Petition for Writ of Certiorari — Ramin Khorrami, Petitioner v. Arizona
Supreme Court briefJun 8, 2022
Ask Donna
What actually matters in this document.
Text
No. 21IN THE
Supreme Court of the United States
RAMIN KHORRAMI,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
ARIZONA COURT OF APPEALS
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
Counsel of Record
EDWARD C. O’CALLAGHAN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
THOMAS G. SPRANKLING
WILMER CUTLER PICKERING (202) 663-6000
seth.waxman@wilmerhale.com
HALE AND DORR LLP
2600 El Camino Real, Ste 400
ETHAN A. SACHS
Palo Alto, CA 94306
WILMER CUTLER PICKERING
HALE AND DORR LLP
ELEANOR DAVIS
60 State St.
WILMER CUTLER PICKERING
Boston, MA 02109
HALE AND DORR LLP
7 World Trade Center
250 Greenwich St.
New York, NY 10007
BENJAMIN L. COLEMAN
BENJAMIN L. COLEMAN
LAW PC
1350 Columbia St., Ste 600
San Diego, CA 92101
QUESTION PRESENTED
Whether the Sixth and Fourteenth Amendments
guarantee the right to a trial by a 12-person jury when
the defendant is charged with a felony.
(i)
TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................... i
TABLE OF AUTHORITIES ........................................... v
INTRODUCTION .............................................................. 1
OPINIONS BELOW .......................................................... 4
JURISDICTION ................................................................. 4
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ............................................. 4
STATEMENT ..................................................................... 5
REASONS FOR GRANTING THE PETITION ............. 7
THE COURT OF APPEALS’ DECISION CONFLICTS
WITH THIS COURT’S CASE LAW AND
RELIES ON PRECEDENT WHOSE
REASONING HAS BEEN CONCLUSIVELY
REJECTED ...................................................................... 7
A. The Court of Appeals’ Decision Cannot
Be Squared With Ramos ..................................... 7
1.
Ramos Established That The
Scope Of The Sixth Amendment
Jury Trial Right Is Determined By
Analyzing The “Original Public
Meaning” Of The Right ................................. 7
2.
The Original Public Meaning Of
“Trial By An Impartial Jury”
Included A Right To A 12-Person
Jury .................................................................. 9
(iii)
iv
TABLE OF CONTENTS—Continued
Page
B. Williams’s Holding That A Six-Person
Jury Is Constitutionally Permissible
Either Was Effectively Overruled By
Ramos Or Is Non-Binding Under The
Privileges or Immunities Clause ...................... 15
C. To The Extent Williams Is Binding On
The 12-Member Jury Issue, This Court
Should Formally Overrule It............................. 19
1.
Williams Is Egregiously Wrong ............... 20
2.
Williams Has Caused Significant
Negative Jurisprudential And
Real-World Consequences.......................... 24
3.
Any Reliance On Williams Is
Limited And Outweighed By The
Importance Of The Sixth
Amendment Right ....................................... 26
CONCLUSION ................................................................. 28
APPENDIX A: Order of the Supreme Court
of Arizona denying petition for review,
dated February 9, 2022.............................................. 1a
APPENDIX B: Decision of the Arizona Court
of Appeals, dated July 29, 2021 ................................ 3a
APPENDIX C: Sentencing Order of the
Superior Court of Arizona County of
Maricopa, dated February 11, 2020 ....................... 23a
v
TABLE OF AUTHORITIES
CASES
Page(s)
Agostini v. Felton, 521 U.S. 203 (1997) .......................... 19
Alleyne v. United States, 570 U.S. 99 (2013) ................. 19
Apodaca v. Oregon, 406 U.S. 404 (1972) ..................... 8, 17
Baldwin v. New York, 399 U.S. 117 (1970) .................... 16
Ballew v. Georgia, 435 U.S. 223 (1978) ... 2, 17, 21, 22, 23, 27
Burch v. Louisiana, 441 U.S. 130 (1979) ........................ 17
Cancemi v. People, 18 N.Y. 128 (1858)........................... 12
Capital Traction Co. v. Hof, 174 U.S. 1 (1899).............. 14
Codispoti v. Pennsylvania, 418 U.S. 506 (1974) ........... 26
Duncan v. Louisiana, 391 U.S. 145 (1968) .............. 14, 27
Edwards v. Vannoy, 141 S. Ct. 1547 (2021) ......... 7, 18, 27
Emerick v. Harris, 1 Binn. 416 (1808) ............................ 11
Espinoza v. Montana Department of Revenue,
140 S. Ct. 2246 (2020) ................................................. 18
Foote v. Lawrence, 1 Stew. 483 (Ala. 1828) ................... 11
Franchise Tax Board of California v. Hyatt,
139 S. Ct. 1485 (2019) ................................................. 19
Herrera v. Wyoming, 139 S. Ct. 1686 (2019) ................. 15
Malloy v. Hogan, 378 U.S. 1 (1964) ................................ 25
Maxwell v. Dow, 176 U.S. 581 (1900) .............. 8, 10, 14, 20
Opinion of Justices, 41 N.H. 550 (1860) ......................... 12
Opinion of Justices, 431 A.2d 135 (1981)........................ 22
Patton v. United States, 281 U.S. 276 (1930) ............. 8, 14
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Phillips v. State, 316 So.3d 779 (Fla. Dist. Ct.
App. 2021) .............................................................. 15, 16
Ramos v. Louisiana, 140 S. Ct. 1390 (2020) ......... passim
Rassmussen v. United States, 197 U.S. 516
(1905) ............................................................................ 14
Rouse v. State, 4 Ga. 136 (1848) ....................................... 11
South Carolina v. Baker, 485 U.S. 505 (1988) ............... 15
State v. Hamm, 423 N.W.2d 379 (Minn. 1988)............... 22
State v. Kuck, 129 P.3d 954 (Ariz. Ct. App.
2006) ............................................................................... 6
Taylor v. Louisiana, 419 U.S. 522 (1975)................. 25, 26
Thompson v. Utah, 170 U.S. 343 (1898) ..... 2, 8, 10, 13, 15
United States v. Gaudin, 515 U.S. 506 (1995) ............... 19
Vaughn v. Scade, 30 Mo. 600 (1860) ................................ 12
Western & Southern Life Insurance Co. v.
State Baord of Equalization of California,
451 U.S. 648 (1981) ..................................................... 15
Whitehurst v. Davis, 3 N.C. 113 (1800) .......................... 11
Williams v. Florida, 399 U.S. 78 (1970) ................ passim
Wofford v. Woods, 969 F.3d 685 (6th Cir. 2020) ............ 15
Work v. State, 2 Ohio St. 296 (1853) ................................ 11
Zylstra v. Corporation of City of Charleston,
1 S.C.L. 382 (1794) ...................................................... 11
vii
TABLE OF AUTHORITIES—Continued
Page(s)
CONSTITUTIONS, STATUTES, AND RULES
U.S. Constitution
amend. VI ...................................................................... 4
amend. XIV ................................................................... 4
28 U.S.C. § 1257 ................................................................... 4
Ariz. Rev. Stat. Ann.
