Amicus Curiae Brief — Gary Richard Whitton, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

No. 25-580

In the

Supreme Court of the United States

GARY RICHARD WHITTON,

Petitioner,

v.

RICKY D. DIXON, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE

PROFESSORS OF CONSTITUTIONAL AND

CRIMINAL LAW IN SUPPORT OF PETITIONER

A rdith Bronson

DLA Piper LLP (US)

200 S. Biscayne Boulevard

Miami, FL 33131

K atherine Culver

Wilberto Sicard

DLA Piper LLP (US)

1650 Market Street

Philadelphia, PA 19103

Samantha L. Chaifetz

Counsel of Record

Joshua E. Gardner

DLA Piper LLP (US)

500 8th Street NW

Washington, DC 20004

(202) 799-4082

samantha.chaifetz@

us.dlapiper.com

Counsel for Amici Curiae

December 17, 2025

388252

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The State’s Giglio Violation Should Not be

Held Harmless Based on Evidence Never

Put Before the Jury and Never Subjected to

Adversarial Testing . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The Eleventh Circuit’s Harmless

Error Analysis Relied on Unadmitted

Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Eleventh Circuit’s Harmless

Error Analysis Is Inconsistent with

Decades of This Court’s Precedent and

Conflicts with Other Circuit and State

Court Decisions . . . . . . . . . . . . . . . . . . . . . . . 7

C. The Eleventh Circuit’s Decision Is

Contrary to the Confrontation Clause . . . . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii

TABLE OF CITED AUTHORITIES

Cases

Page

Blackwood v. State,

777 So. 2d 399 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . 6

Brecht v. Abrahamson,

507 U.S. 619 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8

California v. Green,

399 U.S. 149 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Davis v. Alaska,

415 U.S. 308 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dutton v. Evans,

400 U.S. 74 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Giglio v. United States,

405 U.S. 150 (1972) . . . . . . . . . . . . . . 3, 4, 6, 7, 8, 10, 12

Kentucky v. Stincer,

482 U.S. 730 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Kotteakos v. United States,

328 U.S. 750 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8

Lilly v. Virginia,

527 U.S. 116 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iii

Cited Authorities

Page

Maryland v. Craig,

497 U.S. 836 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Mattox v. United States,

156 U.S. 237 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Napue v. People of State of Ill.,

360 U.S. 264 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Pye v. Warden, Georgia Diagnostic Prison,

50 F.4th 1025 (11th Cir. 2022) . . . . . . . . . . . . . . . . . . . 5

Smith v. Arizona,

602 U.S. 779 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Perkins,

1999 WL 334974 (Ohio Ct. App. May 28, 1999) . . . . . 5

Strickler v. Greene,

527 U.S. 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tennessee v. Street,

471 U.S. 409 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Agurs,

427 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8

Statutes

Florida Stat. § 90.104(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 6

iv

Cited Authorities

Page

Other Authorities

J. Wigmore, Evidence §§ 1364, 1365 (3d ed. 1940) . . . 10

1

INTERESTS OF AMICI CURIAE1

Amici curiae are professors of constitutional and

criminal law at institutions across the United States.

Amici have a professional interest in ensuring that the

Court is fully informed of the important constitutional and

criminal law issues in this case. Specifically, amici submit

this brief to explain that the Eleventh Circuit opinion

in this case raises significant and serious constitutional

issues that warrant this Court’s review.

The amici are:2

Professor Peter Joy, Henry Hitchcock

Professor of Law, Washington University

School of Law

P rofessor Cra ig T roci no, A ssociat e

Professor of Clinical Education, Director of

the Innocence Clinic, University of Miami

School of Law

Professor Sheri Lynn Johnson, James and

Mark Flannagan Professor of Law, Cornell

Law School

1. No counsel for any party authored this brief in whole or

in part, and no person or entity other than amici curiae or their

counsel made a monetary contribution to fund its preparation or

submission. The parties’ counsel of record received timely notice

of intent to file this brief.

