Amicus Curiae Brief — Ramin Khorrami, Petitioner v. Arizona

NO. 21-1553

In the

Supreme Court of the United States

RAMIN KHORRAMI,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

Court of Appeals of Arizona, Division One

BRIEF OF AMICUS CURIAE

UTAH ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

DAVID FERGUSON

ANDREW G. DEISS

DALLAS YOUNG

UTAH ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

10 West 100 South

Salt Lake City, UT 84101

(801) 215-9469

executivedirector@uacdl.org

DALLAS YOUNG

Counsel of Record

UTAH COUNTY

PUBLIC DEFENDER

180 N University Ave Ste 140

Provo, UT 84601

(801) 852-1070

dallasyounglegal@gmail.com

July 11, 2022

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

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.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT ............................................................... 3

I.

The Jury Represents the Community in

the Administration of Justice; Small Juries

are Less Likely to Reflect the Broader

Community. ...................................................... 4

II. The Jury Serves a Counter-Majoritarian

Function; a Smaller Jury Cannot Serve that

Function as Well as a Jury of Twelve. ............ 9

III. The Jury System Is Designed to Satisfy

Society’s, as Well as the Defendant’s

Interest, that Justice Is Done; a Small Jury

Does Not Symbolize the Justice-Serving

Role of a Jury. ................................................ 16

CONCLUSION.......................................................... 20

iii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Balzac v. Porto Rico,

258 U.S. 298 (1922) ............................................. 5

Batson v. Kentucky,

476 U.S. 79, 106 S.Ct. 1712 (1986) ................... 11

Duncan v. Louisiana,

391 U.S. 145, 88 S.Ct. 1444,

20 L.Ed.2d 491 (1968) ......................................... 6

Georgia v. McCollum,

505 U.S. 42, 112 S.Ct. 2348 (1992) ................... 10

Hudson v. Adams’ Adm’r, Ky.,

49 S.W. 192 (1899)............................................... 6

Irvin v. Dowd,

366 U.S. 717, 81 S.Ct. 1639 (1961) ................... 12

Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781 (1979) ................... 17

