Petition for Writ of Certiorari — Starquineshia Palmer, Petitioner v. Florida

Supreme Court briefMay 28, 2019

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IN THE

SUPREME COURT OF THE UNITED STATES

STARQUINESHIA PALMER,

Petitioner

STATE OF FLORIDA,

Respondent

On Petition for a Writ of Certiorari

to the District Court of Appeal,

First District of Florida

APPENDIX

TO 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

INDEX TO APPENDICES

Appendix

Document

February 25, 2019 decision of the District Court of Appeal, Fifth District

of Florida, Case 1D17-3601

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

Miscellaneous pages from transcript of evidentiary hearing of August 25,

2017, including oral denial of Ground I (12-person jury)

Pages 1-5, 45-47 of Palmer’s Amended Motion for Postconviction in Leon

County, Florida, Case 2011-CF-2774

Palmer’s Initial Brief filed in appeal 1D17-3601 in the District Court of

Appeal, Fifth District of Florida

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

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

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

.pdf

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

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

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-3601

_____________________________

STARQUINESHIA D. PALMER,

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Leon County.

James C. Hankinson, Judge.

February 25, 2019

PER CURIAM.

AFFIRMED.

WOLF, LEWIS, and WETHERELL, JJ., concur.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

APPENDIX A-1

David W. Collins of Collins Law Firm, Monticello, for Appellant.

Ashley B. Moody, Attorney General, and Virginia Harris,

Assistant Attorney General, Tallahassee, for Appellee.

APPENDIX A-2

APPENDIX B

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN

AND FOR LEON COUNTY, FLORIDA

CASE NO.: 2011-CF-2774

STATE OF FLORIDA

vs.

STARQUINESHIA PALMER,

Defendant.

DIGITAL PROCEEDINGS: POST CONVICTION HEARING

BEFORE:

THE HONORABLE JAMES C. HANKINSON

DATE:

August 25, 2017

LOCATION:

Leon County Courthouse

Tallahassee, Florida

FOR THE STATE:

JON FUCHS, ASSISTANT STATE ATTORNEY

OFFICE OF THE STATE ATTORNEY

LEON COUNTY COURTHOUSE

TALLAHASSEE, FLORIDA 32301

FOR THE DEFENDANT:

SCOTT MILLER, ASSISTANT REGIONAL COUNSEL

CRIMINAL CONFLICT REGIONAL

COUNSEL'S OFFICE

POST OFFICE BOX 1019

TALLAHASSEE, FLORIDA 32302

TRANSCRIBED BY:

JANYCE W. BOOTH, RMR, CRR

Notary Public in and for the

State of Florida at Large

JANYCE W. BOOTH, RMR

official Court Reporter

Leon County Courthouse, Room 341

Tallahassee, FL 32301

APPENDIX C-1

INDEX

WITNESSES:

PAGE

STARQUINESHIA PALMER

Direct Examination By Mr. Miller

Cross Examination By Mr. Fuchs

Redirect Examination By Mr. Miller

ALICE COPEK

Direct Examination By Mr. Miller

Cross Examination By Mr. Fuchs

Redirect Examination By Mr. Miller

ANDY THOMAS

Direct Examination By Mr. Miller

Cross Examination By Mr. Fuchs

Legal Argument by Mr. Miller

Legal Argument by Mr. Fuchs

Legal Argument by MR. FUCHS

Certificate of Reporter

110

APPENDIX C-2

okay. And you heard Mr. Fuchs read the -- the back

and forth between the judge and the defendant about the

12-person versus six-person jury.

I --I couldn't hear completely, but I was here, and

I heard -- I heard most of it, but it was a little difficult

to hear back there.

Okay.

You might have to remind me.

That's all right.

At any stage of your representation, did you ever

explain to s. Palmer the difference between the 12-person and

six-person jury?

No. I do -- I don't recall if we ever talked about

a jury, you know, like 12 versus six -Q

Right.

-- 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?

No. And I know -- I know I never talked to

Ms. Palmer and said you can demand this if you want.

Were you even aware that she was entitled to a

12-person jury without a death penalty?

The way I recall it -- and I do not remember if it

APPENDIX C-3

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.

All right. Do you now know what the status of the

law is with regards to that?

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.

Do you believe that would have been an advantage?

Probably.

why?

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.

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.

Correct.

Can you explain what that was?

APPENDIX C-4

something?

No. That was in July.

I'm sorry.

That was -- in July when we were going to pick the

jury, we had a tree on our house -Q

Okay.

-- 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 -Q

He was busy elsewhere.

-- his trial in wakulla.

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?

No.

All right. During the trial in March, were you --

oh, personal issues. I will say in March I was --

the week of this trial I was extremely sick.

APPENDIX C-5

okay.

or pretty -- I shouldn't say "extremely." But I had

to leave the courtroom several times because of coughing

attacks.

All right.

But it was maybe that weekend before that I got

sick.

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?

Being sick?

Yes.

I do. Yeah.

In what way?

Well, I think -- I think just common sense tells you

when you're sick you're not at your peak performance.

okay.

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.

•

okay. And because of that, is there something

specifically you'd say that you felt like you failed to do or

APPENDIX C-6

Who handled the jury instructions? You or

Mr. Thomas?

You mean the jury instructions that were given?

who -- who's -- who spoke during the charge

conference?

I honestly don't recall.

MR. MILLER: Your Honor, I'll tender the witness.

THE COURT: Cross.

CROSS EXAMINATION

BY MR. FUCHS:

Let's talk about the 12-person jury. You're saying

you never had a conversation with Ms. Palmer about that?

And it never crossed your mind to have a

conversation about that?

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.

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 client?

Never thought to say at that time maybe I should have that

conversation?

That's correct.

APPENDIX C-7

it's 12 versus six?

I think that's speculation. I mean, I can't ...

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.

Mm-hmm.

MR. MILLER: objection. Counsel is testifying.

THE COURT: Let's not make a comment, please,

Mr. Fuchs. If you have a question, ask a question.

BY MR. FUCHS:

You said that you represented Ms. Palmer basically

from the beginning.

Pretty -- pretty close to it.

okay. And you -- you said that this was your first

first-degree murder?

Yes.

But you'd had numerous batteries over your career.

Yes.

Numerous aggravated batteries over your career.

second-degree murders?

I was co-counsel in a second --

okay.

Well --

And did you ever work in the appellate division?

Yes.

APPENDIX C-8

whereupon,

ANDY THOMAS

called as a witness, having been first duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MR. MILLER:

sir, could you state your name, please?

Andy Thomas.

And how are you employed?

I'm now the elected public defender. At the time of

this trial, I was chief assistant and a member of the capital

team.

okay. And the case that we're here on, was that

your case?

It was Ms. Copek's case, but I was second from about

six months before the first jury selection. I got involved

superficially.

All right. Did you interact with Ms. Palmer, the

defendant in this case?

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. opek.

Okay. And did you ever talk to her about the

possibility of a 12-person as opposed to a six-person jury?

APPENDIX C-9

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, 50 percent of our chance to get a lesser verdict.

okay. Now, you're basing this upon your training

and experience?

Yes, sir.

okay. And, briefly, how long have you been a

lawyer?

32 years I believe.

All right. And how -- how many of those years with

the Public Defender's office?

About 20.

Did you do any criminal defense work before that?

well, I was with the public defender three different

times, and I was private for ten years where I was on the

conflict list, and I did criminal cases. I did murder cases

while I was on the conflict list. And then I was three years

at CCR North doing capital post-conviction. And of all that

time, I prosecuted for 11 months, and I was in private civil

practical for three months. so 14 months of my experience is

noncriminal.

All right. Now, how many murder cases have you

handled?

10 to 15. I can't tell you exactly. But I will

APPENDIX C-10

okay. And during the trial on this case, was this a

typical performance on her part, or were there certain issues

that you feel may have interfered with her performance?

Well, the dialectic, if I can kind of just open --

just answer the question -Q

Please.

-- in one paragraph.

I was obsessed with the Andy Wilson trial in

Wakulla, okay?

okay.

And one of the things that I find absolutely -- go

out of my mind on is that a guy can kill two people and

butcher somebody else and get a life sentence, and she got the

same thing after this trial.

All right.

And I'm telling you, if I had done in this trial

what I did in Wilson's trial, that wouldn't have happened.

feel certain it wouldn't have happened.

why not?

Because I didn't have three and a half years to

prepare. Alice and I were incapable of coming up with a

cohesive defense after the text messages in particular came

in.

As the trial went on, because she was ill and

because I was catching up, I took on more and more of the

APPENDIX C-11

CROSS EXAMINATION

BY MR. FUCHS:

Mr. Thomas, I notice you got pretty emotional there

regarding when you're talking about the sentence that

Ms. Palmer is serving.

Yes.

okay. And you've repeatedly stated regarding these

jury instructions that if you had not gotten them, it would

have created an appellate issue; correct?

Say what now?

If you had not gotten them and you had posed them

and you -A

It would have been -- it would have been a preserved

appellate issue. Yes, sir.

okay. And, in fact, one of the things they teach

you in all of your defense kind of classes is to create those

kind of appellate issues.

We did not do that intentionally. This is not

setting somebody up on post-conviction, Mr. Fuchs, if that's

what you're implying.

And in this particular case that's exactly what we

have now is an appellate issue; correct?

I don't know what you've got, but what you've got is

the truth. What you've got is we should not have done what we

did.

APPENDIX C-12

Mr. Miller.

MR. MILLER: Yes. A statement or comment on case

law in particular or both?

THE COURT: Whatever you want to argue.

MR. MILLER: okay.

LEGAL ARGUMENT

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.

Furthermore, the jury instructions provided were not

the ones that really the defense was intending to provide

due to a series of circumstances involving the moving of

positions, the illness of lead counsel, the confused

nature of the defense. Not necessarily intentional,

willful negligence, but for practical purposes, the

theory the defense intended to be presented was not the

one presented. And the jury instructions didn't match,

APPENDIX C-13

and as a result, you ended up with jury instructions that

were needlessly confusing, and we would submit that would

also be a basis for a new trial.

And, finally, the combined effect of the grounds

that the defendant listed in her motion, one through

Fourteen, even if no one thing in and of itself would

rise to that level, we would submit that the cumulative

effect would.

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

State. It's 528 So.2d 383 from the Third DCA.

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,

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?

APPENDIX C-14

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.

THE COURT: M. Fuchs.

LEGAL ARGUMENT

BY MR. FUCHS:

Your Honor, my research is similar apparently to the

Court's. I obviously found the smith case. I did not

find anything in conflict with it, which makes it a

binding case upon this Court.

In addition, whereas Mr. Thomas passionately argued

that, if they had had their jury instruction, they would

have gotten a different verdict. However, again,

Mr. Thomas is ignoring the facts.

The facts of this particular case are some time

before the stabbing occurred, s. Palmer is seen going

into the kitchen and grabbing a knife and taking it into

the room where her and the victim are alone. In addition

APPENDIX C-15

case. Every good trial attorney goes back and

second-guesses their performance in every trial. They

wouldn't be good trial attorneys if they didn't. They

wouldn't be good trial attorneys if they couldn't go back

and try to think of something that maybe they should have

done different or better. That's what makes trial

attorneys.

Frankly, when the text messages were discovered on

this phone, on Ms. Palmer's phone, in July 2013 -believe I have my years correct -- when we'd already

picked a jury, and those text messages were discovered,

totally changed the whole complexion of this case

because, frankly, they made the defense case essentially

impossible to defend. She clearly had decided before the

killing to kill the victim in this case.

It was in

writing to her mother on her own phone. r don't care how

good the attorney is, there's nothing a good attorney's

going to do about that. That's the evidence, and that

was what was presented here in this Court. Ms. Palmer

was fairly tried and fairly convicted.

As to Ground one, the six-person versus the

12-person jury, r agree with what Mr. Thomas said; that

at the time of this case, that law was confused. If you

go back and read the Griffin case from the supreme Court,

it did appear to have resolved the issue, but then there

APPENDIX C-16

were, subsequent to that, First DCA cases and other DCA

cases that came up with a different result. The law was

in flux.

I would agree that at that point in time it was not

clear what the law was on six-person, 12-person juries

when the state had waived the death penalty.

As an aside, I'm not sure that that law isn't now in

question given a change in the law. It is a statutory

determination, not a constitutional determination. I'm

not positive with the new change in the death penalty law

that we don't have a different result.

But

anyway I think the law is clear, and that aside,

I shouldn't have thrown that in, but that was just

something that's on my mind.

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, still controlling law, 857 so.2d 268,

Fifth DCA, with facts almost on point with what we have

APPENDIX C-17

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.

Ground Two, as to the closing argument, Ms. Ray

contended in closing argument that the sudden

provocation, heat-of-passion defense did not apply to

manslaughter. That is what I ruled during the jury

instruction -- in the charge conference. That is what I

ruled. whether that was legally wrong or. not, that was

something to be taken up with the Appellate Court, but

Ms. Ray was not stating something that was incorrect

based upon the rulings that I made.

My ruling was that the heat of passion did not apply

to manslaughter. I think it was not -- I do not find

that it was ineffective to fail to object to that

argument. Frankly, I think it was a correct statement of

the law, but even if it was not a correct statement of

the law, it was not ineffective to fail to object.

More clearly I guess on the prejudice side,

Ms. Palmer was found guilty of first-degree murder; so

whatever Ms. Ray may have said about the effect of that

instruction on manslaughter is irrelevant. It's two

APPENDIX C-18

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

STARQUINESHIA PALMER,

DEFENDANT,

CASE NO.: 2011-CF-2774

STATE OF FLORIDA,

PLAINTIFF.

AMENDED MOTION FOR POST-CONVICTION RELIEF

COMES NOW,

the Defendant,

STARQUINESHIA PALMER,

by and

through herself, pursuant to Fla. R. Crim. P. Rule 3.850,

submitting grounds for review, and in support thereof, Defendant

respectfully submits the following:

1.The Defendant did previously file a motion for PostConviction Relief with Special Request to Temporarily Hold

Proceedings in Abeyance on August 5, 2016, and again on

September 26, 2016.