§ 21-102 .................................................................. 3, 4, 6
§ 13-1802 ........................................................................ 6
§ 13-2310 ........................................................................ 6
Conn. Gen. Stat. § 54-82 ...................................................... 3
Ind. Code § 35-37-1-1........................................................... 3
Mass. Gen. Laws, ch. 218, § 26A ........................................ 3
Utah Code § 78B-1-104 ....................................................... 3
Fla. R. Crim. Proc. § 3.270.................................................. 3
OTHER AUTHORITIES
ABA, Principles for Juries and Jury Trials
Principle 3 cmt. (rev. 2016) ......................... 2, 9, 22, 24
1 Annals of Cong. 435 (1789) ............................................ 21
1 Bishop, Joel, Commentaries on the Law of
Criminal Procedure (2d ed. 1872) ........................... 13
4 Blackstone, William, Commentaries on the
Laws of England (1769) ...................................... 10, 14
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Diamond, Shari S., et al., Achieving Diversity
on the Jury: Jury Size and the Peremptory
Challenge, 6 J. of Empirical Legal Stud.
425 (Sept. 2009) ........................................................... 23
Frampton, T. Ward, The Uneven Bulwark:
How (And Why) Criminal Jury Trial
Rates Vary By State, 100 Cal. L. Rev. 183
(2012) ............................................................................ 23
Higginbotham, Patrick E., et al., Better by the
Dozen: Bringing Back the Twelve-Person
Civil Jury, 104 Judicature 47 (Summer
2020) ....................................................................... 23, 24
Miller, Robert H., Six Of One Is Not A Dozen
Of The Other: A Reexamination of
Williams v. Florida and the Size of State
Criminal Juires, 146 U. Pa. L. Rev. 621
(1998) ............................................................................ 10
Mosvick, Nicholas, Forgotten Founders:
James Wilson, Craftsman of the
Consitution, The National Constitution
Center (July 13, 2020), https://constitution
center.org/blog/forgotten-founders-jameswilson-craftsman-of-the-constitution ...................... 12
Scott, Austin W., Fundamentals of Procedure
in Actions at Law (1922), https://hdl.han
dle.net/2027/uc2.ark:/13960/t78s4nh26 .................... 10
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Smith, Alisa & 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) .................................................................22-23, 24
1 Story, Joseph, Commentaries on the
Constitution of the United States (4th ed.
1873) ............................................................................. 12
Thayer, James B., A Preliminary Treatise on
Evidence at the Common Law (1898),
https://archive.org/details/cu3192401793171
2/page/88/mode/2up .................................................... 10
Thayer, James B., The Jury and Its
Development, 5 Harv. L. Rev. 295 (1892) ................. 9
Tiffany, Joel, A Treatise on Government and
Constitutional Law (1867) ........................................ 13
2 Wilson, Bird, The Works of the Honourable
James Wilson (1804), https://hdl.han
dle.net/2027/nyp.33433008827846?urlappen
d=%3Bseq=364%3Bownerid=270215977688
34700-380 ..................................................................... 12
IN THE
Supreme Court of the United States
No. 21-
RAMIN KHORRAMI,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
ARIZONA COURT OF APPEALS
PETITION FOR A WRIT OF CERTIORARI
Mr. Ramin Khorrami respectfully petitions for a
writ of certiorari to review the judgment in this case of
the Arizona Court of Appeals.
INTRODUCTION
How many members must a jury have when a criminal defendant is charged with a felony? For hundreds
of years—from the signing of Magna Carta until the
late twentieth century—the answer was the same:
“[N]o person could be found guilty of a serious crime
unless ‘the truth of every accusation … should … be
confirmed by the unanimous suffrage of twelve of his
equals and neighbors.’” Ramos v. Louisiana, 140 S. Ct.
2
1390, 1395 (2020). “A verdict, taken from eleven, was
no verdict at all.” Id. (quotation marks omitted).
By any historical metric, the traditional 12-person
jury requirement falls within “what the term ‘trial by
an impartial jury’ meant at the time of the Sixth
Amendment’s adoption.” Ramos, 140 S. Ct. at 1395. It
was recognized by “the common law, state practices in
the founding era, [and] opinions and treatises written
soon afterward.” Id. This Court has stated that because the 12-person requirement has been accepted
since 1215, “[i]t must” have been “that the word ‘jury’”
in the Sixth Amendment was “placed in the constitution of the United States with reference to [that] meaning affixed to [it].” Thompson v. Utah, 170 U.S. 343,
349-350 (1898) (emphasis added).
This Court, however, took a wrong turn when it
held, in Williams v. Florida, 399 U.S. 78, 86 (1970), that
juries as small as six were constitutionally permissible.
Williams accorded no weight to the historical record,
acknowledging that the Framers “may well” have had
“the usual expectation” in drafting the Sixth Amendment “that the jury would consist of 12” members. Id.
at 98-99. Instead, Williams rested on its view that the
essential “function” of a jury is decision-making made
with “community participation and [with] shared responsibility”—a function it thought empirical research
suggested could be as easily performed with six jurors
as with 12. Id. at 100-102 & n.48. As a result, a halfdozen States—including Arizona—currently permit
criminal juries as small as eight or six members, even
though this Court subsequently recognized that the
empirical studies that formed the basis for Williams’s
holding were badly flawed. Ballew v. Georgia, 435 U.S.
223, 232-237 (1978); see also ABA, Principles for Juries
and Jury Trials Principle 3 cmt., at 18 (rev. 2016) (“The
3
shortcomings of [the] studies [relied upon in Williams]
have been demonstrated by subsequent scholarly analysis”).1
The time has come for this Court to discard the
ahistorical and unfounded Williams rule, just as Ramos
overturned a similar decision from the same era that
permitted a defendant to be convicted of a serious
crime by a nonunanimous jury. Indeed, Ramos’s reasoning has already effectively overruled Williams, as
the Ramos decision rejected precisely “the same fundamental mode of analysis” as that adopted in Williams. Ramos, 140 S. Ct. at 1436 (Alito, J., dissenting).
In any event, this Court should now formally discard Williams. Its reasoning is egregiously wrong, as
it disregards history in favor of now-discredited empirical research. Williams’s holding has had real-world
negative consequences: It increases the odds of an erroneous conviction and decreases the representative
nature of the juries in the six affected States. Any “reliance interest” those six States might claim in having
to “retry a slice of their prior criminal cases … cannot
outweigh the interest we all share in the preservation
of our constitutionally promised liberties.” Ramos, 140
S. Ct. at 1408 (plurality op.); id. at 1419 (Kavanaugh, J.,
concurring in part) (invalidating “limited class” of convictions that violate Sixth Amendment is a “‘small price
to pay for the uprooting of this weed’”).