Mu’Min v. Virginia,

500 U.S. 415, 111 S.Ct. 1899 (1991) ................. 12

Norris v. Alabama,

294 U.S. 587, 55 S.Ct. 579 (1935) ..................... 11

Parkland Hosiery Co. v. Shore,

439 U.S. 322, 99 S.Ct. 645,

58 L.Ed.2d 552 (1979) ......................................... 6

Powers v. Ohio,

499 U.S. 400, 111 S.Ct. 1364 (1991) ............... 3, 5

Ramos v. Lousiana,

140 S.Ct. 1390 (2020) ........................................ 12

iv

TABLE OF AUTHORITIES – Continued

Page

Steelvest, Inc. v. Scansteel Service Center, Inc.,

908 S.W.2d 104 (Ky. 1995) .................................. 6

Strauder v. West Virginia,

100 U.S. 303, 25 L.Ed. 664 (1879) .............. 10, 11

The King v. Sussex Justices, Ex Parte

McCarthy, [1924] 1 KB 256, [1923] EWHC

KB 1, [1924] KB 256.......................................... 18

Thiel v. S. Pac. Co.,

328 U.S. 217, 66 S.Ct. 984 (1946) ..................... 18

Travelers’ Ins. Co. v. Selden,

78 F. 285 (4th Cir. 1897) ..................................... 7

United States v. Lewis,

638 F.Supp. 573 (W. D. Mich. 1986) ................... 9

United States v. Scott,

437 U.S. 82, 98 S.Ct. 2187 (1978) ..................... 17

Williams v. Florida,

399 U.S. 78, 90 S.Ct. 1893,

26 L.Ed.2d 446 (1970)................................. passim

CONSTITUTIONAL PROVISIONS

ARIZ. CONST. art. 2, sec. 23 ..................................... 7, 8

CONN. CONST. amend. art. IV ..................................... 7

LOUIS. CONST. of 1974 art. 1, § 17 .............................. 7

MASS. CONST. art. XII ................................................. 8

U.S. CONST. amend. VI ............................................ i, 3

U.S. CONST. amend. XIV .............................................. i

UTAH CONST. art. I, sec. 10 ......................................... 7

v

TABLE OF AUTHORITIES – Continued

Page

STATUTES

Ind. Code § 35-37-1-1(b)(1) ......................................... 7

LA R.S. 14:2 § 2(A)(4) ................................................. 7

Mass. G. L. C. 218, § 26A ........................................... 8

JUDICIAL RULES

Fla. Rule Crim. Proc. § 3.270 ..................................... 7

LA Code Crim. Pro. 782 .............................................. 7

Mass. R. Crim. P. 19(c) ............................................... 8

Sup. Ct. R. 37 .............................................................. 1

OTHER AUTHORITIES

12 ANGRY MEN (Orion-Nova Productions 1957) ...... 18

Albert W. Alschuler & Andrew G. Deiss,

A Brief History of the Criminal Jury in the

United States, 61 U. CHI. L. REV. 867

(1994) ................................................................. 17

Arthur L. Rizer III,

The Race Effect on Wrongful Convictions,

WILLIAM MITCHELL L. REV. 29 (2003) ............... 10

Charlie Savage,

Michael Sussmann Is Acquitted in Case

Brought by Trump-Era Prosecutor, N.Y.

TIMES (May 31, 2002) available at https://

www.nytimes.com/2022/05/31/us/politics/

michael-sussmann-durham-fbi.html ................ 19

vi

TABLE OF AUTHORITIES – Continued

Page

Chittaranjan Andrade,

Sample Size and its Importance in

Research, INDIAN J. PSYCH. MED. 42 (2020)

available at https://www.ncbi.nlm.nih.gov/

pmc/articles/PMC6970301/ ............................... 16

David A. Kravitz, et. al.,

Reliability and Validity of the Original

and Revised Legal Attitudes

Questionnaire, 17 LAW AND HUMAN

BEHAVIOR 661 (1993) ......................................... 13

David Ferguson & Len Lecci,

Coaxing Authoritarians out of the Jury

Pool, 5 UTAH J. CRIM. L. 26 (2021) .................... 13

Eli Price,

Discourse on the Trial by Jury (1863),

available at https://tinyurl.com/2pavjym8 ......... 6

Harper Lee,

TO KILL A MOCKINGBIRD (1960) ......................... 18

John Adams,

Adams Papers, DIARY AND

AUTOBIOGRAPHY OF JOHN ADAMS

FEBRUARY 1771, vol. 2, ed. L. H.

Butterfield (1961). https://founders.

archives.gov/?q=important%20share&s=

1511311112&r=8 ................................................. 5

John Adams,

Adams’ Diary Notes on the Right of

Juries: 1771. Feby. 12, THE ADAMS

PAPERS, LEGAL PAPERS OF JOHN ADAMS,

vol. 1 ed. L. Kinvin Wroth and Hiller B.

Zobel. Cambridge, MA: Harvard

vii

TABLE OF AUTHORITIES – Continued

Page

University Press, 1965 available at https:/

/founders.archives.gov/documents/Adams/

05-01-02-0005-0005-0004 .................................... 5

Joseph T. Karcher,

The Case for the Jury System, CHICAGOKENT L. REV., 157 (1968) ..................................... 7

Judge Royal Furgeson,

The Jury in To Kill A Mockingbird: What

Went Wrong?, TEX. BAR. J. 488 (2010)

available at https://tinyurl.com/2p8ztxfm ........ 18

Laura I. Appleman,

The Lost Meaning of the Jury Trial Right,

84 IND. L.J. 397 (2009) ........................................ 5

Len Lecci and Bryan Myers,

Individual Differences in Attitudes

Relevant to Juror Decision Making:

Development and Validation of the Pretrial

Juror Attitude Questionnaire (PJAQ), 38 J.

APPLIED SOC. PSYCH., 2010 (2008) ............... 14, 16

MARVEL’S DAREDEVIL, se. 2, ep. 8 (Marvel

Television 2016) https://www.youtube.

com/watch?v=vSg0mNAgx4s ............................ 18

Matthew C. MacWilliams,

Trump Is an Authoritarian. So Are

Millions of Americans, POLITICO

9/23/2020) available at https://www.

politico.com/news/magazine/2020/09/23/

trump-america-authoritarianism-420681 ........ 13

Sir James Fitzjames Stephen,

A HISTORY OF THE CRIMINAL LAW OF

ENGLAND, Vol. 1 (1883) ..................................... 17

viii

TABLE OF AUTHORITIES – Continued

Page

THE UNTOUCHABLES (Paramount Pictures

1987) (same) https://www.youtube.com/

watch?v=peie8WvkKP0..................................... 18

Theodore Plucknett,

A CONCISE HISTORY OF THE COMMON LAW

(1956), https://tinyurl.com/2924e8hw ................. 4

Thomas Ward Frampton,

The Jim Crow Jury, 71 VAND. L. REV.

