Opposition Brief — Ramin Khorrami, Petitioner v. Arizona

Supreme Court briefAug 10, 2022

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No. 21-1553

In the

Supreme Court of the United States

RAMIN KHORRAMI,

Petitioner,

STATE OF ARIZONA,

Respondent.

On Petition for Writ of Certiorari to the

Arizona Court of Appeals

BRIEF IN OPPOSITION

MARK BRNOVICH

Attorney General

of Arizona

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN, III

Solicitor General

LINLEY WILSON

Deputy Solicitor

General/Section Chief

of Criminal Appeals

Counsel of Record

KAREN MOODY

CASEY D. BALL

Assistant Attorneys

General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-8584

Linley.Wilson@azag.gov

Counsel for Respondent

QUESTION PRESENTED

In Williams v. Florida, this Court held that neither

the text nor history of the Sixth Amendment, as

incorporated by the Fourteenth Amendment, dictates

that criminal juries must be comprised of 12 jurors.

399 U.S. 78 (1970). For more than five decades, States

have relied on Williams when deciding how to

structure their criminal justice systems. The result is

that, at any given time, many guilty verdicts still

pending appeal in Arizona and five other States were

reached by juries comprised of less than 12 persons.

The question presented is:

Whether this Court should overrule Williams and

its progeny to hold that the Sixth and Fourteenth

Amendments require a 12-person jury in every

criminal case where the defendant is charged with a

serious offense.

TABLE OF CONTENTS

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

TABLE OF CONTENTS ............................................ ii

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

STATEMENT OF THE CASE ....................................1

I. An Eight-Member Jury Convicts Khorrami

Of Fraudulent Schemes And Theft .......................1

II. The Arizona Court Of Appeals Rejects

Khorrami’s Belated 12-Member Jury Claim ........2

REASONS FOR DENYING THE PETITION ............3

I. This Case Is A Poor Vehicle...................................5

II. The Decision Below Is Correct ..............................9

III.The Stare Decisis Doctrine Compels

Adherence To Williams ........................................ 17

A. Williams Correctly Held The Sixth

Amendment Does Not Require 12Member Juries In The States ........................ 17

B. This Court Has Repeatedly Affirmed

Williams Throughout The Past HalfCentury ........................................................... 20

C. Williams Has Not Caused Significant

Negative Jurisprudential or Real-World

Consequences .................................................. 22

D. Arizona And Five Other States’

Significant Reliance Interests Support

Adherence To Williams .................................. 25

IV. Khorrami’s Other Fourteenth Amendment

Arguments Do Not Warrant Review ................... 28

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

CASES

Alabama v. Shelton,

535 U.S. 654 (2002) ............................................. 7, 8

Apodaca v. Oregon,

406 U.S. 404 (1972) ....................................... passim

Baldwin v. New York,

399 U.S. 66 (1970) ...................................................3

Ballew v. Georgia,

435 U.S. 223 (1978) ....................... 20, 21, 23, 24, 29

Blanton v. City of North Las Vegas,

489 U.S. 538 (1989) .................................................6

Burch v. Louisiana,

441 U.S. 130 (1979) ............................................... 20

Colgrove v. Battin,

413 U.S. 149 (1973) ............................... 5, 11, 12, 21

Collins v. Youngblood,

497 U.S. 37 (1990) ..................................... 19, 20, 25

Dobbs v. Jackson Women's Health Organization,

142 S. Ct. 2228 (2022) ............................... 17, 22, 29

Dowling v. United States,

493 U.S. 342 (1990) ............................................... 29

Duncan v. Louisiana,

391 U.S. 145 (1968) ........................................... 3, 11

Frank v. United States,

395 U.S. 147 (1969) ......................................... 6, 7, 8

Galloway v. United States,

319 U.S. 372 (1943) ............................................... 12

Gamble v. United States,

139 S. Ct. 1960 (2019) ..................................... 17, 20

Gasperini v. Ctr. for Humanities, Inc.,

518 U.S. 415 (1996) ............................................... 10

Herrera v. Wyoming,

139 S. Ct. 1686 (2019) ....................................... 9, 10

In Re Winship,

397 U.S. 358 (1970) ............................................... 29

Janus v. AFSCME, Council 31,

138 S. Ct. 2448 (2018) ........................................... 17

Johnson v. Louisiana,

406 U.S. 356 (1972) ............................................... 14

Lewis v. United States,

518 U.S. 322 (1996) .................................................6

Ludwig v. Massachusetts,

427 U.S. 618 (1976) ......................................... 18, 21

Maxwell v. Dow,

176 U.S. 581 (1900) ............................................... 19

McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) ............................................... 28