2.The said motion was denied on September 28, 2016 by order

from this court, Honorable James C. Hankinson presiding,

did find that the defendant had no valid basis to sta y the

motion.

The order did dismiss the defendant's motion for

post-conviction relief without prejudice where it was

legally insufficient.

The court construed defendant's

motion as a request to extend time to file a legally

sufficient motion, granting her another sixty days to file

APPENDIX D-1

a legally sufficient motion on or before December 22, 2016

or it would be dismissed with prejudice.

3. The Defendant does timely file her amendment and reasserts

procedural history to satisfy it on this motion:

a.The Defendant is currently serving a term of life

imprisonment imposed by this court, the Second

Judicial Circuit, in and for Leon County, Florida.

b.The Defendant pled not guilty and proceeded to trial

by jury on March 10, 2014, the Honorable James C.

Hankinson presiding.

c.The Defendant was found guilty by jury on March 14,

2014 to one count of Premeditated First degree

Murder.

d.The Defendant was represented by Alice Copek and

Andrew Thomas at trial and sentencing.

The state

attorneys were Kathleen Ray and Courtney Frazier.

e.The Defendant was sentenced on March 14, 2014;

aforementioned

Judge

presiding

and

Counsel

represented her.

f.The Defendant filed a Direct Appeal, which was per

curiam affirmed on October 28, 2015, represented by

Nancy A. Daniels and Courtenay H. Miller.

5. The Defendant files the amendment in good faith and herein

asserts her grounds for relief.

APPENDIX D-2

GROUND ONE

COUNSEL WAS INEFFECTIVE FOR ALLOWING THE DEFENDANT TO

BE TRIED AND CONVICTED BY A SIX-PERSON JURY WHERE

STATUTORY LAW REQUIRES ALL CAPITOL CASES A TWELVEPERSON JURY

In the instant case the Defendant was only permitted a sixperson jury. Neither the Defendant nor her counsel waived her

statutory right to trial by a twelve-person jury.

Florida law

has long since held that a Defendant charged with a First Degree

Murder still retains the right to a twelve-person jury, even if

the Death Penalty was never sought in the case, unless it was

intelligently, knowingly, and voluntarily waived in the case.

In this case the death penalty was not on the table as a

punishment, and was the basis in which the state and court gave

for using a six-person jury. Defense counsel did not object or

say anything to correct the Court nor the State in their error,

where she was the person who announced the use of six-person

jury.

The record does not refute that the state never sought

the Death Penalty, but does show that they sought a six-person

jury because the Death Penalty was never an option.

The

following occurred on record:

THE COURT:

Are we talking about - I don't recall,

are we talking about a twelve person or six person

jury?

MS. COPEK:

Six person, You Honor.

APPENDIX D-3

THE COURT:

The death penalty has been waived?

MS. RAY:

We've never sought the death penalty in

this case, Your Honor.

(Pretrial Case Management June 20, 2013 Pg. 5 Ln. 19-25)

THE COURT:

Remind me, are we picking a six or a

twelve person jury?

MS. RAY:

Six.

(Pretrial Case Management February 17, 2014 Pg. 2 Ln. 20-21)

Prejudice arises here where the Court, the State and

Defense Counsel decided that because the Death Penalty was not

sought the Defendant only required a six-person jury, and

Counsel who is well versed in the law did nothing to correct

this error. Regardless of what was assumed or agreed upon, the

law is clear in Fia.Stat. §913.10 and Fla.R.Crim.P. Rule 3.270

which guarantee the Defendant her right to a twelve-person jury

even when death penalty is waived where first degree murder is

still a capitol felony.

Counsel did not consult with the

Defendant concerning the pros and cons of having a twelve-person

jury versus a six-person jury, nor that, she had a

constitutional right to a twelve-person jury.

The law holds

that an accused must have a jury of their peers. The Defendant

was bi-sexual in a same-sex (lesbian) relationship with a wellknown college basketball player.

This case involved a murder,

fighting, jealousy, bad tempers and drinking; so many different

APPENDIX D-4

opinions concerning these issues. It is probable that it would

have taken more than six people to effectively decide this case.

It is unknown if there were any Lesbian, Gay, Bi-Sexual, and

Trans-Gender (LGBT) members on the jury.

Neither the defense

nor state asked any juror of their sexual orientation, who would

better understand the dynamics of a same-sex relationship.

There exists a reasonable probability that a twelve-person jury

would have included a juror of the Defendant's peers.

Prejudice also arises where juror Babcock had an issue with

same-sex relationships because she was a strong Christian (see

ground eight), effectively leaving the Defendant with only five

fair, impartial and unbiased jurors deciding her fate and her

case.

There exists a reasonable and substantive probability that

but for counsel error at permitting a six-person jury did

undermine the confidence of the law, and had this prejudice not

occurred, and the Defendant had the remaining six people on her

jury she may not have been found guilty, changing the outcome of

her trial, where it only takes one person for an acquittal. The

Defendant deserves just relief in this regard.

APPENDIX D-5

their deficient performance did prejudice her.

The Defendant

deserves just relief in this regard.

GROUND FOUTEEN

THE CUMULATIVE EFFECT OF COUNSEL ERROR DEEMS THE

DEFENDANT'S TRIAL AND CONVICTION FUNDAMENTALLY UNFAIR

AND DEPRIVED DEFENDANT OF HER RIGHT TO DUE PROCESS OF

LAW

The Defendant has asserted twelve (13) grounds in which

counsel has fallen short of his constitutional duty to

effectively represent the Defendant and failed to test the

State's case by adequate confrontation.

The errors had a

cumulative effect that rendered the Defendant's trial

fundamentally unfair. Had counsel performed any of these errors

alone or cumulatively, the outcome of the Defendant's trial

would have differed.

Counsel's failure and negligence affected the defendant's

entire trial structure and resulted in a grave miscarriage of

justice, requiring a new trial.

CONCLUSION

The Defendant has asserted sufficient grounds requiring relief

and has shown this court that she was denied her United States

Constitutional Sixth and Fourteenth Amendment rights.

The

Defendant requests that this Honorable Court grant her the

relief she is seeking, but not limited to:

APPENDIX D-6

1.A new trial

2.Evidentiary Hearing

3.Any and all other relief she is duly entitled and this

court deems just proper

WHEREFORE, the Defendant prays this Honorable Court grant her

motion, and in the interest of justice, grant her the relief she

is entitled.

RespctfulySbmied,

UNNOTARIZED OATH

UNDER PENALTIES OF PERJURY, I declare that, I,

Palmer,

Starquineshia

have read the motion or it has been read to me, and I

understand its content; this motion is filed in good faith and

is timely filed, has potential merit, and does not duplicate

previous motions that have been disposed of by the court; and,

the facts contained in this motion are true and correct. I also

certify that I understand English.

December 19, 2016

Date

Starquineshia Palmer DC:156431

RECEIVED

DEC 19 2016

APPENDIX D-7

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that 1 placed this Motion for Past Conviction

Relief in the hands of Lowell Correctional Institution-Annex

Legal Mail Staff for mailing to: Clerk of Court: 301 South

Monroe Street, Ste.225-L, Tallahassee, Florida 32301-1803 and to

State Attorney: 301 South Monroe Street, Ste.475, Tallahassee,

Florida 32301-1861

On this 19th day of December, 2016.

Starquinesnia, Palmer DC#156431

Lowell Correctional Institution-Annex

1120 NW Gainesville Road

Ocala, Florida 34482

RECEIVED

DEC 19 2016

LOWELL C.I,

APPENDIX D-8

RECEIVED, 5/14/2018 12:30 PM, Kristina Samuels, First District Court of Appeal

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, FLORIDA

STARQUINESHIA PALMER

Appellant

vs.

Case No.: 1D17-3601

STATE OF FLORIDA

Appellee

INITIAL BRIEF OF APPELLANT

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

LEON COUNTY, FLORIDA

David W. Collins, Esquire

Florida Bar No. 475289

COLLINS LAW FIRM

310 N. Jefferson Street

P.O. Box 541

Monticello, Florida 32345

Phone: (850) 997-8111

Fax: (850) 997-5852

Email: collins.fl.law@gmail.com

Attorney for Appellant

APPENDIX E-1

TABLE OF CONTENTS

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case and Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of the Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Argument

ARGUMENT

COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE APPELLANT AS TO THE BENEFITS OF BEING TRIED BY A 12-PERSON

JURY OVER A 6-PERSON JURY AND ADVISE HER NOT TO

WAIVE HER RIGHT TO BE TRIED BY A 12-PERSON JURY.. . . . . . . . . . . . 9

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Certificates of Font and Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

APPENDIX E-2

TABLE OF CITATIONS

CASES

Alfonso v. State, 528 So. 2d 383 (Fla. 3d DCA) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ferrell v. State, 918 So. 2d 163 (Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Hodges v. State, 885 So. 2d 338 (Fla. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Smith v State, 857 So. 2d 268 (Fla. 5th DCA 2003) . . . . . . . . . . . . . . . . . . . passim

State v. Griffin, 561 So. 2d 528 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . passim

Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . 9

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Wiggins v. Smith, 539 U.S. 510 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) . . passim

Windom v. State, 886 So. 2d 915 (Fla. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

OTHER AUTHORITY

Florida Rule of Criminal Procedure 3.270 (1968 to present) . . . . . . . . . . . . . . . . 10

Florida Rule of Criminal Procedure 3.850 (2002) . . . . . . . . . . . . . . . . . . . . passim

Florida Statute 913.10 (1970 to present) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

APPENDIX E-3

PRELIMINARY STATEMENT

Appellant was the defendant in the lower court and the Appellee, the State of

Florida, was the prosecution. In this brief, the parties are referred to as “Appellant”

and “Appellee,” by proper name, or as they stood in the lower court where appropriate.

The record on appeal was served by the clerk in a single pdf file containing 216

pages numbered by the clerk to coincide with the pdf pages. The Clerk misspelled

Appellant’s first name on the cover sheet of the record, listing it at Starquinesha

instead of Starquineshia.

Appellant will reference pages in the file with an R: followed by the relevant

page number(s), for example, the first page of the transcript of the evidentiary hearing

can be found at R: 106.

APPENDIX E-4

STATEMENT OF THE CASE AND FACTS

Appellant was indicted on one count of Premeditated First Degree Murder. She

pled not guilty and proceeded to trial, where the Honorable James C. Hankinson,

Circuit Judge, presided and on March 10, 2014, a jury found her guilty as charged.

(R: 20)

Appellant filed a timely direct appeal in the First District Court of Appeal, Case

1D14-1711, which was denied without opinion (per curiam affirmed) on October 28,

2015. (R: 20)

Appellant filed the Amended Motion for Postconviction Relief pursuant to rule

3.850, Fla. R. Crim. P., that is the subject of the instant appeal, on December 19,

2016, raising fourteen claims, the fourteenth being a claim of cumulative effect. (R:

9-81) Appellant had filed no prior postconviction motions attacking her conviction

or sentence. The following is a listing of the Grounds as listed in the motion:

GROUND ONE

COUNSEL WAS INEFFECTIVE FOR ALLOWING THE DEFENDANT TO BE TRIED AND

CONVICTED BY A SIX-PERSON JURY WHERE STATUTORY LAW REQUIRES ALL CAPITOL

CASES A TWELVE PERSON JURY. (R: 21-23)

GROUND TWO

COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO [THE] PROSECUTOR:

A. MISSTATING THE LAW CONCERNING SUDDEN PROVOCATION DURING

CLOSING ARGUMENTS. (R: 24-25)

B. INCORRECTLY DEFINING ‘SUDDEN PROVOCATION’ BY PERSONALLY

OPINING ITS MEANING DURING CLOSING ARGUMENTS. (R: 25-29)

APPENDIX E-5

GROUND THREE

COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR A MISTRIAL. (R: 30-31)

GROUND FOUR

THE CUMULATIVE EFFECT OF [GROUNDS TWO AND THREE]. (R: 32-33)

GROUND FIVE

COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE CONFUSING HEAT

OF PASSION UPON A SUDDEN PROVOCATION JURY INSTRUCTION. (R: 34-35)

GROUND SIX

COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE HEAT OF PASSION

UPON SUDDEN PROVOCATION NOT BEING MADE AN OPTION ON THE VERDICT FORM. (R:

36-38)

GROUND SEVEN

COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A JUDGMENT OF ACQUITTAL

AS TO THE CONFUSING JURY INSTRUCTION AND INCOMPLETE VERDICT FORM. (R: 3941)

GROUND EIGHT

COUNSEL WAS INEFFECTIVE FOR FAILING TO STRIKE JUROR [KATHLEEN

BABCOCK] FOR CAUSE. (R: 42-44)

GROUND NINE

COUNSEL WAS INEFFECTIVE FOR FAILING TO INVOKE STATUTORY IMMUNITY

AND FILE PRETRIAL MOTION TO DISMISS UNDER RULE 3.190(b). (R: 45-46)

GROUND TEN

COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY QUESTION KARLA

FISCHER. (R: 47-48)

GROUND ELEVEN

COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE STATE’S

QUESTIONING OF KARLA FISCHER. (R: 49-52)

GROUND TWELVE

COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO GREG PRICHARD BEING

[CALLED AS A] REBUTTAL WITNESS. (R: 53-56)

APPENDIX E-6

GROUND THIRTEEN

COUNSEL FAILED TO SUBJECT THE STATE’S CASE TO MEANINGFUL ADVERSARIAL

TESTING. (R: 57-62)

GROUND FOURTEEN

THE CUMULATIVE EFFECT OF COUNSEL’S ERRORS DEEMS THE DEFENDANT’S

TRIAL AND CONVICTION FUNDAMENTALLY UNFAIR AND DEPRIVED DEFENDANT OF HER

RIGHT TO DUE PROCESS OF LAW. (R: 63)

The trial court issued a “show cause” on January 12, 2017 and on February 6,

2017,1 the State responded, requesting the court set it for evidentiary hearing (R: 82,

83-84).

On February 7, 2017, the Honorable James C. Hankinson, Circuit Judge, who

presided over Appellant’s trial, ordered an evidentiary hearing as to all claims. (R: 85)

On February 15, 2015, Appellant moved the court to have counsel appointed

to represent her at the hearing (R: 86-88), explaining why as follows:

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.

