Petition for Writ of Certiorari — Starquineshia Palmer, Petitioner v. Florida
Supreme Court briefMay 28, 2019
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
STARQUINESHIA PALMER,
Petitioner
v.
STATE OF FLORIDA,
Respondent
On Petition for a Writ of Certiorari
to the District Court of Appeal,
First District of Florida
PETITION FOR WRIT OF CERTIORARI
DAVID W. COLLINS
Florida Bar No. 475289
COLLINS LAW FIRM
310 North Jefferson Street
Monticello, Florida 32344-2057
Phone: (850) 997-8111
Fax: (850) 997-5852
Email: collins.fl.law@gmail.com
Counsel for Petitioner
QUESTION(S) PRESENTED
Was Petitioner denied her right to a trial by jury as contemplated by the Sixth
Amendment because of the decision in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893,
26 L.Ed.2d 446 (1970) which held there is no prejudice to a defendant who is tried by a
6-person jury versus a 12-person jury for a serious criminal charge when such a
conclusion is patently false and has been consistently attacked for the entire 49 years it
has controlled the size of juries in Florida and Connecticut.
i
LIST OF PARTIES
All parties appear in the caption of the case on the cover page.
CORPORATE DISCLOSURE STATEMENT
There are no parent corporations or publicly held companies in this case.
ii
TABLE OF CONTENTS
Question(s) Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
List of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Corporate Disclosure Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index to Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Constitutional and Statutory Provisions Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Reasons for Granting the Writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iii
INDEX TO APPENDICES
Appendix
Document
A
February 25, 2019 decision of the District Court of Appeal, Fifth District
of Florida, Case 1D17-3601
B
August 25, 2007 written Order Denying Amended Motion for Postconviction Relief issued by the Second Judicial Circuit, in and for Leon County,
Florida, Case 2011-CF-2774
C
Miscellaneous pages from transcript of evidentiary hearing of August 25,
2017, including oral denial of Ground I (12-person jury)
D
Pages 1-5, 45-47 of Palmer’s Amended Motion for Postconviction in Leon
County, Florida, Case 2011-CF-2774
E
Palmer’s Initial Brief filed in appeal 1D17-3601 in the District Court of
Appeal, Fifth District of Florida
F
Jury Trial--Williams v. Florida, 399 U.S. 78 (1970), 61 J. Crim. L.
Criminology & Police Sci. 526 (1970)
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?ar
ticle=5687&context=jclc
G
Saks, M., & Marti, M. W. (1997). A meta-analysis of the effects of jury
size. Law and Human Behavior, 21(5), 451-467.
http://homepages.law.asu.edu/~msaks/Saks%20&%20Marti%20jury%2
0size%20meta.pdf
H
Alisa Smith and Michael J. Saks, In Honor of Walter O. Weyrauch: The
Case for Overturning Williams v. Florida and the Six-Person Jury:
History, Law, and Empirical Evidence, 60 Fla. L. Rev. 441 (2008).
http://www.floridalawreview.com/wp-content/uploads/2010/01/Saks-BK
I
David F. Walbert, The Effect of Jury Size on the Probability of
Conviction: An Evaluation of Williams v. Florida, 22 Case W. Res. L.
Rev. 529 (1971)
https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=285
6&context=caselrev
J
Current Student Project at Cornell Universities Law School - Jury
Size: Less is not More.
https://courses2.cit.cornell.edu/sociallaw/student_projects/JurySize_les
sisnotmore.html
iv
TABLE OF AUTHORITIES CITED
CASES
FEDERAL
Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978) . . . . . passim
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . 6, 16
Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) . . . . . . passim
STATE
Alfonso v. State, 528 So. 2d 383 (Fla. 3d DCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Lessard v. State, 232 So. 3d 13 (Fla. 1st DCA December 17, 2017) . . . . . . . . . . . . . . 18
Smith v. State, 857 So. 2d 268 (Fla. 5th DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . 5, 15
State v. Griffith, 561 So. 2d 528 (Fla.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17
U.S. CODE, STATE STATUTES AND RULES
U.S. CONST. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
v
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgement(s) below:
OPINIONS BELOW
! The February 25, 2019 decision of the District Court of Appeal, Fifth District
of Florida, Case 1D17-3601. (See Appendix A)
! The August 25, 2007 opinion of the Second Judicial Circuit, in and for Leon
County, Florida, in Case 2011 denying Ground I of Petitioner’s Amended
Motion for Postconviction Relief. (See Appendix B; C: 16-18)
1
STATEMENT OF JURISDICTION
The District Court of Appeal, First District of Florida, decided Petitioner’s case
on February 25, 2019 (see Appendix A), affirming the August 25, 2007 denial of Ground
I of her Amended Motion for Post Conviction Relief by the Second Judicial Circuit, in and
for Leon County, Florida, in Case 2011-CF-2774. (See Appendix B; C: 16-18)
Petitioner’s 90-day time period for filing a petition for writ of certiorari in this
Court began on February 25, 2019 and ended on Sunday, May 26, 2019, making such a
petition due by Tuesday, May 28, 2019 (Monday being a federal holiday). The instant
petition is filed by U.S. Mail delivery with a postmark of May 28, 2019, making it timely.
Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Sixth Amendment to the U.S. Constitution guarantees defendants the right
to trial by jury:
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.1
1
U.S. CONST. amend. VI.