Medina v. California,

505 U.S. 437 (1992) ............................................... 30

Oregon v. Ice,

555 U.S. 160 (2009) ............................................... 18

Patton v. United States,

281 U.S. 276 (1930) ...............................................19

Phillips v. State,

316 So.3d 779 (Fla. Dist. Ct. App. 2021) ................4

Ramos v. Louisiana,

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

Rasmussen v. United States,

197 U.S. 516 (1905) ............................................... 19

Slaughter-House Cases,

16 Wall. 36 (1873) .................................................. 28

State v. Soliz,

219 P.3d 1045 (Ariz. 2009) ............................ 7, 8, 18

Thompson v. Utah,

170 U.S. 343 (1898) ............................. 15, 18, 19, 20

United States v. Acker,

52 F.3d 509 (1995) ................................................. 23

United States v. Egbuniwe,

969 F.2d 757 (9th Cir. 1992) ................................. 23

United States v. Gaudin,

515 U.S. 506 (1995) ............................................... 20

United States v. Geffrard,

87 F.3d 448 (11th Cir. 1996) ................................. 23

United States v. Glover,

21 F.3d 133 (6th Cir. 1994) ................................... 23

United States v. Hively,

437 F.3d 752 (8th Cir. 2006) ................................. 23

United States v. O'Brien,

898 F.2d 983 (5th Cir. 1990) ................................. 23

United States v. Paulino,

445 F.3d 211 (2d Cir. 2006) ................................... 23

Williams v. Florida,

399 U.S. 78 (1970) ......................................... passim

Wofford v. Woods,

969 F.3d 685 (6th Cir. 2020) ...................................4

CONSTITUTIONS AND STATUTES

U.S. Const, amend. VI ....................................... passim

U.S. Const. amend. XIV .................................... passim

Ariz. Const. art. II, § 23 .................................... passim

Conn. Const. art. I, § 19 (1972) .................................26

Fla. Const. art. I, § 22 ............................................... 25

Utah Const. art. I, § 10 ............................................. 25

A.R.S. § 13-702(D) .......................................................1

A.R.S. § 13-901(A) .......................................................1

A.R.S. § 13-902(A) .......................................................1

A.R.S. § 13-1802(A)(3) .................................................1

A.R.S. § 13-2310 ..........................................................1

A.R.S. § 21-102 .............................................. 18, 22, 26

A.R.S. § 21-102(A) .......................................................1

A.R.S. § 21-102(B) .......................................................1

Fla. Stat. § 913.10 ..................................................... 25

Ind. Code § 35-37-1-1 (1981) ..................................... 26

Mass. Gen. Laws Ch. 218, § 26A (1978) ................... 26

Utah Code § 78B-1-104 ............................................. 25

RULES

Ariz. R. Crim. P. 18.1(a) ............................................ 22

Fed. R. Crim. P. 23(b).................................... 16, 23, 27

Fed. R. Crim. P. 23(b), Advisory Committee Note

to 1983 Amendments ....................................... 16, 23

OTHER AUTHORITIES

2 The Works of James Wilson 503 (R. McCloskey ed.

1967)....................................................................... 11

3 W. Blackstone, Commentaries ............................... 11

Brief of Amicus Curiae State of Oregon in

Support of Respondent at 12, Ramos v.

Louisiana (No. 18-5924), 2019 WL 4013302 ........ 27

Brief of Respondent at 39, Ramos v. Louisiana

(No. 18-5924), 2019 WL 3942901 .......................... 27

STATEMENT OF THE CASE

I. An Eight-Member Jury Convicts Khorrami

Of Fraudulent Schemes And Theft

The State tried Petitioner, Ramin Khorrami, for

theft and fraudulent schemes and artifices—

probation-eligible, class 2 felonies under Arizona law.

Petition Appendix (“Pet. App.”) 6a. See Arizona

Revised Statutes (“A.R.S.”) §§ 13-901(A) (authorizing

suspension of sentence and probation for eligible

defendants); -902(A) (establishing periods of

probation for felonies); -1802(A)(3) (theft); -2310

(fraudulent schemes and artifices).

Because these charges did not expose Khorrami to

a sentence of death or imprisonment for 30 years or

more, he was tried before a jury of eight, as provided

by Arizona law. Pet. at 6; see Ariz. Const. art. II, § 23;

A.R.S. § 21-102(A)-(B); see also A.R.S. § 13-702(D)

(establishing maximum prison term of 12.5 years for

class 2 felony). Khorrami did not object to the eightmember jury. Pet. App. 20a.

