Justice Clarence Thomas issued a sharp dissent after the Supreme Court voted 7-2 to vacate a lower-court ruling against a Florida death row inmate convicted of a brutal 1990 stabbing murder, accusing his colleagues of misplaced priorities while law-abiding citizens wait in vain for the same attention.
Justice Samuel Alito joined Thomas in dissent. The case involves Gary Whitton, who has been on Florida's death row since his 1991 conviction for the killing of James Maulden. The Supreme Court directed the U.S. Court of Appeals for the Eleventh Circuit to reconsider whether to grant Whitton a new trial, this time without factoring in DNA evidence that surfaced years after the original trial.
The ruling itself was lopsided. Seven justices sided with Whitton. But the two dissenters did not go quietly, and the substance of Thomas's objection raises a question the Court's majority left unanswered: why does a convicted murderer get the Court's intervention for what Thomas called an "inconsequential foot fault," while Americans with far stronger claims get turned away?
The underlying facts are grim. On the night of October 9, 1990, Whitton was seen with Maulden at a bank, where Maulden withdrew the entire balance of his account. The next morning, October 10, 1990, Maulden was found dead in a motel room, his body bearing multiple stab wounds.
Whitton went to trial in 1991. A prosecution witness named Jake Ozio, who had shared a jail cell with Whitton, testified that he overheard Whitton confess to "stabb[ing] the b, d." Ozio also told the jury he had no criminal record prior to his own arrest.
Whitton was convicted and sentenced to death. That conviction has stood for more than three decades.
Whitton's legal challenges have taken multiple forms over the years. He filed a Giglio claim, a challenge based on the prosecution's alleged use of false testimony, arguing that Ozio lied about hearing the confession. The Florida Supreme Court rejected that claim.
Years later, Whitton shifted his argument to federal habeas proceedings, this time contending that Ozio lied about not having a criminal record. Meanwhile, in 2002, improved DNA testing produced new evidence that had not been available at the 1991 trial.
The Eleventh Circuit denied Whitton relief. But in doing so, the appeals court referenced the post-trial DNA evidence, and that reference became the hook the Supreme Court used to send the case back. The majority held that the Eleventh Circuit must reconsider the new-trial question without weighing DNA evidence discovered after the original proceedings.
Thomas, as Fox News reported, did not mince words about what he saw as a misallocation of the Court's limited attention.
"It is unfortunate that the Court chose to intervene at the request of a convicted murderer to correct the Eleventh Circuit's inconsequential foot fault."
He went further, framing the decision against the Court's broader pattern of case selection:
"What makes it even worse is that the Court does so even while it refuses to correct far more consequential errors for law-abiding citizens."
Thomas laid out two reasons the Eleventh Circuit's mention of DNA results, even if technically improper, should not have warranted Supreme Court intervention. First, the appeals court had already conducted a thorough review of what Thomas described as "overwhelming evidence" against Whitton, evidence he said was "more than sufficient to justify its decision." Second, Whitton had not even exhausted his claim in state court, meaning the Eleventh Circuit could not have ruled for him regardless.
"Whitton does not deny that state-court remedies were available. Yet, he never sought state remedies for his claim based on Ozio's characterization of his criminal record."
That procedural point is significant. Under federal habeas law, inmates are generally required to exhaust state-court remedies before seeking relief in federal court. Thomas argued Whitton skipped that step, and the Supreme Court rewarded him anyway.
The most pointed passage in Thomas's dissent was not about Whitton at all. It was about everyone else.
"This Court routinely declines to provide relief to law-abiding Americans when it would actually matter, even after [lower courts conspicuously flout] this Court's precedents in ruling against them."
Thomas did not name specific cases in the excerpts reported by Fox News. But the implication was direct: the Court expends its discretionary authority to help a death row inmate correct a procedural technicality, while ordinary citizens with meritorious claims, citizens who followed the rules and played by the system, get denied certiorari and left without recourse.
That is not a new complaint from Thomas. He has spent decades flagging what he views as inconsistency in how the Court exercises its discretion. But the contrast here is especially stark. The Eleventh Circuit's supposed error was mentioning a piece of evidence it did not need to mention. Thomas called it harmless. Seven of his colleagues disagreed, or at least thought it warranted a do-over.
The practical effect of the 7-2 decision is that the Eleventh Circuit must now revisit whether Whitton deserves a new trial. The appeals court must conduct that analysis without reference to the DNA evidence discovered in 2002. Whether the outcome changes on remand remains to be seen.
Whitton remains on death row. Maulden remains dead. The evidence Thomas described as "overwhelming", including Whitton's presence with Maulden at the bank the night before the killing, the withdrawal of Maulden's entire account balance, and the jailhouse confession relayed by Ozio, has not been disputed by the majority.
The Court's order does not declare Whitton innocent. It does not even declare the Eleventh Circuit wrong on the merits. It simply says the appeals court considered something it should not have considered, and must try again without it.
Thomas and Alito see that as a waste of the Court's institutional capital. And the dissent's broader charge, that the same Court regularly turns away law-abiding Americans whose rights were trampled by lower courts, is not easily dismissed. The Supreme Court hears roughly 60 to 80 cases per term out of thousands of petitions. Every case it takes is a choice. Every case it declines is also a choice.
The majority chose Gary Whitton.
Thomas wants to know why the Court extends that courtesy to a man convicted of stabbing another man to death in a motel room, but not to citizens who never broke a law and never got their day in court.
It is a fair question. And seven justices left it unanswered.