3
STATEMENT OF THE CASE
Starquineshia Palmer (hereafter, Palmer) and Shannon Washington met as high
school classmates and later entered into a dating relationship. Several years later, Ms.
Washington was attending Florida Agricultural and Mechanical University (FAMU) on
a basketball scholarship and resided in an off campus apartment with another basketball
player. In September, 2011, during FAMU homecoming weekend, Palmer visited Ms.
Washington and stayed at the apartment. During the stay, they got into an argument
and Palmer fatally stabbed Ms. Washington in the neck.
The state filed an information charging Palmer with second degree murder in
violation of Section 782.04(2) of the Florida Statutes. A grand jury returned an
indictment for first degree murder in violation of Section 782.04(1)(a)(1) of the Florida
Statutes (R. 10-11).
The state informed Palmer that it was not going to pursue the death penalty, and
at a later time, her counsel agreed with the prosecutor that a 6-per jury would suffice
rather than a 12-person jury.2 This was not a situation common in Florida where the
state waives the death penalty in exchange for the defendant waiving the right to a 12person jury. The jury found Palmer guilty and the trial court sentenced her to life in
prison without parole.
Palmer filed a postconviction motion in which she argued in Ground I that her
two trial counsels were ineffective for waiving her right to a 12-person jury. An evidentiary hearing was held in which both of her trial counsels testified and conceded that
they had been deficient in their duty to advise Palmer as to her right to a 12-person jury
2
Florida is one of only two states in the country, Connecticut being the other,
that allow a person facing an automatic life sentence if convicted, to be tried before a
jury of fewer than 12 persons.
4
and the benefits for exercising that right (see Appendix C), however the trial court
denied her claim saying she had not shown prejudice based on Florida case Smith v.
State, 857 So. 2d 268 (Fla. 5th DCA 2003) which is a case denying a similar argument
based on the decision in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446
(1970). The court in Smith stated, “the Supreme Court in Williams, while recognizing
the prerogative of legislatures to provide for twelve-person juries when the death penalty
is sought, nonetheless takes the position that there is no evidence that a twelve-person
jury is necessarily more advantageous than a six-person jury to a criminal defendant.”
The trial court then denied Petitioner’s claim, saying:
And, frankly, if you read Smith, probably the Court should not have conducted an evidentiary hearing on this case because there is no prejudice,
and that’s what the smith case found on facts very similar to what we have
here. Therefore, the really clear ruling is that that motion is denied because there was no prejudice.
(See Appendix C-18)
Petitioner appealed that denial to the District Court of Appeal for the Fifth District of Florida (Case 1D17-3601), which on February 25, 2019, affirmed the decision of
the trial court without comment. (See Appendix A) Without a written opinion, Petitioner could not file an appeal in the Florida Supreme Court leaving this Court as her
court of last resort via a petition for writ of certiorari. Accordingly, Petitioner hereby
files the instant petition for writ of certiorari seeking to have this Honorable Court
answer the question presented on page i.
5
REASONS FOR GRANTING THE WRIT
Ground I of Palmer’s postconviction motion was that her trial counsel was
constitutionally ineffective under this Court’s decision in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) for allowing her to be tried by a 6-person
jury instead of a 12-person jury. (Appendices D; E-5, 6, 7) Under Florida Statute 913.103
and Florida Rule of Criminal Procedure 3.2704 she had a right to be tried with a 12person jury.
Palmer prepared her motion in pro se, having various law clerks work on it as they
came and went from her institution and she stressed to the court below her lack of training in legal matters and limited education. In her Motion for Appointment of Counsel
to represent her at the evidentiary hearing below, she explained her situation as follows:
3. The Defendant is unable to represent herself in this adversarial and
complex filing without the assistance of an attorney, because her
Motion for Post-Conviction Relief was drafted and written by a law
clerk assigned to the Defendant’s case. The Defendant did not aid nor
assist the law clerk in the drafting or writing of said motion and is a
layman of law.
4. The Defendant respectfully request [sic] that Alice Copek not be
assigned as counsel to represent her, where Copek is counsel whom the
Defendant has asserted ineffective assistance of counsel against.
5. The Defendant asserts that without meaningful presentation of the
facts and matters raised in her pending motion, she would be prejudiced, and lack of counsel would create a conflict in the doctrine of
fundamental fairness.
6. The Defendant asserts that due to her lack of education and advocacy
skills that she cannot reasonably and intelligently represent herself and
the issues at hand. The Defendant seeks to avoid being procedurally
barred at advanced judicial levels due to he [sic] intellectual inadequacy
3
F.S. 913.10 – Number of jurors.—Twelve persons shall constitute a jury to try
all capital cases, and six persons shall constitute a jury to try all other criminal cases.
(1970 to present)
4
Rule 3.270 – Number of Jurors – Twelve persons shall constitute a jury to try
all capital cases, and 6 person. (1968 to present)
6
and lack of skills and knowledge of the law. The Defendant has access
to assistance from a prison law library; however, she cannot present
valid argumentation without assistance of counsel.