2. Amici’s affiliations are listed for identification purposes.

Amici’s views are solely their own and do not represent the views

of any public or private institution.

2

Professor Ira Robbins, Distinguished

Professor of Law and Barnard T. Welsh Scholar,

American University Washington College of

Law

Professor Jeffrey Fagan, Isidor and Seville

Sulzbacher Professor of Law, Columbia Law

School

Professor Mike Cassidy, Professor and

Dean’s Distinguished Scholar, Boston College

Law School

Professor Barbara O’Brien, Professor of

Law, Michigan State University College of Law

Professor Catherine Grosso, Professor of

Law, Michigan State University College of Law

Professor William Berry, Professor of

Law, Associate Dean of Research and Frank

Montague Jr. Professorship of Legal Studies,

University of Mississippi School of Law

Professor Ellen Yaroshefsky, Howard

Lichtenstein Professor of Legal Ethics,

Maurice A. Deane School of Law, Hofstra

University.

3

SUMMARY OF ARGUMENT

This Court has “consistently held that a conviction

obtained by the knowing use of perjured testimony is

fundamentally unfair” because it “involve[s] a corruption

of the truth-seeking function of the trial process.” United

States v. Agurs, 427 U.S. 97, 103–04 (1976). Here, the

Eleventh Circuit acknowledged that the state committed

a Giglio violation when it permitted a jailhouse informant

to falsely testify at trial that he lacked a violent criminal

record despite prosecutors knowing that he did. The

Eleventh Circuit deemed this violation harmless, however,

based on its erroneous consideration of a DNA test

which was conducted years after the trial and was never

admitted into evidence or subjected to adversarial testing.

But, as this Court has explained, “it is not the appellate

court’s function . . . to speculate upon probable reconviction

and decide according to how the speculation comes out.”

Kotteakos v. United States, 328 U.S. 750, 763 (1946). By

doing precisely that, the Eleventh Circuit erred, and its

decision conflicts with the decisions of this Court, other

circuits and state courts.

Review of the Eleventh Circuit’s decision is especially

warranted because it raises serious Confrontation Clause

concerns. It is inconsistent with due process principles for

an appellate court’s harmless error analysis in a death

penalty case to consider unadmitted allegedly inculpatory

DNA evidence that was never presented to a jury or

subject to cross-examination.

4

ARGUMENT

I.

The State’s Giglio Violation Should Not be Held

Harmless Based on Evidence Never Put Before the

Jury and Never Subjected to Adversarial Testing.

A.

The Eleventh Circuit’s Harmless Error

Analysis Relied on Unadmitted Evidence.

In the decision below, the Eleventh Circuit correctly

held that the State committed a Giglio violation by failing

to correct a jailhouse informant’s false testimony that he

had never been arrested despite prosecutors knowing

he had been “charged with assault with bodily injury

against his father, terroristic threats against his mother,

and at least one other burglary.” Pet. App. 34a. The

panel acknowledged that, had the witness’s testimony

been impeached, it would have seriously undermined his

credibility. Pet App. 34a-35a. 3

Nonetheless, the panel held this Giglio error

harmless, giving deference under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) to the Florida

Supreme Court’s rejection of petitioner Whitton’s habeas

petition based on that court’s determination that there

was “overwhelming evidence against Whitton.” Pet.

App. 37a-39a. In finding the Florida Supreme Court’s

assessment reasonable, the decisive factor for the

Eleventh Circuit was the State’s “blood-spatter evidence.”

Pet. App. 42a. At trial, the State’s DNA examiner testified

that a sample of blood on Whitton’s boots was not a match

for either Whitton or the victim. See Pet. App. 70a, 87a.

3. That witness later recanted his testimony that Whitton

had confessed to the crime. Pet. App. 34a.

5

But, years after the trial, the State had new DNA tests

performed on samples of blood from Whitton’s boots,

which showed a match to the victim. See Pet. App. 10a.