1593 (2018) .................................................. 10, 11

William E. Chandler, State Reporter,

REPORTS OF CASES ARGUED AND

DETERMINED IN THE SUPREME JUDICIAL

COURT OF NEW HAMPSHIRE, vol. 41, 550

(1861) available at https://tinyurl.com/

6nru7nzp .............................................................. 9

William O. Douglas,

THE RIGHT OF THE PEOPLE (1958) ....................... 6

1

INTEREST OF THE AMICUS CURIAE1

The Utah Association of Criminal Defense Lawyers

(UACDL) is a non-profit voluntary professional legal

organization that brings together criminal defense attorneys to develop education, support, and advocacy for

criminal defense in our respective states.

As a professional organization committed to the

improvement of criminal defense, we are also committed to jury trials. Our members regularly try cases

to juries. Many of our members have experience with

both small juries of six or eight members as well as

twelve-person juries through legal practice in other

states and federal court.

Because the criminal legal system in Utah would

be affected by a decision in this case (along with a

handful of other states), we write in support of petitioner

to advance the jury rights for criminal defendants in

our states to be at the same position guaranteed by

the vast majority of other states.

1 Pursuant to this Court’s Rule 37, Amicus state that no counsel

for any party authored this brief in whole or in part, and no

person or entity other than Amicus made a monetary contribution

to the preparation or submission of the brief. Counsel for both

parties received a Notice of Intent to file this brief more than 10

days prior to filing and consented to this filing.

2

SUMMARY OF THE ARGUMENT

In this brief Amicus address what we believe is

one of the central flaws of Williams v. Florida: its statement that juries with as few as six members are

functionally equivalent to juries of twelve because the

“purpose of the jury trial . . . is to prevent oppression

by the Government,” which the Williams Court

thought could be accomplished just as well with sixperson juries as twelve-person juries.2

In drawing that conclusion, the Williams Court

missed three other critical purposes for which juries

are designed, and in doing so missed what is lost when

cases are decided by juries of six or eight members.

These three additional purposes of the jury are to: (1)

represent the community in the administration of

justice, (2) protect defendants from the vindictiveness

of the community, and (3) ensure popular respect on

the outcome of cases.

The jury simultaneously serves both majoritarian

and counter-majoritarian roles by representing the

community and also serving as a check on the community. The balance of these competing roles tips when

the jury is not appropriately comprised to serve its

justice-serving function. As discussed below, juries of

twelve members balance these roles better than smaller

juries. Additionally, twelve-member juries matter

because that is the kind of jury that the public anticipates as giving just verdicts.

We believe that when these three additional purposes are given their fair weight, a jury of twelve

2 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).

3

members achieves the purpose of the Sixth Amendment’s right to a jury better than smaller juries can.

ARGUMENT

In Williams v. Florida, this Court determined

that the historical purpose of why juries exist is to

“prevent oppression by the Government.”3 From that

position the Court concluded that a six-person jury

can just as effectively accomplish that objective as a

twelve-person jury.4 Missing from the Court’s analysis,

however, were other reasons why juries exist and why

trial by jury matters. Several of these other purposes

factor into the strategic decision of why defense attorneys and their clients pick juries.5 Moreover, these

other purposes that the Williams Court missed are

better accomplished through juries of twelve members

over smaller juries. These purposes are:

1.

To represent the community in the administration of justice.

2.

To serve as a check on the community’s

proclivity for vindictiveness.

3 Id.

4 Id.

5 Of note, there are additional reasons for why juries exist. For

example, juries have been recognized as a tool to education the

public on civic matters. Powers v. Ohio, 499 U.S. 400, 407, 111

S.Ct. 1364, 1368 (1991). The more people serve on juries the more

effective this is accomplished, which makes twelve-person juries

superior to smaller ones. That said, defendants do not choose

juries to help educate the populace, so this function is not

explored further in this brief.

4

3.

To satisfy society’s, and the defendant’s,

interest that the case was decided fairly.

When considered in light of jury size, these three

purposes show that juries of twelve are meaningfully

different from, and superior to, smaller juries.

I.

The Jury Represents the Community in

the Administration of Justice; Small Juries

are Less Likely to Reflect the Broader

Community.

From its inception, the jury served as the voice of

the community. “[I]n its origins the jury is of a representative character; the basis of its composition in the

early days . . . was clearly the intention to make it

representative of the community . . . ”.6

The pluralist purpose of the jury was also recognized as a central feature in early America. As John

Adams wrote in his diary,

In the Administration of Justice too, the People

have an important Share . . . [N]o Man can

be condemned of Life, or Limb, or Property

or Reputation, without the Concurrence of

the Voice of the People.7

6 Theodore Plucknett, A CONCISE HISTORY OF THE COMMON LAW,

127 (1956), https://tinyurl.com/2924e8hw.

7 John Adams, A DAMS PAPERS , D IARY AND AUTOBIOGRAPHY

OF JOHN ADAMS FEBRUARY 1771, vol. 2, 1771-1781, ed. L.H.

