decision to deny Mr. Fields review. (Pet. App. 1a).

Review is also needed in this case because the

Sixth Circuit misunderstands the nature of criminal

defendants’ constitutionally protected trial rights.

Whereas that court faulted Mr. Fields for not

“pinpoint[ing] the specific constitutional right” and

“interchangeably suggest[ing]” that the jury’s

experiment violated his confrontation, due process,

and jury trial rights, (Pet. App. 15a) (emphasis

original), this Court has clearly articulated the

interrelationship between and among the trial rights

Mr. Fields identified. E.g., Strickland v. Washington,

466 U.S. 668, 684–85 (1984) (“The Constitution

6

guarantees a fair trial through the Due Process

Clauses, but it defines the basic elements of a fair trial

largely through the several provisions of the Sixth

Amendment ….”). Similarly, to support its conclusion

that the Confrontation Clause was not implicated by

the jury’s experiment, the Sixth Circuit asked, “Indeed

‘how could one cross-examine [a cabinet]?’” (Pet App.

16a). Yet that very framing elides the ways in which

the jury’s experiment with extrinsic evidence

contravened a constellation of Mr. Fields’ trial rights:

if the prosecution had offered a similar experiment

into evidence as expert or opinion testimony, Mr.

Fields’ counsel could have cross-examined the person

who conducted the test about all the ways in which the

circumstances (and screws)2 differed. See Crawford v.

Washington, 541 U.S. 36, 42 (2004) (noting English

law reformed confrontation rights after Sir Walter

Raleigh sentenced to death following use of ex parte

examinations); Melendez-Diaz v. Massachusetts, 557

U.S. 305, 319 (2009) (noting “invalid forensic

testimony contributed to the convictions in 60%” of

exoneration cases).

This Court should grant review—or summarily

vacate and remand—because the Sixth Circuit’s

decision conflicts with “clearly established” law

articulated in Turner and demanded an improperly

strict standard under AEDPA that conflicts with

2 (Pet. App. 46a) (“If Fields had removed the screws from the

storm window, he did it in the dark, at night, with a blood alcohol

content greater than .14, after an evening of smoking marijuana

and, the evidence suggests, ingesting PCP.”); (id.) (noting

difference between screws at scene (i.e., painted, Phillips head)

and other considerations (e.g., window height, screw tension, or

fasteners)).

7

Andrew. Mr. Fields’ life is at stake, and the Sixth

Circuit’s ruling should not be allowed to stand.

Moreover, because no physical evidence besides

presence connected Mr. Fields to the crime and

another person confessed to the murder, the jury’s

abdication of its role to reach a verdict based only on

evidence developed at trial was even more

prejudicial.3 See Brecht v. Abrahamson, 507 U.S. 619,

633 (1993) (describing historical view of habeas corpus

“as an extraordinary remedy, a bulwark against

convictions that violate fundamental fairness”)

(cleaned up). It would be “blinking reality” to conclude

otherwise. Cf. Turner, 379 U.S. at 473 (observing that

it would be “blinking reality” not to recognize extreme

prejudice from out-of-court relationship).

3 The Sixth Circuit panel summarized the case, including Mr.

Fields’ intoxication and so-called “confessions” that were untrue

and forensically disproved, (Pet. App. 58a–60a), as well as the

prosecution’s emphasis that Mr. Fields accessed the victim’s

house by unscrewing a window with the knife admitted into

evidence (found in Mr. Fields’ pocket), even though the paint on

the knife did not match the paint on the screws and Mr. Fields’

fingerprints weren’t found on the storm window. (Id. at 66a–69a);

see also (id. at 10a). Cf. House v. Bell, 547 U.S. 518, 540 (2006)

(explaining significance of new evidence through prosecution’s

trial theory).

8

ARGUMENT

I.

The Sixth Circuit Misunderstood the

Inquiry

for

Determining

“Clearly

Established Federal Law.”

The Sixth Circuit adopted an overly narrow

inquiry for determining what constitutes “clearly

established federal law,” contrary to this Court’s

established interpretation of 28 U.S.C. § 2254(d)(1).

This Court’s intervention is necessary to coursecorrect the Sixth Circuit’s improperly narrow inquiry

and prevent its holding from foreclosing federal review

and relief in other cases.