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.

The Defendant asserts that without meaningful presentation of the

facts and matters raised in her pending motion, she would be pre-

The certificate of service contains a scriveners error, listing the year as 2016

instead of 2017.

APPENDIX E-7

judiced, and lack of counsel would create a conflict in the

doctrine of fundamental fairness.

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 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.

(R: 87)

The lower court granted her motion on March 6, 2017 (R: 94), and on March

15, 2017, Scott Miller, attorney for the Office of Criminal Conflict and Civil Regional

Counsel, filed his Notice of Appearance. (R: 95)

Five months later, on August 25, 2017 and September 7, 2017, evidentiary

hearings were held, the Honorable James C. Hankinson, presiding. (R: 106-214).

Testifying at the hearing were Appellant, Starquineshia Palmer (R: 109-153);

Attorney Alice Copek (R: 153-183), who testified she represented Ms. Palmer during

the trial phase of her case and this was the first time she had been lead counsel on a

1st degree murder case (R: 154); and Attorney Andy Thomas (R: 183-196) who

testified he was now the elected Public Defender [for the Second Judicial Circuit] but

at the time of Ms. Palmer’s trial, he was the Chief Assistant Public Defender as well

as a member of the capital team, and he was second [chair] on Ms. Palmer’s case for

the six months prior to jury selection (R: 184).

APPENDIX E-8

On September 7, 2017, at the conclusion of the evidentiary hearing on that

date, Judge Hankinson pronounced his decision on Appellant’s motion, denying each

of her claims. (R: 204-214) On August 25, 2017, Judge Hankinson issued a written

order, formally denying Appellant’s motion, “based on the reasons as announced on

the record.” (R: 98)

On August 28, 2017, Appellant, through counsel, filed a timely Notice of

Appeal (R: 99) and Motion to Adjudge Defendant Insolvent for Purpose of Appeal (R:

103). On August 29, 2017, Judge Hankinson granted Appellant’s motion, adjudging

Appellant insolvent for purposes of her appeal. (R:104)

The Office of the Public Defender was appointed to represent Appellant on her

appeal, but on September 15, 2017, moved to withdraw due to conflict. (Docket

1D17-3601) Michael Jerome Titus with the Office of Criminal Conflict and Civil

Regional Counsel was appointed to represent Appellant, but he filed a motion to

withdraw on October 13, 2017. On November 1, 2017, this Court granted Attorney

Titus’ motion and declared, “Appellant is now appearing in proper person before this

court. Appellant may, however, file a motion in the trial court seeking the appointment of alternate counsel.” Id.

On December 4, 2017, Appellant filed in the lower court a Motion for

Appointment of Counsel (docket 2011-CF-2244 in lower court), and in this Court a

Motion for Extension of time to File Initial Brief (docket 1D17-3601). On December

APPENDIX E-9

6, 2017, the lower court appointed undersigned counsel to represent Appellant in the

instant Appeal. (Docket 2011-CF-2244 in lower court). Appellant’s Initial Brief follows.

APPENDIX E-10

SUMMARY OF THE ARGUMENTS

The lower court erred in denying Appellant’s Ground One argument that she

was denied her right to a 12-person jury for lack of prejudice based on Williams v.

Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) because Williams failed

to take into consideration that it works to a defendant’s favor if there is a hung jury

and the chances of such are greater with a 12-person jury compared to a 6-person jury

therefore the lower court’s denial should be reversed and Appellant granted a new

trial with a 12-person jury.

APPENDIX E-11

ARGUMENT

COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE APPELLANT AS TO

THE BENEFITS OF BEING TRIED BY A 12-PERSON JURY OVER A 6-PERSON

JURY AND ADVISE HER NOT TO WAIVE HER RIGHT TO BE TRIED BY A

12-PERSON JURY.

STANDARD OF REVIEW

Claims of ineffective assistance of counsel are reviewed under the standard set

forth in Strickland v. Washington, 466 U.S. 668 (1984). The appellate court defers

to the trial court’s findings of fact regarding the credibility of witnesses and the

weight assigned to the evidence but reviews the deficiency and prejudice prongs de

novo. Windom v. State, 886 So. 2d 915, 921 (Fla. 2004) (citing Stephens v. State, 748

So. 2d 1028, 1034 (Fla. 1999)).

“An ineffective assistance claim has two

components: a petitioner must show that counsel’s performance was deficient and that

the deficiency prejudiced the defense.

To establish deficient performance, a

petitioner must demonstrate that counsel’s representation ‘fell below an objective

standard of reasonableness.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citation

omitted) (quoting Strickland, 466 U.S. at 688); see also Hodges v. State, 885 So. 2d

338, 345-46 (Fla. 2004) (stating and applying Strickland standard). The prejudice

prong of the analysis “requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466

APPENDIX E-12

U.S. at 687. Failure to establish either prong results in a denial of the claim. Ferrell

v. State, 918 So. 2d 163, 170 (Fla. 2005) (quoting Strickland, 466 U.S. at 687). “A

fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective

at the time.” Strickland, 466 U.S. at 689.

MERITS

Ground One of Appellant’s rule 3.850 motion was that her trial counsel was

ineffective for allowing her to be tried by a six-person jury instead of a twelve person

jury, and she cites Florida Statute 913.102 and Florida Rule of Criminal Procedure

3.2703 in support. Appellant 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:

The Defendant is unable to represent herself in this adversarial

and complex filing without the assistance of an attorney, because

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)

Rule 3.270 – Number of Jurors – Twelve persons shall constitute a jury to try

all capital cases, and 6 person. (1968 to present)

APPENDIX E-13

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.

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.

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.

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 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.

(R: 87)

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 clerk(s) who

helped her has 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 was arguing

had provided ineffective assistance during the trial phase of her case. Clearly the law

clerk(s) who prepared the motion for Appellant did not understand what happens at

evidentiary hearings on 3.850 motions. Undersigned counsel brings this to the

APPENDIX E-14

Court’s attention since much of what took place during the evidentiary hearing was

the questioning of Appellant towards getting her to define/defend legal points

towards prevailing on her motion, something she was untrained to do, and any denial

of relief based on such insufficiency would be a injustice, especially in light of her

best effort in her Motion for Appointment of Counsel to not have that happen to her.

The lower court appointed Attorney Scott Miller to represent Appellant at her

evidentiary hearing, and under his questioning, she testified as follows as to Ground

One:

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.

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

APPENDIX E-15

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.

(R: 110-111)

Attorney Jon Fuchs represented the State at the hearing and under his questioning during cross, Appellant 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)

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

APPENDIX E-16

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.

(R: 141-142)

Appellant’s trial counsel was Alice Copec 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

APPENDIX E-17

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.

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.

APPENDIX E-18

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 -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

APPENDIX E-19

up till all hours of the night preparing the night before trial. so not getting sleep and being ill was not beneficial.

(R: 157-161)

During cross, Attorney Copec 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 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.

APPENDIX E-20

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.

(R: 170-172)

Up to this point, the testimony shows that Attorney Copec never advised Appellant of the benefits of a 12-person jury over a 6-person jury so that Appellant 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, and Attorney Copec testified 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 Appellant if she was waiving her right to a

12-person jury which she said she was, clearly following counsel’s lead.

Next to testify was Attorney Andy Thomas, who was second chair representing

Appellant.

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?

APPENDIX E-21

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, 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?

APPENDIX E-22

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.

(R: 184-186, 193)

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 Appellant,

undersigned counsel believes it to be significant:

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.

(R: 194)

No questions were asked of Attorney Thomas during cross as to the 12-person

APPENDIX E-23

jury issue.

During discussion of the 12-person jury issue, the court, on its own, produced

a case for the attorneys to review as to the 12-person jury issue, and undersigned

counsel would remind the panel that Judge Hankinson, who presided over the

evidentiary hearing, also presided over Appellant’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 268.4

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.)

(R: 196)

After the recess, Appellant’s counsel made the following argument as to this

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 ade-

Smith v State, 857 So. 2d 268 (Fla. 5th DCA 2003)

APPENDIX E-24

quately 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 State. It’s 528 So. 2d 383 from the Third DCA.5 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 528,6 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.

(R: 197; 198-199)

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

Alfonso v. State, 528 So. 2d 383 (Fla. 3d DCA)

State v. Griffin, 561 So. 2d 528 (Fla. 1990)

APPENDIX E-25

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 stated, “In Williams v. Florida, 399 U.S. 78, 90 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.”

APPENDIX E-26

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.”

Appellant 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, but 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, in would be an injustice

to hold that defendant accountable for that decision as a “tactical” decision made by

counsel towards being an advocate for his/her client.

In the instant case, Appellant 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 Appellant. It was

a decision unencumbered by the thought process.

The Smith court ultimately denies Smith relief because he cannot show

APPENDIX E-27

prejudice according to 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 wrong. Just five years later,

the supreme court decided Ballew v. Georgia, 435 U.S. 223 (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.” Appellant 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 the supreme

court in Williams, a jury of six is sufficient to give her a fair and impartial trial on

charges of the most serious crime defined in Florida laws, premeditated first degree

murder.

This Court addressed Williams just months ago in Lessard v State, 1D15-5300

(Fla. 1st DCA 12/17/ 2017) with Justice Makar writing an in-depth, 6-page,

concurring opinion as to the problems that have arisen since the supreme court’s 1970

decision in Williams v. Florida.

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

APPENDIX E-28

jurisprudence ever since.7 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, 1D15-5300 (Fla. 1st DCA 12/17/ 2017)

The lower court, in ruling on Appellant’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

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).

APPENDIX E-29

research, 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.

(R: 207-208)

Thus, the lower court denied Appellant relief on this issue because she could

not show prejudice based on Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26

L.Ed.2d 446 (1970). Appellant contends she was prejudiced because the Williams

court only considered the chances of a guilty or not guilty verdict, but that is not real

world. Appellant 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 you have, thus by being deprived of her right to a 12-person

jury, she was prejudiced by having a lesser chance of there being a hung jury.

Thus, Appellant contends the lower court erred in denying this ground because

she was prejudiced and Williams does not apply because it does not address the

benefit a 12-person jury has of increasing her chances of there being a hung jury and

the possibility if that happened of the State offering her a plea offer for a better

outcome than life in prison.

APPENDIX E-30

CONCLUSION

Appellant has shown that the lower court erred in denying her claim for lack

of prejudice and she should be granted a new trial with a 12-person jury.

Respectfully submitted,

David W. Collins, Esquire

Florida Bar No. 475289

COLLINS LAW FIRM

310 N. Jefferson Street

P.O. Box 541

Monticello, Florida 32345

Phone: (850) 997-8111

Fax: (850) 997-5852

email: collins.fl.law@gmail.com

Attorney for Appellant

APPENDIX E-31

CERTIFICATES OF FONT AND SERVICE

I HEREBY CERTIFY that the font the foregoing is reproduced in 14 point

proportionally spaced Times New Roman and that on this 14th day of May, 2018, I

electronically filed the forgoing with the Clerk of Court, First District Court of

Appeal, using the eDCA system, served the foregoing on the Office of the Attorney

General, Criminal Appeals, The Capitol PL 01, Tallahassee, Florida 32399-1050 by

emailing to crimapptlh@myfloridalegal.com; and served a copy by U.S. Mail service

to Starquineshia Palmer, 156431, Lowell Annex, 11120 NW Gainesville Rd., Ocala,

FL 34482-1479.

David W. Collins, Esquire

Florida Bar No. 475289

COLLINS LAW FIRM

310 N. Jefferson Street

P.O. Box 541

Monticello, Florida 32345

Phone: (850) 997-8111

Fax: (850) 997-5852

email: collins.fl.law@gmail.com

Attorney for Appellant

APPENDIX E-32

Journal of Criminal Law and Criminology

Volume 61 | Issue 4

Article 7

1971

Jury Trial--Williams v. Florida, 399 U.S. 78 (1970)

Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc

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Justice Commons

Recommended Citation

Jury Trial--Williams v. Florida, 399 U.S. 78 (1970), 61 J. Crim. L. Criminology & Police Sci. 526 (1970)

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APPENDIX F-1

SUPREME COURT REVIEW

[Vol. 61

acceptances of guilty pleas. The effect of McCarthy

v. United States"0 and Boykin v. Alabama,47 moreover, is probably to deny habeas corpus relief to

those petitioners asserting that they were coerced

at the time of pleading. This is so because compliance with Rule 11 insures that the voluntariness

of the proceedings leading to a guilty plea is a

matter of record.

McMann and its progeny go a step further by

holding that allegedly coercive factors not in the

record do not entitle petitioner to habeas corpus

relief. In fact, the combination of McCarthy-Boykin

with McMann, Brady, and Parker will make it

difficult for most petitioners to obtain a hearing.

That is, relief is foreclosed on the grounds that

there was a coerced confession or the fear of a

harsher sentence. No hearing thus need be granted

to hear such claims. Furthermore, petitioners

asserting the procedural incompetence of counsel

or other coercive factors during the proceedings

will face a complete record of the voluntariness of

their plea.49 It will therefore be easy for reviewing

courts to dismiss such petitions without hearings. 1

Hence, the administrative efficiency of the

criminal justice system will be increased at the

expense of defendants who may have been coerced

into a plea of guilty. Notwithstanding that the

Supreme Court once held that a conviction based

on a coerced guilty plea is a violation of a defendant's right to due process,5' McMann, Brady and

Parkerseverely limit those factors deemed coercive.

However, the constitutional rights waived in a

guilty plea are too fundamental to be sacrificed

involuntarily and unintelligently to administrative efficiency. If increased efficiency is the goal,

the pre-pleading process could be improved to

insure that all guilty pleas are voluntary and intelligent waivers of a defendant's fifth and sixth

amendment rights as well as of his right to habeas

corpus review. In no event should those defendants

who may have been coerced into pleading guilty be

denied their right to habeas corpus review because

of the inadequate resources of the present system

of criminal justice.

46394 U.S. 459 (1969).

47395 U.S. 238 (1969).

48 FED. R. Canx. P. 11. Since the trial court, under

Rule 11, cannot accept a guilty plea without first determining that it is voluntary, it is very unlikely that a

petitioner could prevail on the assertion that he was

coerced

at the time of pleading.