(Appendix E-7, 8)
It is clear from her motion that she is untrained in law and that law clerk(s) at her
institution prepared her motion for her. It is also clear that the law clerks who helped
her have a very limited understanding of the law, as evidenced by paragraph 2 above,
where she requested the lower court not appoint to represent her at her evidentiary
hearing, Attorney Alice Copek, who was her trial counsel and who she argued had
provided ineffective assistance during the trial phase of her case. Clearly the law clerks
did not understand what happens at evidentiary hearings on postconviction motions.
Undersigned counsel brings this to the Court’s attention since much of what took
place during the evidentiary hearing was the questioning of Palmer towards getting her
to define/defend legal points towards prevailing on her motion, something she was
unable to do because of her lack of legal training.
The lower court appointed Attorney Scott Miller to represent Palmer at her
evidentiary hearing, and under his questioning, she testified as follows as to Ground I:
BY MR. MILLER
...
Q Okay. And do you know how many jurors you’re entitled to in a
first-degree murder case?
A No, sir, I didn’t.
Q Do you know now?
A Yes, sir, I do.
Q How many?
A Twelve.
Q All right. when did you become aware of that fact?
A About a year ago.
Q While you were preparing the motion?
A Yes, sir.
Q Okay. And you had somebody helping you do that -A Yes, sir, I did.
7
Q -- a paralegal? Before the trial did anybody mention to you that
you were entitled to a 12-person jury?
A No, sir.
Q Did anybody ask you to waive the 12-person jury?
A No, sir.
Q Did you ever tell anyone, I don’t need a 12-person jury?
A No, sir.
Q All right. Did your lawyer ever talk to you about a 12-person jury
or a six-person jury?
A No, sir. she did not.
Q All right. so the subject never even came up?
A No, sir.
(Appendix E-15, 16)
Attorney Jon Fuchs represented the State at the hearing and under his questioning during cross, Palmer testified as follows as to this issue:
BY MR. FUCHS:
Q Ms. Palmer, if I can, I’m going to try and walk these through one
at a time.
As to Ground one, I believe your claim is that Ms. Copek was ineffective for failing to object to a six-person jury when the death penalty is
waived; correct?
A Yes, sir.
Q And your testimony is that at no time were you informed that you
could have a 12-person jury, and you never affirmatively waived that;
correct?
A No, sir. I was not.
Q Okay. showing you what’s been previously -- what’s now into
evidence. It’s the transcript from the July 8, 2013, jury, and I’m referring
to Page No. 4 of that.
THE COURT: The date?
MR. FUCHS: That would be the July 8th of 2013.
Looks like Page 4.
BY MR. FUCHS:
Q I ask you to take a look at that and read from roughly 7 on down,
please.
(Pause)
A It says the court -Q You can just read it to yourself, ma’am.
A Okay.
(Pause)
8
Q Okay. Ms. Palmer, isn’t it true that on that date the Court
informed you that you had the right to a six-person -- to a 12-person jury
and then asked you whether you were agreeing to the six-person jury and
you said yes?
A Yes, sir.
Q Okay. So you were informed?
A I was, sir.
Q And you agreed to do a 12 -- or a six-person jury; right?
A Yes, sir.
(Appendix E-16, 17)
Palmer’s trial counsel was Alice Copek and she testified as to this issue as follows:
BY MR. MILLER
...
Q That’s all right. At any stage of your representation, did you ever
explain to Ms. Palmer the difference between the 12-person and six-person
jury?
A No. I do -- I don’t recall if we ever talked about a jury, you know,
like 12 versus six -Q Right.
A -- like, if we might -- if I. might have said, if it’s capital, it’s 12. But
I know that I never discussed with her do you want a 12-person jury? You
can demand a 12-person jury. I’m nearly positive that I never -Q The issue never came up?
A No. And I know -- I know I never talked to Ms. Palmer and said
you can demand this if you want.
Q Were you even aware that she was entitled to a 12-person jury
without a death penalty?
A The way I recall it -- and I do not remember if it was in Mr.
Thomas’s office or if it was here in the courtroom, but when it came up and
Ms. Ray had said I’m not seeking death, Andy had -- or I’m sorry -- Mr.
Thomas had said, don’t even think she’s entitled to it. And I never -- I
never researched it.
Q All right. Do you now know what the status of the law is with
regards to that?
A Not entirely because it’s – it seems to me that the Florida Supreme Court says if you demand -- if the defendant demands it, they get it.
And then some of the DCAs are a little bit fuzzy. But the way that I read
the Florida Supreme Court is that if Ms. Palmer had said, no, I want a
12-person jury, she would have been -- she would have gotten it.
Q Do you believe that would have been an advantage?
A Probably.
9
Q Why?
A Well, 12 -- you know, you only need one to get a hung jury. So 12
people are better than six. I mean, that’s a very simplistic conception, but
I haven’t thought about it in detail.
Q All right. Well, let’s move ahead to March of 2014. I understand
there was some movement of you within the Public Defender’s office.
A Correct.
Q Can you explain what that was?
A Well, as I said, I was, in July I had been assigned to Felony Division D, but I had not yet gone. And then shortly after that trial got
continued, I had surgery, and was out for about six weeks. And Ms.
Daniels, Nancy Daniels, the public defender at the time, was covering for
me. So she continued to cover for me till -- I don’t recall -- maybe October
or November -Q Okay.
A -- of 2013, and then I assumed my felony role.
Q In Division D?
A In Division D.
Q So you were carrying what kind of caseload?
A Oh, gosh. I don’t recall.