In Williams v. Taylor, 529 U.S. 362 (2000), the

Court interpreted the meaning of “clearly established

Federal law, as determined by the Supreme Court of

the United States” for purposes of AEDPA. The

statutory phrase is understood to “refer[] to the

holdings, as opposed to the dicta, of this Court's

decisions as of the time of the relevant state-court

decision.” Id. at 412. “Holding,” for purposes of AEDPA

does not mean the case-specific “conclusion” reached

in a prior decision. “AEDPA does not ‘require state and

federal courts to wait for some nearly identical factual

pattern before a legal rule must be applied.’” Panetti

v. Quarterman, 551 U.S. 930, 953 (2007) (citation

omitted); see also Williams, 529 U.S. at 391 (noting

Strickland “clearly established Federal law” requiring

case-by-case examination). Instead, a “holding” is the

governing “legal principle or principles” established by

this Court. See Lockyer, 538 U.S. at 71–72 (citing

Williams, 529 U.S. at 405, 413); see also Wiggins v.

Smith, 539 U.S. 510, 521–22 (2003) (concluding

Strickland covers duty of mitigation investigation).

9

Governing legal principles may be sufficiently clear

for purposes of Section 2254(d)(1) “even when they are

expressed in terms of a generalized standard rather

than as a bright-line rule.” Williams, 529 U.S. at 382.

“When this Court relies on a legal rule or principle to

decide a case, that principle is a ‘holding’ of the Court

for purposes of AEDPA.” Andrew, 145 S. Ct. at 81

(citing Lockyer, 538 U. S. at 71–72); Andrew, 145 S. Ct.

at 81 n.3 (referencing Court’s continued reliance on

“fundamental fairness principle” articulated in due

process case). Moreover, a principle can be “clearly

established” even when “it arises out of a thicket of

jurisprudence and lacks precise contours.” Id. at 82

(discussing Eighth Amendment) (cleaned up). Cf.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (per

curiam) (describing range of application for specific

and general rules).

In Andrew, this Court concluded that the Tenth

Circuit was mistaken when it “thought itself

constrained by AEDPA” to limit a prior decision—

Payne v. Tennessee, 501 U.S. 808 (1991)—“to its facts.”

Andrew, 145 S. Ct. at 82. The Court acknowledged

that it “ha[d] not previously relied on Payne to

invalidate a conviction for improperly admitted

prejudicial evidence,” but concluded that (1) the

principle that unduly prejudicial evidence can render

a trial fundamentally unfair constituted a holding in

Payne; and (2) that “holding” constituted “clearly

established law” for purposes of AEDPA, despite

Payne’s more case-specific holding about victimimpact evidence. Id. at 78, 81–82. Because “certain

principles are fundamental enough,” “when new

factual permutations arise, the necessity to apply the

earlier rule will be beyond doubt.” Id. at 82 (citation

omitted). The petitioner was entitled to relief because

10

she did not “rely on an interpretation or extension of

this Court’s cases but on a principle this Court itself

has relied on over the course of decades.” Id. at 83.

The Sixth Circuit en banc majority did not

approach AEDPA’s “clearly established federal law”

inquiry as directed by this Court in Williams (and

confirmed by Andrew). Rather, the court said that

petitioners cannot “rais[e] the ‘level of generality’” and

“refram[e]” the Court’s “narrow” holdings as broad

rulings.” (Pet. App. 14a–15a) (citing Woods v. Donald,

575 U.S. 312 (2015) (per curiam);4 Lopez v. Smith, 574

U.S. 1 (2014) (per curiam);5 Nevada v. Jackson, 569

U.S. 505 (2013) (per curiam)).6 By comparison, the

dissenting en banc judges emphasized that courts

cannot “whittle general principles into overly specific

rules,” thereby narrowing a clearly established right.

(Pet. App. 44a–45a); see also Marshall v. Rodgers, 569

U.S. 58, 62 (2013) (per curiam) (“lack of a Supreme

Court decision on nearly identical facts does not by

4 The Sixth Circuit misapplied the per se rule of prejudice in

United States v. Cronic, 466 U.S. 648 (1984), and “framed the

issue at too high a level of generality,” which obscured that “none

of [the Court’s] holdings address[ed]” the circumstances

presented in Woods, not that Cronic is not “clearly established

law.” Woods, 575 U.S. at 317.