1
The six States that allow for felony convictions to be issued
by juries containing fewer than 12 members are: Arizona, see
A.R.S. § 21-102; Connecticut, see Conn. Gen. Stat. § 54-82; Florida,
see Fla. R. Crim. Proc. § 3.270; Indiana, see Ind. Code § 35-37-11(b)(2); Massachusetts, see Mass. Gen. Laws, ch. 218, § 26A; and
Utah, see Utah Code § 78B-1-104.
4
The petition for a writ of certiorari should be
granted.
OPINIONS BELOW
The Arizona Supreme Court’s order denying Mr.
Khorrami’s petition for review, App. 1a, is unreported.
The Arizona Court of Appeals’ opinion, App. 3a-21a, is
unreported but is available at 2021 WL 3197499. The
Superior Court of Arizona’s judgment is unreported,
App. 23a-31a.
JURISDICTION
The Arizona Supreme Court denied Mr. Khorrami’s
petition for review on February 8, 2022. On March 25,
2022, Justice Kagan extended the time for filing this
petition until June 8, 2022. This Court has jurisdiction
under 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Sixth Amendment to the U.S. Constitution
provides in relevant part: “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[.]”
The Fourteenth Amendment to the U.S. Constitution provides in relevant part: “All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and
of the state wherein they reside. No state shall make
or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, or proper-
5
ty, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
Arizona Revised Statute § 21-102.A-B provides:
“A. A jury for trial of a criminal case in which a
sentence of death or imprisonment for thirty years or
more is authorized by law shall consist of twelve persons, and the concurrence of all shall be necessary to
render a verdict.
B. A jury for trial in any court of record of any
other criminal case shall consist of eight persons, and
the concurrence of all shall be necessary to render a
verdict.”
STATEMENT
In May 2012, Mr. Khorrami—a U.S. citizen and
management consultant living in Los Angeles—began a
romantic relationship with a woman living in Arizona.
App. 4a. The woman, who “frequently traveled to
spend time with [Mr.] Khorrami,” later told him that
she was married but “planned to leave” her husband,
and “discussed a future together” with Mr. Khorrami.
Id.; C.A. Opening Br. 3.
Their relationship, however, soured, and in 2013,
“after … [a] falling-out, [Mr.] Khorrami accused [the
woman] of repeatedly lying to him and … threatened to
reveal their affair to” her husband. App. 4a-5a. Despite conflicting text messages, the woman maintained
that Mr. Khorrami told her that he would not reveal the
affair if she paid him $30,000—even though, under the
prosecution’s theory, Mr. Khorrami “always intended”
to ultimately tell the woman’s husband about the affair.
App. 5a, 15a; C.A. Opening Br. 5, 7-8. Mr. Khorrami
was charged with, inter alia, two Arizona felonies,
6
fraudulent schemes and artifices (A.R.S. § 13-2310) and
theft by material misrepresentation (A.R.S. § 131802.A(3)). App. 6a.
In May 2019, Mr. Khorrami was tried in front of an
eight-person jury in Maricopa County Superior Court
and was convicted on both counts. App. 24a; C.A.
Opening Br. 2.
Mr. Khorrami appealed, arguing
(among other things) that Arizona law—which provides
that juries in criminal cases where the maximum sentence is less than thirty years “shall consist of eight jurors”—violated his Sixth and Fourteenth Amendment
right to a 12-person jury. App. 19a-20a; A.R.S. 21102.B. Mr. Khorrami advanced arguments under both
the Fourteenth Amendment’s Due Process and Privileges or Immunities Clauses. See C.A. Opening Br. 5056; C.A. Reply Br. 26-27.2
The Arizona Court of Appeals rejected Mr.
Khorrami’s constitutional arguments. App. 20a. The
court considered itself bound by this Court’s ruling in
Williams v. Florida, 399 U.S. 78 (1970), which held that
a 12-person jury “is not a necessary ingredient of [the
Sixth Amendment’s] ‘trial by jury.’” App. 20a. In the
Court of Appeals’ view, Ramos v. Louisiana, 140 S. Ct.
1390 (2020), did not change this analysis, as it involved
“unanimous verdicts in criminal trials” and “the Supreme Court ‘does not normally overturn … earlier authority sub silentio.’” App. 20a. Accordingly, the
2
Although Mr. Khorrami did not raise the 12-person jury argument in the trial court, the Arizona Court of Appeals concluded
that the issue was preserved as a matter of state law and considered it on the merits. App. 19a-20a; see also State v. Kuck, 129
P.3d 954, 955 (Ariz. Ct. App. 2006) (“Improper denial of a twelveperson jury is fundamental error that may provide a basis for review if not raised in the trial court.”).
7
Court of Appeals “decline[d Mr.] Khorrami’s invitation
to reconsider the constitutionality of eight-person juries in Arizona.” Id.
Mr. Khorrami filed a petition for review with the
Arizona Supreme Court on the 12-person jury question,
which was denied without opinion. App. 1a.
REASONS FOR GRANTING THE PETITION
THE COURT OF APPEALS’ DECISION CONFLICTS WITH
THIS COURT’S CASE LAW AND RELIES ON PRECEDENT
WHOSE REASONING HAS BEEN CONCLUSIVELY
REJECTED
A. The Court of Appeals’ Decision Cannot Be
Squared With Ramos
1. Ramos Established That The Scope Of
The Sixth Amendment Jury Trial Right Is
Determined By Analyzing The “Original
Public Meaning” Of The Right
Two years ago, this Court held that the Sixth
Amendment requires a unanimous verdict to convict a
defendant of a serious crime. Ramos v. Louisiana, 140
S. Ct. 1390, 1397 (2020). Because the text of the Sixth
Amendment “says nothing … about what ‘a trial by an
impartial jury’ entails,” the Court’s analysis focused on
“what the term … meant at the time of the Sixth
Amendment’s adoption.” Id. at 1395-1396; see also Edwards v. Vannoy, 141 S. Ct. 1547, 1556 (2021) (acknowledging that “Ramos … adhered to the original meaning
of the Sixth Amendment’s right to a jury trial”).
To determine the “original public meaning” of the
jury right, this Court consulted “the common law, state
practices in the founding era, [and] opinions and treatises written soon afterward.” Ramos, 140 S. Ct. at
8
1395-1396. All those authorities pointed to the same
“unmistakable” “answer”—the phrase “trial by … jury”
referred to a unanimous jury at the time the Sixth
Amendment was enacted. Id.
Ramos also placed importance on the fact that this
Court had “repeatedly and over many years[] recognized that the Sixth Amendment requires unanimity.”
140 S. Ct. at 1396-1397 & nn.19-20 (citing Thompson v.
Utah, 170 U.S. 343, 351 (1898); Maxwell v. Dow, 176
U.S. 581, 586 (1900); Patton v. United States, 281 U.S.