The following evidence was presented at

Khorrami’s trial. Khorrami and the victim, Pearl, 1

began an intimate relationship while Pearl was

married. Id. at 4a. “Over time, Khorrami became

jealous and paranoid,” “accus[ing] Pearl of having

affairs with other men.” Id. Pearl chose to remain in

her marriage, which angered Khorrami. Id. After

several arguments, Khorrami threatened to reveal

their affair to Pearl’s husband. Id. at 4a-5a. “Pearl

pleaded with him not to do so,” and Khorrami

As was done in the state courts, see Pet. App. 4a, pseudonyms

are used to protect the victims’ privacy.

eventually promised Pearl he would not reveal the

affair “if she paid him $40,000.” Id. at 5a.

“After Khorrami’s money-for-silence proposal,

Pearl began secretly recording their phone calls.” Id.

Pearl and Khorrami negotiated the terms; Khorrami

agreed to accept $30,000, which Pearl “would pay in

multiple installments over a month.” Id.

Pearl paid Khorrami $30,000, but Khorrami

demanded more money and that Pearl continue their

relationship. Id. at 5a-6a. Although Pearl gave

Khorrami another $4,000, she “realized Khorrami’s

additional demands would never end and he never

intended to keep his side of the bargain.” Id. at 6a.

Pearl told her husband about the affair, and Khorrami

did the same the next day. Id. Pearl’s husband

reported Khorrami to the police. Id.

The jury unanimously convicted Khorrami on both

counts. Id. The superior court suspended the

imposition of sentence, placed Khorrami on

supervised probation, and imposed a two-month jail

term as a condition of probation. Id.

II. The Arizona Court Of Appeals Rejects

Khorrami’s Belated 12-Member Jury Claim

When he appealed his convictions, Khorrami

argued—for the first time—that his eight-person jury

violated the Sixth and Fourteenth Amendments,

relying on Ramos v. Louisiana, 140 S. Ct. 1390 (2020).

Pet. App. 20a. Khorrami argued Ramos, which held

that the Sixth and Fourteenth Amendments require

unanimous jury verdicts for serious offenses,

effectively overruled Williams v. Florida, 399 U.S. 78,

86 (1970), which held that a 12-person jury “is not a

necessary ingredient of ‘trial by jury.’” Id.

The Arizona Court of Appeals rejected Khorrami’s

claim, reasoning that Ramos “did not address any

issue of constitutionally permissible jury size, much

less overrule Williams.” Id.

The Arizona Supreme Court denied review of the

case. Id. at 1a. Khorrami now seeks a writ of

certiorari.

REASONS FOR DENYING THE PETITION

The Arizona Court of Appeals correctly held that

Khorrami’s eight-member jury complied with the

Sixth and Fourteenth Amendments. Its decision is

unpublished and does not conflict with any decisions

of lower state or federal courts. This is unsurprising,

given that Khorrami’s 12-member-jury claim is

foreclosed by Williams, a 52-year-old decision that

this Court has endorsed many times.

Khorrami nonetheless argues the Court should

grant certiorari to seize upon Ramos, a 2-year-old

opinion, to overrule Williams and reconsider the scope

of the Sixth Amendment’s jury trial right, as applied

to the States through the Fourteenth Amendment.

Pet. at 15-24. But Khorrami’s case is a poor vehicle for

resolution of the question presented.

As a preliminary matter, Khorrami’s framing of

the issue is incorrect. He asks for a rule that would

apply only in felony cases, Pet. at (i), but that

application of the Sixth Amendment is inconsistent

with the Court’s precedent holding the jury-trial right

is triggered by a serious offense, not a felony offense.

See Duncan v. Louisiana, 391 U.S. 145, 157-58 (1968);

Baldwin v. New York, 399 U.S. 66, 69-70 (1970)

(plurality opinion) (refusing to “draw the line between

‘petty’ and ‘serious’ to coincide with the line between

misdemeanor and felony” for Sixth Amendment

purposes). Indeed, the two principal cases at issue

here involved application of the Sixth Amendment’s

jury-trial right to serious offenses. See Williams, 399

U.S. at 86; Ramos, 140 S. Ct. at 1393-94.

More importantly, unlike the defendants in

Williams and Ramos, Khorrami did not receive any

prison sentence for his crimes. He received

probation—a punishment that corresponds with a

petty crime, not a serious offense. Even if Khorrami

prevails on the question presented, there would be no

risk of a constitutional violation, and Khorrami would

not be entitled to any relief, unless and until several

things occur: he must violate probation, his probation

must be revoked, and the State must seek a term of

imprisonment that exceeds six months. Because this

type of contingent relief is based on hypothetical facts

that would make the Court’s opinion merely advisory,

Khorrami’s case does not justify review.

As Khorrami acknowledges, the Court has already

denied certiorari on this “Ramos/Williams issue”

once, in Phillips v. Florida, No. 21-6059. Pet. at 15 n.5.