5 The Ninth Circuit erroneously relied on its own precedent

to conclude a constitutional principle was “clearly established.”

Lopez, 574 U.S. at 5–7 (concluding “adequate notice of the

charges” too abstract to require notice of liability theory).

6 The Ninth Circuit seemingly overlooked limitations on

defendants’ right to present a complete defense, and no cases

“suggest, much less hold” or clearly establish a “case-by-case

balancing” of interests. Jackson, 569 U.S. at 509–12 (explaining

Confrontation Clause cases prevent restriction of crossexamination, not introduction of extrinsic evidence).

11

itself mean that there is no clearly established federal

law, since ‘a general standard’ from this Court’s cases

can supply such law”).

The Sixth Circuit’s approach takes an unduly

narrow view of what can constitute “clearly

established Federal law.” For example, in one of the

cases the Sixth Circuit relied on to deny Mr. Fields

review, this Court faulted the Ninth Circuit for

framing precedents at a “high level of generality” and

thereby “elid[ing] the distinction between crossexamination and extrinsic evidence.” Jackson, 569

U.S. at 512 (emphasis added). Here, rather than

identify a “distinction,” the Sixth Circuit too closely

tethered the constitutional question to the factual

scenario, not the broader legal principle: “Fields cites

not a single Supreme Court case that has ever

‘addressed’ the propriety of jurors experimenting with

evidence during deliberations—let alone one that has

found these experiments unconstitutional.” (Pet. App.

15a); see also (id. at 19a) (“He identifies no specific

due-process precedent on jury experiments.”). The

court then distinguished the cases cited by Petitioner

on their facts. See (id. at 16a–18a) (describing Parker

v. Gladden, 385 U.S. 363 (1966), as “a decision about

a bailiff’s out-of-court statements”); Irvin, 366 U.S.

717, as holding that “biased jurors violated the

defendant’s right to an ‘impartial’ jury”); and Turner,

379 U.S. 466, as holding “that the jury’s association

with key prosecution witnesses violated the jury-trial

guarantee”). The principles relied upon to reach those

conclusions are broader than the Sixth Circuit

appreciated, and they may be applied to non-identical

factual scenarios.

12

The Sixth Circuit’s opinion does not acknowledge

that when this Court articulates principles and then

relies on them to reach conclusions (as it did in Irvin,

Turner, and Parker), the principles are “holdings” for

purposes of AEDPA. See Andrew, 145 S. Ct. at 81.

Perhaps because of this, the Sixth Circuit

characterizes “holdings” so narrowly: “that the

Confrontation Clause bars a bailiff from telling jurors

that the defendant is guilty; that the jury-trial right

bars individuals from sitting on a jury if they have

already decided that the defendant is guilty; and that

this right bars jurors from intimately associating with

prosecution witnesses.” (Pet. App. 20a) (citations

omitted). Contrary to the Sixth Circuit’s view, Mr.

Fields did not “treat[] as clearly established law a

‘general proposition’ that originates with a few

quotations from far-afield decisions.” (Id.). The socalled “quotations” are principles upon which this

Court relied when reaching its case-specific

conclusions, thereby constituting AEDPA “holdings.”

Applying the correct level of generality, it is a wellestablished legal principle that a conviction cannot

rest on evidence that was not developed in a public

courtroom with the full judicial protections of the

defendant’s constitutional trial rights. The opinions in

Turner, Irvin, and Parker explained how the Court

reached each case-specific conclusion through the lens

of this principle. See Turner, 379 U.S. at 473 (“What

happened in this case operated to subvert these basic

guarantees of trial by jury…. [and] may well have

made these courtroom proceedings little more than a

hollow formality.”); Irvin, 366 U.S. at 723, 727

(suggesting sufficient if juror can “lay aside his

impression or opinion and render a verdict based on

the evidence presented in court” but based on factual

13

record “difficult to say that each could exclude this

preconception of guilt from his deliberations”); Parker,

385 U.S. at 364 (“Here there is dispute neither as to

what the bailiff, an officer of the State, said nor that

when he said it he was not subjected to confrontation,

cross-examination or other safeguards guaranteed to

the petitioner.”).

It remains true that, even if the Court has not had

the occasion to explicitly say so in a specific context,

jury experiments with extrinsic evidence are

unconstitutional, in violation of the Due Process

Clauses of the Fifth and Fourteenth Amendments and

criminal defendants’ fair trial rights embedded in the

Sixth Amendment. See Taylor v. Kentucky, 436 U.S.