Butterfield (1961). https://founders.archives.gov/?q=important%

20share&s=1511311112&r=8; see also Laura I. Appleman, The

Lost Meaning of the Jury Trial Right, 84 IND. L.J. 397 (2009)

(describing that the right of a jury trial was originally primarily

a right of the people to be involved in the administration of

justice).

5

Not only does the defendant enjoy a right to a jury as

a protection against government,8 but the people

themselves have a right to act as jurors as a means to

“prevent [the] arbitrary use or abuse” of judicial power.9

The requirement of a unanimous jury gives the right

to each juror, as an individual, to stop governmental

oppression.10

In deciding that a six-person jury can accomplish

this function as well as a twelve-person jury, the

Williams Court brushed over the reasons why the jury

protects individuals from the government.

Jurors do not adjudicate guilt or innocence simply

as non-lawyers or non-judges; they reach these outcomes

by being a diverse body of individuals, representing the

community. As one early commentator wrote:

If justice be done to the wheel by placing in

it the most intelligent citizens of all occupations, every traverse jury of twelve men should

possess an aggregate of practical information,

that should be greater than the judge on the

8 Williams, 399 U.S. at 100

9 Powers v. Ohio, 499 U.S. 400, 406, 111 S.Ct. 1364, 1364, 113

L.Ed.2d 411 (1991) (quoting Chief Justice Taft in Balzac v. Porto

Rico, 258 U.S. 298 (1922)).

10 John Adams, Adams’ Diary Notes on the Right of Juries: 1771.

Feby. 12, THE ADAMS PAPERS, LEGAL PAPERS OF JOHN ADAMS, vol.

1 ed. L. Kinvin Wroth and Hiller B. Zobel. Cambridge, MA: Harvard

University Press, 1965 available at https://founders.archives.gov/

documents/Adams/05-01-02-0005-0005-0004 (“It is not only his

right but his Duty in that Case to find the Verdict according to

his own best Understanding, Judgment and Conscience, tho in

Direct opposition to the Direction of the Court.”).

6

bench, however good his legal information.

. . . 11

Juries are valued for defendants because of their ability to apply “common-sense judgment.”12 That judgment stems from the jury’s connection to “community

values.”13 The “community’s sense of justice” that

flows from a jury brings “the quality of mercy” to the

courts.14 As the Kentucky Supreme Court noted over

a century ago:

The jury are drawn from the various walks

of life, and their combined knowledge and

experience afford the very best opportunity

for safe and wise conclusions. Judge Dillon is

quoted as saying, “twelve good and lawful

men are better judges of disputed facts than

twelve learned judges.”15

Other commentators have made similar observations,

praising “the judgment of 12 impartial (people), of the

average of the community, applying their separate

experiences of life to the solution of such doubts as

11 Eli Price, Discourse on the Trial by Jury, 9 (1863), available

at https://tinyurl.com/2pavjym8.

12 Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 20 L.Ed.2d

491 (1968).

13 Parkland Hosiery Co. v. Shore, 439 U.S. 322, 355, 99 S.Ct. 645,

58 L.Ed.2d 552 (1979) (Rehnquist, J. Dissent).

14 William O. Douglas, THE RIGHT OF THE PEOPLE, 183-84 (1958).

15 Steelvest, Inc. v. Scansteel Service Center, Inc., 908 S.W.2d 104

(Ky. 1995) (quoting Hudson v. Adams’ Adm’r, Ky., 49 S.W. 192

(1899)).

7

may arise” as the model of justice,16 and recognizing

that the value of a jury is in its “composite intelligence,

dedication, comprehension, evidence recall, and [] emotional balance . . . ”.17

Not only do smaller juries decrease the power of

the citizenry’s right to serve as a check against government overreach, but they also diminish the ability

of each individual juror to draw from the collective

background of her peers in making just verdicts. A

jury of six is less likely to reflect the broader community

accurately than a jury of twelve. It has half the life

experience. It has half the collective wisdom.