Before the Court takes the monumental step of

considering whether to overrule Williams, it should

allow the issue to percolate in lower courts. Khorrami

cites only two decisions suggesting that Ramos affects

Williams’ continuing viability, both providing little

analysis. Pet. at 15 n.5 (citing Wofford v. Woods, 969

F.3d 685, 707 n.27 (6th Cir. 2020) (single statement

citing Justice Alito’s dissent in Ramos), and Phillips

v. State, 316 So.3d 779, 788 (Fla. Dist. Ct. App. 2021)

(Makar,

J.,

concurring)).

Allowing

the

Ramos/Williams issue to percolate will promote wellreasoned decisions that are better suited for this

Court’s review.

In any event, Khorrami’s claim ultimately fails.

The Arizona Court of Appeals correctly decided that

Ramos did not disturb Williams’ holding that the

Constitution does not require 12-member juries.

Ramos addressed the jury-unanimity requirement—a

qualitatively different issue with its own historical

background, including “racist origins of Louisiana’s

and Oregon’s laws.” 140 S. Ct. at 1405. Ramos thus

overruled a plurality opinion that “spent almost no

time grappling with” this important background. Id.

Here, however, the stare decisis doctrine

overwhelmingly defeats Khorrami’s argument that

Williams should be overruled. Williams was correctly

decided, so Khorrami cannot show it is wrong, much

less egregiously wrong. And revisiting Williams would

jeopardize other precedents, including this Court’s

holding “that a jury of six satisfies the Seventh

Amendment’s guarantee of trial by jury in civil cases.”

Colgrove v. Battin, 413 U.S. 149, 158-160 (1973)

(relying on and adhering to Williams). Khorrami also

minimizes the enormous impact that disturbing

Williams’ holding would have in Arizona, Connecticut,

Florida, Indiana, Massachusetts, and Utah.

Announcing a new 12-member jury requirement in

criminal cases would invalidate constitutional

provisions and laws (that have no racist origins) in

these six States, and could force the States to retry

thousands of cases pending on direct appeal.

This Court should deny certiorari.

I. This Case Is A Poor Vehicle

Khorrami’s case is a poor vehicle to consider

whether the Sixth and Fourteenth Amendments

should now require 12-member-juries for serious

offenses in the States. Because resolution of that

question is not likely to change the outcome of

Khorrami’s case, the Court risks issuing an advisory

opinion.

Khorrami received two years’ supervised probation

and a mere two-month jail term as a condition of

probation. Pet. App. 6a. For Sixth Amendment

purposes, his punishment corresponds to a petty

offense, not a serious offense. See Blanton v. City of

North Las Vegas, 489 U.S. 538, 542-43 (1989).

Khorrami’s minimal punishment renders his

constitutional claim premature. If Khorrami prevails

on his 12-member jury claim, and if he violates

probation, and if his probation is revoked, these

hypothetical facts would still fail to show that a

constitutional violation has occurred. This Court’s

precedent demonstrates there is no risk of a Sixth

Amendment violation (again, assuming Khorrami

prevails on the merits) unless the State later seeks a

prison term exceeding six months. See Frank v.

United States, 395 U.S. 147, 150 (1969) (agreeing

Sixth Amendment does not require a jury trial when

the “actual penalty is one which may be imposed upon

those convicted of otherwise petty offenses”); Lewis v.

United States, 518 U.S. 322, 330-35 (1996) (Kennedy,

J., concurring) (applying “retroactive consideration of

the punishment a defendant receives” to determine

whether defendant was deprived of Sixth Amendment

jury-trial right).

In Frank, for example, the defendant received

three years’ probation, and if he violated the terms of

his probation, the maximum sentence that could be

imposed was six months’ imprisonment. 395 U.S. at

148, 150. This Court held that because the defendant’s

“sentence is within the limits of the congressional

definition of petty offenses,” the Sixth Amendment did

not guarantee him a jury trial. Id. at 152.

Similarly, in Alabama v. Shelton, this Court held

that when a State fails to provide court-appointed

counsel to a defendant charged with a crime

punishable by imprisonment, the Sixth Amendment

does not “permit activation of a suspended sentence

upon the defendant’s violation of the terms of

probation.” 535 U.S. 654, 662 (2002). This Court

further reasoned that it was “for the Alabama

Supreme Court to consider before this Court does

whether the suspended sentence alone is invalid,

leaving Shelton’s probation term freestanding and

independently effective.” Id. at 674. Importantly, the

Court’s review in Shelton was confined to the state

supreme court’s ruling that a “defendant who receives

a suspended or probated sentence to imprisonment

has a constitutional right to counsel.” Id. (cleaned up).