478, 485 n.13, 490 (1978) (noting “cognate

requirements of finding guilt only on the basis of the

evidence” and holding refusal to give petitioner’s

requested instruction on presumption of innocence

resulted in violation of right to fair trial as guaranteed

by Due Process Clause).

Before turning to the specific legal principles and

holdings at issue in this case, it is worth noting that

the Sixth Circuit had the benefit of Williams and

Lockyer when it denied Mr. Fields “relief under

AEDPA.” See (Pet. App. 39a). More tellingly, the court

also had the benefit of Andrew when a majority of its

members refused to revisit the decision in this case.

Because the Sixth Circuit did not heed the lessons of

Andrew, a writ of certiorari should be issued to require

the Sixth Circuit to conform its reasoning to this

Court’s rulings.

14

II.

The Sixth Circuit Misapprehended the

“Clearly Established Federal Law” Set Out

in Turner v. Louisiana, 379 U.S. 466 (1965).

Review is appropriate and warranted to correct the

Sixth Circuit’s misapprehension or denial of the

“clearly established” federal law set out in Turner, 379

U.S. 466. The Due Process Clauses of the Fifth and

Fourteenth Amendments and the Sixth Amendment

to the U.S. Constitution prevent juries from relying on

extrinsic evidence to reach their verdicts. This

principle was “clearly established” by several of this

Court’s decisions, including Irvin, 366 U.S. 717,

Turner, 379 U.S. 466, and Parker, 385 U.S. 363, all

well before the relevant state-court decision in Mr.

Fields’ case. In fact, the holdings in these cases relied

on and emerged from even older cases applying the

fundamental principle that verdicts cannot rest on

out-of-court evidence. See Turner, 379 U.S. at 471–72.

It remains true, “[i]n the constitutional sense,” that

evidence must be developed “at the trial” to maintain

the integrity of the fact-finding process in criminal

cases. E.g., Gamache v. California, 562 U.S. 1083,

1083 (2010) (denial of certiorari from decision relying

on Turner). Of course, the principle that guilt must be

established in the courtroom should apply even more

stringently in capital cases. Cf. Deck v. Missouri, 544

U.S. 622, 632 (2005) (“‘acute need’ for reliable

decisionmaking when the death penalty is at issue”);

2 Randy Hertz & James S. Liebman, Federal Habeas

Corpus Practice and Procedure, § 30.1 (7th ed. 2025)

(noting harmless error standard deemed applicable in

federal habeas proceedings originated from noncapital case). As described below, review should be

granted because the Sixth Circuit’s decision

15

misapprehends—and calls into question—this “clearly

established federal law.” It is of no significance, for

purposes of AEDPA’s inquiry, that the principle relied

upon by Mr. Fields arises from an arguable “thicket”

of cases. See Andrew, 145 S. Ct. at 82 (citing Lockyer,

538 U.S. at 72). A brief discussion of these cases

reveals their inter-relationship and reliance upon

long-established principles to reach their conclusions.

First, in Irvin v. Dowd, the Court concluded that a

conviction and death sentence should be vacated

because they were obtained in violation of the

Fourteenth Amendment’s due process protections. 366

U.S. 717, 718–19 (1961). More specifically, pre-trial

publicity infected the community with prejudice

against the defendant before his trial began, which

deprived him of a fair trial by impartial jurors. Id. at

718. Looking at the “concepts of individual liberty” in

the Western World, which developed from England

with the “priceless” safeguard of a trial by jury, the

Court confirmed that a jury’s verdict “must be based

upon the evidence developed at the trial,” regardless

of the “heinousness” of the crime or “apparent guilt” of

the defendant. Id. at 721–22. Indeed, Aaron Burr’s

treason trial was cited as an early example of these

principles’ recognition. Id. at 722.

Although Irvin was focused on the constitutional

limits for pre-trial publicity, the Court relied on a long

line of authority supporting the greater principle that

convictions must rest on public proof. See id. at 722

(citing In re Oliver, 333 U.S. 257 (1948) [involving

“one-man grand jury” and exclusion of public from

questioning by judge who convicted defendant “in

secret”]; Tumey v. Ohio, 273 U.S. 510 (1927)

[concluding due process does not permit trial by judge

16

with direct, pecuniary interest in conviction]; In re

Murchison, 349 U.S. 133 (1955) [“judge-grand jury”

violation of due process because fair trial in fair

tribunal is basic requirement and “our system of law

has always endeavored to prevent even the probability

of unfairness”]; Thompson v. Louisville, 362 U.S. 199

(1960) [punishment for loitering violated due process

where no evidence supported conviction]).