See notes 10 and 48 supra.

1018 U.S.C. §2255 provides:

Unless the motion and the files and records of the

case conclusively show that the petitioner is entitled to no [habeas corpus] relief, the court shall

... grant a hearing....

Faced with a complete record of the voluntariness and

the intelligence of the petitioner's plea, it will be very

easy for the reviewing courts to dismiss petitions without granting a hearing.

51Herman v. Claudy, 350 U.S. 116 (1956).

JURY TRIAL

Williams v. Florida, 399 U.S. 78 (1970)

Under traditional rules, the game of draw poker

is played with all cards initially concealed.' In stud

poker all cards except one are shown to one's

opponent. In Williams v. Florida the Supreme

Court opted for showing one's cards to one's

opponents in the setting of the criminal adversary

system. It also permitted the fate of the game to

be constitutionally judged by a jury of six-rather

than the traditional common law jury of twelve. 8

I "If a criminal trial is viewed as a draw poker game

with all cards to be held close to the chest until played,

this [a notice-of-alibi statute] can be seen as requiring

a tipping of one's hand in advance."

State ex rd. Simos v. Burke, 41 Wis. 2d 129, 136, 163

N.W.2d 177, 180 (1968).

29 399 U.S. 78 (1970).

See Patton v. United States, 281 U.S. 276, 288-92

(1930).

Johnny Williams was tried and convicted by a

six-man jury for the crime of robbery and sentenced

to life imprisonment. Williams' only defense was

alibi. 4 Under the Florida rules of criminal procedure,' the defendant is required, if the prosecution makes a written demand, to state whether

he intends to plead an alibi. Should the defendant

so plead, he must furnish the state with information as to his whereabouts at the time of the

crime and a list of his alibi witnesses.

Prior to trial, Williams sought a protective order

4 "Alibi is a claim that defendant was elsewhere at

the time of the crime and therefore could not have

committed it." State v. Baldwin, 47 N.J. 379, 388, 221

A.2d 199, 204, cert. denied, 385 U.S. 980 (1966).

5FLA. R. Cmu. P. 1.200.

APPENDIX F-2

19701

JURY TRIAL

excepting him from the notice-of-alibi rule on the

grounds that it violated his fifth amendment

privilege against self-incrimination.' The motion

was denied.7 In compliance with the notice-of-alibi

rule, petitioner provided the prosecution with the

name of his principle alibi witness, Mary Scotty.

This information, enabled the prosecution to

obtain a pre-trial deposition of Mrs. Scotty, which

was subsequently used to impeach the witness'

trial testimony. Furthermore, the state's prior

knowledge of the detailed time and location of

Williams' alibi enabled the prosecution to further

impeach Mrs. Scotty's testimony by presenting

the contradictory testimony of a police officer who

recalled seeing Mrs. Scotty at the time of the crime

somewhere other than where she claimed she was.

Petitioner's constitutional attack on the alibi

statute was two pronged. First he alleged that the

statute sanctioning the right of the state to discover his alibi deprived him of due process under

the fourteenth amendment 8 Rejecting this claim,

the Court emphasized the reciprocity in discovery

which is permitted under the Florida rule. By

the terms of the Florida statute, the state is

:equired, upon receipt of defendant's list of alibi

witnesses, to "serve upon the defendant the

names and addresses ... of the witnesses the

State proposes to offer in rebuttal to discredit

the defendant's alibi at the trial of the cause."

The Court apparently felt that a criminal discovery statute which imposed mutual obligations

on the state and the accused did not violate the

Constitution.10 The Court also noted the rational

and, indeed, compelling policy underpinning the

notice-of-alibi statutes. As Mr. Justice White

6 "[N]or shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness

against

himself ... 1"U.S. CoNtsr. amend. V.

Petitioner also unsuccessfully sought a pretrial

motion to impanel a twelve-man jury instead of a sixman jury provided by Florida in all but capital cases.

See FLA. STAT. ANN. §913.10(1) (1967).

8 399 U.S. at 81; U.S. CONST. amend. XIV(1) reads

in part: "No state shall make or enforce any law which

shall... deprive any person of life, liberty, or property

without due process of law......

910FLA. R. Can. P. 1.200.

See. Jones v. Superior Court, 58 Cal. 2d 56, 372

P.2d 919, 22 Cal. Rptr. 879 (1962) (Traynor, J.), which

permitted the state discovery of defendant's witnesses

and x-rays which were to support his defense of impotence to a charge of rape. judge Traynor pointed

out that criminal discovery should not be a "one-way

street." See also Louisell, CrininalDiscovery and SelfIncrimination: Roger Traynor Confronts te Dilemma,

53 CAm. L. Rxv. 89, 91 (1965); Comment, Tiw SdfIncriminationPrivilege:Barrierto Criminal Discovery?,

51 CAraI. L. REv. 135 (1963); cf. Norton, Discovery in

the Criminal Process, 61 J. Cm. L. C. & P.S. 11 (1970).

stated, speaking for the Court, "[g]iven the ease

with which an alibi can be fabricated, the State's

interest in protecting itself against an eleventhhour defense is both obvious and legitimate." 11

Since 1927, numerous statesi have enacted noticeof-alibi statutes 8 similar to Florida's as a means

to deter defendants from using manufactured

alibis as a last minute, surprise defense. 4 Such

statutes have been uniformly upheld in state

courts.

Second, petitioner argued that the notice-ofalibi rule was unconstitutional because it violated

his fifth amendment privilege against self-incrimination. 0 It is hardly questionable that the state's

pretrial deposition of Mrs. Scotty, which was

obtained because the defendant had complied with

the Florida rule, quite possibly vitiated Williams'

alibi defense and thereby indirectly incriminated

him. The traditional rationale courts have employed to uphold the constitutionality of alibi

statutes is couched in a literal interpretation of

the fifth amendment privilege against compulsory

self-incrimination, and rests on the notion that,

11399 U.S. at 81; See also State v. Martin, 2 Ariz.

App. 510, 514-15, 410 P.2d 132, 136-37 (1966); State

v. Stump, 254 Iowa 1181, 1193-94, 119 N.W.2d 210,

217 (1963), cert. denied, 375 U.S. 853 (1963); State v.

Baldwin, 47 N.J. 379, 388, 221 A.2d 199, 204 (1966),

cert. denied, 385 U.S. 980 (1966); People v. Schade, 161

Misc. 212, 216, 292 N.Y.S. 612, 617 (1936); State v.

Thayer, 124 Ohio St. 1, 4, 176 N.E. 656, 657 (1931).

2Ams. R. Cm. P. 192(B); ILL. REv. STAT. ch. 38,

§114-14 (1969); IND. ANN. STAT. §§9-1631-9-1633

(1956); IOWA CODE ANNt.§777-18 (1962); KA. GEN.

STAT. ANN. §62-1341 (1964); Micr. STAT. ANN. ch. 28,

§1043 (1956); MINN. STAT. ANN. §630.14 (1947); N.J.

R. Cm. P. 3: 5-9 (1958); N.Y. ConE Cum. PRoc.

§295-L (McKinney 1958); Omao Rv. CODE AN.

§2945.58 (Page 1964); OKLA. STAT. ANN.ch. 22, §585

(1969); PA. R. Can. PaAc. 312 (Supp. 1970); S.D.

Con'. LAWS §23-37-5 (1969); UrTA CODE ANN. §7722-17 (1953), Vr. STAT. ANN. tit. 13, §§6561-6562

(1959), Wis. STAT. ANN. §955.07 (West 1958). See

also

399 U.S. at 82 n. 11.

3See Annot., 30 A.L.R.2d 480-81 (1953).

14 One empirical study indicates such statutes to be

most effective in preventing fraudulent alibies. See

Epstein, Advance Notice of Alibi, 55 J. Can. L.C. &

P.S.15 29 (1964).

SRider v. Crouse, 357 F.2d 317 (10th Cir. 1966);

State v. Stump, 254 Iowa 1181, 119 N.W.2d 210, cert.

denied, 375 U.S. 853 (1963), State v. Rider, 194 Kan.

398, 399 P.2d 564 (1965); State v. Angeleri, 51 N.J.

382, 241 A.2d 3 (1968); State v. Baldwin, 47 N.J. 379,

221 A.2d 199, cert. denied, 385 U.S. 980 (1966); People

v. Schade, 161 Misc. 212,292 N.Y.S. 612 (1936); People

v. Rakiec, 260 App. Div. 452, 23 N.Y.S.2d 607 (1940);

Commonwealth v. Vecchiolli, 208 Pa. Super. 483, 224

A.2d 96 (1966); State ex rel. Simos v. Burke, 41 Wis.

2d 129, 163 N.W.2d 177 (1968).

16In Malloy v. Hogan, 387 U.S. 1 (1964), the fifth

amendment privilege against self-incrimination was

held applicable to the state through the fourteenth

amendment.

APPENDIX F-3

SUPREME COURT REVIEW

under the terms of the statute, no testimony is

actually compelled Whether the defendant plans

to defend on the basis of alibi is wholly a matter

of the defendant's unfettered choice.' The defendant always retains the option of abandoning

his alibi defense at trial. The only real compulsion

involved in complying with a notice-of-alibi rule

relates to the time at which the defendant must

reveal his defense. As the Court in Williams correctly pointed out:

At most, the rule only compelled petitioner to

accelerate the timing of his disclosure, forcing

him to divulge at an earlier date information

which the petitioner from the beginning planned

to divulge at trial. Nothing in the Fifth Amendment privilege entities a defendant as a matter

of constitutional right to await the end of the

State's case before announcing the nature of his

defense, any more than it entities him to await

the jury's verdict on the State's case-in-chief

before deciding whether or not to take the stand

himself.'

Moreover, even if the defendant were not required

to give pretrial notice of his alibi, there is nothing

to prohibit the state from seeking a continuance

for purposes of investigation should the defendant

proffer a last minute alibi. ' Therefore, the noticeof-alibi rule in no way bestows any advantage on

the state which it does not already possess via

other, albeit indirect, means.

Another literalistic argument in support of the

alibi rule's constitutionality resides in the very

basic question whether giving notice of alibi is in

fact incriminating. In upholding a similar New

York notice-of-alibi statute, the court in People

v. Schadel stated the obvious: notice-of-alibi

statutes seek out information which exonerates2

defendants rather than incriminating them. '

Concurring with Schade, Mr. Chief Justice Burger

17See State v. Stump, 254 Iowa 1181, 119 N.W.2d

210, cert. denied, 375 U.S. 853 (1963); State v. Angeleri,

51 NJ. 382, 241 A.2d 3 (1968); People v. Rakiec, 260

App. Div. 452, 23 N.Y.S.2d 607 (1940); State ex rd.

Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177 (1968).

18399 U.S. at 84-85.

29It has been held impermissible for the state to

comment on the defendant's compliance with statute

when at trial he elects not to use the defense. State v.

Cocco, 73 Ohio App. 182, 55 N.E.2d 430 (1943). But

see 399 U.S. at 110 (Black, J., dissenting).

20 399 U.S. at 85.

21"Id.

22 N.Y. CODE Cans. PRoC.

§295-1 (McKinney 1958).

23161 Misc. 212, 292 N.Y.S. 612 (1936).

24Id. at 615. Cf. State ex rd. Simos v. Burke, 41

Wis.2d 129, 163 N.W.2d 177 (1968).

[Vol. 61

in Williams emphasized how pretrial discovery of

alibi can work to the advantage of the accused.'

He reasoned that if the state found the accused's

alibi to be sound on the basis of pretrial investi26

gation, a needless trial could be avoided

jeoponly

would

rule

essence, the notice-of-alibi

ardize a defendant whose alibi is manufactured.21

A more fundamental issue was at stake in

Williams, however. Over and above the literal

interpretation of the fifth amendment's application to the notice-of-alibi rule, the Court's

decision reflected a judicial disposition between

two competing policies: that of the government's

discovery of fraudulent testimony versus that of

the defendant's right under the fifth amendment

to remain silent.'2 The Court uniquely illustrated

the tension between these two policies by com29

paring the adversary system to a poker game.

In holding that the defendant may be compelled to

reveal his alibi prior to trial, the Court found that

the adversary system need not be like the game of

draw poker in which all cards are concealed. The

Court held that the exigent concern of the state

for discovery of bogus alibis is paramount to any

tactical trial advantage which the accused might

gain from use of a surprise alibi defense." States,

therefore, may constitutionally require the defendant to "tip his hand." "

The Williams case, however, will probably be

more remembered for its holding that a six man

jury could constitutionally convict a man to life

in prison than for its discussion of alibis. The

25399 U.S. at 105-06.

26Epstein, Advance Notice of Alibi, 55 J. CRM. L.C.

& P.S. 29, 32 (1964).

it is that no innocent person can inany

2"Certain

manner be injured by this statute." People v. Schade,

161 Misc. 212, 218, 292 N.Y.S. 612, 617 (1936). See

also State ex rd.Simos v. Burke, 41 Wis.2d 129, 137-38,

163 N.W.2d 177, 181 (1968).

L. Rxv. 131, 136-38

28See Comment, 51 CATI.

(1963). Cf. Shapiro v. United States, 335 U.S. 1 (1945).

29 399 U.S. at 82; see note 1 supra and accompanying

text.

10State ex re. Simos v. Burke, 41 Wis.2d 129, 163

N.W.2d 177 (1968); Louisell, Criminal Discovery and

Self-Incrimination: Roger Traynor Confronts the Dilemma, 53 CAnm'. L. Rlv. 89, 91 (1953).J. and Douglas,

1But see 399 U.S. at 106 (Black,

J., dissenting). Both Justices Black and Douglas vigorously dissented from the majority holding on the fifth

amendment issue labeling it "a most dangerous departure from the Constitution and the traditional safeguards afforded persons accused of a crime." Id. at

116. Implicit in Black's dissent was his traditional

disdain for the Court's balancing an accused's constitutional rights against the interest of the state. See

Cohen v. Hurley, 366 U.S. 117, 133 (1961) (Black, J.,

dissenting).

APPENDIX F-4

19701

JURY TRIAL

petitioner argued that on the basis of Duncan v.