The Eleventh Circuit panel stated:

[A]fter retesting the DNA on Whitton’s boots,

the State confirmed that the inside of Whitton’s

right boot contained blood from a “mixture

of two or more individuals” with the “major

donor” matching “the DNA profile of James

Maulden.” In short, the blood-spatter evidence

ties Whitton directly and firmly to Maulden’s

murder.

Pet. App. 42a (internal citations omitted). The panel

concluded:

[E]ven if the “call[]” is ultimately “debatable,” it’s

within the realm of fair-minded disagreement,

Pye, 50 F.4th at 1042, that blood spatter

evidence—which has no explanation other

than one that is consistent with the defendant’s

guilt—will surely convince a jury of the

defendant’s guilt, see Brecht, 507 U.S. at 638.

See, e.g., State v. Perkins, 1999 WL 334974, at

*3 (Ohio Ct. App. May 28, 1999) (holding “blood

spattered” on defendant’s “T-shirt and jeans,”

as well as DNA testing proving the spatter

matched the victim, “presented overwhelming

evidence of” the defendant’s guilt).

Pet. App. 42a-43a.

But the Eleventh Circuit’s decision improperly

overlooked the fact that these critical DNA test results

6

were never put before the jury and never admitted into

evidence. See 15-CV-200-RH Docket entry No. 73-13 at

245 (N.D. Fla. Jan. 25, 2022). And the Florida Supreme

Court’s decision denying Whitton’s first post-conviction

petition (the decision cited in the Eleventh Circuit’s

harmless error analysis) does not even mention them. See

generally Pet. App. 122a-155a.

Rather than seek the admission of the DNA testing

into evidence before the state court, the State instead

made an oral proffer of these post-trial DNA test results

to the district court during federal habeas proceedings.

See 15-CV-200-RH Docket entry No. 114-1 at 2 (N.D. Fla.

Sept. 27, 2022); see generally 15-CV-200-RH Docket entry

No. 114-4. The district court did not rely on or even discuss

these DNA test results in its order denying relief.4 See

generally Pet. App. 65a-121a. Indeed, in permitting the

State to make a proffer concerning the DNA tests, the

district court observed that “I just don’t think the DNA

evidence, certainly, isn’t going to affect the Giglio issue

very much . . . But I treat it as proffered.” 15-CV-200-RH

Docket entry No. 116 at 271:24-272:1 (N.D. Fla. Oct. 13,

2022). Nonetheless, before the Eleventh Circuit, the State

heavily relied on these DNA test results, arguing that the

results justified denial of habeas relief. See Gov’t Answer

Br. at 48-49, 54, Whitton v. Florida, No. 23-10786-P

4. The State’s proffer of the results of the DNA tests simply

preserved any evidentiary ruling for appellate review; the proffer

did not result in the admission of the DNA tests. See Blackwood

v. State, 777 So. 2d 399, 410-11 (Fla. 2000) (holding that proffer

of excluded evidence necessary to preserve objection for appeal);

Florida Stat. § 90.104(1)(b) (permitting proffers of excluded

evidence to preserve objection).

7

(11th Cir. Feb. 13, 2024). 5 Bafflingly, the Eleventh Circuit

treated this unadmitted, untested evidence as fact for

purposes of assessing whether the Giglio violation was

harmless.

B. The Eleventh Circuit’s Harmless Error

Analysis Is Inconsistent with Decades of This

Court’s Precedent and Conflicts with Other

Circuit and State Court Decisions.

The Eleventh Circuit’s harmless error analysis

contravenes core constitutional values and decades of this

Court’s precedent and also conflicts with other circuit

and state court decisions. In relying on unadmitted DNA

testing conducted years after the trial to find Whitton

was not prejudiced by the State’s Giglio violation, the

Eleventh Circuit flouted bedrock due process principles,

and subverted the jury’s function as a factfinder.