Following Irvin, the Court addressed the same

“basic question” in Turner v. Louisiana, which was

framed as “the nature of the jury trial which the

Fourteenth Amendment commands when trial by jury

is what the State has purported to accord.” 379 U.S.

466, 471 (1965). Expressly recognizing that Irvin

involved impairments to the defendant’s fair trial

rights that occurred pre-trial whereas the

impairments in Turner occurred throughout the trial

proceedings, the Court said that Irvin’s principles

nonetheless controlled. See id. In addition, Turner

further explained why evidence must be developed at

trial: “The requirement that a jury’s verdict ‘must be

based upon the evidence developed at the trial’ goes to

the fundamental integrity of all that is embraced in

the constitutional concept of trial by jury.” Id. at 472

(emphasis added).

Consequently, “[i]n the constitutional sense,” this

means evidence “shall come from the witness stand in

a public courtroom where there is full judicial

protection of the defendant’s right of confrontation, of

cross-examination, and of counsel.” Id. at 472–73

(emphasis added). When the Court looked at the

“potentialities” of outside influence on the jurors’

decision to send the petitioner “to his death” in Turner,

it found a violation of these “basic principles,” even

17

though there was no conclusive proof of prejudice. Id.

at 473; see also id. (“[E]ven if it could be assumed that

the deputies never did discuss the case directly with

any members of the jury, it would be blinking reality

not to recognize the extreme prejudice inherent in this

continual association throughout the trial between the

jurors and these two key witnesses for the

prosecution.”). Rather, the petitioner’s “fate depended

upon how much confidence the jury placed in these

two witnesses” and how much credibility to give them;

even though they were cross-examined, “the

potentialities of what went on outside the courtroom

during the three days of the trial may well have made

these courtroom proceedings little more than a hollow

formality.” Id. at 474, 473.

Similarly, in Parker v. Gladden, the Court relied on

Irvin and Turner to conclude that a bailiff’s out-ofcourt statements to the jury violated the Sixth

Amendment’s right to “trial, by an impartial

jury…[and] be confronted with the witnesses against

him,” made applicable through the Due Process

Clause of the Fourteenth Amendment. 385 U.S. 363,

364–65 (1966) (per curiam). As in Turner, the Court

found the likelihood of prejudice enough to violate due

process: “[t]he unauthorized conduct of the bailiff

‘involves such a probability that prejudice will result

that it is deemed inherently lacking in due process[.]’”

Id. at 365 (quoting Estes v. Texas, 381 U.S. 532, 542–

543 (1965)).

Turner is consistent with the historical

development of the roles of courts and juries, as

recognized by this Court. Structurally, the “very

purpose of a court system” is “to adjudicate

controversies, both criminal and civil, in the calmness

18

and solemnity of the courtroom according to legal

procedures.” Sheppard v. Maxwell, 384 U.S. 333, 350–

51 (1966) (quotations omitted). With respect to the

jury, “[a]mong these ‘legal procedures’ is the

requirement that the jury’s verdict be based on

evidence received in open court, not from outside

sources.” Id. (concluding defendant did not receive fair

trial consistent with due process because of pretrial

publicity, publicity occurring throughout trial that

deprived “judicial serenity and calm to which

[defendant] was entitled,” and publicity about

material “never heard from the witness stand” but

which made its way to the jury). Evidence must only

be received in open court because jurors are not

supposed to be investigators. That was not always so.

Jurors were once prized for having information and

investigating facts. In England, “In an age of tiny,

intensely interdependent agricultural communities,

jurors were drawn from the neighborhood of the

contested events.” John H. Langbein, Historical

Foundations of the Law of Evidence: A View from the

Ryder Sources, 96 Colum. L. Rev. 1168, 1170 (1996).