Louisiana 2 a jury of less than twelve violated his

sixth amendment guaranty to jury trial. Although

the sixth amendment does not mention the number

which shall comprise a jury, nevertheless Williams'

challenge was not without substantial precedent.,,

Seventy-two years ago the Supreme Court stated

unequivocally, "[t]he supreme law of the land

required that [defendant] should be tried by a jury

composed of not less than twelve persons." 4 Although this excerpt from Thompson v. Utah is only

dicta,31 it does reflect the basic historical supposition of American jurisprudence that the constitutional jury embraces twelve men.38 Two years later

in Maxwell v. Douvr the high Court again reasserted

the same principle "that a jury composed, as at

common law, of twelve jurors was intended by the

Sixth Amendment." ,

In Patton v. United Statesss the issue before the

Court was whether a defendant might constitutionally waive his right to a jury of twelve for a

lesser number. Although the Court in that case

held that, under the circumstances, waiver of a

twelve-man jury was permissible, the Court

insisted "that a constitutional jury means twelve

men as though that number had been specifically

named.. . ."4 Relying on these cases, as well as

the mandate in Duncan v. Louisiana"-that the

fourteenth amendment grants to the defendant

in state criminal action a trial by jury as though he

were tried in a federal court-petitioner claimed

his constitutional right to be heard by a jury of

twelve under federal law! 2

82 391 U.S. 145 (1968) (Held: the fourteenth amendment guarantees a right to trial by jury in all criminal

cases which-were they to be tried in a federal courtwould come within the sixth amendment guaranty.)

3 See authorities cited at 47 Am. Ju2d Jury §124,

at 84

726 n. 5 (1969).

Thompson v. Utah, 170 U.S. 343, 350 (1898).

11In Thompson the defendant had been convicted by

a twelve-man jury for a crime committed in the Territory of Utah. After Utah was admitted to the Union,

Thompson was granted a new trial. Pursuant to the

new state constitution, defendant was tried by eight

men. The Court held this change in number as an ex

postfacto law as applied to the defendant.

36See Capital Traction Company v. Hof, 174 U.S.

1, 13-14 (1899).

176 U.S. 581 (1900) overruled in Duncan v. Louisiana, 391 U.S. 145 (1968).

IId.at 586.

290 281 U.S. 276 (1930).

1 Id.at 292.

41391 U.S. 145, 149 (1968).

FEn.R. Cmn. P. 23(b) provides:

Juries shall be of 12 but at any time before

verdict the parties may stipulate in writing with

Breaking from adherence to the doctrine of

stare decisis, the Court found that a trial by a

six-man jury was not unconstitutional. 43 In doing

so, the Court noted that juries of less than twelve

are sanctioned by numerous state statutes" as

well as by courts.45 The obvious purposes underlying such statutes are judicial efficiency and

economic expediency.4 To justify its rift from

long established precedent, the Court took refuge

in the history surrounding the evolution of the

jury trial." Although the Court conceded that the

early common law, as well as its own decisions,

recognized a jury to be comprised of twelve,48 it

found no reason beyond "historical accident"

why the number twelve should be constitutionally

sacrosanct.

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.

jnstice Harlan concluded in his dissent: "The

decision in Williams ... casts aside workability

and relevance and substitutes uncertainty." 50

the approval of the court that the jury shall consist of any number less than 12.

See 399 U.S. at 127 n. 13 (Harlan, J., dissenting);

Note, Trial by Jury in Criminal Cases, 69 CoLm. L.

REv. 419, 430 (1969), wherein the commentator raises

the issue raised in the instant case. Does the Duncan decision require the states to afford the accused a trial

by a jury of twelve pursuant to federal law?

4399 U.S. at 86. But see also Id. at 127-28 (Harlan,

J., dissenting); Id. at 116-17 (Marshall, J., dissenting).

"For a compilation, see Note, Trial by Jury in

Criminal Cases, 69 CoLum. L. Rxv. 419, 430 n. 75

(1969).

45E.g., State v. Perrilla, 144 Conn. 228, 129 A.2d

226 (1957); Heams v. State, 223 So.2d 738 (Fla. 1969);

State v. Cowart, 251 S.C. 360, 162 S.E.2d 535 (1968).

"State ex rd. Sauk County District Attorney v.

Gollmar, 32 Wis.2d 406, 412-13, 145 N.W.2d 670, 673

(1966).

4See Duncan -v. Louisiana, 391 U.S. 145 (1968);

Frankfurter & Corcoran, Petty FederalOffenses and the

Constitutional Guaranty of Trial by Jury, 39 Huav. L.

R.Ev. 917 (1926); White, Origin and Development of

Trial by Jury, 29 TEmN. L. REv. 8 (1961).

4" 399 U.S. at 86-99.

"4Id. at 89.

60399 U.S. at 129.

APPENDIX F-5

Law and Human Behavior, Vol. 21, No. 5, 1997

A Meta-Analysis of the Effects of Jury Size

Michael 3. Saks1,3 and Mollie Weighner Marti2

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 meta-analysis, 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.

INTRODUCTION

In a series of decisions in the 1970s, the U.S. Supreme Court held that both criminal

and civil juries smaller than the traditional 12 persons did not violate constitutional

requirements (Ballew v. Georgia, 1978; Colgrove v. Battin, 1973; Williams v. Florida,

1970). The Supreme Court deemed jury size reduction constitutional on "functional" grounds. That is, it read the Constitution to say that what matters is not

the size of the jury, but the way it performs. The Court reasoned that a jurisdiction

may seek to save time or money if it does not harm the process or products of the

jury's decision-making. If, as a matter of empirical fact, smaller juries perform the

same as larger juries, then the smaller size is constitutionally valid.

In Williams v. Florida (1970), the Court set forth several criteria by which to

test whether 6-person juries are the functional equivalent of 12-person juries: quality

of deliberation, reliability of the jury's fact-finding, the verdict ratio, the ability of

dissenters on the jury to resist majority pressure to conform, and the jury's capacity

to provide a fair cross-sectional representation of the community. The majority of

justices concluded that the size of the jury made no difference on any of these

factors, at least down to sizes as small as six.

1College

of Law and Department of Psychology, University of Iowa, Iowa City, IA.

of Psychology, University of Iowa, Iowa City, IA.

michael-saks@uiowa.edu).

2Department

3College of Law, University of Iowa, Iowa City, IA 52242 (e-mail:

451

0147-7307/97/1000-0451$l2.50/l c 1997 American Psychology-Law Society/Division 41 of UK American Psychological Association

APPENDIX G-1

452

Saks and Marti

The Williams Court had scant support for its conclusion that "there is no

discernible difference between the results reached by the two different-sized juries"

(Saks, 1977; Zeisel, 1971). The decision prompted several jury studies which examined differences between juries of 12 and 6 persons. The Court subsequently cited

these studies in Colgrove v. Battin (1973), where, in the context of federal civil trials,

it upheld the constitutionality of six-member juries. Justice Blackmun cited these

same studies in Ballew v. Georgia (1978), as well as others, in holding that juries

smaller than six persons in state criminal trials involving nonpetty offenses were

unconstitutional. Enigmatically, that opinion relied on studies comparing the behavior of 12- and 6-member juries to affirm the reduction to 6 while concluding

that further reduction raised serious concerns about the jury's ability to perform

its functions.

The present article reports a meta-analytic review (Rosenthal, 1984, 1991a)

of all relevant empirical studies conducted to determine what effect, if any, results

from reducing the size of juries from the traditional 12 people down to 6.

METHOD

An extensive search was conducted of all relevant behavioral and social science and legal literature. Using our library's electronic catalog and indexes, we were

able to search journals and books from 1967 to the present. We also examined

references cited in relevant books, articles, and judicial opinions.

The search identified 17 empirical studies that examined differences between

6- and 12-member juries.4 In each of these studies, jury size was the independent

variable and one or several different criteria (dependent variables) were employed

to test whether 6-person juries are the functional equivalent of 12-person juries.

The total sample size for the 17 studies was 2,061 juries (involving approximately

15,000 individual jurors), and the dates of publication ranged from 1972 through

1990. The studies are set forth in Table 1.

Table 1 lists the features of each study, including the number of juries, type

of subjects and case, setting and design of study, jury sizes compared, and trial

medium. The table also reports a weight that we assigned to each study reflecting

the quality of its design and the degree of success in executing that design. Studies

were given weights ranging from 0 to 9 to reflect the estimated extent of internal

validity achieved by the study (Rosenthal, 1991a, 1991b). The weights are used in

subsequent analyses to obtain weighted effect sizes and significance tests. Unweighted analyses, of course, also are reported.

The ideal study of the effects of jury size would consist of a true experiment

conducted in an actual trial court setting on real cases. Juries of different sizes

4Valenti

and Downing (1974) is not included because its data are redundant with the later report,

Valenti and Downing (1975), which we do include. Two different studies reported in Saks (1977) are

denoted Saks-a and Saks-b, respectively.

APPENDIX G-2

Jury Size

453

APPENDIX G-3

454

Saks and Marti

would be assigned to cases in a random manner, so that the effects of different

sized juries could be examined without the effects of confounds and in the most

realistic possible setting. One study (Munsterman, Munsterman, & Penrod, 1990)

came close to conducting this ideal experiment. Indeed, the California legislature

passed a statute (California Civil Procedure Code Sec. 221 (West, 1997)) mandating such an experiment because of frustrations resulting from equivocal findings generated by flawed studies. Unfortunately, a lower level court official

apparently (and remarkably) "overturned" the statute, and allowed lawyers assigned to smaller (8-person) juries to opt out of that assignment in favor of a

12-person jury. Consequently, the experiment became a quasi-experiment and the

researchers had to resort to complicated statistical controls in an attempt to repair the damage.5 In short, there still are no ideal studies of jury size effects. All

of them are compromises of one kind or another. Some, however, are less compromised than others.

Studies employing stimulus cases that were so extreme that all verdicts were

the same, and which therefore were inherently incapable of detecting any effects

of jury size on verdicts, received a weight of zero. Uncontrolled correlational

studies, which allowed the parties to self-select cases into jury size conditions,

thereby tending to put more complex and higher stakes cases in front of larger

juries, were given a weight of 1. One experiment in which random assignment

to jury size conditions apparently failed, and therefore confounded the experimental condition with predeliberation attitudes, also was given a weight of 1.

Although the flaws in these studies make them virtually uninterpretable, they

provided something more than the studies to which weights of zero had been

assigned. One study received a weight of 4 because, though it was a true experiment, it failed to treat the jury as the unit of analysis following deliberation, but

instead treated jurors as the unit of analysis. Relatively well-controlled pre-post

designs, quasi-experiments, or correlational studies with statistical adjustment of

confounds were assigned weights of 6 or 7, depending on the quality of the control added. True experiments with random assignment to jury size conditions were

given weights of 8 or 9, depending on the quality of the study's external validity

(e.g., simulated video trials versus paper summaries, college students versus adult

jurors).

The two authors independently rated each study. Then they compared and

discussed any differences in their ratings, which were rarely more than one or two

rating points, and arrived at a consensus. Where, as here, a relatively severe scale

is used and both the weighted and unweighted results suggest the same conclusions,

one's confidence in the robustness of the findings is increased.

For most variables, the meta-analytic methods employed are those described

by Rosenthal (1984, 1991a). We calculated aggregate effect sizes for each variable

5Indeed, a comparison

of the potential and the reality of the Munsterman et al. study is an excellent

illustration of the simplicity and strength of true experiments and the complex ambiguities introduced

by other designs.

APPENDIX G-4

455

Jury Size

by first computing the effect size (Pearson r) for each study. We then transformed

each r into its equivalent Fisher Zr averaged the Zr's (in both weighted and unweighted forms), and then converted the mean Zr back to an r. Significance tests

were calculated by taking the standard normal deviate (Z) for each study. We averaged these Z's (in both weighted and unweighted forms), and then found the

tabled p value associated with the aggregate Z value. In the few instances where

we used a different analytic procedure, that alternative procedure is described along

with the results.

RESULTS AND DISCUSSION

We present seriatim the findings with respect to each effect (dependent variable) of jury size studied. Our discussion follows the stages of the trial process,

beginning with jury selection and concluding with awards.

Minority Representation

Does reduced jury size alter the ability of the jury to represent the views

of minority members of the community from which it is drawn? One's minority

group membership can be defined by any number of attributes, though the

one that has been the greatest concern to the courts has been race. Table 2

addresses this question by comparing the proportion of small versus large juries containing at least one member of the ethnic or racial minority under

study.

The first two columns of data in Table 2 give the proportions of small and

of large juries that had one or more minority jurors. Note that the two Munsterman

et al. studies really are one set of jury trials but, for purposes of this analysis, we

have treated them as two separate studies — one which measures representation

by African American jurors and the other which measures representation by Hispanic jurors. Examination of the first two data columns shows that for each of

these studies, more large juries than small juries included at least one minority

member. The table contains the respective numbers of juries in the samples, x2, P

level, and effect size r for each study.

The final four columns contain data needed to compute the aggregate effect

size and significance for this variable, unweighted and weighted by quality ratings,

respectively. The set of data below the primary data from the studies gives the

summary data for the meta-analysis, including the aggregate significance test and

the effect size using several measures in addition to r. (Most of the subsequent

sections of this article and their associated tables follow this same pattern of data

presentation.)

APPENDIX G-5

456

Saks and Marti

APPENDIX G-6

457

Jury Size

The findings show, first, that the effect of jury size on minority representation

is highly significant for both the weighted and unweighted analyses. Indeed, this is

the largest effect of any of the variables studied. The unweighted mean is Z = 4.25,

p < .0001; and the weighted mean is Z = 4.33, p < .0001. The unweighted and

weighted effect sizes are r = .269 and r = .278, respectively. The table also provides the effect size d (which is the effect in terms of standard deviation units),

and the correlation translated into a binomial effect size display (BESD).6 Our

BESD data indicate that the effect of reduced jury size on minority representation

is equivalent to a decrease in the opportunity of representation from about 63-64%

to about 36-37%.

