Amicus Brief: Prosecutors Say Unreliable Evidence Requires New Trial

A group of current and former government attorneys who have worked on death penalty cases filed an amicus brief urging the Supreme Court to grant a new trial to James Dailey, a Florida death row inmate whose case involves serious questions about the reliability of the testimony presented at trial and the strong possibility that he is innocent.

There was no physical evidence linking Dailey to the crime he was convicted of. In fact, the only direct evidence implicating him was the testimony of three fellow prisoners who claimed he had confessed to them. Dailey’s codefendant has since issued multiple sworn statements claiming that he acted alone and that Dailey was innocent.

Jailhouse informants are notoriously unreliable witnesses—in fact, their testimony is the leading cause of wrongful convictions in death penalty cases. Informants have an incentive to say what prosecutors want to hear. Prosecutors often reduce sentences for informants, and did so for the three who testified against Dailey. As a recent ProPublica and New York Times Magazine investigationdetailed, one of the witnesses testified in over three dozen cases—including four capital cases—and received favors from prosecutors including early release from prison and having charges dismissed.

Despite plenty of reasons to believe the testimony was unreliable, prosecutors misled the jury into believing that these informants—including the one who testified in dozens of other cases—were trustworthy. As the amicus brief argues, this introduced an unacceptable risk that Dailey was convicted based on manufactured evidence that the jury couldn’t properly evaluate. The only way to prevent a grievous injustice is to grant Dailey a new, fair trial that respects his due process rights.

The Constitution Project at POGO is grateful to Karen Gottlieb of the Florida Center for Capital Representation and Elliot Scherker of Greenberg Traurig for their pro bono assistance.