Due process rights—such as the right to a fair trial,

which Brady, Giglio, Napue, and related cases protect—

are foundational to our constitutional order. This Court

has long rejected the notion that prejudice in the context

of harmless error review is equivalent to the question of

5. The State has also referred to these unadmitted test

results in its briefing before the Florida Supreme Court in

regard to Whitton’s second successive state habeas petition. See

Gov’t Answer Br. at 63-64, Whitton v. Florida, No. SC20251357 (Fla. Oct. 17, 2025). Notably, despite urging the Eleventh

Circuit to consider these unadmitted DNA test results, the State

acknowledges in the briefing before the Florida Supreme Court

that “[i]t is not at all clear that regular Giglio analyses permit

consideration of newly discovered evidence of guilt that the trial

jury never heard.” Id. at 87.

8

guilt or innocence, because the right to a fair trial exists

independent of guilt or innocence. See, e.g., Kotteakos v.

United States, 328 U.S. 750, 764 (1946) (“And the question

is, not were they right in their judgment, regardless of the

error or its effect upon the verdict. It is rather what effect

the error had or reasonably may be taken to have had upon

the jury’s decision. The crucial thing is the impact of the

thing done wrong on the minds of other men, not on one’s

own, in the total setting.”).

Put another way, this Court’s decisions make clear that

whether the Giglio violation the Eleventh Circuit found in

this case violated Whitton’s due process rights depends

on how the error affected the outcome of his trial. See,

e.g., Kotteakos, 328 U.S. at 764; Giglio v. United States,

405 U.S. 150, 153–54 (1972) (“A new trial is required if

‘the false testimony could . . . in any reasonable likelihood

have affected the judgment of the jury. . . .’’) (quoting

Napue v. People of State of Ill., 360 U.S. 264, 270 (1959);

United States v. Agurs, 427 U.S. 97, 112 (1976) (“The

proper standard of materiality must reflect our overriding

concern with the justice of the finding of guilt.”) (emphasis

added); Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

(“[T]he standard for determining whether habeas relief

must be granted is whether the [] error ‘had substantial

and injurious effect or influence in determining the jury’s

verdict.’”) (quoting Kotteakos, 328 U.S. at 776); Strickler v.

Greene, 527 U.S. 263, 298–99 (“We first essayed a partial

definition [of materiality] in United States v. Agurs, []

where we identified three situations arguably within the

ambit of Brady and said that in the first, involving knowing

use of perjured testimony, reversal was required if there

was “any reasonable likelihood” that the false testimony

had affected the verdict.”) (emphasis added).

9

The Eleventh Circuit’s harmless error analysis in this

case is inconsistent with this well-established precedent.

As recognized in the circuit and state court decisions

Whitton cites, see Pet. 20-22, evidence that was never put

before the jury cannot support a finding that the State’s

violation (here, the erroneous failure to correct false

testimony) was harmless. Such evidence has no bearing

on whether the false testimony affected the outcome of

defendant’s trial.

C.

The Eleventh Circuit’s Decision Is Contrary to

the Confrontation Clause.

The Eleventh Circuit’s consideration of DNA

testing conducted years after the trial and which was

never introduced into evidence is also inconsistent with

the Confrontation Clause because it runs afoul of the

fundamental right that a defendant has to confront the

witnesses against him.

The “central” purpose of the Confrontation Clause “is

to ensure the reliability of the evidence against a criminal

defendant by subjecting it to rigorous testing in the

context of an adversary proceeding.” Lilly v. Virginia, 527

U.S. 116, 123–24 (1999) (quoting Maryland v. Craig, 497

U.S. 836, 845 (1990)); see also Tennessee v. Street, 471 U.S.

409, 415 (1985) (explaining that the “very mission” of the

Confrontation Clause is “to advance ‘the accuracy of the

truth-determining process in criminal trials’”) (quoting

Dutton v. Evans, 400 U.S. 74, 89 (1970)). “The opportunity

for cross-examination . . . is critical” to achieve this goal.

Kentucky v. Stincer, 482 U.S. 730, 736 (1987). Indeed,

“[c]ross-examination is the principal means by which the

believability of a witness and the truth of his testimony

are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974).