Concerning the effects of reduced jury size on community representation,

the Supreme Court concluded in Williams v. Florida (1970), "While in theory

the number of viewpoints represented on a randomly selected jury ought to

increase as the size of the jury increases, in practice the difference between

the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible" (p. 102). Commentators have

pointed out that the Court's intuition on this issue is inconsistent with standard sampling theory analysis (Saks, 1977, 1996; Zeisel, 1971). The results of

this meta-analysis confirm that 12-person juries are more likely than 6-person

juries to contain at least one member of whatever minority group is under

consideration.

Deliberation Time

Does reduced jury size alter the time needed for a jury to reach a verdict?

A small part of the efficiency sought by jurisdictions in reducing the size of their

juries is the time thought to be saved by shorter deliberations of smaller juries.

Table 3 addresses this question by comparing the average deliberation time (in minutes) of small versus large juries.

Eleven studies reported data on the length of deliberations. Only two of

these studies, however, reported significance test statistics. Our aggregate significance test of the group of studies, therefore, is limited to a sign test. As

shown in Table 3, the mean length of time for deliberation was longer in 10 of

the 11 studies, which is significant at p < .05 (by a sign test). The unweighted

mean for the small juries was approximately 53 min and for the larger juries 70

min.

6"The BESD is an intuitively appealing general purpose effect size display whose interpretation is

perfectly transparent. . . . The question addressed by the BESD is: what is the effect on the success

rate (e.g., survival rate, cure rate, improvement rate, selection rate, and so on) of the institution of a

new treatment procedure, a new selection device, or a new predictor variable? It therefore displays

the change in success rate . . . attributable to the new treatment procedure, new selection device, or

new predictor variable." (Rosenthal, 1984, p. 130)

APPENDIX G-7

458

Saks and Marti

Table 3. Length of Deliberation

Mean length

Number of juries

Study

Small

Large

Small

Large

Direction

IJA (1972)

Kessler (1973)

Beiser & Varrin (1975)

Davis et al. (1975)

Eakin (1975)

Valenti & Downing-lo" (1975)

Valenti & Downing-hia (1975)

Saks-a (1977)

Saks-b (1977)

Kerr & MacCoun (1985)a

Munsterman et al. (1990)

72.0

22.2

150.0

12.6

38.3

23.3

12.3

43.7

32.9

108.0

15.3

192.0

13.4

51.0

25.7

38.5

45.1

47.8

492

180

5.4

5.8

174.0

228.2

By sign test: 10 of 11, p < .05 two-tailed.

aTen-minute

time limit.

That a 12-person jury would take longer to reach a decision than a 6-person

jury is not a controversial finding. The interesting question may be what to make

of that time difference. Among the reasons it takes 12 people longer to reach a

decision than it takes 6 people are the process inefficiencies associated with greater

numbers of decision-makers (Steiner, 1972). But the time difference may also reflect

more substantive deliberation: the sharing of more facts, more ideas, and more challenges to the tentative conclusions of others. Evidence consistent with this aspect of

why larger juries deliberate longer is to be found in the next section, which reports

findings on the accuracy of recall of trial facts. To the extent that longer deliberations

contain more information, they probably are better deliberations.

All together, however, the mean time difference is not great. The mean time difference for all of the studies is less than 20 min, and the mean difference for the three

studies of real juries deciding actual cases7 is only 44 min. Moreover, that difference is

inflated by one study (Institute of Judicial Administration [IJA], 1972), which suffered

from confounding that put more complex cases before the larger juries and less complex

cases before smaller juries. So the real difference is even smaller.

Thus, it appears that the small time savings that come from reducing the size

of juries would provide slight justification for any losses in representation and

quality of deliberation.

Memory for Evidence

For many kinds of decision tasks, the larger the decision-making group, the

better the decisions will be because of the increased resources provided by having

more group members (Steiner, 1972). Only two studies report data on this question

(both reported in Saks, 1977). All findings are in the expected direction.

7That is, Institute of Judicial Administration

(1972), Beiser and Varrin (1975), and Musterman et al. (1990).

APPENDIX G-8

Jury Size

459

Trial testimony was discussed more accurately in the deliberations of

larger juries than in the deliberations of smaller juries. [Mean for large juries = 14.8 (n = 33) vs. mean for small juries = 12.2 (n = 40); mean unweighted Z = 1.83, p = .034, r = .217; mean weighted Z = 5.39, p < .0001,

r = .218.]

Similarly, members of larger juries remembered more of the facts in evidence, measured by a postdeliberation test of their recall. [Mean for large juries = 16.5 (n = 33) vs. mean for small juries = 13.3 (n = 40); mean

unweighted Z = 1.75, p = .040, r = .201; mean weighted Z = 5.35,

p < .0001, r = .211.]

Though the data are limited to two studies, they suggest that larger juries

more accurately recall evidence.

Hung Juries

The Williams Court concluded that "studies of the operative factors contributing to small group deliberation and decisionmaking suggest that jurors in

the minority on the first ballot are likely to be influenced by the proportional

size of the majority aligned against them" (Williams v. Florida, 1970, p. 101, n.

49). The Court was suggesting, for example, that a jury divided 10-2 is the

psychological equivalent of a jury split 5-1. This statement, however, is contradicted by all of the studies on which the Court relied for support of its

proposition. For example, one of the Court's cited sources (Kalven & Zeisel,

1966) states:

For one or two jurors to hold out to the end, it would appear necessary that they had

companionship at the beginning of the deliberations. The juror psychology recalls a famous

series of experiments by the psychologist Asch and others which showed that in an

ambiguous situation a member of a group will doubt and finally disbelieve his own correct

observation if all other members of the group claim that he must have been mistaken. To

maintain his original position, not only before others but even before himself, it is necessary

for him to have at least one ally (p. 463),

Thus, the juror who is a minority of 1 on a jury of 6 is in a much weaker psychological position to resist the majority than the juror who has one ally with whom

to confront a majority of 10.

Consistent with the greater likelihood that those in larger juries who hold

minority viewpoints would have attitudinal allies, and therefore be better able to

resist pressure to conform, larger juries should be found, empirically, to produce

more hung verdicts than would smaller juries.

Fifteen studies collected information on the number of hung juries. Examination of the first two substantive columns of Table 4 shows that in 11 of these

studies the large juries produced more hung verdicts than did the small juries. The

findings show that the effect of jury size on hung juries is significant for both the

unweighted and weighted analyses. The unweighted mean is Z = 3.23, p = .0006;

and the weighted mean is Z = 2.92, p = .0018. The unweighted and weighted effect sizes are r = .107 and r = .071, respectively.

APPENDIX G-9

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Saks and Marti

APPENDIX G-10

Jury Size

461

It should be noted that the actual rate of hanging probably is less than that

reflected in these data. In order to produce sufficient variation in dependent measures so that subtle effects of independent variables can be detected, it is common

for researchers who design simulations to prepare ambiguous stimulus cases (Roper,

1980).8 A by-product of more ambiguous trials is more hung juries. In addition,

simulated trial studies often place time limits on deliberations, which cause more

of them to end before a consensus is reached. Consistent with this, the experiments

reported in Table 4 that used simulated trials produced more hung juries than those

experiments that used actual cases. Simulated trials hung 18.6% of the time, while

actual trials hung only 1.1% of the time, t(l2) = 2.54, p = .026.

Thus, although larger juries are more likely to reach deadlocks than smaller

juries, the real-world rate of hanging appears to be small.

Verdicts

The next analysis addresses the expectation that larger juries more consistently

will produce "correct" verdicts than smaller juries. First, it is necessary to define

what we mean by a "correct" verdict. We begin with the notion that a jury is, among

other things, a device for sampling from the relevant community of citizens. If the

jury is a substitute for the full community, it follows that the most correct verdict

that could be obtained would be one rendered by the full community. Within any

given experimental study, where a single simulated trial is employed, the consensus

of all of the juries observing the particular simulated trial is the best available estimation of what the full community would decide regarding that trial.

Note that only simulated trials using mock juries permit a test of this prediction because only they present a single trial (usually by videotape) repeatedly to

different juries, thereby yielding an estimate of the larger community as well as

from individual juries concerning the same trial.

Statistical sampling theory predicts that larger samples (larger juries) will

come closer than smaller samples (smaller juries) to reflecting the community's

verdict preference. Accordingly, if the majority of verdicts in any given study favored

guilt, we would expect a greater proportion of large juries than small juries to favor

guilt. If the majority of verdicts in any given study favored acquittal, we would

expect a greater proportion of large juries than small juries to favor acquittal.

Because larger juries are more likely to be a better sample of the community than

smaller juries, they should provide a better indication of — a more accurate

reflection of — what the whole eligible community would decide (Mashaw, Goetz,

Broadman, Schwartz, Verkuil, & Carrow, 1978).

However plausible the theory, our meta-analysis of the 10 relevant studies of

simulated trials finds no significant effects (Table 5).

8On

the rare occasions when researchers fail to do so, the result is an artifactual finding of no effect

(see Diamond, 1974).

APPENDIX G-11

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APPENDIX G-12

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463

Awards

Sampling theory makes the straightforward prediction that smaller samples produce larger standard errors around the mean. The Central Limit Theorem tells us

that in drawing repeated random samples from a population with mean and standard deviation a, the sampling distribution that results will have a standard error of

<T/VH~, where n is the size of the samples. Thus, if a sample size is cut in half, the

variability will increase by 41 %.9 Put most simply, the smaller the sample (the smaller

the jury), the greater the variability among the awards they will make.

Applied problems, of course, provide settings for applying theoretical principles that are less than pristine. The major risk here of departure from the statistical

model is that, in nearly every jurisdiction, juries are not assembled at random from

the pool. For example, lawyers and judges have the opportunity to exclude certain

people from juries in a nonrandom fashion. Notwithstanding that distortion, however, the bulk of jurors seated are a more or less random sample of the population

of jurors brought into the pool, and therefore the essential point remains: smaller

samples (smaller juries) should be expected to produce distributions of awards that

show more variability, more unpredictability.

Only four studies involved civil trials and provided data on awards. Only three

of these studies provided mean and median award sizes; a fourth provided only

mean awards. Table 6 presents these data. None of the four studies provided a

measure of dispersion, which would have provided the most direct and illuminating

data on the effect of jury size on civil awards. Thus, this most important question

about the effects of jury size on civil awards remains untested.

In examining Table 6, the data from the IJA (1972) study probably should

be disregarded. Strong evidence exists to believe that that study suffered from serious confounding, such that the larger juries were presented with more complex

cases involving larger disputed amounts, while the smaller juries were presented

with less complex cases involving smaller disputed amounts (Saks, 1977; Zeisel &

Diamond, 1974).10

The remaining data in the table suggest, or confirm, the following lessons.

The means are greater than the medians, indicating that these distributions were

positively skewed — many smaller awards, a small number of large awards. This is

typical of distributions of civil damage awards in both actual and simulated juries

(see review of such data in Saks, 1992).11 The simplest explanation for this is that

the low end of the distribution has an obvious floor, zero, while the high end has

no ceiling at all.

9Reducing

the sample size by one half increases the standard error by the square root of two, or 1.41,

that is, a 41% increase.

previous analyses, the IJA (1972) data have been discounted by way of the weight given to them

or by our providing a similar caution in the text.

11Indeed, the phenomenon is so common that researchers in this area regularly resort to one or another

kind of transformation to unskew the distributions for analysis purposes. See review and discussion in

Wissler, Evans, Hart, Morry, & Saks (1997).

10In

APPENDIX G-13

Saks and Marti

464

Table 6. Awards in Civil Cases

Study

Average award ($)

Number of juries

Small

Large

Small

Large

Mills (1973)a

Mean

Median

30,100

7,740

24,640

6,360

110

Beiser & Varrin (1975)

Mean

Median

52,070

16,950

33,189

22,050

Munslerman et al. (1990)

Mean

Median

7,645

7,500

3,677

2,769

IJA (1972)

Mean

8,600

24,300

344b

106b

a Auto negligence cases: large juries: 4,400; small: 6,662. Other civil cases: large juries: 14,750;

small: 12,915.

b Calculated based on data showing proportion of cases that settled.

A comparison between the mean award sizes for the smaller and the larger

juries (among the three better studies) suggests that smaller juries give larger

awards.

Assuming the finding is reliable, what could explain it? Sampling theory alone

will not suffice. Sampling theory predicts that the distributions of awards will be

symmetrical, though, as discussed above, the distribution of awards from smaller

juries will show greater dispersion than the distribution of awards from larger juries.

But sampling distributions tend to be normal even when the underlying population

distribution is skewed.

In addition to sampling phenomena, consider the logic of the social psychological phenomenon of group polarization (Myers & Lamm, 1976). Groups tend

to shift in the direction of, and magnify, the group norm that is present. Because

the preferences of members of smaller juries are more dispersed, high awards are

more likely in smaller groups to appear to be group norms toward which the group

shifts as a result of deliberation (Myers & Kaplan, 1976). An experiment by Snortum, Klein, & Sherman (1976) tends to confirm the inordinate power of a single

juror in smaller juries. Into simulated 6- and 12-person juries Snortum et al.

planted a single confederate who took a position far removed from that of most

of the other jurors. In 12-person juries, the single outlier was able to transform

the control group's 24% guilty votes into 45% guilty, while in 6-person juries the

shift was far more pronounced, from 30% to 72%. It is not hard to see a similar

effect occurring for awards as for verdicts.

The data in Table 6 are insufficient to permit us to conduct significance tests,

or to put much confidence in the reliability of this finding, but the pattern makes

sense in light of statistical and social psychological theory and data.

APPENDIX G-14

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465

CONCLUSIONS

The evidence shows that the size of the jury affects jury decision processes.

The meta-analysis reported has found: Smaller juries are more likely to contain no

members of minority groups. Twelve-person juries spend more time in deliberation.

Twelve-person juries deadlock somewhat more often. And, at least on the strength

of the two studies that tested the issue, 12-person juries accurately recall more trial

testimony. These effects may be multiplied across the roughly 160,000 jury trials

conducted each year in the United States.

In holding that juries smaller than 12 are constitutional, the Supreme Court

set aside 600 years of common law tradition and two centuries of constitutional

history, including the reversal of its own precedents (Capital Traction Co. v. Hof,

1899; Patton v. United States, 1930; Rassmussen v. United States, 1905; Thompson v.