Q Was it a -- was it an abbreviated caseload? Was it a full caseload?
How would you describe it?
A It was a full caseload.
Q And is that in addition to handling obviously Ms. Palmer’s case?
A Ms. Palmer’s case, yeah.
Q Any other -A That was the only -- no. I had -- that was the only other case I had
beside D cases.
Q Okay. Now, when the trial came up in March of 2014, was there
also some personal matters which were distracting you from the trial,
specifically having to do with a storm or something?
A No. That was in July.
Q I’m sorry.
A That was -- in July when we were going to pick the jury, we had
a tree on our house -Q Okay.
A -- the weekend -- the week -- maybe three or four or five days
before that. so we were displaced from our home until October or November, I think.
And Mr. Thomas Mr. Thomas was also in capital, and he was
working on a big capital case in Wakulla, so can’t say it’s a personal -- any
personal issues we had then. It was just that I had been -- I was pleading
with Mr. Thomas, please, get on Palmer case. I need help. And he was
focused on --
10
Q He was busy elsewhere.
A -- his trial in Wakulla.
Q All right. Because of the tree on your house and your particular
experience and lack of experience with murder cases, do you feel like you
adequately advised Mrs. -- or Ms. Palmer about her right specifically to a
12-person jury?
A No.
Q All right. During the trial in March, were you -A Oh, personal issues. I will say in March I was -- the week of this
trial I was extremely sick.
Q Okay.
A Or pretty -- I shouldn’t say “extremely.” But I had to leave the
courtroom several times because of coughing attacks.
Q All right.
A But it was maybe that weekend before that I got sick.
Q All right. And we don’t need to go into your personal details about
your health, but did your relative infirmity, did that interfere with your
performance of your duties do you feel?
A Being sick?
Q Yes.
A I do. Yeah.
Q In what way?
A Well, I think -- I think just common sense tells you when you’re
sick you’re not at your peak performance.
Q Okay.
A And so it was -- it was being sick, and also because of the delay in
really getting hot onto the Palmer trial in March, we were up -- I was up
till all hours of the night preparing the night before trial. so not getting
sleep and being ill was not beneficial.
(Appendix E-17 to E-20)
During cross, Attorney Copek testified as follows on this issue:
BY MR. FUCHS:
Q Let’s talk about the 12-person jury. You’re saying you never had
a conversation with Ms. Palmer about that?
A Uh . . .
Q And it never crossed your mind to have a conversation about that?
A No. I know I never told her, Ms. Palmer, you are entitled to a
12-person jury. Do you want one? I never had that conversation with her.
Q So when the Court asked you back in June prior to going to the
jury selection in July whether it was a six-person or 12-person verdict -- or
jury and you told the Court six, you said that without ever consulting your
11
client? Never thought to say at that time maybe I should have that
conversation?
A That’s correct.
Q And then you’re saying that whenever you picked the jury on the
12 -- in July and the Court inquired about the fact that it’s 12-person or
six-person as to Ms. Palmer, and you, of course, also answered the six or
12, at that point you’re saying you still hadn’t ever talked to her and never
crossed your mind about doing so?
A That’s correct.
Q And you’re saying back again in October when you were talking
again about setting this for trial, the Court once again asked the question
about 12 versus six, and you again said six. And at no point during any of
that, you said, you know, what maybe I ought to think about maybe seeing
if this is a 12-person or six-person jury and have a conversation with your
client?
A That’s correct. Again, the reason I didn’t think of it to talk to her
about it was because Mr. Thomas -- and this is -- he’s far more experienced
that I am and had been -- had done capital cases, and he said, I don’t think
she’s even entitled to it, and I never -- I never followed up on that.
Q But you have no reason to believe that a 12-person jury would be
anything -- any other verdict other than the fact that it was 12 instead of
six?
A I’m sorry?
Q You have no reason to believe that it would be a different verdict
with 12 persons other than the fact that it’s 12 versus six?
A I think that’s speculation. I mean, I can’t ...
Q Okay. And you were sick the day of trial -- the week of the trial
and coughing, no sleep. I mean, that’s pretty standard with anybody that’s
going through a trial.
A Mm-hmm.
(Appendix E-20, 21)
Up to this point, the testimony shows that Attorney Copek never advised Palmer
of the benefits of a 12-person jury over a 6-person jury so that Palmer could make a
“knowing and voluntary” decision as to whether she wanted to waive her right under
Florida law to be tried by a 12-person jury. Attorney Copek testified that the court asked
her first whether it was going to be twelve or six person jury, with her indicating six, and
the court then asking Palmer if she was waiving her right to a 12-person jury which she
12
said she was, clearly following counsel’s lead.
Next to testify was Attorney Andy Thomas, who was second chair representing
Palmer. At the time of the hearing, Mr. Thomas had become the Public Defender for the
county.
BY MR. MILLER
...
Q Okay. And the case that we’re here on, was that your case?
A It was Ms. Copek’s case, but I was second from about six months
before the first jury selection. I got involved superficially.
Q All right. Did you interact with Ms. Palmer, the defendant in this
case?
A I did. In fact, I talked to her a little bit about her testimony, and
I visited with her a number of times. we saw Ms. Palmer pretty regularly.
Alice much more than me -- or Ms. Copek.
Q Okay. And did you ever talk to her about the possibility of a
12-person as opposed to a six-person jury?
