Courts reviewing death penalty cases cannot use evidence the jury never saw.

Record source: CourtListener

Cite as: 608 U. S. ____ (2026) 1 Per Curiam SUPREME COURT OF THE UNITED STATES GARY RICHARD WHITTON v. RICKY D. DIXON, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 25–580. Decided June 1, 2026 PER CURIAM. A Florida jury convicted petitioner Gary Richard Whitton of murder and sentenced him to death. During his trial, the State called several witnesses, including a jailhouse inform- ant named Jake Ozio. Ozio was a high school student who, on a spring-break trip in Florida, was arrested and jailed for burglary and possession of a short-barrel shotgun. Ozio testified that, while he was incarcerated with Whitton, he overheard Whitton confess to “ ‘stabb[ing] the bastard.’ ” Whitton v. Secretary, Fla. Dept. of Corrections, 2025 WL 1305158, *2 (CA11, May 6, 2025) (per curiam). Ozio also testified that he had no criminal history prior to his spring- break arrest. That last piece of testimony turned out to be false. Ozio’s juvenile records—which the State had in its possession at the time—showed that he had previously been charged with “assault with bodily injury against his father, terroristic threats against his mother, and at least one other burglary.” Id., at *15. After unsuccessfully pursuing a direct appeal and state postconviction relief, Whitton filed an application for a writ of habeas corpus in Federal District Court. Among other claims, he argued that Ozio’s criminal-history testimony was false, that the prosecution knew the testimony was false, and that there was a reasonable likelihood the testi- mony affected the jury’s verdict. Whitton claimed that, as a result, his due process rights had been violated under this Court’s decision in Giglio v. United States, 405 U. S. 150 2 WHITTON v. DIXON Per Curiam (1972). And he contended, as was additionally necessary for federal habeas relief, that the Giglio error had a “ ‘sub- stantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U. S. 619, 623 (1993). The District Court denied relief, finding that any Giglio error “could not have made a difference” to the jury’s verdict because Florida juvenile criminal records are gener- ally inadmissible to attack a witness’s credibility. App. to Pet. for Cert. 79a. The Court of Appeals for the Eleventh Circuit affirmed, but on different reasoning.1 The court agreed with Whitton that Ozio’s criminal-history testimony was false, and that the State knew it to be false. Moreover, the court disagreed with the District Court’s conclusion that any Giglio viola- tion was harmless because of Florida evidence rules about juvenile records. That conclusion, the Court of Appeals ex- plained, was “erroneous” because Florida courts admit such records when a witness opens the door to prior convic- tions—including by stating that he has none. 2025 WL 1305158, *16. And “impeachment concerning Ozio’s juve- nile record,” the Court of Appeals concluded, “would have undermined [Ozio’s] credibility.” Ibid. So the court “[could not] affirm the district court’s decision on its finding of harmless error.” Ibid. The Court of Appeals then considered whether to affirm on another basis advanced by the State: that Whitton was not prejudiced by any Giglio error because Ozio’s testimony as a whole (not just the false part) was immaterial to the jury’s verdict. The court explained that the Florida Su- preme Court had made a determination relevant to that is- sue during Whitton’s state postconviction proceedings. There, the Florida Supreme Court had stated that, even without Ozio’s testimony, the evidence against Whitton was —————— 1 We describe here only the brief part of the Court of Appeals’ lengthy opinion relevant to the issue at hand.  Cite as: 608 U. S. ____ (2026) 3 Per Curiam “overwhelming.” Whitton v. State, 161 So. 3d 313, 334 (2014). Under the Antiterrorism and Effective Death Pen- alty Act of 1996, the Court of Appeals owed deference to that state court determination unless it was “ ‘based on an unreasonable determination of the facts in light of the evi- dence presented.’ ” 2025 WL 1305158, *7 (quoting 28 U. S. C. §2254(d)(2)); see 2025 WL 1305158, *17. That meant the key question for the Court of Appeals was whether the Florida Supreme Court’s determination about the rest of the evidence was a reasonable one. To answer that question, the Court of Appeals did some- thing peculiar: It considered not only the evidence that was presented to the jury at Whitton’s trial, but also evidence the jury never saw. The evidence in question relates to blood stains on Whitton’s boots, which were seized the day after the murder. At Whitton’s trial, an analyst from the Florida Department of Law Enforcement testified that the DNA in the blood stains matched neither the victim’s nor Whitton’s. A decade after Whitton was convicted, however, the State ran another DNA test on the blood stains—and this time, the results revealed a match with the victim’s DNA. Even though that new DNA evidence was not pre- sented at Whitton’s trial, the Court of Appeals took account of it when analyzing the Florida Supreme Court’s determi- nation. In describing the evidence that supported that de- termination, the Court of Appeals related that Whitton’s boots “were stained with blood that, after later retesting, matched [the victim]’s DNA.” Id., at *18.2 And in rebutting —————— 2 The sentence describing the evidence refers in full to the following: “the motel clerk saw Whitton’s car parked at the motel, and Whitton ad- mitted he was at the motel; Whitton’s boots and his car were stained with blood that, after later retesting, matched [the victim]’s DNA; the blood stains on and inside Whitton’s boots are consistent with ‘a stabbing or a beating’; Whitton could not explain the downward blood spatter on the inside of his boots; and Whitton’s car contained a power and gas receipt and a car wash ticket for 2:37 a.m. October 10, 1990, the night of the murder.” 2025 WL 1305158, *18. 4 WHITTON v. DIXON Per Curiam Whitton’s arguments (some of which it thought a jury “may well find” “persuasive”), the court again commented on the new DNA evidence. Ibid. Specifically, it observed that, “af- ter retesting the DNA on Whitton’s boots,” the State “con- firmed that the inside of Whitton’s right boot contained blood” with DNA “matching the DNA profile of [the victim].” Id., at *19 (internal quotation marks omitted). “In short,” the court said, “the blood-splatter evidence ties Whitton di- rectly and firmly to [the victim]’s murder.” Ibid. After con- sidering that post-trial DNA evidence (in addition to the trial evidence), the Court of Appeals held that it was not “unreasonable for the State court to conclude” that even without any of Ozio’s testimony “there was ‘overwhelming evidence against Whitton.’ ” Ibid. (quoting Whitton, 161 So. 3d, at 334). And so the Court of Appeals affirmed the denial of habeas relief. We vacate the Court of Appeals’ judgment because that court should not have considered the post-trial DNA evi- dence in assessing whether the Florida Supreme Court rea- sonably determined that Ozio’s testimony was immaterial to the jury’s verdict. Because the post-trial DNA evidence was not presented to the jury (indeed, did not exist at the time of the trial), that evidence could not have influenced the jury’s verdict. It therefore sheds no light on whether (or to what extent) Ozio’s testimony influenced that verdict. See Brecht, 507 U. S., at 623 (“[T]he standard for determin- ing whether habeas relief must be granted is whether the [constitutional] error had substantial and injurious effect o

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