Utah, 1898; generally, see Arnold, 1993). Less than a decade after Williams, some

members of the Supreme Court may have realized their error. Despite its holding

reaffirming the constitutionality of the six-person jury, the opinion in Ballew v. Georgia (1978) nevertheless reviewed in detail the empirical and statistical studies relevant to the question of the effects of jury size.

Recognition of the harmful effects of shrunken juries has led some authorities

to begin to move the jury back to its original size. For example, the New Hampshire

Supreme Court relied on the Ballew Court's review of relevant empirical research

in providing an advisory opinion to the New Hampshire Senate finding that smaller

juries would violate the New Hampshire State Constitution (Opinion of the Justices,

1981). Although the New Hampshire Supreme Court adopted the same functional

analysis that the U.S. Supreme Court had in Williams, with the guidance of Ballew

it reached the opposite conclusion.

Additionally, in an explicit effort to stabilize damage awards, the Model Medical Malpractice Act promulgated by the Reagan Administration called for the use

of 12-person juries in medical malpractice cases. Similarly, revisions of Rule 48 of

the Federal Rules of Civil Procedure gradually have been increasing the number

of jurors who deliberate and decide a case. In 1995 the Standing Committee on

Rules of Practice and Procedure of the Judicial Conference of the United States

recommended a further change in Rule 48, namely, a provision requiring that federal trial courts "shall seat a jury of twelve members." However, by the end of

1996, the Judicial Conference rejected that proposed rule change.

Having framed the issue of jury functioning to call for an empirical inquiry,

the Supreme Court reached conclusions that are not supported by the data. A careful examination of the relevant studies finds significant differences in jury behavior

as a function of jury size. In light of these data and the judgments of other authorities, mentioned above, the Supreme Court might profitably revisit this issue. Were

it to do so, and adhere to its now dominant legal analysis (articulated in Williams

v. Florida, 1970) concerning the test for constitutionality of juries smaller than 12

persons, it seems that smaller juries, certainly juries of 6 persons, are not likely to

be held constitutional. Alternatively, the U.S. Congress and state legislatures may

recognize the error and correct it. Federal and state courts are constitutionally permitted, but not required, to use smaller juries. The findings of this meta-analysis

APPENDIX G-15

Saks and Marti

466

suggest that juries will perform better, and therefore justice will be served better,

when juries are restored to their traditional 12.

ACKNOWLEDGMENTS

The authors wish to express special thanks to an anonymous reviewer for exceptionally helpful criticism.

REFERENCES*

Arnold, R. S. (1993). Trial by jury: The Constitutional right to a jury of twelve in civil trials, Hofstra

Law Review, 22, 1-35.

Ballew v. Georgia, 435 U.S. 223 (1978).

*Beiser, E. N., & Varrin, R. (1975). Six-member juries in the federal courts. Judicature, 58, 425-433.

*Bermant, G., & Coppock, R. (1973). Outcomes of six and twelve-member jury trials: An analysis of

128 civil cases in the State of Washington. Washington Law Review, 48, 593-596.

*Buckhout, R., Weg, S., Reilly V., & Frohboese, R. (1977). Jury verdicts: Comparison of 6- vs. 12-person

juries and unanimous vs. majority decision rule in a murder trial. Bulletin of the Psychonomic Society,

10, 175-178.

California Civil Procedure Code (West, 1997).

Capital Traction Co. v. Hof, 174 U.S. 1 (1899).

Colgrove v. Battin, 413 U.S. 149 (1973).

Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. (1995).

Memos and minutes. Federal Rules Decisions, 163, 135-138, 147.

•Davis, J. H., Kerr, H. L., Atkin, R. S., Holt R., & Meek, D. (1975). The decision processes of 6- and

12-person mock juries assigned unanimous and 2/3 majority rules. Journal of Personality and Social

Psychology, 32, 1-14.

Diamond, S. S. (1974). A jury experiment reanalyzed. University of Michigan Journal of Law Reform, 7,

520-532.

*Eakin, B. A. (1975). An empirical study of the effect of leadership influence on decision outcomes in

different sized jury panels. Kansas Journal of Sociology, 11, 109-126.

"Institute of Judicial Administration (1972). A comparison of six- and twelve-member juries in New Jersey

superior and county courts. New York: Institute of Judicial Administration.

Kalven, H., & Zeisel, H. (1966). The American jury. Chicago: University of Chicago Press.

"Kerr, N. L., & MacCoun, R. J. (1985). The effects of jury size and polling method on the process and

product of jury deliberation. Journal of Personality and Social Psychology, 48, 349-363.

"Kessler, J. (1973). An empirical study of six- and twelve-member jury decision-making processes.

University of Michigan Journal of Law Reform, 6, 712-734.

Mashaw, J., Goetz, C., Broadman, F., Schwartz, W., Verkuil, P., & Carrow, M. (1978). Social security

hearings and appeals: A study of the Social Security Administration hearing system. Lexington, MA:

Lexington Books.

*Mills, L. R. (1973). Six member and twelve member juries: An empirical study of trial results. University

of Michigan Journal of Law Reform, 6, 671-711.

*Munsterman, G. T., Munsterman, J. T., & Penrod, S. D. (1990). A comparison of the performance of

eight- and twelve-person juries. Arlington, VA: National Center for State Courts, Washington Project

Office.

Myers, D. G., & Kaplan, M. F. (1976). Group-induced polarization in simulated juries. Personality and

Social Psychology Bulletin, 2, 63-66.

Myers, D. G., & Lamm, H. (1976). The group polarization phenomenon. Psychological Bulletin, 83,

602-627.

Opinion of the Justices, 121 N.H. 480, 431 A.2d 135 (1981).

'References marked with an asterisk indicate studies included in the meta-analysis.

APPENDIX G-16

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467

•Padawer-Singer, A., Singer, A., & Singer, R. (1977). An experimental study of twelve vs. six member

juries under unanimous vs. nonunanimous decisions. In B. D. Sales (Ed.), Psychology in the legal

process (pp. 77-86). New York: Spectrum.

Patton v. United States, 281 U.S. 276 (1930).

Rassmussen v. United States, 197 U.S. 516 (1905).

•Roper, R. T. (1980). Jury size and jury consistency: "A line has to be drawn somewhere"? Law and

Society Review, 14, 977-995.

Rosenthal, R. (1984). Meta-analytic procedures for social research. Beverly Hills, CA: Sage.

Rosenthal, R. (1991a). Mela-analytic procedures for social research (Rev. ed.) Newbury Park, CA: Sage.

Rosenthal, R. (1991b). Quality weighting of studies in meta-analytic research. Psychotherapy Research,

1, 25-28.

*Saks, M. J. (1977). Jury verdicts: The role of group size and social decision rule. Lexington, MA: Lexington

Books.

Saks, M. J. (1992). Do we really know anything about the behavior of the tort litigation system — and

why not? University of Pennsylvania Law Review, 140, 1147-1289.

Saks, M. J. (1996). The smaller the jury, the greater the unpredictability. Judicature, 79, 263-265.

*Snortum, J. R., Klein, J. S., & Sherman, W. A. (1976). The impact of an aggressive juror in six- and

twelve-member juries. Criminal Justice and Behavior, 3, 255-262.

Steiner, I. D. (1972). Group process and productivity. New York: Academic Press.

Thompson v. Utah, 170 U.S. 343 (1898).

Valenti, A. C, & Downing, L. L. (1974). Six versus twelve member juries: An experimental test of the

Supreme Court assumption of functional equivalence, Personality and Social Psychology Bulletin, 1,

273-275.

*Valenti, A. C., & Downing, L. L. (1975). Differential effects of jury size on verdicts following

deliberation as a function of the apparent guilt of the defendant. Journal of Personality and Social

Psychology, 32, 655-663.

Williams v. Florida, 399 U.S. 78 (1970).

Wissler, R. L., Evans, D. L., Hart, A. J., Morry M. M., & Saks, M. J. (1997). Explaining "pain and

suffering" awards: The role of injury characteristics and fault attributions. Law and Human Behavior,

21, 181-207.

Zeisel, H. (1971). . . . And then there were none: The diminution of the federal jury. University of

Chicago Law Review, 38, 710-724.

Zeisel, H., & Diamond, S. S. (1974). "Convincing empirical evidence" on the six member jury. University

of Chicago Law Review, 41, 281-295.

APPENDIX G-17

THE CASE FOR OVERTURNING WILLIAMS v. FLORIDA AND

THE SIX-PERSON JURY: HISTORY, LAW, AND

EMPIRICAL EVIDENCE

Alisa Smith*

Michael J. Saks**

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 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.

* Assistant Professor of Criminology, The University of Tampa. Ph.D. 1998, The Florida

State University; J.D. 1988, The Florida State University.

** Professor of Law, Professor of Psychology, and Fellow of the Center for the Study of

Law, Science, and Technology, Sandra Day O’Connor College of Law, Arizona State University.

Ph.D. 1975, Ohio State University; M.S.L. 1985, Yale Law School.

441

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[V ol. 60

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442

II.

THE CURRENT STATUS OF JURIES NATIONWIDE . . . . . . . . . . . 443

III.

THE SIXTH AMENDMENT AND THE HISTORY OF THE JURY . . . 444

IV.

THE FLORIDA JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450

THE FUNCTIONAL-EQUIVALENCE TEST . . . . . . . . . . . . . . . . . . 454

VI.

THE EMPIRICAL RESEARCH . . . . . . . . . . . . . . . . . . . . . . . . . . . 463

A. Community Representation . . . . . . . . . . . . . . . . . . . . . . . . 464

B. Quality of Group Deliberation . . . . . . . . . . . . . . . . . . . . . 464

C. Ability of Jurors in the Minority to Resist Majority

Pressure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466

D. Factfinding Reliability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467

VII.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

I. INTRODUCTION

Only two states—Florida and Connecticut—rely on six-person juries

in serious felony prosecutions. The constitutionality of Florida’s sixperson jury rests exclusively on the U.S. Supreme Court’s decision in

Williams v. Florida.1 In Williams, the Court dismissed precedent and legal

tradition, and found the twelve-person jury to be nothing more than a

“historical accident.”2 The Court therefore upheld the constitutionality of

six-person juries because it found six- and twelve-person juries to be

functionally equivalent.3

The Williams Court’s historical analysis is flawed: more thorough

inquiry suggests that the Framers understood and intended the jury to be

a group of twelve persons. But, even accepting the Court’s “functional”

analysis as the correct test of constitutionality, the six-person jury

fails—the empirical evidence never supported the speculations in

1. 399 U.S. 78 (1970); see also Blair v. State, 698 So. 2d 1210, 1216 (Fla. 1997) (stating

that it is indisputable that a person in Florida has a right to a six-person jury); Rinaldo v. State, 861

So. 2d 510, 511 (Fla. 4th DCA 2004) (holding that a person does not have a fundamental right to

a twelve-person jury); Smith v. State, 857 So. 2d 268, 270 (Fla. 5th DCA 2003) (holding that a right

to a jury of at least six members is fundamental).

2. Williams, 399 U.S. at 101–02.

3. Id. at 103.

APPENDIX H-2

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TH E C ASE FO R O VERTU RN IN G W ILLIAM S v. FLO R ID A AN D TH E SIX-PERSON JURY

443

Williams, and subsequently accumulated knowledge leads to the

conclusion that the performance of the six-person jury is inferior to that of

the twelve-person jury.

This Essay sets out the historical and empirical infirmities of the

Williams decision. Part II presents a summary of the number of jurors used

in criminal prosecutions throughout the United States. Part III examines

the Sixth Amendment history of the trial by jury and argues that the

twelve-person jury was no accident. Part IV provides an overview of

Florida’s jury trial history. Part V describes the Williams Court’s

functional-equivalence test in detail. Part VI summarizes the empirical

research undertaken since Williams, casting great doubt on the vitality of

its holding.

II. THE CURRENT STATUS OF JURIES NATIONWIDE

Although some states reduced the size of the jury in criminal

prosecutions to six persons (and Georgia attempted to reduce the size to

five) following the Williams decision, most states currently retain twelveperson juries in felony cases. Only six states permit juries of fewer than

twelve in felony prosecutions, and of those only four permit six-person

juries.4 Indiana requires twelve-person juries for class A, B, and C

felonies, and six-person juries in all other felony cases.5 Massachusetts

provides twelve-person juries for all Superior Court cases and a de novo

jury trial for all cases appealed from a guilty verdict by a six-person jury

in district court cases. Thus no person accused of a felony in

Massachusetts must settle for a six-person jury. Arizona provides twelveperson juries in cases where the sentence may be more than thirty years

and eight-person juries in other felony cases. In Utah, eight-person juries

are permitted in felony prosecutions. The only other state with six-person

juries in felony cases is Connecticut. All other state and federal felony

prosecutions require twelve-person juries.6 The states that have the death

penalty, including Florida, require twelve-person juries in all capital or

death cases.7

4. DAVID B. ROTTMAN & SHAUNA M. STRICKLAND, U.S. DEP’T OF JUSTICE, STATE COURT

ORGANIZATION 2004, at 233 tbl.42 (2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/sco

04.pdf.

5. Id. Indiana has a fixed sentencing structure. Class A felonies are punishable by up to

thirty years in prison, class B by up to ten years in prison, class C by up to four years in prison, and

class D by up to eighteen months in prison. See IND. CODE §§ 35-50-2-4 to -7 (2007).

6. ROTTMAN & STRICKLAND, supra note 4, at 233 tbl.42.

7. Id. In Florida, a defendant may waive a twelve-person jury and agree to be tried by a

smaller jury. See State v. Griffith, 561 So. 2d 528, 529 (Fla. 1990).

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The American Bar Association’s (ABA) principles for jury trials call

for states to provide twelve-person juries in felony prosecutions “if a

penalty of confinement for more than six months may be imposed upon

conviction.”8 Despite the ABA’s recommendation and the near nationwide

consensus on twelve-person juries in serious cases, Florida and

Connecticut retain the six-person jury.