“[C]onsistent with [this Court]’s approach to the

Sixth Amendment,” the Arizona Supreme Court has

followed a similar approach to the 12-member-jury

requirement in article II, § 23 of the Arizona

Constitution. State v. Soliz, 219 P.3d 1045, 1048, ¶ 15

(Ariz. 2009). In Arizona, reversal for a new trial does

not automatically follow when fewer than 12 jurors

are impaneled in a case that requires 12 jurors.

Instead, the State “effectively waive[s] its ability to

obtain a sentence of thirty years or more” (because the

prison term that triggers a 12-member jury under

article II, § 23 is 30 years). Id. at 1049, ¶ 16. When a

jury with fewer members has rendered a guilty

verdict, “as long as a lesser sentence may legally be

imposed for the crime alleged,” the 12-person-jury

guarantee in article II, § 23 of the Arizona

Constitution “is not triggered” and has not been

violated. Id.

Here, even if Khorrami prevails, he would not be

entitled to the windfall of another jury trial merely

because his original charges authorized a potential

prison sentence longer than six months. Consistent

with Frank, and applying the Arizona Supreme

Court’s rationale in Soliz, the Sixth and Fourteenth

Amendments would not be implicated unless the

State decided to seek a prison sentence of six months

or more if Khorrami’s probation is ever revoked. See

Frank, 395 U.S. at 150; Soliz, 219 P.3d at 1049, ¶ 16.

In the unlikely event that the State ever revoked

Khorrami’s probation and sought a prison sentence in

excess of six months, Khorrami could then assert his

constitutional claim in defense. See Shelton, 535 U.S.

at 675-76 (Scalia, J., dissenting) (“In the future, if and

when the State of Alabama seeks to imprison

[Shelton] on the previously suspended sentence, we

can ask whether the procedural safeguards attending

the imposition of that sentence comply with the

Constitution.”). Until then, Khorrami’s claim is

academic and speculative. See Frank, 395 U.S. at 150.

Because any newly-minted constitutional right

will very likely never impact Khorrami’s case, the

Court should refrain from granting certiorari to issue

an advisory opinion. If the Court is inclined to grant

certiorari at some point on the issue Khorrami

presents, it makes better sense to wait for a case like

Ramos, where a defendant’s sentence undoubtedly

reflects punishment for a serious offense. See 140 S.

Ct. at 1394 (noting Ramos “was sentenced to life in

prison without the possibility of parole”).

II. The Decision Below Is Correct

Putting aside the vehicle issue with Khorrami’s

petition, the Court should deny review because the

Arizona Court of Appeals correctly rejected

Khorrami’s 12-member-jury claim.

Khorrami argued below, as he does here, Pet. at 3,

15-18, that Ramos has already effectively overruled

Williams. The Arizona Court of Appeals swiftly

rejected that argument, reasoning that Ramos “did

not address any issue of constitutionally permissible

jury size, much less overrule Williams.” Pet. App. 20a.

Rather, Ramos held that “due process requires

unanimous verdicts in criminal trials.” Id. (citing

Ramos, 140 S. Ct. at 1397). The court further

reasoned, “We cannot conclude the Supreme Court

silently changed a fundamental feature of its Sixth

Amendment jurisprudence, particularly given the

issue was neither raised nor litigated in Ramos.” Id.

Ramos has not effectively overruled Williams.

Khorrami admits the decision below “was

understandable,” but maintains that Ramos

“‘repudiated the reasoning on which’ the Court of

Appeals relied in Williams, meaning that Williams

‘must be regarded as retaining no vitality.’” Pet. at 15

(quoting Herrera v. Wyoming, 139 S. Ct. 1686, 1697

(2019)). In Herrera, this Court decided prior precedent

had been overruled by a later decision where it was

“impossible to harmonize” the reasoning of the two

cases. 139 S. Ct. at 1697. Williams and Ramos,

however, can easily be harmonized.

1. The Sixth Amendment’s historical backdrop, as

well as the Court’s other precedents, led the Court to

decide in Ramos that “trial by an impartial jury”

requires a unanimous verdict to convict a defendant

of a serious offense. 140 S. Ct. at 1394-95. But Ramos’

reasoning is distinct from the historical evidence

Williams considered. And this Court’s precedent

further confirms that Williams correctly held the

Sixth Amendment’s jury-trial right does not require

12-member juries.

Ramos reasoned, inter alia, that “the common law,

state practices in the founding era, [and] opinions and

treatises written soon afterward” led to an

“unmistakable” answer that “[a] jury must reach a

unanimous verdict in order to convict.” Id. at 1395.

The Court also noted it had “commented on the Sixth

Amendment’s unanimity requirement no fewer than

13 times over more than 120 years.” Id. at 1397.