276, 288 (1930)). The only detour from the Court’s adherence to this “simple” and “straightforward principle[]” arose in the 1970s, when Apodaca v. Oregon, 406
U.S. 404 (1972), was issued and the Court’s jurisprudence “took a strange turn,” Ramos, 140 S. Ct. at 1397.
The Apodaca plurality erred, Ramos explained, by
“subject[ing] the Constitution’s jury trial right to an
incomplete functionalist analysis of its own creation”
rather than “grappling with the historical meaning of
the Sixth Amendment’s jury trial right.” 140 S. Ct. at
1405. Specifically, the Apodaca plurality “declared that
the real question before them was whether unanimity
serves an important ‘function’ in ‘contemporary society’” and quickly concluded that “unanimity’s costs outweigh its benefits in the modern era.” Id. at 1398. Not
only was this “breezy cost-benefit analysis” “skimpy” in
its reasoning, but it also “overlook[ed] the fact that, at
the time of the Sixth Amendment’s adoption, the right
to trial by jury included a right to a unanimous verdict.” Id. at 1401-1402. In other words, it is “not [the]
role [of judges] to reassess whether” a right “enshrine[d] … in the Constitution” is “‘important enough’
to retain.” Id. at 1402.
9
A majority of the Court accordingly held that Apodaca’s logic was indefensible and not entitled to the
protection of stare decisis. See Ramos, 140 S. Ct. at
1405; id. at 1410 (Sotomayor, J., concurring) (“Today,
[Apodaca is] rightly[] relegated to the dustbin of history.”); id. at 1420 (Kavanaugh, J., concurring in part) (“I
… agree with this Court’s decision to overrule Apodaca.”); see also id. at 1425 (Thomas, J., concurring)
(taking the position that Apodaca “does not bind us”
because it did not address the scope of the Sixth
Amendment when viewed in light of the Fourteenth
Amendment’s Privileges or Immunities Clause).
2. The Original Public Meaning Of “Trial By
An Impartial Jury” Included A Right To A
12-Person Jury
Just as in Ramos, “the common law, state practices
in the founding era, [and] opinions and treatises written
soon afterward” all point to the same “unmistakable”
“answer” here: The phrase “trial by an impartial jury”
referred to a 12-person jury at the time the Sixth
Amendment was enacted. Ramos, 140 S. Ct. at 1396;
see also ABA, Principles for Juries and Jury Trials
Principle 3 cmt., at 18, 21 (rev. 2016) (“colonial and federal constitutional considerations [as well as] long historical experience” support requiring a “twelve-person
jury in all non-petty criminal cases”).
The 12-member requirement dates back nearly 900
years to the reign of King Henry II, who “established
twelve as the usual number” for a jury. Thayer, The
Jury and Its Development, 5 Harv. L. Rev. 295, 295
(1892). In the early 13th century, this rule was incorporated into Magna Carta. When the document “declared
that no freeman should be deprived of life, etc., ‘but by
the judgment of his peers or by the law of the land,’ it
10
[too] referred to a trial by twelve jurors.” Thompson,
170 U.S. at 349. And “[b]y the middle of the fourteenth
century[,] the requirement of twelve had probably become definitely fixed” and had “c[o]me to be regarded
with something like superstitious reverence.” Scott,
Fundamentals of Procedure in Actions at Law 75-76
(1922). Indeed, in 1769, Blackstone explained that “no
person could be found guilty of a serious crime unless
‘the truth of every accusation … [was] … confirmed by
the unanimous suffrage of twelve of his equals and
neighbors.’” Ramos, 140 S. Ct. at 1395 (quoting 4
Blackstone, Commentaries on the Laws of England 343
(1769)). In short, a “‘verdict, taken from eleven, was no
verdict’ at all.” Id. (quoting Thayer, A Preliminary
Treatise on Evidence at the Common Law 88-89 n.4
(1898)).
When considered in light of this history, “there can
be no doubt” that “a jury composed, as at common law,
of twelve jurors was intended by the Sixth Amendment
to the Federal Constitution.” Maxwell, 176 U.S. at
586.3 In particular, in the first few decades after the
Sixth Amendment was enacted, a bevy of state courts
interpreted the phrase “trial by an impartial jury” to
require a 12-person jury. See, e.g., Miller, Six Of One Is
Not A Dozen Of The Other, 146 U. Pa. L. Rev. 621, 643
& n.133 (1998) (collecting cases). In 1794, for instance, a
South Carolina court interpreted the jury right enshrined in the state constitution as requiring the
“rights of the citizens … to be determined … by 12 men
3
Maxwell, along with several other of this Court’s pre-1970
decisions concerning the contours of a jury trial, were abrogated
by the Court’s decision in Williams v. Florida, 399 U.S. 78 (1970).
As discussed below, however, Williams was effectively overruled
by Ramos and—if for some reason it was not—it should be now.
Infra pp. 15-27.
11
… indiscriminately drawn from every class of their fellow citizens.” Zylstra v. Corporation of City of
Charleston, 1 S.C.L. 382, 389 (1794). Six years later, a
North Carolina court explained that the same phrase
(which also appears in the North Carolina constitution)
referred to the “ancient mode” of a trial, in which a jury
must contain 12 members—no more and no less.
Whitehurst v. Davis, 3 N.C. 113, 113 (1800) (per curiam)
(“Any innovation amounting in the least degree to a
departure from this ancient mode … may … endanger
or pervert this excellent institution from its usual
course.”). And in the following years, the Supreme
Courts of Pennsylvania, Alabama, and Georgia interpreted similar language in their own constitutions to
require 12-person juries. See Emerick v. Harris, 1
Binn. 416, 426 (1808); Foote v. Lawrence, 1 Stew. 483,
483 (Ala. 1828); Rouse v. State, 4 Ga. 136, 147 (1848).
The same understanding held among state high
courts throughout the rest of the 19th century. For example:
•
The Ohio Supreme Court wrote in 1853 that its
state constitutional provision protecting “[t]he
right of trial by jury” required that “[t]he number
[of jurors] must be twelve,” explaining that “diminishing the number impairs [the jury trial] right,
lessens the security of the accused, and increases
the danger of conviction.” Work v. State, 2 Ohio St.
296, 304-305 (1853).
•
The New York Court of Appeals warned in 1858
that “allow[ing] … any number short of a full panel
of twelve jurors” “would be a highly dangerous innovation” that “ought not to be tolerated” “in
refence to criminal cases, upon the ancient and invaluable institution of trial by jury, and the consti-
12
tution … establishing and securing that mode of
trial.” Cancemi v. People, 18 N.Y. 128, 138 (1858).
