Brief of Amici Curiae Professors of Constitutional and Criminal Law in Support of Petitioner (Whitton v. Dixon - 25-580)

Authors

• Ira P. Robbins, American University Washington College of LawFollow
• Jeffrey Fagan, Columbia University Law SchoolFollow
• Michael Cassidy, Boston College Law SchoolFollow
• Barbara O'Brien, Michigan State University College of LawFollow
• Catherine Grosso, Michigan State University College of LawFollow
• William W. Berry III, University of Mississippi School of LawFollow
• Ellen C. Yaroshefsky, Maurice A. Deane School of Law at Hofstra UniversityFollow

Document Type

Amicus Brief

Publication Date

12-2025

Case Name

Whitton v. Dixon, 25-280 (Supreme Court 2025)

Abstract

Brief in support of Petitioner.

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.

Recommended Citation

Robbins, Ira P.; Fagan, Jeffrey; Cassidy, Michael; O'Brien, Barbara; Grosso, Catherine; Berry, William W. III; and Yaroshefsky, Ellen C., "Brief of Amici Curiae Professors of Constitutional and Criminal Law in Support of Petitioner (Whitton v. Dixon - 25-580)" (2025). Amicus Briefs & Court Filings. 67.
https://digitalcommons.wcl.american.edu/pub_disc_briefs/67