To that point, it should be noted that even those

states that may be affected by the reversal of Williams

tacitly acknowledge that something is lost when cases

are decided by smaller juries. All of those states require

a twelve-person jury in capital cases.18 Some require

a twelve-person jury for at least some non-capital felonies.19 While the gravity of a capital case triggers

16 Travelers’ Ins. Co. v. Selden, 78 F. 285 (4th Cir. 1897)

17 Joseph T. Karcher, The Case for the Jury System, CHICAGOKENT L. REV., 157, 168 (1968).

18 See ARIZ. CONST. art. 2, sec. 23; CONN. CONST. amend. art. IV;

Fla. Rule Crim. Proc. § 3.270 (2019); Ind. Code § 35-37-1-1(b)(1);

UTAH CONST. art. I, sec. 10. Louisiana requires twelve person

juries for all cases except for those which “may” result in

imprisonment at hard labor. C.f. LOUIS. CONST. of 1974 art. 1,

§ 17 (requiring twelve person juries for capital offenses) and LA

Code Crim. Pro. 782 (allowing juries of six for cases which “may”

result in imprisonment at hard labor); see also LA R.S. 14:2

§ 2(A)(4) (defining felony as a crime that “may be sentenced to

death or imprisonment at hard labor).

19 See ARIZ. CONST. art. 2, sec. 23 (requiring juries for felonies in

which the term of imprisonment is thirty or more years).

8

several rights that do not necessarily exist in other cases,

the fact that each state requires a twelve-person jury

in capital cases acknowledges that there is something

actually meaningfully different and better about a

twelve-person jury, as compared to a smaller one.

Our experiences as criminal defense lawyers reflect

these insights. One criminal defense attorney recently

recounted a jury trial in federal court, where law

enforcement officers claimed to have witnessed a drug

deal occur among a group of people sitting at a park

bench. The person on whom the officers focused their

investigation and arrest had a face covered by tattoos,

looking like a stereotypical drug-dealing gang member.

At trial, the officers bolstered their claim that a drug

deal occurred by embellishing inculpatory observations

that were peculiarly absent from their reports. A

jury of twelve saw through the officers’ testimony and

acquitted the defendant. The attorney credited the body

of twelve jurors as having the diversity and composition

to look past the superficial evidence to find law enforcement less credible than an apparent gangster. That

attorney, along with Amicus (and our collective

experience as trial attorneys), are less confident that

a jury half as large would show the same level of

insight as this jury did.

Massachusetts has abolished capital offenses, see MASS. CONST.

art. XII. However, it requires twelve person juries for felony

cases except for certain felonies tried before the district court.

C.f. Mass. G. L. C. 218, § 26A and Mass. R. Crim. P. 19(c).

9

II. The Jury Serves a Counter-Majoritarian

Function; a Smaller Jury Cannot Serve that

Function as Well as a Jury of Twelve.

Not only do juries serve as the voice of the community, but commentators have also recognized the

important role jurors serve as a counter-majoritarian

check on the community’s vindictiveness.

[T]he trial by jury has been steadily regarded,

from the earliest judicial history in England,

as the great safeguard of the lives, liberty,

and property of the subject against the

abuses of arbitrary power, as well as against

undue excitements of popular feeling.20

The jury’s role as a counter-majoritarian body is

critical to fair outcomes.

Jurors often serve as the gate through which the

community expresses disapproval of a defendant’s acts.

As one Court pointed out, “Jury trials have historically

served to vent community pressures and passions.”21

When the jury does this responsibly, it serves as “the

lid of a tea kettle releas[ing] steam,” allowing “peaceful

expression of community outrage at arbitrary government or vicious criminal acts.”22 However, history is

replete with examples where a jury too closely reflects

the community’s animosity against certain criminal

defendants. It is well documented how in certain

20 William E. Chandler, STATE REPORTER, REPORTS OF CASES

ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT OF

NEW HAMPSHIRE, vol. 41, 550 (1861) available at https://tinyurl.

com/6nru7nzp.

21 United States v. Lewis, 638 F.Supp. 573, 580 (W. D. Mich. 1986).

22 Id.

10

communities white juries would convict black defendants on thin evidence, while other juries acquit white

residents accused of lynching black individuals.23

After Black citizens in the late 19th century began

to sit on juries, West Virginia quickly moved to prohibit them from jury service.24 This Court intervened

in Strauder v. West Virginia, declaring the law unconstitutional.25 In its ruling, the Court noted the problem

of prosecutors “[p]acking juries.”26 As Justice Thomas

has since remarked on reflection of Strauder, “We

reasonably surmised, without direct evidence in any

particular case, that all-white juries might judge black

defendants unfairly.”27 As one justification for its decision, the Strauder Court noted that a defendant’s right

to change the venue of trial is an important aspect of

making sure that the jury is not packed with hostile

jurors.28

Three years after Strauder, Congress enacted the

Civil Rights Act, protecting the rights of racial minorities

to sit on juries.29

23 Arthur L. Rizer III, The Race Effect on Wrongful Convictions,

WILLIAM MITCHELL L. REV. 29, 845, 850-52 (2003).

24 Thomas Ward Frampton, The Jim Crow Jury, 71 VAND. L. REV.

1593, 1600-01 (2018).

25 Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879).