•
The Supreme Court of Missouri held in 1860 that
the Missouri Constitution, which “adopted” the
“term ‘trial by jury’” from “the common law,” referred to a trial “of twelve men.” Vaughn v. Scade,
30 Mo. 600, 603-604 (1860).
•
Also in 1860, the Supreme Court of New Hampshire ruled that its state’s legislature could not allow for juries of fewer than 12 because “[t]he term[]
… ‘trial by jury’ [is], and for ages ha[s] been well
known in the language of the law”—and was thus
“used at the adoption of the constitution”—to refer
to “a body of twelve men.” Opinion of Justices, 41
N.H. 550, 551 (1860).
Numerous scholars in the 18th and 19th centuries
came to the same conclusion. For example, James Wilson—considered by some “the second most important
framer of the Constitution,” Mosvick, Forgotten
Founders, James Wilson, Craftsman of the
Consitution, The National Constitution Center (July
13, 2020)4—explained shortly after the Sixth Amendment was drafted that “[t]o the conviction of a crime,
the undoubting and unanimous sentiment of the twelve
jurors is of indispensable necessity,” 2 Wilson, The
Works of the Honourable James Wilson 350 (1804)
(emphasis added). That view was echoed by Justice Joseph Story’s Commentaries on the Constitution, which
explained that “trial by jury is generally understood to
mean … a trial by a jury of twelve men, impartially selected[.]” 1 Story, Commentaries on the Constitution
4
Available at https://constitutioncenter.org/blog/forgottenfounders-james-wilson-craftsman-of-the-constitution.
13
of the United States § 1779, at 541 n.2 (4th ed. 1873).
Other treatises from that era agreed, explaining that
(1) “in a case in which the Constitution guarantees a
jury trial,” a statute allowing “a verdict upon any thing
short of the unanimous consent of the twelve jurors” is
“void” and (2) “a trial by jury is understood to mean—
generally—a trial by a jury of twelve men.” 1 Bishop,
Commentaries on the Law of Criminal Procedure
§ 897, at 546 (2d ed. 1872) (emphasis added); Tiffany, A
Treatise on Government and Constitutional Law § 549,
at 367 (1867) (emphasis added).
This Court, too, has “repeatedly and over many
years[],” Ramos, 140 S. Ct. at 1396, recognized that the
Sixth Amendment requires a 12-member jury—and in
many of the same cases that Ramos relied upon to
show the consensus over the unanimous jury requirement. The Court first addressed the 12-person requirement in 1898, when it overturned a conviction issued by an eight-person jury in Utah. Thompson, 170
U.S. at 349. The Court explained that “the jury referred to in the original constitution and in the sixth
amendment is a jury constituted, as it was at common
law, of twelve persons, neither more nor less.” Id.
Thompson reached this conclusion by relying on the
Amendment’s original public meaning, determining
that “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.” Id. at 350.
In the years following Thompson, this Court noted
the 12-person requirement again and again. For example, just one year later, the Court said that “‘[t]rial by
jury,’ in the primary and usual sense of the term at the
common law and in the American constitutions, is … a
14
trial by a jury of 12 men.” Capital Traction Co. v. Hof,
174 U.S. 1, 13 (1899). And again in 1900, the Court
stated that “there can be no doubt” “[t]hat a jury composed, as at common law, of twelve jurors was intended
by the Sixth Amendment.” Maxwell, 176 U.S. at 586;
see also Rassmussen v. United States, 197 U.S. 516, 527
(1905) (reciting Thompson’s holding that the Sixth
Amendment guarantees “the right to be tried by a jury
of twelve persons”).
As the twentieth century rolled on, this Court’s
statements about the 12-person jury right became even
more unqualified. By 1930, this Court stated that it
was “not open to question” “[t]hat … ‘trial by jury’”
“mean[t] a trial by jury as understood and applied at
common law,” including the element “[t]hat the jury
should consist of twelve men, neither more nor less,”
Patton, 281 U.S. at 288. And in 1968, this Court emphasized that “the right to trial by jury guaranteed by
the Sixth Amendment … is fundamental to the American scheme of justice” and quoted Blackstone for the
proposition that “‘the truth of every accusation …
should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbors.’” Duncan v. Louisiana, 391 U.S. 145, 149-152, 155
& n.23 (1968) (quoting 4 Blackstone, Commentaries on
the Laws of England 343).
In sum, the same considerations this Court identified in Ramos as establishing that the Sixth Amendment requires a unanimous jury verdict also require a
12-person jury. Indeed, after reviewing many of the
sources discussed above, Ramos itself approvingly
quoted Thompson’s holding that “a defendant enjoys a
‘constitutional right to demand that his liberty should
not be taken from him except by the joint action of the
court and the unanimous verdict of a jury of twelve
15
persons.’” 140 S. Ct. at 1396-1397 (quoting 170 U.S. at
351).
B. Williams’s Holding That A Six-Person Jury Is
Constitutionally Permissible Either Was
Effectively Overruled By Ramos Or Is NonBinding Under The Privileges or Immunities
Clause
The Court of Appeals’ only stated reason for disregarding the history and precedent supporting a 12person jury requirement was that it was bound by this
Court’s holding in Williams v. Florida, 399 U.S. 78
(1970). See App. 20a. While the decision below was understandable, this Court is not bound by Williams, for
two reasons.
1. This Court’s ruling in Ramos “repudiated the
reasoning on which” the Court of Appeals relied in Williams, meaning that Williams “must be regarded as
retaining no vitality.” Herrera v. Wyoming, 139 S. Ct.
1686, 1697 (2019); see also South Carolina v. Baker, 485
U.S. 505, 524 (1988) (confirming “that subsequent case
law has overruled the holding” in prior decision); Western & Southern Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 664 n.16 (1981) (similar).5
5
Notably, the only other two courts to address the issue—
even in passing—have cast doubt on Williams’s continuing viability after Ramos. See Wofford v. Woods, 969 F.3d 685, 707 n.27 (6th
Cir. 2020) (noting that “Williams may no longer be completely
sound after Ramos”), cert. denied, 141 S. Ct. 1745 (2021); Phillips
v. State, 316 So.3d 779, 788 (Fla. Dist. Ct. App. 2021) (Makar, J.,
concurring) (“It seems a small step from the demise of the reasoning in Apodaca … as announced in Ramos to conclude that the
reasoning in Williams, upon which [Apodaca] relied, is also in
jeopardy.”), cert. denied, 142 S. Ct. 721 (2021). Of the two cases,
only the defendant in Phillips raised the Ramos/Williams issue in
16
Williams cannot stand in light of Ramos’s holding
that the Sixth Amendment’s scope is determined by its
original public meaning. The Williams Court openly
acknowledged that the Framers “may well” have had
“the usual expectation” in drafting the Sixth Amendment “that the jury would consist of 12” members. 399
U.S. at 98-99. But Williams took the view that such
“purely historical considerations” were not dispositive.
Id. at 99. Rather, the Court focused on the “function”
that the jury plays in the Constitution. Id. at 100-101.