A I did not.
Q And what is your understanding of the law as it relates to the 12
versus six-person jury?
A Now or then?
Q Then.
A Then? I was under the impression that Hall, a First District case,
controlled, which basically said that if the State waived death it was not a
capital case and you were not entitled to 12 jurors. And I believe that’s still
the First District’s position. But that’s what I thought. Okay?
Q Okay.
A I wouldn’t have been able to tell you it was Hall. I’ll tell you that.
But I know just from reading Florida Law Weeklies I recall that’s why I
told Ms. Copek -- I did say that. I don’t even know she’s entitled to 12
anymore. Okay?
Q Okay.
A What I did not know and I now know is Griffith, State v. Griffith,
a Florida Supreme Court case, which is still good law apparently, and there
are districts that disagree. Under those circumstances, there is no question
that we should have insisted on 12.
Q Why -- why should you have insisted on 12?
A Just calculus, mathematics. Frequently if you have a 12-person
jury and you have two or three that are going one way and a majority going
the other way, they’ll compromise. Not just a mistrial, but they will
frequently compromise. They’ll decide, okay, well, this isn’t first; it’s
second, or it’s not this; it’s manslaughter. And we gave away, in my view,
13
50 percent of our chance to get a lesser verdict.
Q Okay. Now, you’re basing this upon your training and experience?
A Yes, sir.
Q Okay. And, briefly, how long have you been a lawyer?
A 32 years I believe.
Q All right. And how -- how many of those years with the Public
Defender’s office?
A About 20.
...
Q All right. But for the -- the discrepancy you just talked about
between the instructions given and the ones you suggested, do you feel like
you could have expected a different result in the verdict?
A We would have had a shot, a better shot than we had the way we
did it. That’s all I can tell you.
Q Because why?
A Well, if we’d had 12 jurors, and we’d asked for the right instruction, and I hadn’t argued over the top, and we hadn’t made a number of
lapses in judgment, including letting Kathy Ray attack our witnesses and
personalize the trial -MR. FUCHS: Your Honor, I’m going to (indiscernible simultaneous speaking) -THE WITNESS: -- we had a better shot.
MR. FUCHS: -- I’ve got a lot of ifs, ifs, ifs -THE WITNESS: We had a lot of good shots.
MR. MILLER: Your Honor, I’ll tender the witness.
(Appendix E-21 to E-23)
During cross, Attorney Thomas made the following statement which undersigned
counsel believed to be significant as to his feelings of this case and considering Mr.
Thomas is now the elected Public Defender for the Second Judicial Circuit, taking over
that position less than three years after representing Palmer, undersigned counsel
believes it to be relevant:
BY MR. FUCHS:
Q Mr. Thomas, I notice you got pretty emotional there regarding
when you’re talking about the sentence that Ms. Palmer is serving.
A Yes.
(Appendix E-23)
14
No questions were asked of Attorney Thomas during cross as to the 12-person
jury issue.
During discussion of the 12-person jury issue, the judge, on his own, produced a
case for the attorneys to review as to the 12-person jury issue. This was the same judge
who presided over Palmer’s trial:
THE COURT: We’re going to take a few minutes. Then you
can make any comments you want to make.
Let me -- and I should have made copies for y’all. I apologize.
I just didn’t really think about it.
Give y’all a chance to look over a case that I pulled up while
we take a break. It’s Smith v State, 857 So. 2d 268.5
Do you have that, Mr. Fuchs?
MR. FUCHS: I already have it, Your Honor. I’ll pass it along
to Mr. Miller.
THE COURT: All right. We’ll take about five minutes.
(whereupon the proceedings stood in recess from 3:21 p.m. to 3:27 p.m.)
(Appendix E-24)
After the recess, Palmer’s counsel made the following argument as to the issue:
BY MR. MILLER:
Your Honor, we would submit that due particularly to the unknowing waiver of her right to a 12-person jury, she did not receive adequate representation. She wasn’t even informed about that. I mean, she
may have made a cursory waiver to the Court in July, prior to the trial, and
the following March, but not having been informed by counsel is the issue
here, and since she wasn’t informed by counsel, she could not have made
that waiver knowingly and intelligently and, therefore, wasn’t adequately
represented.
...
Specifically as it relates to Smith versus state, Judge, that’s a Fifth
DCA case. The rationale is interesting. I don’t know if I’d agree with it, but
I’m not an appellate judge that -- certainly that’s binding law if that’s the
only law out there on the subject. However, it’s not. I think there’s a
conflict between that and from what my understanding is Alfonso versus
5
Smith v State, 857 So. 2d 268 (Fla. 5th DCA 2003)
15
State. It’s 528 So. 2d 383 from the Third DCA.6 There being a conflict in
the districts, I think the Supreme Court case would take precedence, and
the guiding law on that would be State versus Griffin, 561 So. 2d 528,7
Florida Supreme Court from 1990, which I think would maintain that
essentially the 12-person jury -THE COURT: Do you have a copy of Alfonso?
MR. MILLER: And I apologize. I do not.
THE COURT: I couldn’t find any case that was in conflict
with Smith. Do you have a copy of that?
MR. MILLER: I do not. I just have -THE COURT: Is it a post-conviction case?
MR. MILLER: I don’t -- I don’t know, Judge.