26 Id. at 309.

27 Georgia v. McCollum, 505 U.S. 42, 61, 112 S.Ct. 2348, 2360

(1992).

28 Strauder, 100 U.S. 303 at 309.

29 Frampton, The Jim Crow Jury, at 1601.

11

Integrating the jury box served several significant purposes from affirming the citizenship of those called to serve to countering

impunity for white purveyors of racial violence

—but securing fair treatment for black defendants was the predominant concern by the end

of the nineteenth century.30

As Black Americans increasingly sat on juries, and

refused to convict Black defendants on thin evidence,

(white) community outrage boiled over.31 “Black jurors

frequently faced the accusation that they showed untoward leniency toward defendants,”32 despite the

historical record showing that Black jurors would also

frequently convict.33

Well after Strauder was decided, white community

members maintained concerns that Black jurors would

not enforce the law against outrageous conduct. This

Court has repeatedly found itself protecting the right

of Black members of the community to meaningfully

sit on juries as a way of moderating the pro-conviction

desires of other community members. In Norris v.

Alabama, this Court reversed the conviction of a Black

defendant when it was presented with evidence that no

Black member of the community had been selected for

jury service in living memory.34 In Batson v. Kentucky,

30 Id. at 1602.

31 Id. at 1601-04.

32 Id. at 1603.

33 Id. at 1604, n. 62

34 294 U.S. 587, 55 S.Ct. 579 (1935).

12

this Court limited the prosecutor’s peremptory challenges to racially-neutral justifications to prohibit

prosecutors from packing juries with people who were

presumed to be more likely to convict Black defendants.35 Most recently, this Court intervened in Ramos

v. Lousiana to strike a law that was designed to make

it easier to convict Black defendants when a (presumably

white) majority of the jury could overrule the dissenting

votes of the jury’s minority voices.36

Diverse juries temper the vindictiveness of the

community. Their moderating influence goes beyond

concerns about racial animus. In cases where the “court

of popular opinion” has weighed in on a case before

trial, jurors are screened for biases they may have

acquired by having heard about the case and discussing

it with others in the community.37 A defendant’s motion

to change the venue of the trial is typically brought after

public polling of community sentiment has occurred

showing the community’s bias is too pervasive to give

a defendant an impartial jury.38 While the public would

have no trouble convicting a defendant after hearing

about the defendant’s criminal record, juries are frequently kept from hearing about the defendant’s record

so that they make measured decision that the public

would not. To that end, popular sentiment may quickly

decide a dispute on little evidence, whereas the jury

35 476 U.S. 79, 106 S.Ct. 1712 (1986).

36 140 S.Ct. 1390 (2020).

37 Mu’Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 1905

(1991).

38 See generally, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639 (1961).

13

inhabits a microcosm of evidentiary rules, legal instructions, and procedural presentations of the case. Put

simply, the jury—which represents the community

—also serves a counter-majoritarian or moderating

function against public vindictiveness.

Jury size directly affects the counter-majoritarian

function of a jury. If a jury is too large, it may too

greatly reflect the community’s outrage. However,

when juries are too small, there is an increased risk

that the jury will be composed of a uniform, biased set

of the community.

For example, researchers have identified that over

a third of Americans have authoritarian biases, which

have been tied to a bias towards conviction.39 Decades

of research have shown that those jurors who have a

legal authoritarian biases predictably and reliably

choose to convict defendants when others would not.40

By contrast, researchers have never been able to identify

an inverse demographic in society with a reliable proacquittal bias.41 The prevalence of pro-conviction-biased

39 C.f. Matthew C. MacWilliams, Trump Is an Authoritarian. So

Are Millions of Americans, POLITICO 9/23/2020) available at

https://www.politico.com/news/magazine/2020/09/23/trumpamerica-authoritarianism-420681 (indicting the prevalence of

authoritarianism in America) with David Ferguson & Len Lecci,

Coaxing Authoritarians out of the Jury Pool, 5 UTAH J. CRIM. L.

26 (2021) (discussing how authoritarian biases result in a proconviction bias among jurors).

40 Ferguson and Lecci, Coaxing Authoritarians out of the Jury

Pool, supra, generally.

41 However many people there are in society that tend to acquit

defendants in the face of substantial incriminating evidence,

they either lack common predictable traits or are too few to

statistically find. See e.g., David A. Kravitz, et. al., Reliability

14

members of society can have a sizeable impact on small

juries—greater than the impact of juries of twelve

members.