It concluded that “the essential feature” of a jury is
that it leaves justice to the “commonsense judgment of
a group of laymen” and thus allows “guilt or innocence”
to be determined via “community participation and
[with] shared responsibility.” Id. With this understanding of the jury right in mind, the Williams Court
concluded that “[w]hat few experiments have occurred—usually in the civil area” “suggest[ed]” that
that function could just as easily be performed with six
jurors as with twelve. Id. at 101-102 & n.48.
As Justice Harlan explained at the time, this reading “stripp[ed] off the livery of history from the jury
trial” and ignored both “the intent of the Framers” and
the Court’s long held understanding that constitutional
“provisions are framed in the language of the English
common law, and … read in light of its history.” Baldwin v. New York, 399 U.S. 117, 122-123 (1970) (Harlan,
J., concurring in the result in Williams). And three
times during that same decade, this Court reaffirmed
his petition to this Court. This Court likely denied review because
that question had not been preserved below. See Phillips, 316
So.3d at 786-787 (noting that defendant’s argument turned on the
“statutory interpretation of the phrase ‘capital cases’” under state
law—an “entirely separate issue from” the “constitutional issue” of
the jury size required by the Sixth and Fourteenth Amendments).
17
that Williams had “departed from the strictly historical
requirements of jury trial.” Burch v. Louisiana, 441
U.S. 130, 137 (1979); accord Ballew v. Georgia, 435 U.S.
223, 229 (1978) (“[C]ommon-law juries included 12
members.”); Apodaca, 406 U.S. at 407-408 (“[T]he requirement that juries consist of 12 men … arose during
the Middle Ages and had become an accepted feature of
the common law jury by the 18th century.”).
More broadly, in overruling Apodaca, Ramos rejected the “same fundamental mode of analysis as that
in Williams.” Ramos, 140 S. Ct. at 1436 (Alito, J., dissenting). Apodaca expressly recognized that Williams
“consider[ed] a related issue” and used Williams as a
lodestone for its reasoning. Apocada, 406 U.S. at 406414; accord Ramos, 140 S. Ct. at 1433 (noting that Apodaca “built on the analysis in Williams”). All told, the
Apodaca plurality cited Williams 11 times in a sevenpage opinion, including to (1) “cast[] … doubt on the …
assumption … that if a given feature existed in a jury
at common law in 1789, it was necessarily preserved in
the Constitution,” (2) conclude that “[o]ur inquiry [in
determining the scope of the Sixth Amendment] must
focus on the function served by the jury in contemporary society,” and (3) hold that the only “‘essential feature of a jury’” guaranteed by the Sixth Amendment is
that it must “consist[] of a group of laymen representative of a cross section of the community who have the
duty and the opportunity to deliberate[.]” 406 U.S. at
408-410 (quoting Williams, 399 U.S. at 92-93, 99-100).
Ramos repudiated precisely this Williams-inspired
reasoning as an improperly “muddy yardstick” for
safeguarding “the right to jury trial” that the “American people chose to enshrine … in the Constitution.”
140 S. Ct. at 1401-1402 (majority op.).
18
Accordingly, Ramos’s decision to “reject [the plurality] opinion in Apodaca” and hold that “the Fourteenth Amendment incorporates the Sixth Amendment
right to a unanimous jury against the States,” Vannoy,
141 S. Ct. at 1554, had the necessary result of effectively overruling Williams as well. And because “Ramos is
the law,” it should be “give[n] … all the consequence it
deserves.” Id. at 1573 n.1 (Kagan, J., dissenting); see
Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246,
2267-2268 (2020) (Alito J., concurring) (“I lost, and Ramos is now precedent.”).
2. At a minimum, Williams—which considered only the Fourteenth Amendment’s Due Process Clause—
does not impede this Court from recognizing a right to
a 12-person jury under the Privileges or Immunities
Clause. As Justice Thomas explained in an analogous
situation when concurring in the judgment in Ramos:
(1) this Court’s “decisions have long recognized [that a
12-person jury] is required,” (2) “[t]here is … considerable evidence that this understanding persisted up to
the time of the Fourteenth Amendment,” and (3) the
only contrary ruling (here, Williams) was decided under the Due Process Clause. Ramos, 140 S. Ct. at 14211425. Thus, even if Williams remained good law under
the Due Process Clause, it has no bearing on whether
“the Privileges or Immunities clause” “protect[s]” the
right to a 12-person jury “against the States.” Id. at
1423. And because all other evidence beyond Williams
suggests that the Sixth Amendment imposes a 12member jury requirement, see supra pp. 7-15, this
Court should hold that this right has been extended
against the States, if not under the Due Process Clause,
then under the Privileges or Immunities Clause.
19
C. To The Extent Williams Is Binding On The
12-Member Jury Issue, This Court Should
Formally Overrule It
“[T]he force of stare decisis is at its nadir” in cases
like this one—i.e., those “concerning [criminal] procedur[e] rules that implicate fundamental constitutional
protection.” Alleyne v. United States, 570 U.S. 99, 116
n.5 (2013). Stare decisis’s “role is … reduced … in the
case of a [criminal] procedural rule” because such rules
“do[] not serve as … guide[s] to lawful behavior.”
United States v. Gaudin, 515 U.S. 506, 521 (1995).
Moreover, because this Court’s interpretation of the
Constitution “can only be altered by constitutional
amendment or by overruling … prior decisions,” Agostini v. Felton, 521 U.S. 203, 235 (1997), the strength of
stare decisis considerations is “reduced all the more
when the rule is not only procedural but rests upon an
interpretation of the Constitution.” Gaudin, 515 U.S.
at 521.
With this threshold point in mind, this Court’s stare
decisis analysis considers a variety of factors that “fold
into three broad considerations”: (1) whether the precedent is “egregiously wrong as a matter of law,” taking
into account “the quality of the precedent’s reasoning,
consistency and coherence with other decisions,
changed law, changed facts, and workability, among
other factors”; (2) whether “the prior decision caused
significant negative jurisprudential or real-world consequences”; and (3) whether “overruling the prior decision [would] unduly upset reliance interests.” Ramos,
140 S. Ct. at 1414-1415 (Kavanaugh, J., concurring in
part); see also Franchise Tax Bd. of Cal. v. Hyatt, 139
S. Ct. 1485, 1499 (2019) (laying out similar factors).
Each consideration suggests that Williams should be
overruled.
20
1. Williams Is Egregiously Wrong
As explained above, Williams is flawed for the
same reason Apodaca was. See supra p. 17. That is,
the Williams Court spent little time “grappling with
the historical meaning of the Sixth’s Amendment’s jury
trial right [or] this Court’s long-repeated statements
that it demands [a jury of 12 members]” and “[i]nstead
… subjected the Constitution’s jury trial right to an incomplete functionalist analysis of its own creation.”
