What happened
The U.S. Supreme Court on Monday vacated an Eleventh Circuit judgment that had affirmed the denial of federal habeas relief to Florida death row prisoner Gary Richard Whitton, saying the appeals court used the wrong record to assess whether disputed testimony mattered to the jury.
In a per curiam opinion, the justices said the Eleventh Circuit “court should not have considered the post-trial DNA evidence” when evaluating whether the Florida Supreme Court reasonably found that jailhouse informant Jake Ozio’s testimony was immaterial to Whitton’s verdict. The Court granted certiorari, vacated the judgment and remanded for further proceedings.
Whitton was convicted of murder and sentenced to death after a trial that included testimony from Ozio, who said he overheard Whitton confess to stabbing the victim. Ozio also testified that he had no prior criminal history, but the Supreme Court said that testimony was false because juvenile records in the State’s possession showed prior charges including assault with bodily injury, terroristic threats and another burglary.
Whitton argued in federal habeas proceedings that the false testimony violated due process under Giglio v. United States and that the error had a substantial and injurious effect on the jury’s verdict. The Eleventh Circuit agreed that Ozio’s criminal-history testimony was false and that the State knew it was false, but it affirmed on the ground that Ozio’s testimony as a whole was immaterial given what it viewed as overwhelming evidence against Whitton.
The Supreme Court said the problem was that the Eleventh Circuit’s analysis counted DNA testing done a decade after trial, which indicated that blood on Whitton’s boots matched the victim. Because that DNA evidence was not presented to the jury and did not exist at the time of trial, the justices said, it could not have influenced the verdict and could not show whether Ozio’s testimony influenced that verdict.
The ruling is narrow. The Court expressly declined to decide whether the Florida Supreme Court’s determination was reasonable based on the evidence actually presented at trial, leaving that issue for the Eleventh Circuit in the first instance. It also left open the State’s argument that Whitton failed to exhaust the Giglio claim in state court.
Justice Clarence Thomas dissented, joined by Justice Samuel Alito except as to one part, arguing that the Eleventh Circuit had mentioned later DNA testing but did not make it dispositive. Thomas said the claim could fail on other grounds and criticized the Court for summarily vacating over what he viewed as an inconsequential lower-court foot fault.