The same cannot be said for the 12-member jury

issue the Court analyzed in Williams. 399 U.S. at 86.

Whether the Sixth Amendment requires 12-member

juries is a qualitatively different question that does

not share the same history as the unanimity

requirement. In fact, Williams itself highlighted the

importance of jury unanimity. 399 U.S. at 100 & n.46.

Although Williams had no reason to opine on

“whether or not the requirement of unanimity is an

indispensable element of the Sixth Amendment jury

trial,” the Court recognized that unanimity, unlike a

“12-man requirement,” “may well serve an important

role in the jury function, for example, as a device for

insuring that the Government bear the heavier

burden of proof.” Id. at n.46.

Williams correctly reasoned that not all common

law traditions have been grafted upon the word “jury”

in the Sixth Amendment. See id. at 96-99; cf.

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415,

436 n.20 (1996) (“If the meaning of the Seventh

Amendment were fixed at 1791, our civil juries would

remain, as they unquestionably were at common law,

‘twelve good men and true.’”) (quoting 3 W.

Blackstone, Commentaries, *349). The Court also

delved into the history of the Sixth Amendment’s

drafting, evaluating conflicting inferences from the

removal of language from the original draft. Williams,

399 U.S. at 92-98.

As Williams explained, “[w]hile sometime in the

14th century the size of the jury at common law came

to be fixed generally at 12, that particular feature of

the jury system appears to have been a historical

accident, unrelated to the great purposes which gave

rise to the jury in the first place.” Id. at 89-90 (footnote

omitted). The Court found “absolutely no indication in

‘the intent of the Framers’ of an explicit decision to

equate

the

constitutional

and

common-law

characteristics of the jury.” Id. at 99. Notably, this

conclusion comports with the writings of at least one

prominent member of the constitutional convention,

James Wilson of Pennsylvania, who stated, “When I

speak of juries, I feel no peculiar predilection for the

number twelve…” Colgrove, 413 U.S. at 156 n.10

(quoting 2 The Works of James Wilson 503 (R.

McCloskey ed. 1967)).

The Court further reasoned that the purpose of the

jury is to prevent oppression by the government, as

the “right to be tried by a jury of his peers gave [the

accused] an inestimable safeguard against the corrupt

or overzealous prosecutor and against the compliant,

biased, or eccentric judge.” Williams, 399 U.S. at 100

(quoting Duncan, 391 U.S. at 156). Building on

Duncan’s previous explanation of the “essential role”

of a jury, Williams stated that “the essential feature

of a jury obviously lies in the interposition between

the accused and his accuser of the commonsense

judgment of a group of laymen, and in the community

participation and shared responsibility that results

from that group’s determination of guilt or innocence.”

Id. The Court correctly concluded that “[t]he

performance of this role is not a function of the

particular number of the body that makes up the

jury.” Id.

Notably, Williams’ approach is consistent with this

Court’s approach to the Seventh Amendment’s jurytrial right in civil cases. See Galloway v. United

States, 319 U.S. 372, 392 (1943) (holding that “the

[Seventh] Amendment was designed to preserve the

basic institution of jury trial in only its most

fundamental elements, not the great mass of

procedural forms and details, varying even then so

widely among common-law jurisdictions”). Three

years after Williams, the Court held that the Seventh

Amendment does not require 12-member juries,

concluding that “what was said in Williams with

respect to the criminal jury is equally applicable here:

constitutional history reveals no intention on the part

of the Framers ‘to equate the constitutional and

common-law characteristics of the jury.’” Colgrove,

413 U.S. at 156 (quoting Williams, 399 U.S. at 99).

Thus, as in Williams, the Court concluded that “the

Framers of the Seventh Amendment were concerned

with preserving the right of trial by jury in civil cases

where it existed at common law, rather than the

various incidents of trial by jury.” Id.

Khorrami fails to produce constitutional history

revealing instances where the Framers expressed

concern for the preservation of the traditional number

12. Instead, he relies on the tradition of 12-member

juries in English Common law and assumes that the

Framers must have intended to permanently affix the

number at 12. Pet. at 1. Williams rightly rejected this

premise, recognizing that the real issue was not

whether the “usual expectation was that the jury

would consist of 12,” but instead, whether there was

any “indication in ‘the intent of the Framers’ of an

explicit decision to equate the constitutional and

common-law characteristics of the jury.” 399 U.S. at

98-99. Thus, while Khorrami and Amicus cite

quotations from Framers littered with passing

references to 12-member juries, the historical

evidence does not reveal an intent to affix a

constitutional minimum number of jurors at 12. As

Williams explains, and Khorrami does not refute, the

drafting history of the Sixth and Seventh

Amendments more plausibly support the opposite

conclusion—provisions tying the constitutional jury

requirement with common law jury traditions were

eliminated. See id. at 97. And “contemporary

legislative and constitutional provisions indicate that

where Congress wanted to leave no doubt that it was

incorporating existing common-law features of the

jury system, it knew how to use express language to

that effect.” Id.