III. THE SIXTH AMENDMENT AND THE HISTORY OF THE JURY

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.9

The right to trial by jury is essential to freedom and justice:

“Throughout history, the right to a trial by jury has been viewed by our

founding fathers, the framers of our constitution, and all citizens of the

United States since its inception, as essential to the freedoms that make our

society great.”10 The Sixth Amendment, founded on long experience in

English history and the Magna Carta, was included in the Bill of Rights to

“prevent oppression by the government.”11 Blackstone’s Commentaries,

originally published in 1765–1769, identified trials by twelve jurors as

being important to preventing government oppression: “‘[T]he truth of

every accusation, whether preferred in the shape of indictment,

information, or appeal, should afterwards be confirmed by the unanimous

suffrage of twelve of his equals and neighbours, indifferently chosen and

superior to all suspicion.’”12 Blackstone’s summary of the development of

8. A.B.A., AM. JURY PROJECT, PRINCIPLES FOR JURIES AND JURY TRIALS 5 princ.3 (2005),

available at http://www.abanet.org/juryprojectstandards/principles.pdf.

9. U.S. CONST. amend. VI.

10. Michael Sudman, Note, The Jury Trial: History, Jury Selection, and the Use of

Demonstrative Evidence, 1 J. LEGAL ADVOC. & PRAC. 172, 173 (1999).

11. Id. at 175; see also Benjamin F. Diamond, Note, The Sixth Amendment: Where Did the

Jury Go? Florida’s Flawed Sentencing in Death Penalty Cases, 55 FLA. L. REV. 905, 909–11

(2003) (discussing the development of the English jury and its influence on the American jury).

12. Duncan v. Louisiana, 391 U.S. 145, 151–52 (1968) (quoting WILLIAM BLACKSTONE, 4

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English law and practice reflects the same history that led the U.S.

Supreme Court in 1898 to determine that the term “jury” in the Sixth

Amendment retained its meaning under the common law and Magna

Carta:

It must consequently be taken that the word “jury” and the

words “trial by jury” were placed in the constitution of the

United States with reference to the meaning affixed to them

in the law as it was in this country and in England at the time

of the adoption of that instrument; and that . . . the supreme

law of the land required that [the defendant] should be tried

by a jury composed of not less than twelve persons.13

The Court, thereafter, consistently held that criminal trials required

twelve-person juries. In 1905, this was true for petty offenses as well. In

Rassmussen v. United States,14 the Court struck down as unconstitutional

an Alaskan territorial law of Congress because the law permitted sixperson juries in misdemeanor cases.15 In 1968, the Court in Duncan v.

Louisiana16 applied the Sixth Amendment to the states, holding that state

criminal prosecutions of non-petty offenses required twelve-person

juries.17

Justice White, writing for a seven-member majority in Duncan, held

trial by jury in criminal cases to be fundamental to the American scheme

of justice and applied this guarantee to the states through the Fourteenth

Amendment to the U.S. Constitution.18 A crime punishable by two years

in prison was not a petty offense and required a jury trial.19 Although the

size of the jury was not at issue in the case, implicit in the opinion was that

juries numbered twelve—the opinion quoted Blackstone on the point.20

The two dissenters specifically challenged the twelve-person requirement,

which they viewed the majority as having embraced.21 But the right to

twelve-person juries was a matter of fundamental principles of liberty and

justice, and was based on well-settled history:

COMMENTARIES *349–50).

13. Thompson v. Utah, 170 U.S. 343, 350 (1898), abrogated by Williams v. Florida, 399 U.S.

78 (1970), and overruled on other grounds by Collins v. Youngblood, 497 U.S. 37 (1990).

14. 197 U.S. 516 (1905).

15. Id. at 518.

16. 391 U.S. 145 (1968).

17. Id. at 157–58.

18. Id.

19. See id. at 147.

20. See id. at 151–52.

21. Id. at 182 (Harlan, J., dissenting).

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The history of trial by jury in criminal cases has been

frequently told. It is sufficient for present purposes to say that

by the time our Constitution was written, jury trial in criminal

cases had been in existence in England for several centuries

and carried impressive credentials traced by many to Magna

Carta. Its preservation and proper operation as a protection

against arbitrary rule were among the major objectives of the

revolutionary settlement which was expressed in the

Declaration and Bill of Rights of 1689.22

Until Williams, the Court had consistently defined “jury” to mean the

common-law twelve-person jury.23

Florida law allowed six-person juries in non-capital felony cases.24

Following Duncan, the constitutionality of the 1967 version of Florida’s

statute allowing six-person juries was challenged by the petitioner in

Williams, who argued that a six-person jury was inconsistent with the

Sixth Amendment guarantee of trial by jury.25 Because the Sixth

Amendment does not specify a number of impartial jurors for a

constitutional panel, the Williams Court examined whether a twelveperson jury was a necessary ingredient of trial by jury. Although the Court

found that the historical definition of a jury included trial by peers, the

Court characterized the use of twelve-person juries as a “historical

accident” of common law.26 This characterization improperly dispensed

with a 700-year history defining “jury” as comprising twelve persons.

There is “more than sufficient evidence to conclude that the evolution of

the modern jury as a body of twelve-persons was far from accidental.”27

Contrary to the Williams Court’s conclusion, a great deal of commonlaw history—identified in Duncan and previous U.S. Supreme Court and

state law cases—supports an interpretation that the Framers of the

Constitution guaranteed a twelve-person jury through the Sixth

Amendment.28 Trial by jury is fundamental to the common-law system and

predates the adoption of the Sixth Amendment in 1791.29 In fact, the Sixth

22. Id. at 151 (majority opinion) (footnotes omitted).

23. Larry T. Bates, Trial by Jury After Williams v. Florida, 10 HAMLINE L. REV. 53, 55

(1987); Robert H. Miller, Comment, 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, 621 (1998).

24. See English v. State, 12 So. 689, 690 (Fla. 1893).

25. See Williams v. Florida, 399 U.S. 78, 86 (1970).

26. Id. at 89.

27. Miller, supra note 23, at 632–33.

28. See id. at 639–45, 681–82.

29. See generally Richard S. Arnold, Chief Judge, U.S. Court of Appeals for the Eighth

Circuit, Howard Kaplan Memorial Lecture: Trial by Jury: The Constitutional Right to a Jury of

Twelve in Civil Trials (Oct. 6, 1993), in 22 HOFSTRA L. REV. 1 (1993) (noting that it was taken for

granted for hundreds of years that a jury should be composed of twelve people). In a lecture

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Amendment is “essentially redundant” because the right to a trial by jury was

provided in Article III, § 2 of the Constitution in 1789.30 The right to a jury

trial is the “only guarantee to appear in both the original document and the

Bill of Rights.”31

At the Constitutional Convention, the desirability of

safeguarding the jury may have been the most consistent point

of agreement between the Federalists and Anti-Federalists.

Alexander Hamilton wrote in Federalist 83:

The friends and adversaries of the plan of the

convention, if they agree in nothing else, concur at least

in the value they set upon the trial by jury; or if there is

any difference between them it consists in this: the

former regard it as a valuable safeguard to liberty, the

latter represent it as the very palladium of free

government.32

The jury trial’s historical basis is well settled, and the number of jurors was

a deliberate decision based on intrinsic value and not simply a “historical

accident.”33 The number of jurors at the time of adoption—and for centuries

of common-law history preceding the Sixth Amendment—was set at twelve.

When our forefathers spoke of the “trial by jury,” they assumed, based on

“common-law criminal jurisprudence[,] that the ‘truth of every accusation’

against a defendant ‘should afterwards be confirmed by the unanimous

suffrage of twelve of his equals and neighbours.’”34 In Blakely v.

Washington,35 Justice Scalia rejected the argument that the Framers of the

Constitution “left definition of the scope of jury power up to judges’ intuitive

sense of how far is too far.”36 The role of the jury was not left to the

government: “We think that claim not plausible at all, because the very

delivered at the Hofstra University School of Law and later printed in the Hofstra Law Review,

Judge Arnold set forth a compelling historical and empirical argument critical of the six-person jury

in civil cases. See id. His arguments are applicable to criminal trials as well.

30. Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the

United States, 61 U. CHI. L. REV. 867, 869–70 (1994).

31. Id. at 870. The Constitution and the Sixth Amendment both guarantee the right to a trial

in the state where the crime has been committed. See U.S. CONST . art. 3, § 2, cl. 3; U.S. CONST.

amend. VI.

32. Alschuler & Deiss, supra note 30, at 871 (quoting THE FEDERALIST NO. 83, at 499

(Alexander Hamilton) (Clinton Rossiter ed., 1961)).

33. See id. at 869–71.

34. Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting WILLIAM BLACKSTONE, 4

COMMENTARIES *349–50).

35. 542 U.S. 296 (2004).

36. Id. at 308.

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reason the Framers put a jury-trial guarantee in the Constitution is that they

were unwilling to trust government to mark out the role of the jury.”37

Allowing the government to define the size of a jury empowers the

government to all but eliminate the jury, undoing by statute what had been

established by the Constitution. In Ballew v. Georgia,38 the Court

acknowledged this slippery slope by holding that Georgia’s five-person jury

in criminal cases violated the Sixth and Fourteenth Amendments.39

Since Williams, the Supreme Court has not directly confronted a

challenge to the six-person jury. In Ballew, the Court was asked to examine

whether five-person juries satisfied the Sixth Amendment guarantee of trial

by jury. Although the Ballew Court reaffirmed Williams, the issue in Ballew

did not concern the constitutionality of six-person juries. The Court, in two

other cases dealing with juries, was also not confronted by a direct challenge

to the infirmity of its Williams decision. In Burch v. Louisiana,40 the Court

held that a non-unanimous verdict by a six-person jury in a state criminal trial

for a non-petty offense violated the Sixth Amendment,41 and in Brown v.

Louisiana,42 the Court gave the decision in Burch retroactive effect.43 The

foundation for twelve-person juries was well rooted in American

jurisprudence prior to the Williams decision. Throughout 700 years of

common-law jurisprudence, no historical evidence supports juries of numbers

other than twelve.

To argue that strictly adhering to the Framer’s view would require the

twelve jurors to be white, male landholders avails nothing. At the time the

Constitution and Bill of Rights were adopted, the qualifications of jurors were

matters of state and federal legislation. Many of the disqualifying

characteristics that limited jury participation to white, male property owners

resulted from the “citizenship” restrictions at that time.44 Discriminatory

practices that restricted juror participation were circumscribed and later

eliminated after the passage of the Fourteenth and Fifteenth Amendments:

The years following the Civil War saw four notable legal

developments that affected the criminal jury. In 1868, the

Fourteenth Amendment declared that no state could enact or

enforce any law abridging the privileges or immunities of

citizens of the United States. The amendment also forbade any

state to deny to any person the equal protection of the laws.

Two years later, the Fifteenth Amendment declared that “the

right [of citizens of the United States] to vote shall not be

37. Id.

38. 435 U.S. 223 (1978).

39. Id. at 230–31.

40. 441 U.S. 130 (1979) (a unanimity case).

41. Id. at 139.

42. 447 U.S. 323 (1980) (a unanimity case).

43. Id. at 331.

44. See Alschuler & Deiss, supra note 30, at 877–78.

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[denied or] abridged by the United States or by any State on

account of race, color, or previous condition of servitude.” The

Federal Civil Rights Act of 1875 provided that “no

citizen . . . shall be disqualified for service as a grand or petit

juror in any court of the United States, or of any State on

account of race.” And four years later, the Federal Jury

Selection Act of 1879 reversed the course of earlier

congressional action, facilitated discriminatory jury selection in

the federal courts, and brought Reconstruction in the jury box

to an end.45

The Supreme Court has held that racial or gender discrimination in jury

selection violates the Fourteenth Amendment.46 The historical interpretation

of the Sixth Amendment guarantee of a jury of twelve would not require

those twelve individuals be propertied white men.47

English history and common-law precedent should not be easily

dismissed. History and precedent remain important cornerstones to

constitutional interpretation as evidenced by three recent Supreme Court

decisions: two identifying the primary role of the jury, and not the judge,

in making findings of fact,48 and one identifying the right of defendants to

confront witnesses under the Sixth Amendment.49 Relying heavily on

history, the Court held that the jury, not the judge, should make findings

of fact and that evidentiary rules introducing hearsay violated the right of

confrontation. In Jones v. United States,50 the Court specifically described

the historical importance of trial by jury:

Identifying trial by jury as “the grand bulwark” of English

liberties, Blackstone contended that other liberties would

remain secure only “so long as this palladium remains sacred

and inviolate, not only from all open attacks, (which none

will be so hardy as to make) but also from all secret

machinations, which may sap and undermine it; by

introducing new and arbitrary methods of trial, by justices of

45. Id. at 887 (third alteration in original) (footnote omitted) (quoting U.S. CONST. amend.

XV, § 1, and Federal Civil Rights Act of 1875, ch. 114, § 4, 18 Stat. 335, 336 (current version at

18 U.S.C. § 243 (2000))).

46. J.E.B v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994); Batson v. Kentucky, 476 U.S.

79, 89 (1986).

47. Cf. Arnold, supra note 29, at 33 (noting that changing times justify the progression away

from some characteristics of the juries of 1791—such as that jurors be white men owning real

property—but may not justify decreasing from twelve to six jurors).

48. Ring v. Arizona, 536 U.S. 584, 588–89 (2002); Apprendi v. New Jersey, 530 U.S. 466,

478–79 (2000).

49. Crawford v. Washington, 541 U.S. 36, 42 (2004).

50. 526 U.S. 227 (1999).

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the peace, commissioners of the revenue, and courts of

conscience. And however convenient these may appear at

first, (as doubtless all arbitrary powers, well executed, are the

most convenient ), yet let it be again remembered, that delays,

and little inconveniences in the forms of justice, are the price

that all free nations must pay for their liberty in more

substantial matters.”51

IV. THE FLORIDA JURY

Article 1, § 22 of the Florida Constitution provides: “The right of trial

by jury shall be secure to all and remain inviolate. The qualifications and

the number of jurors, not fewer than six, shall be fixed by law.”52 Florida

Rule of Criminal Procedure 3.270 and § 913.10 of the Florida Statutes

require twelve-person juries “to try all capital cases

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