THE COURT: Okay.
MR. MILLER: But I would submit that’s the binding case.
And because of that, the veritas or her right to a 12-person jury,
which even the Smith case indicates is statutory but not a fundamental right, is still a right, would constitute ineffective assistance.
Therefore, she should receive a new trial.
(Appendix E-24, 25)
The lower court embraced Smith v State, 857 So. 2d 268 (Fla. 5th DCA 2003) in
which the defendant complained that “his trial counsel was ineffective for failure to
object to a six-person jury in a capital murder case, claiming that neither he nor his trial
counsel agreed to waive the right to a twelve-person jury.” “The State in its response
to this court acknowledges that the record ‘does not reflect an on-the-record waiver by
defense counsel,’ but argues that Smith has failed to demonstrate prejudice because his
claim that a twelve-person jury would have been more susceptible to reasonable doubt
than a six-person jury is ‘purely speculative’ and more is required by the standards
established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).”
The Smith court, citing Williams, stated, “In Williams v. Florida, 399 U.S. 78, 90
6
Alfonso v. State, 528 So. 2d 383 (Fla. 3d DCA)
7
State v. Griffin, 561 So. 2d 528 (Fla. 1990)
16
S.Ct. 1893, 26 L.Ed.2d 446 (1970), which originated in the Florida state courts, the
United States Supreme Court rejected the argument that a criminal defendant was entitled to a twelve-person jury in a robbery prosecution and explained in some detail why
a twelve-person jury is not necessarily more advantageous to a criminal defendant than
a six-person jury.”
The Smith court continued, “In summary, the Supreme Court in Williams, while
recognizing the prerogative of legislatures to provide for twelve-person juries when the
death penalty is sought, nonetheless takes the position that there is no evidence that a
twelve-person jury is necessarily more advantageous than a six-person jury to a criminal
defendant. Assuming arguendo in the instant case that there was in fact no agreement
between the State and defense counsel, and that defense counsel simply failed to object
to a six-person jury, in light of Williams, Smith has failed to demonstrate the requisite
prejudice required by Strickland.”
The Smith court notes at the end of its opinion, “a defendant’s personal waiver
of this right is not required, as explained in State v. Griffith, 561 So. 2d 528, 530
(Fla.1990): The decision to proceed to trial with a jury of six persons, in lieu of twelve,
in exchange for the state’s agreement to waive the death penalty, must be considered a
tactical decision.... This tactical decision should be equated with other instances wherein
this Court has held a defendant’s personal on-the-record waiver unnecessary for a waiver
to be effective.”
Palmer would point out that while a defendant’s counsel can make many decisions
for tactical reasons and there are certainly times when the defendant is bound by those
decisions since counsel acts on defendant’s behalf, when the record shows that counsel
was not making a tactical decision, but testifies he or she never even thought about it,
or thought about it incorrectly, it would be an injustice to hold that defendant account-
17
able for that decision as a “tactical” decision made by counsel towards being an advocate
for his/her client.
In the instant case, Palmer clearly did not make a knowing and voluntary decision
to waive her right to a 12-person jury. She was just saying what was needed to agree
with what her counsel had just said, and her counsel’s decision to waive the 12-person
jury was clearly not a “tactical” decision made to help Palmer. It was a decision
unencumbered by the thought process.
The Smith court ultimately denied Smith relief because he could not show
prejudice in light of the decision in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26
L.Ed.2d 446 (1970). As soon as the Williams decision came out, it began getting
attacked in the media nationwide because it was a bad decision. Five years later, this
Court decided Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978),
striking down a Georgia law allowing 5-person juries and holding that a 5-person jury
was so small compared to larger juries like 12-person juries, that “it threatened the
constitutional guarantee of the right to a trial by jury.” Palmer finds it interesting that
according to the supreme court in Ballew, a jury of five is so small that “it threatens the
constitutional guarantee of the right to a trial by jury,” but according to Williams, a jury
of six is sufficient to try a defendant on the most serious crimes out there, in effect
creating a bright line rule. This makes it easy to see how really bad the decision on
Williams is.
Petitioner’s appellate court, the First District Court of Appeal, addressed
Williams just over a year ago in Lessard v. State, 232 So. 3d 13 (Fla. 1st DCA December
17, 2017) with Justice Makar writing an in-depth, 6-page, concurring opinion where he
described the problems that have arisen since this Court’s decision in Williams v.
Florida.
18
To begin, it is obvious that Williams, which dismissed the centuries-old
common law practice of twelve-member juries as a mere “historical accident” and replaced it with an ad hoc “functional” approach, was based on
dubious anecdotal assertions and demonstrably incorrect statistical and
sociological principles that have plagued this body of jurisprudence ever
since.8 Williams held that a six-member jury in a state court criminal proceeding was functionally the same and thereby an adequate constitutional
proxy for the time-worn traditional twelve-member jury. But its reasoning
foundered on glaring misinterpretations of social science research and
inept methodologies, so much so that one prominent commentator said
that the “quality of social science scholarship displayed [in the Court’s
decisions on jury size] would not win a passing grade in a high school
psychology class.”
...