Unlike the jury-unanimity issue in Ramos, neither

the original public meaning of the jury-trial right nor

this Court’s precedent compels a conclusion that

Williams was wrong when it decided that the Sixth

Amendment does not require 12-member juries.

2. Another obvious distinction between Williams

and Ramos arises from Ramos’s application of stare

decisis to overrule a plurality opinion: Apodaca v.

Oregon, 406 U.S. 404 (1972). See Ramos, 140 S. Ct. at

1410 (Kavanaugh, J., concurring).

Apodaca was a badly split decision, in which four

justices concluded that the Sixth Amendment did not

require jury unanimity at all, while the fifth vote in

support of the judgment came from Justice Powell,

who concluded that the Sixth Amendment did require

unanimity; it simply was not a “fundamental” element

of jury trials binding on the States. 406 U.S. at 406;

see also Johnson v. Louisiana, 406 U.S. 366, 369-80

(1972) (Powell, J., concurring in that case and

Apodaca v. Oregon, 406 U.S. 404 (1972)). In Ramos,

three justices agreed that Apodaca supplied no

governing precedent at all. Ramos, 140 S. Ct. at 140204. Justice Thomas cited Apodaca not for its

understood holding, but as one among a list of

precedential

cases

“reaffirm[ing]

the

Sixth

Amendment’s unanimity requirement.” 140 S. Ct. at

1421 (Thomas, J., concurring).

Apodaca’s unusual outcome was a key aspect of

this Court’s decision to overrule it in Ramos. Justice

Gorsuch began the historical analysis by noting that

not only had the Court repeatedly stated that the

Sixth Amendment required unanimity, but that “five

justices in Apodaca said the same.” Ramos, 140 S. Ct.

at 1399. But Justice Powell “refused to follow this

Court’s incorporation precedents,” resulting in a

decision “unmoored from the start.” Id. at 1405; see

also id. at 1409 (Sotomayor, J., concurring)

(emphasizing “Apodaca is a universe of one”).

Apodaca’s analysis was decidedly problematic for

several other reasons. Apodaca devoted a brief

paragraph to conclude it could “perceive no difference

between juries required to act unanimously” and

those that did not, but offered no counter to the

argument that an 11–1 conviction in Oregon could be

a hung jury in any other state. 406 U.S. at 410-11.

Apodaca also dismissed the critical observation the

Court made in Williams—that a non-unanimous jury

verdict called into question the State’s burden of

proving an offense beyond a reasonable doubt.

Compare Apodaca, 406 U.S. at 411-12, with Williams,

399 U.S. at 100 n.46.

The racist origins of Louisiana’s and Oregon’s laws

that allowed non-unanimous juries also significantly

contributed to Ramos’ overruling of Apodaca. See

Ramos, 140 S. Ct. at 1405 (“[I]t’s just an implacable

fact that the plurality spent almost no time grappling

with … the racist origins of Louisiana’s and Oregon’s

laws”); id. at 1408 (Sotomayor, J., concurring) (“[T]he

racially biased origins of the Louisiana and Oregon

laws uniquely matter here”); id. at 1417 (Kavanaugh,

J., concurring) (“[S]ignificant to my analysis of this

case, the origins and effects of the non-unanimous

jury rule strongly support overruling Apodaca”).

Here, Williams did not produce a “badly fractured

set of opinions.” Id. at 1397. Justice White’s Sixth

Amendment analysis received five out of eight votes.

See Williams, 399 U.S. at 79, 86; id. at 105 (Burger,

J., concurring); id. at 106 (Black, J., concurring in

part). Justices Harlan, Stewart, and Marshall would

have adhered to Thompson v. Utah, 170 U.S. 343, 349

(1898), which stated that the Sixth Amendment’s

jury-trial right guaranteed exactly “twelve persons,

neither more nor less.” See Williams, 399 U.S. at 117

(Harlan, J., concurring); id. at 143 (Stewart, J.,

concurring) (agreeing with Justice Harlan’s

concurrence); id. at 116-17 (Marshall, J., dissenting in

part). However, Justices Harlan and Stewart

proposed a looser incorporation of the Sixth

Amendment to the States to allow for smaller juries

without reducing the jury size for federal cases. See id.

at 117 (Harlan, J., concurring); id. at 143 (Stewart, J.,

concurring) (agreeing with Justice Harlan). Thus, all

but one Justice in Williams agreed that the

Constitution does not require States to provide 12member juries, even when (unlike this case) a

criminal defendant receives a sentence reflecting a

serious offense. 2

Also unlike Apodaca, Williams engaged in an

extensive historical analysis that revealed no agreedupon reason for 12-member juries. See supra, pp. 1013. That analysis led the Court to conclude that

Congress and the States should not have to adhere to

a precise number due to that “historical accident.”