To illustrate, if a given jury pool is truly a “fair

cross-section of the community” and adequately reflects

the proportional biases of that community, about a

third of the jury pool would exhibit a pro-conviction,

authoritarian bias while the remainder would be moreor-less open-minded to both sides. 42 Under that

and Validity of the Original and Revised Legal Attitudes

Questionnaire, 17 LAW AND HUMAN BEHAVIOR 661 (1993); see also

Len Lecci and Bryan Myers, Individual Differences in Attitudes

Relevant to Juror Decision Making: Development and Validation

of the Pretrial Juror Attitude Questionnaire (PJAQ), 38 J. APPLIED

SOC. PSYCH., 2010, 2019 (2008) (noting that under certain conditions, jurors with a social justice bias may exhibit a pro-acquittal

bias).

42 For purposes of demonstration, it is assumed that the jury

pool is made up of 100 individuals with 66 of those individuals

having neither a pro-prosecution nor pro-defense bias (“openminded”). While jury pools of 100 individuals are not normal, the

number is useful for illustrative purposes because of its simplicity;

the analysis here has to do with percentages, not sample size

making the actual number irrelevant. It is assumed that whatever size a normal jury pool might be in an actual case that the

jury pool is a “fair cross-section of the community” and therefore

reflects standard community biases. It is also assumed that

peremptory challenges by the two parties are exercised in a way

that would cancel each other’s out. While research has shown

that authoritarianism correlates strongly with pro-conviction

bias, researchers have found no statistically validated method for

reliably identifying pro-defense biased jurors except in some

possibly atypical cases, which is why the only two variables are

“pro-conviction” (meaning pro-conviction bias) and “open-minded”

(meaning open to the evidence). See n. 41, supra. Note also that

this model does not account for peremptory challenges or forcause strikes. However, we can think of no reason why adding

those variables into the model would improve it so long as we

15

baseline assumption, random chance harms defendants

who must contend with smaller juries. As the following

table and pie charts illustrate there’s a greater chance

that a jury of six members has a majority of pro-conviction members on it than a jury of twelve.

Probability of Composition

in a Hypothetical Jury Pool

of 100 Individuals (Percent)

No Open-Minded Jurors

All Open-Minded Jurors

Majority Open-Minded Jurors

Majority Pro-Conviction Jurors

Equal Split of Jurors

With

6

Jurors

0.14 %

8.78 %

68.04 %

10.01 %

21.95 %

With

12

Jurors

0.00 %

0.77 %

82.23 %

6.64 %

11.13 %

Six Person Jury

Twelve Person Jury

10.5%

6.5%

Majority Open-Minded

All Open-Minded

Majority Pro-Conviction

Equal Split

assume that courts and litigants in e.g. Florida take approximately the same level of care in jury selection as courts and

litigants in e.g., Virginia do (where juries consist of twelve members).

16

Put differently, it’s more likely that four members

of a six-person jury have pro-conviction attitudes than

seven members of a twelve-person jury (10% v. 6.5%).43

That’s because small samples of a population run a

greater risk of containing atypical members than larger

samples do.44

The attorneys of our organizations worry about

the fairness of juries because in no small measure

cases are won and lost during jury selection. While

jury biases can be teased out to some extent in voir

dire, biased jurors get past good attorneys. Indeed,

there is only so much an attorney can learn about a

juror’s world view, even if she is granted substantial

latitude on voir dire, which is often not the case in any

event. Defendants are always better served by a diverse

body of jurors.

Put simply, twelve members have a greater moderating force over jury decision-making than smaller

juries. Better judicial outcomes are more likely to be

achieved when the jury appropriately reflects community values.

III. The Jury System Is Designed to Satisfy

Society’s, as Well as the Defendant’s

Interest, that Justice Is Done; a Small Jury

Does Not Symbolize the Justice-Serving

Role of a Jury.

The jury serves a symbolic purpose. It provides the

community with assurance that a just outcome was

43 Id.

44 Chittaranjan Andrade, Sample Size and its Importance in

Research, INDIAN J. PSYCH. MED. 42, 102-103 (2020) available at

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6970301/.

17

reached. While a defendant has a limited right to challenge a jury that erroneously convicts,45 the integrity

of a jury’s verdict is otherwise unassailable: a judge

may not direct a criminal jury to convict nor may a

jury’s decision to acquit be appealed.46 The finality of

a jury’s verdict is an important feature of the legal

system.47

The public’s ability to identify with juries, over

judges, is an important part of its perception that juries

get things right. Reflecting on the English jury system

in 1883, one historian noted:

The public at large feel more sympathy with

jury-men than they do with judges, and accept

their verdicts with much less hesitation and

distrust than they would feel towards judgments however ably written or expressed.48

Perception matters in the legal system. “It is not merely

of some importance but is of fundamental importance

45 Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2788

(1979).

46 Albert W. Alschuler & Andrew G. Deiss, A Brief History of the

Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 91213 (1994).