Florida is alone in using six-member juries for life felonies,
Lessard v State, 232 So. 3d 13 (Fla. 1st DCA 12/17/ 2017)
The lower court, in ruling on Palmer’s issue, stated the following:
I think the law is pretty clear that at this point in time that a person
is entitled to a 12-person jury unless the death penalty is legally impossible, not just that the -- not just that the state has waived it. However,
that was not the case in 2014. I do not think it was ineffective assistance
of counsel not to assert that she was entitled to a 12-person jury. That
ruling can be argued.
However, I think the Smith case, which is, based upon my research,
8
See Shawn Kolitch, Constitutional Fact Finding and the Appropriate Use of
Empirical Data in Constitutional Law, 10 Lewis & Clark L. Rev. 673, 689 (2006) (noting
that the Supreme Court’s newfound functional approach was flawed because its “interpretation of the available empirical data was questionable from the beginning, and illustrates many of the difficulties the Court faces when attempting to support its holdings
with empirical data”); Robert H. Miller, Six of One Is Not A Dozen of the Other: A
Reexamination of Williams v. Florida and the Size of State Criminal Juries, 146 U. Pa.
L. Rev. 621, 622 (1998) (discussing “the critical ways in which the Court’s misinterpretation and misapplication of social-science research in Williams and its progeny triggered the ‘unthinkable’ dismantling of an irrevocable constitutional cornerstone”) (footnote omitted); Baldwin, 399 U.S. at 126 (“The Court’s elaboration of what is required
provides no standard and vexes the meaning of the right to a jury trial in federal courts,
as well as state courts, by uncertainty. Can it be doubted that a unanimous jury of 12
provides a greater safeguard than a majority vote of six? The uncertainty that will
henceforth plague the meaning of trial by jury is itself a further sufficient reason for not
hoisting the anchor to history.”) (Harlan, J., dissenting).
19
still controlling law, 857 So. 2d 268, Fifth DCA, with facts almost on point
with what we have here. And, frankly, if you read smith, probably the
Court should not have conducted an evidentiary hearing on this case
because there is no prejudice, and that’s what the Smith case found on
facts very similar to what we have here. Therefore, the really clear ruling
is that that motion is denied because there was no prejudice.
(Appendix E-29, 30)
Florida’s courts have their hands tied because of the ruling in Williams, and could
not have granted Petitioner relief if they had wanted to because such claims necessarily
are raised as ineffective assistance of counsel, necessitating a showing of prejudice which
Williams wrongly says doesn’t exist. Palmer contends she was indeed prejudiced
because the Williams court only considered the chances of a guilty or not guilty verdict,
but that is not real world. Palmer wants the best chance of not being found guilty and
that includes both being found not guilty and a hung jury, and the chances of a hung jury
are much greater the more jurors there are because of the greater discussions and
interaction by more members of the community as anticipated by the Framers of the
Sixth Amendment.
Palmer was prejudiced, and does satisfy the second prong of
Strickland, but the trial court was controlled by Williams and it progeny.
Numerous articles began appearing from the moment Williams was decided,
condemning the decision as wrong. Petitioner could present here to the point of ad
nauseam, quotations from such articles, but for the sake of judicial efficiency, Petitioner
instead has selected to include sever in her Appendix for the Court to review in their
entirety and in context. Respondents in this cause will have the opportunity to present
articles contradicting what Petitioner has presented, but quite frankly, undersigned
counsel has been unable to found a single article written in the almost 50 years since
Williams was decided that supports the decision. The decision is so bad, that the law
school at one Ivy League school (Cornell), includes is as a school project because it is so
20
bad. (See Appendix J) If ever there was a situation were it was absolutely clear a case
needs to be reconsidered, it is this one.
Below is information on the articles Petitioner has chosen to include.
The Court’s apparent disregard for the venerable traditions
embedding the twelve-man jury within our jurisprudence is disturbing.
From a legal standpoint, the rule of stare decisis commits the law to
consistency. In juxtaposing deviation from precedent to affirmation of it,
the law can justify the former only by demonstrating a pressing social need
for reform or an injustice resulting from the application of the old rule. It
is debatable whether the common law jury of twelve can be condemned
under either of the above characteristics. From a strictly empirical
standpoint, one thing is certain about the twelve-man jury. It works. As
Mr. Justice Harlan concluded in his dissent: “The decision in Williams ...
casts aside workability and relevance and substitutes uncertainty.”9
Jury Trial--Williams v. Florida, 399 U.S. 78 (1970), 61 J. Crim. L. Criminology & Police
Sci. 526 (1970) (See Appendix F)
In a series of opinions in the 1970s, the U.S. Supreme Court concluded that juries smaller than 12 persons would be constitutional if they
performed no differently than traditional 12-person juries. In a metaanalysis, we examined the effects of jury size on the criteria the court
specified as the basis for making such comparisons. A search for all
relevant empirical studies identified 17 that examined differences between
6- and 12-member juries. The total sample for the 17 studies was 2,061
juries involving some 15,000 individual jurors. Among other findings, it
appears that larger juries are more likely than smaller juries to contain
members of minority groups, deliberate longer, hang more often, and
possibly recall trial testimony more accurately.
Saks, M., & Marti, M. W. (1997). A meta-analysis of the effects of jury size. Law and
Human Behavior, 21(5), 451-467. (See Appendix G)
After 700 years of common-law history and nearly 200 years of constitutional history, the Supreme Court concluded that the constitutionally
permissible minimum jury size could not be inferred from the language or
9
399 U.S. at 129.
21
the history of the Constitution. The answer, said the Court in Williams v.
