Whether a federal court may assess the harmlessness of a Giglio error by considering post-trial DNA evidence not presented to the original jury, rather than evaluating the trial evidence as it was actually heard

No question identified. : 3. This case seeks review of a decision by the Eleventh Circuit affirming a denial of habeas relief on a 28 U.S.C. § 2254 petition seeking to set aside Applicant’s state-court murder conviction. The Eleventh Circuit held that Applicant’s trial was tainted by a serious Giglio error. Whitton v. Sec’y, Fla. Dep’t of Corrs., No. 23-10786, 2025 WL 1305158, at *16 (11th Cir. May 6, 2025). But, the Eleventh Circuit held that the “testimony, overall, was immaterial to the jury’s verdict,” id., because “the Florida Supreme Court reasonably determined that the record contained ‘overwhelming evidence’ of Whitton’s guilt,” id. at *18. 4, The Eleventh Circuit recognized that virtually all of the evidence in the case relied on an interconnected web of “credibility determinations on which the jury could easily side with Whitton,” id., and that “[{a] jury may well find some of [Whitton’s] points to be persuasive,” id. But the Eleventh Circuit held that the evidence could be deemed “overwhelming” because “Whitton can’t rebut the State’s blood-spatter evidence.” Id. The blood-spatter evidence was absolutely crucial to the Eleventh Circuit’s harmlessness determination. Wrote the Eleventh Circuit: “[E]ven if the call is ultimately debatable, it’s within the realm of fair-minded disagreement ... 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.” Jd. at *19 (cleaned up). 5. But in holding that the blood-spatter evidence was overwhelming, the Eleventh Circuit appears to have committed a grievous error. The Eleventh Circuit considered the strength of the blood-spatter evidence against Whitton not by looking to the evidence presented at the actual trial, but rather by assessing the strength of the evidence against Whitton on the basis of DNA testing done many years after the trial. That analysis did not focus on whether a reasonable jury that heard the evidence at the actwal trial in this case would have found the untainted evidence overwhelming. The Eleventh Circuit repeatedly explained that its consideration of the persuasiveness of the blood-spatter evidence hinged on “later retesting” of the blood that showed it “matched [the victim’s] DNA.” Id. at *18; see also id. at *19 (explaining that post-trial DNA retesting “ties Whitton directly and firmly to [the victim]’s murder”). That is because, at the actwal trial in this case, unrebutted testimony established that the DNA on the boots “matched neither [the victim’s] nor Whitton’s” DNA. Jd. at *3. In other words, the only testimony the jury ever heard in Whitton’s case was that he had blood spatter on his boots, but not from the victim— that is not “overwhelming” evidence. 6. The harmless-error standard requires a court to assess whether, absent the evidence tainted by error, the evidence upon which the jury actually rested its guilty verdict was sufficient to establish the defendant’s guilt beyond a reasonable doubt. See Yates v. Evatt, 500 U.S. 391, 404-05 (1991) (explaining that the harmlessness inquiry has “two ... distinct steps”: first, the court “must ask what evidence the jury actually considered in reaching its verdict”; second, the court must assess “whether the jury actually rested its verdict on evidence establishing [guilt] beyond a reasonable doubt, independently of [the error]”). It is irrelevant whether, in light of later-adduced evidence that the jury never saw, there is presently “overwhelming evidence” of the defendant’s guilt (or whether there was “overwhelming evidence” of guilt before the state court in postconviction proceedings). Evidence not presented to the jury at trial is logically immaterial to the analysis. Examining the errors that occurred at trial for harmlessness in light of post-trial evidence disregards the jury’s role of hearing the facts and rendering a verdict based on that evidence. See Kotteakos v. United States, 328