47 United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 2194

(1978) (explaining the reasoning for why that finality may be

challenged when the result is a conviction).

48 Sir James Fitzjames Stephen, A HISTORY OF THE CRIMINAL

LAW OF ENGLAND, Vol. 1, 573 (1883).

18

that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”49 When

juries do not conform to the public’s perception of a just

jury, it shakes confidence in the system. The manipulative jury selection scene in the blockbuster film

RUNAWAY JURY—in which a gun manufacturer appears

to spend enormous sums of money to select its ideal

jury—helps the audience to see that the manufacturer

is the story’s villain.50 And in Harper Lee’s TO KILL A

MOCKINGBIRD, the reader knows that the jury will

inevitably convict the innocent Tom Robinson because

the author tells the reader that the jury “seemed to be

all farmers,” pointing out that “townsfolk rarely sat on

juries, they were either struck or excused.”51 As

Justice Frankfurter pointed out, a jury’s “broad representative character” of the community is meant to be

an “assurance of diffused impartiality.”52

Juries depicted in popular culture reflect twelve

individuals.53 When described in media, they are shown

49 The King v. Sussex Justices, Ex Parte McCarthy, [1924] 1 KB

256, [1923] EWHC KB 1, [1924] KB 256, available at https://tinyurl.

com/bdd5bumr.

50 RUNAWAY JURY (Regency Enterprises 2003).

51 Judge Royal Furgeson, The Jury in To Kill A Mockingbird:

What Went Wrong?, TEX. BAR. J. 488 (2010) available at https://

tinyurl.com/2p8ztxfm.

52 Thiel v. S. Pac. Co., 328 U.S. 217, 227, 66 S.Ct. 984, 989 (1946)

(Frankfurter, J. dissenting).

53 12 ANGRY MEN (Orion-Nova Productions 1957); MARVEL’S

DAREDEVIL, se. 2, ep. 8 (Marvel Television 2016) (showing a twelve

person jury) https://www.youtube.com/watch?v=vSg0mNAgx4s;

THE UNTOUCHABLES (Paramount Pictures 1987) (same) https://

www.youtube.com/watch?v=peie8WvkKP0.

19

as twelve people. 54 As criminal defense attorneys,

we see in close detail just how important the jury’s

composition is to our clients. When our clients are

fairly convicted by a jury, it is important for the client

to be able to recognize the legitimacy of the jury’s

verdict. We have repeatedly seen that defendants who

see their convictions as fair do much better complying

with their sentence than defendants who witness

injustices in their trials. The justice system has worse

results when it does not appear to be just.

As attorneys who handle jury trials before juries of

six or eight members, we often find ourselves explaining

to clients why they do not get a jury of twelve like they

expect. They do not expect our state systems to be out

of step with those expectations. They are dismayed

when they do not see twelve people sitting in the jury

box on their case.

For both the public and defendants, the jury system

carries symbolic power that ensures right outcomes

are reached. For that reason, it is not only important

for the jury to be just, but it also must be seen to be

just. Integral to that purpose is the public’s, and the

defendant’s, expectation that the jury is constituted of

twelve members.

54 See e.g., Charlie Savage, Michael Sussmann Is Acquitted in

Case Brought by Trump-Era Prosecutor, N.Y. TIMES (May 31,

2002) (noting 12 jurors) available at https://www.nytimes.com/

2022/05/31/us/politics/michael-sussmann-durham-fbi.html.

20

CONCLUSION

The Williams Court was too dismissive of the

importance of a twelve-person jury. It considered one

reason for why juries matter but missed out on a

number of other crucial reasons why criminal defendants pick juries over judges. A jury that is too small

does not adequately reflect the community. A jury that

is too large would not serve the counter-majoritarian

purpose of the jury since it would reflect the community

too greatly. A jury of twelve has withstood the test of

time in managing this tension. Moreover, its broad

recognition in American culture has the symbolic value

of representing justice. Accordingly, we urge this Court

to grant the petition for a writ of certiorari and rule

for Petitioner, so that our states can join the vast majority of others in guaranteeing defendants the right to a

twelve-person jury.

Respectfully submitted,

DALLAS YOUNG

Counsel of Record

UTAH COUNTY

PUBLIC DEFENDER

180 N University Ave Ste 140

Provo, UT 84601

(801) 852-1070

dallasyounglegal@gmail.com

21

DAVID FERGUSON

ANDREW G. DEISS

DALLAS YOUNG

UTAH ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS

10 West 100 South

Salt Lake City, UT 84101

(801) 215-9469

executivedirector@uacdl.org

Counsel for Amicus Curiae

July 11, 2022