Ramos, 140 S. Ct. at 1405. This error in approach was
“not just wrong”—it was “egregiously wrong.” Id. at
1414-1416 (Kavanaugh, J., concurring in part).
At the date of its issuance, Williams (like Apodaca)
was “already an outlier in the Court’s jurisprudence,”
Ramos, 140 S. Ct. at 1416 (Kavanaugh, J., concurring in
part), as it was plainly inconsistent with centuries of
related decisions and history. It contradicted ancient
common law guarantees and hundreds of years of precedent from state high courts and this Court alike. See
supra pp. 9-15. In 1900—seventy years before Williams was decided—this Court already expressed “no
doubt” that “the Sixth Amendment” “intended” “a jury
composed … of twelve jurors.” Maxwell, 176 U.S. at
586. And within a decade after Williams issued, three
other decisions from this Court recognized that it had
departed from the traditional historical understanding
of the jury trial right. See supra pp. 16-17.
As explained, Williams’s reasoning and holding
have also been fatally undercut by Ramos. See supra
pp. 17-18. To give one additional example, Ramos demolished Williams’s brief attempt at historical analysis. Specifically, Williams placed weight on the fact
that, in enacting the Sixth Amendment, the Senate
chose not to include language that had been proposed
21
by James Madison to clarify that “trial by jury” included the “requisite of unanimity for conviction, of the
right to challenge, and other accustomed requisites.”
399 U.S. at 94 (quoting 1 Annals of Cong. 435 (1789)).
That omission suggested to the Williams Court that
the Sixth Amendment was not intended to include a jury’s “accustomed requisites,” such as the common law
practice of including 12 members. Id. at 95-97. Ramos,
however, explicitly rejected this precise argument, albeit in considering unanimity. 140 S. Ct. at 1400 (noting
that the “snippet of drafting history could just as easily
support the … inference” that the language was deleted because it was “so plainly included in the promise of
a ‘trial by an impartial jury’”).
Even taking the Williams functionalist approach as
valid, the decision suffers from another significant flaw:
It was based on “suggest[ions]” from a “few experiments” that were undermined shortly after the opinion
issued. 399 U.S. at 101. Specifically, the Williams
Court “f[ou]nd little reason to think” that the goals and
traditional function of the jury—including, among others, “to provide a fair possibility for obtaining a representative[] cross-section of the community”—“are in
any meaningful sense less likely to be achieved when
the jury numbers six, than when it numbers 12.” Id. at
100. The Court theorized that “in practice the differences between the 12-man and the six-man jury in
terms of the cross-section of the community represented seems likely to be negligible.” Id. at 102.
Empirical research issued shortly after Williams
undermined this speculation, as this Court recognized
eight years later in Ballew. See 435 U.S. at 232-237.
Ballew, which concluded that the Sixth Amendment
barred the use of a five-person jury, noted that postWilliams research showed that (1) “smaller juries are
22
less likely to foster effective group deliberation[s],” id.
at 232; (2) smaller juries may be less accurate and cause
“increasing inconsistency” in verdict results, id. at 234;
(3) the chance for hung juries decreases with smaller
juries, disproportionally harming the defendant, id. at
236; and (4) decreasing jury sizes “foretell[] problems
… for the representation of minority groups in the
community,” undermining a jury’s likelihood of being
“‘truly representative of the community,’” id. at 236237. Moreover, the Ballew Court “admit[ted]” that it
“d[id] not pretend to discern a clear line between six
members and five,” effectively concluding that the
studies it relied on also cast doubt on the effectiveness
of the six-member jury. Id. at 239; see also id. at 245246 (Powell, J., concurring) (observing that “the line
between five- and six- member juries is difficult to justify”). Although Ballew declined to overrule Williams
outright, the bench, bar, and scholars have all recognized that it cast serious doubt on the strength of Williams’s reasoning. As the American Bar Association
summarized, Ballew “acknowledged the empirical findings pointing to the superiority of twelve member juries … when it concluded that juries of fewer than six
are unconstitutional.” ABA, Principles for Juries and
Jury Trials Principle 3 cmt., at 18.6
6
See also State v. Hamm, 423 N.W.2d 379, 382 n.2 (Minn.
1988) (noting that Ballew’s “acknowledg[ement] of the substantial
threat to the right to a jury trial posed by smaller juries” makes
“an excellent argument that could be used to support a 12-person
jury” and “declin[ing] to follow” Williams when interpreting state
constitution); Opinion of Justices, 431 A.2d 135, 136 (N.H. 1981)
(“Although … Ballew expressed these concerns [regarding decreases in jury size] in the context of a decision regarding a further
reduction of criminal trial juries from six to five, we note these
problems may also arise in the context of reducing the size of juries in civil cases from twelve to six.”); Smith & Saks, The Case
23
Research post-dating Ballew further undermines
Williams’s view that a small jury can provide a representative cross-section of the community. Current empirical evidence indicates that “reducing jury size inevitably has a drastic effect on the representation of minority group members on the jury.” Diamond et al.,
Achieving Diversity on the Jury: Jury Size and the
Peremptory Challenge, 6 J. of Empirical Legal Stud.
425, 427 (Sept. 2009); see also Higginbotham et al., Better by the Dozen: Bringing Back the Twelve-Person
Civil Jury, 104 Judicature 47, 52 (Summer 2020)
(“Larger juries are also more inclusive and more representative of the community. … In reality, cutting the
size of the jury dramatically increases the chance of excluding minorities.”). Because “the 12-member jury
produces significantly greater heterogeneity than does
the six-member jury,” Diamond et al., Achieving Diversity, 6 J. of Empirical Legal Stud. at 425, 449, it increases “the opportunity for meaningful and appropriate representation” and helps ensure that juries “represent adequately a cross-section of the community.”
Ballew, 435 U.S. at 237.
Other important considerations also weigh in favor
of the 12-member jury. For instance, studies indicate
that 12-member juries deliberate longer, recall evidence better, and are less likely to rely on irrelevant
For Overturning Williams v. Florida And The Six-Person Jury, 60
Fla. L. Rev. 441, 441 (2008) (arguing that Ballew rendered Williams “a dead letter” because “the [Ballew] Court implicitly abandoned” Williams’s functionalist reasoning); Frampton, The Uneven Bulwark: How (And Why) Criminal Jury Trial Rates Vary
By State, 100 Cal. Law. Rev. 183, 218 (2012) (“When the Court declined to extend Williams in 1978 … it persuasively articulated
many of the reasons why juries with less than twelve jurors significantly disadvantage criminal defendants.”).