Florida, could be found only through a “functional analysis” of the
performance of smaller juries (that is, empirical examination of the
behavior of different-sized juries). The Court implicitly abandoned that
analysis in Ballew v. Georgia, when it held that juries with fewer than six
members were unconstitutional—a decision based on nothing more than
the ipse dixit of the Justices. This Essay sets out the historical and
empirical infirmities of the Williams line of cases. It summarizes the jury
sizes required in criminal prosecutions throughout the United States;
examines the Sixth Amendment history of the jury trial; argues that this
history supports the position that the Constitution intended twelve-person
juries; reviews Florida’s jury trial history; and summarizes the empirical
research undertaken since Williams. This Essay concludes that at present
no sound basis exists in law for knowing the minimum size of a
constitutionally permissible jury. Williams, having become a dead letter in
Ballew, should either be ratified (and the theory of functional equivalence
applied conscientiously) or be formally reversed to allow courts either to
develop a sound theory of the constitutionality of jury size or to restore the
jury to its traditional size.
Alisa Smith and Michael J. Saks, In Honor of Walter O. Weyrauch: The Case for
Overturning Williams v. Florida and the Six-Person Jury: History, Law, and Empirical
Evidence, 60 Fla. L. Rev. 441 (2008). (See Appendix H)
Williams provides the germ for a wide range of comments, but the
most salient question is the functional importance of jury size. A
functional analysis is clearly relevant to an evaluation of the potential
impact of the case, and is equally crucial to the Court’s test of
constitutionality. The Court concluded that the six-man jury would return
the same verdicts as the traditional jury, but this conclusion is
unsupportable. A thorough analysis shows that the problem of diminished
representation requires a much more careful treatment than that accorded
it by the Court. A proper treatment of representation, in conjunction with
a description of the deliberation process, shows that the six-man jury
convicts different persons. This difference is not a meaningless or arbitrary
distinction, but reflects a substantial derogation from the performance of
the 12-man jury. The test laid down in Williams indicates that the reduced
jury is unconstitutional if the smaller size impairs its performance.
Consequently, a correct application of the Court’s test would hold that a
jury of six persons is unconstitutional.
David F. Walbert, The Effect of Jury Size on the Probability of Conviction: An Evaluation
22
of Williams v. Florida, 22 Case W. Res. L. Rev. 529 (1971). (See Appendix I)
Six-person juries are the product of a 1970 Supreme Court decision,
Williams v. Florida (399 U.S. 78), that is now severely criticized both for
the empirical studies on which the Court relied and the Court’s analysis of
those studies. In fact, modern empirical research in sampling theory and
group dynamics suggests that six-person juries are less representative of
their respective communities than twelve-person juries and less
deliberative and thoughtful than their larger cousins.
Current Student Project at Cornell Universities Law School - Jury Size: Less is not More.
(See Appendix J)
According to the above, a 6-person jury is arguably unconstitutional, but at the
very minimum, it unarguably puts a defendant at a reduced chance of avoiding conviction compared to what he or she would have with a 12-person jury. Thus, the conclusion
in Williams that a defendant has no better advantage with a 12-person jury than he or
she does with a 6-person jury is incorrect, and for 49 years this case has been controlling
law in Florida, and it would be naive to presume it has not led to the conviction of many
innocent people, who are now serving life sentences with no chance of parole.
This is especially egregious in cases involving capital sexual battery where there
is only one sentence, life in prison, yet the proof at trial is more often than not a child’s
word over an adult’s word with no hard evidence. Florida does not allow a defendant
charged with capital sexual battery to be tried by a 12-person jury. He or she has to be
tried by a 6-person jury, just one more person than the number this Court ruled is
unconstitutional in Ballew v. Georgia.
The decision in Williams has been prejudicing Florida’s citizens for 49 years and
it is long past time to correct it. Not only has it deprived people like Petitioner who has
been denied her right to a 12-person jury based on William’s flawed conclusion as to
prejudice, but it also has allowed prosecutors to get defendant’s to trade their right to
23
be tried by a jury that is constitutional according to the Six Amendment, to instead be
tried by a jury that is unconstitutional in return for the state not seeking the death
penalty. How many innocent people are serving life sentences in Florida’s prisons right
now because of that. Florida should join the other states in the country and require 12person juries for all felony trials.
Petitioner contends she is entitled to a new trial by a 12-person jury and this
Court should grant this petition for certiorari and rehear Williams.
24
CONCLUSION
Petitioner has shown that the decision in Williams v. Florida, 399 U.S. 78, 90
S.Ct. 1893, 26 L.Ed.2d 446 (1970) is flawed and should be clarified or reversed as to its
holding that a 6-person jury is constitutional under the Sixth Amendment and there is
no prejudice to a defendant who is tried by a 6-person jury as opposed to being tried by
a 12-person jury, and accordingly, the instant petition for writ of certiorari should be
granted.
Respectfully submitted this 28th day of May, 2019.
DAVID W. COLLINS
Florida Bar No. 475289
COLLINS LAW FIRM
310 North Jefferson Street
Monticello, Florida 32344-2057
Phone: (850) 997-8111
Fax: (850) 997-5852
Email: collins.fl.law@gmail.com
Counsel for Petitioner
25
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.