10

The Confrontation Clause addresses “the paradigmatic

evil” of “trial by affidavit.” Dutton v. Evans, 400 U.S. 74,

94 (1970); see also California v. Green, 399 U.S. 149, 156

(1970) (“[T]he particular vice that gave impetus to the

confrontation claim was the practice of trying defendants

on ‘evidence’ which consisted solely of ex parte affidavits

or depositions secured by the examining magistrates.”).

A face-to-face encounter combats this great “vice” by

allowing the accused “to directly challenge the accuser’s

testimony before the factfinder.” Id. at 192 (Brennan,

J., dissenting) (citing J. Wigmore, Evidence §§ 1364,

1365 (3d ed. 1940)); see also Mattox v. United States, 156

U.S. 237, 242–43 (1895) (emphasizing the importance of

“a personal examination and cross-examination of the

witness, in which the accused has an opportunity, not only

of testing the recollection and sifting the conscience of the

witness, but of compelling him to stand face to face with

the jury in order that they may look at him, and judge by

his demeanor upon the stand and the manner in which he

gives his testimony whether he is worthy of belief”).

The Eleventh Circuit’s decision cannot be reconciled

with the Confrontation Clause. The State decided not

to introduce the DNA test into evidence or to call the

person who administered the test as a witness during the

post-conviction evidentiary hearing. Given that choice, a

court cannot, consistent with the Confrontation Clause,

rely upon that unadmitted, unsponsored test to support

a lack of prejudice under Giglio. And yet, that is exactly

what the Eleventh Circuit did to conclude that the Giglio

violation was harmless.

Indeed, permitting the Eleventh Circuit’s decision to

stand would encourage sandbagging. It would allow the

11

state to forgo admitting questionable evidence during

post-conviction proceedings and then later rely upon that

unadmitted, untested evidence to argue that any error is

harmless. At the same time, it would deprive the defense

of the opportunity to challenge that evidence through

cross-examination or the submission of contrary evidence.

This approach is fundamentally unfair and contrary to

due process and the Confrontation Clause.

The Eleventh Circuit’s opinion also runs headlong into

this Court’s precedent. In Smith v. Arizona, the defendant

was charged with several drug-related offenses after

police found him “with a large quantity of what appeared

to be drugs and drug-related items.” 602 U.S. 779, 779

(2024). The forensic analyst who conducted testing on

the seized substances did not testify at the trial because

she “stopped working at the lab.” Id. at 780. So the state

called another analyst who “conveyed to the jury what [the

original analyst’s] records revealed about her testing.” Id.

The Court held that the substitute analyst’s testimony

violated the Confrontation Clause because “[a] [s]tate may

not introduce the testimonial out-of-court statements of

a forensic analyst at trial, unless she is unavailable and

the defendant has had a prior chance to cross-examine

her.” Id. at 802–03. Like the defendant in Smith, Whitton

never had the opportunity to cross-examine the analyst

who developed the DNA evidence against him.6 In fact,

Whitton never had any opportunity to contest the evidence

because it was merely proffered and never admitted

into evidence. That the Eleventh Circuit relied on such

6. There is no indication in the record that the person

who conducted the testing was unavailable to testify about the

results.

12

evidence during post-conviction proceedings does not

change this fundamental problem and reflects an improper

end-run around the constitutional protections guaranteed

by the Confrontation Clause.

CONCLUSION

The Eleventh Circuit erred when it concluded the

State’s Giglio error was harmless. This Court should

grant certiorari and reverse the Eleventh Circuit’s

decision.

Respectfully submitted,

A rdith Bronson

DLA Piper LLP (US)

200 S. Biscayne Boulevard

Miami, FL 33131

K atherine Culver

Wilberto Sicard

DLA Piper LLP (US)

1650 Market Street

Philadelphia, PA 19103

Samantha L. Chaifetz

Counsel of Record

Joshua E. Gardner

DLA Piper LLP (US)

500 8th Street NW

Washington, DC 20004

(202) 799-4082

samantha.chaifetz@

us.dlapiper.com

Counsel for Amici Curiae

December 17, 2025