24
factors during deliberation. See Smith & Saks, The
Case for Overturning Williams v. Florida and the SixPerson Jury, 60 Fla. L. Rev. at 465. Minority views are
also more likely to be considered in a larger jury, as
“having a large minority helps make the minority subgroup more influential,” and, unsurprisingly, “the
chance of minority members having allies is greater on
a twelve-person jury.” Id. at 466. And larger juries
deliver more predictable results. In the civil context,
for example, “[s]ix person-juries are four times more
likely to return extremely high or low damage awards
compared to the average.” Higginbotham, 104 Judicature at 52.7
In sum, whether Williams’s reasoning is analyzed
under the historical test laid out in Ramos or under the
functionalist test that Williams itself created, it is
egregiously, incontrovertibly wrong.
2. Williams Has Caused Significant Negative
Jurisprudential And Real-World Consequences
Decisions following Williams have illustrated the
jurisprudential difficulties it created: in Ballew, a split
Court struggled to apply the functionalist approach,
with multiple members acknowledging that the line being drawn had little foundation in law or fact. See su-
7
In addition, “subsequent research” has disproven the Williams Court’s theory that smaller juries have significant cost and
efficiency benefits. ABA, Principles for Juries and Jury Trials
Principle 3 cmt., at 20. At best, “six person juries are only minimally more efficient or cheaper than twelve person juries” and
“[o]verall, little court time is saved by reducing jury size.” Id.
25
pra pp. 21-22. And, of course, this Court fundamentally
rejected its approach in Ramos. See supra pp. 8-9.8
Jurisprudential conflict aside, the Williams Court’s
conclusion that a six-member jury is no different than a
12-member jury has “caused significant negative … real-world consequences.” Ramos, 140 S. Ct. at 1415
(Kavanaugh, J., concurring in part). As noted above,
juries of less than 12 are less likely to include members
of minority groups, spend less time deliberating, recall
less evidence, are more likely to rely on irrelevant factors, are less likely to consider minority viewpoints,
and are less predictable than 12-member juries. See
supra pp. 23-24. Williams thus permits “the conviction
at trial or by guilty plea of some defendants who might
not be convicted under the proper constitutional rule,”
a drastic “consequence [that] has traditionally supplied
some support for overruling an egregiously wrong
criminal-procedure precedent.” 140 S. Ct. at 1417 (Kavanaugh, J., concurring in part) (citing Malloy v. Hogan, 378 U.S. 1 (1964)).
Even beyond the individual defendants affected by
the Williams rule, permitting 6- or 8-person juries in
felony cases does real harm to public perception of the
jury as a legitimate, representative body. As this
8
Williams is also an outlier in the sense that it decreased the
likelihood that a given jury will adequately represent a crosssection of the community. In contrast, other seminal decisions
have made it more likely that the “jury [will be] selected from a
cross section of the entire community.” Ramos, 140 S. Ct. at 1402
n.47 (majority op.); see also, e.g., Taylor v. Louisiana, 419 U.S. 522,
527, 531 (1975) (noting that “[t]o exclude racial groups from jury
service [is] ‘at war with our basic concepts of a democratic society
and a representative government ‘” and that “the fair-crosssection requirement is violated by the systematic exclusion of
women”).
26
Court has explained, “[o]ur notions of what a proper
jury is have developed in harmony with our basic concepts of a democratic society and a representative government,” and, to fulfill that function, the jury must “be
a body truly representative of the community.” Taylor
v. Louisiana, 419 U.S. 522, 527 (1975) (emphasis added
and quotation marks omitted). The Williams rule increases the odds that in the six States that continue to
permit juries of less than 12, the jury will not include a
true cross-section of the community—and that the
members who do belong to a racial, religious, or cultural minority will be given less of an opportunity to express their views. Put slightly differently, Williams
threatens the vitality of one of the “most essential”
constitutional protections, Ramos, 140 S. Ct. at 1409
(Sotomayor, J., concurring): America’s “deep commitment … to the right of a jury trial … as a defense
against arbitrary law enforcement,” Codispoti v. Pennsylvania, 418 U.S. 506, 515-516 (1974) (quotation marks
omitted).
3. Any Reliance On Williams Is Limited And
Outweighed By The Importance Of The
Sixth Amendment Right
Much like in Ramos, overruling Williams would
not implicate the kind of “prospective economic, regulatory, or social disruption litigants seeking to preserve
precedent usually invoke.” 140 S. Ct. at 1406. Nor can
Arizona reasonably argue that juries with less than 12
members “have ‘become part of our national culture,’”
as 12-member juries are required for felony trials in 44
States and federal court. Id. And while the six States
that permit smaller juries in criminal cases may well
have to retry some cases that are pending on direct appeal, “new rules of criminal procedures … often affect[]
27
significant numbers of pending cases across the …
country.” Id.
At the same time, allowing Williams to remain in
place harms “the most important” “reliance interest[]”—that “of the American people” “in the preservation of our constitutionally promised liberties.” Ramos,
140 S. Ct. at 1408 (plurality op.). That a few States
might have “to retry a slice of their prior criminal cases
… cannot outweigh the interest we all share in the
preservation of our constitutionally promised liberties.”
Id.; accord 140 S. Ct. at 1419 (Kavanaugh, J., concurring in part); see also Vannoy, 141 S. Ct. at 1575 (Kagan, J., dissenting) (recognizing “the need to ensure”
that the Sixth Amendment “keep[s] with the Nation’s
oldest traditions” so that defendants are provided “fair
and dependable adjudications of [their] guilt”). Indeed,
there does not appear to be a single “case in which a
one-time need to retry defendants has ever been sufficient to inter a constitutional right forever.” Ramos,
140 S. Ct. at 1408. The Williams rule should not be the
first.
***
“This Court has long explained that the Sixth
Amendment right to a jury trial is ‘fundamental to the
American scheme of justice.’” Ramos, 140 S. Ct. at
1397 (quoting Duncan, 391 U.S. at 149). That right is
diminished by the continuing use of juries smaller than
12, since “any [] reduction [in jury size] that promotes
inaccurate and possibly biased decisionmaking, that
causes untoward differences in verdicts, and that prevents juries from truly representing their communities,
attains constitutional significance,” Ballew, 435 U.S. at
239. Absent intervention from this Court, defendants
in six States will continue to be denied their right to a
28
12-member jury—one that adequately represents a
cross-section of their communities.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
SETH P. WAXMAN
Counsel of Record
EDWARD C. O’CALLAGHAN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
THOMAS G. SPRANKLING
WILMER CUTLER PICKERING (202) 663-6000
seth.waxman@wilmerhale.com
HALE AND DORR LLP
2600 El Camino Real, Ste 400
ETHAN A. SACHS
Palo Alto, CA 94306
WILMER CUTLER PICKERING
HALE AND DORR LLP
ELEANOR DAVIS
60 State St.
WILMER CUTLER PICKERING
Boston, MA 02109
HALE AND DORR LLP
7 World Trade Center
250 Greenwich St.
New York, NY 10007
BENJAMIN L. COLEMAN
BENJAMIN L. COLEMAN
LAW PC
1350 Columbia St., Ste 600
San Diego, CA 92101
JUNE 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.