At that time, the local jury was “self-informing” and

hopefully “contain[ed] witness-like persons who would

know the facts, or if not…be well positioned to

investigate the facts on their own.” Id. “Toward the

end of the Middle Ages the trial jury underwent its

epochal transformation from active neighborhood

investigators to passive triers.” Id. at 1170–71. Each

“group of citizens” was “no longer chosen for their

knowledge of the events, but rather chosen in the

expectation that they would be ignorant of the events.”

Id. at 1171.

19

Jurors became—and remain—passive factfinders.

“From a period in which jurors were required, or at

least presumed, to know the facts of their own

knowledge, we move step by step to a period in which

they were supposed to obtain their knowledge only

from evidence produced in open court.” William W.

Blume, The Place of Trial of Criminal Cases:

Constitutional Vicinage and Venue, 43 Mich. L. Rev.

59, 60 (1944). “By 1764 Lord Mansfield was able to

say: ‘A juror should be as white Paper, and know

neither Plaintiff nor Defendant, but judge the Issue

merely as an abstract Proposition, upon the Evidence

produced before him.’” Id. at 60–61. Ultimately, the

American Constitution made fair trials dependent

upon impartial juries. See generally Ross v. Oklahoma,

487 U.S. 81, 85 (1988) (“It is well settled that the Sixth

and Fourteenth Amendments guarantee a defendant

on trial for his life the right to an impartial jury.”). The

impartial jury standard requires verdicts based only

upon the evidence presented in court.

The principles set out in Turner requiring in-court

evidence neatly apply to jury experiments involving

extrinsic evidence, even if that scenario has been left

unstated as among the unspecified “other

circumstances” in which out-of-court evidence violates

fair trial rights guaranteed through the Due Process

Clauses. See Taylor, 436 U.S. at 485 (“[O]ne accused

of a crime is entitled to have his guilt or innocence

determined solely on the basis of the evidence

introduced at trial, and not on grounds of official

suspicion, indictment, continued custody, or other

circumstances not adduced as proof at trial.”)

(emphasis added).

20

For example, in Gamache v. California, four

Justices wrote a statement to explain their

concurrence in the denial of a petition for writ of

certiorari. 562 U.S. 1083 (2010). As set forth in the

statement, after a jury convicted the petitioner of firstdegree murder and sentenced him to death, his

counsel and the trial court learned that during the

jury’s deliberations, jurors repeatedly watched a video

of the petitioner and his codefendants in which he

“confessed to the crime in graphic terms.” Id. at 1083.

Critically, the video was inadvertently given to them

because it had not been admitted into evidence. Id. On

appeal, the California Supreme Court concluded that

the jury’s access to the video was “indisputably error,”

citing Turner and quoting its key passage about the

fundamental integrity of trials requiring verdicts

based on evidence “developed at the trial.” Id. This

Court did not question the applicability of Turner and,

in fact, the concurring justices added a more complete

recitation of the principle from Turner, linking the

constitutional requirement that evidence be developed

at trial to the “full judicial protection of the

defendant’s right of confrontation, of crossexamination, and of counsel.” Id.7

Whether this clearly established law applies to Mr.

Fields does not end the AEDPA analysis about

whether relief is due. However, the Sixth Circuit did

not consider the second prong of § 2254(d)(1) because

it did not find clearly established federal law had been

The non-outcome-determinative issue for the concurring

justices was that California mis-articulated or mis-applied the

harmless-error standard from Chapman v. California, 386 U.S.

18 (1967). Id. at 1084. Cf. (Pet. App. 48a) (indicating Kentucky

misapplied Champman).

7

21

implicated by the jury’s experiment. A separate

inquiry under AEDPA asks whether clearly

established federal law was “contrary to, or involved

an unreasonable application of,” that clearly

established federal law. See Lockyer, 538 U.S. at 70–

71. Here, the Sixth Circuit did not reach that step

because it first concluded that Mr. Fields did not

identify clearly established federal law. See (Pet. App.

19a) (“[W]e need not take a position on how these three

constitutional rights should apply to Fields’s juryexperiment claim ….[W]e need only say that ‘no

Supreme Court precedent establishes that jury

experiments violate’ any of the rights.”). According to

a majority of the Sixth Circuit sitting en banc, Mr.

Fields did “not explain why these decisions [Parker,

Irvin, and Turner] about the Sixth Amendment right

against jury bias ‘clearly’ apply to the jury experiment

in this case” and “fails[ed] to show that any of these

due-process decisions ‘clearly’ apply to the jury

experiment in his case.” (Pet. App. 18a, 19a).

A majority of the Sixth Circuit also reasoned that

Mr. Fields is not entitled to relief based on an

apparent

misunderstanding

of

defendants’

confrontation rights. To be sure, the Confrontation

Clause, as a bundled trial right, prevents “testimonial

hearsay.” Smith, 602 U.S. at 784. However, it is part

of the larger principle and structural mechanisms to

avoid out-of-court evidence from tainting verdicts. “In

operation,” the Clause protects defendants’ crossexamination right by limiting prosecutors’ ability “to

introduce statements made by people not in the

courtroom.” Id. at 783–84. Out-of-court statements

were previously admissible if they “bore ‘adequate

indicia of reliability,’” but the Court “changed course”

decades

ago

“to

better

reflect

original

22

understandings.” Id. at 784. Consistent with original

understandings, the Clause is not merely concerned

with oral statements. It applies to documents with an

“evidentiary purpose,” and—as is particularly

relevant to the jury’s experiment in this case—this

Court has rejected attempts to apply different rules to

“so-called ‘neutral, scientific testing,’” given that

manipulation and mistake can occur during forensic

analysis, which can be probed during crossexamination. Id. at 785–86 (citation omitted).

Returning to the interconnected rights protected

by the “clearly established” law at issue: The holding

exemplified in Turner is no less clearly established

than more discrete holdings of this Court because it

arises from a “thicket” of cases. See Lockyer, 538 U.S.

at 72. A legal principle may be “clearly established

Federal law” when it emerges from a long line of

authority. See Williams, 529 U.S. at 412 (“[W]hatever

would qualify as an old rule under our [Teague v. Lane,

489 U.S. 288 (1989)] jurisprudence will constitute

‘clearly established Federal law…’ under § 2254(d)(1)

[with restricted source].”); Stringer v. Black, 503 U.S.

222 (1992) (holding “new rule” for Teague not

announced when “clear principle emerges not from

any single case…but from [a] long line of authority”).

Thus, the Court could summarily vacate and remand

this case because the Sixth Circuit’s decision conflicts

with “clearly established law;” if it does not, it should

grant review and order the Sixth Circuit to address

the second step of AEDPA.

23

CONCLUSION

This Court should grant Mr. Fields’ petition for

certiorari because the Sixth Circuit not only failed to

apply clearly established federal law but questioned

whether this Court has held that due process, fair

trial, and confrontation clause rights are predicated on

a judicial system in which evidence must be developed

at trial—in public and subjected to counseled scrutiny.

Respectfully submitted,

Stephen Ross Johnson

Counsel of Record

for Amici Curiae

Anne E. Passino

RITCHIE, JOHNSON &

STOVALL, P.C.

606 W. Main Street,

Suite 300

Knoxville, TN 37902

(865) 637-0661

johnson@rjs.law

Counsel for NACDL

Jeffrey T. Green

Co-Chair Amicus

Committee

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1660 L Street NW,

12th Floor

Washington, DC 20036

H. Louis Sirkin

SANTEN & HUGHES

600 Vine Street,

Suite 2700

Cincinnati, OH 45202

Amicus Co-chair for

NAPD

Dated: SEPTEMBER 5, 2025

Abraham Mashni

MASHNI LAW, PLLC

157 N. Limestone St.,

Suite 250

Lexington, KY 40507

President of KACDL

APPENDIX

APPENDIX TABLE OF CONTENTS

Appendix A: List of Amici Scholars .......................... 1a

1a

APPENDIX A

Titles and institutional affiliations are provided for

identification purposes only.

Alexis Hoag-Fordjour

David Dinkins ’56 Associate Professor of Law

Brooklyn Law School

Emily Hughes

Edward F. Howrey Professor of Law

University of Iowa College of Law

Sheri Lynn Johnson

James and Mark Flanagan Professor of Law

Cornell Law School

Joy Radice

Director of Clinical Programs and

Associate Professor of Law

University of Tennessee Winston College of Law

Jordan M. Steiker

Judge Robert M. Parker Endowed Chair in Law

Director, Capital Punishment Center

University of Texas at Austin School of Law

Penny J. White

Professor Emerita

University of Tennessee Winston College of Law

Samuel R. Wiseman

Professor of Law

Penn State Dickinson Law