Williams, 399 U.S. at 100-03. And unlike the laws

that allowed non-unanimous juries in Ramos, the six

States here were not driven by racism when they set

jury trials for certain offenses at less than 12 people.

In fact, Arizona and three other States adopted

smaller juries after Williams. See infra, pp. 25-27.

Contrary to Khorrami’s assertion, Pet. at 20,

Williams is on much stronger footing than Apodaca.

Because the decision below correctly resolved the

Ramos/Williams issue, the Court should deny review.

2 Nearly 40 years ago, while amending Federal Rule of Criminal

Procedure 23(b)(3), this Court’s Advisory Committee observed:

“Though the alignment of the Court and especially the separate

opinion by Justice Powell in Apodoca [] makes it at best

uncertain whether less-than-unanimous verdicts would be

constitutionally permissible in federal trials, it hardly follows

that a requirement of unanimity of a group slightly less than 12

is similarly suspect.” Fed. R. Crim. P. 23(b), Advisory Committee

Note to 1983 Amendments; see infra, p. 23.

III. The Stare Decisis

Adherence To Williams

Doctrine

Compels

Khorrami also invites the Court to grant certiorari

to overrule Williams, Pet. at 19-27, but the Court

should decline that invitation.

“[E]ven in constitutional cases, a departure from

precedent demands special justification” and requires

“something more than ambiguous historical evidence”

before overruling this Court’s major decisions.

Gamble v. United States, 139 S. Ct. 1960, 1969 (2019)

(cleaned up). The stare decisis doctrine generally

implicates consideration of several factors, including:

“the nature of [the decision’s] error, the quality of the[]

reasoning, the ‘workability’ of the rules [the decision]

imposed on the country, [the decision’s] disruptive

effect on other areas of law,” and the extent of any

“reliance” interests. Dobbs v. Jackson Women’s Health

Organization, 142 S. Ct. 2228, 2265 (2022); see also

Ramos, 140 S. Ct. at 1405 (similar); Janus v.

AFSCME, Council 31, 138 S. Ct. 2448, 2478-79 (2018)

(similar).

These factors weigh strongly in favor of adhering

to Williams.

A. Williams Correctly Held The Sixth

Amendment Does Not Require 12-Member

Juries In The States

“An important factor in determining whether a

precedent should be overruled is the quality of its

reasoning[.]” Janus, 138 S. Ct. at 2479. Williams’

reasoning is sound.

The Sixth Amendment’s text does not contain a 12member jury requirement. U.S. Const. amend. VI.

And the history of the Sixth Amendment, as

incorporated by the Fourteenth Amendment, does not

suggest that state criminal juries must be composed

of 12 members. See supra, pp. 10-13. Williams rightly

decided that—in the face of an ambiguous historical

record—the best course of action was to leave

considerations about the proper number of jurors “to

Congress and the States, unrestrained by an

interpretation of the Sixth Amendment that would

forever dictate the precise number that can constitute

a jury.” 399 U.S. at 103.

Williams’ holding comports with the settled

proposition that States should be given flexibility to

administer their criminal justice systems. See Oregon

v. Ice, 555 U.S. 160, 170 (2009) (“Beyond question, the

authority of States over the administration of their

criminal justice systems lies at the core of their

sovereign status.”); Ludwig v. Massachusetts, 427

U.S. 618, 630 (1976) (“The modes of exercising federal

constitutional rights have traditionally been left,

within limits, to state specification.”). Khorrami

emphasizes that some state courts have decided their

state constitutions guarantee 12-member juries. Pet.

at 11-12. But that does not show that Williams was

wrong; that outcome is a logical consequence of

Williams’ holding. In Arizona, Williams has enabled

the people and the Legislature to “reserve[] the

twelve-person jury only for the most serious offenses.”

Soliz, 219 P.3d at 1047, ¶ 7; see also Ariz. Const. art.

II, § 23; A.R.S. § 21-102.

Khorrami asks the Court to revive Thompson, Pet.

at 10, 13-15, but that is asking too much. In

Thompson, the Court failed to consider whether the

Framers intended “every feature of the jury as it

existed at common law—whether incidental or

essential to that institution—[to be] necessarily

included in the Constitution wherever that document

referred to a ‘jury.’” Williams, 399 U.S. at 91. Instead,

Thompson simply assumed, without citation to any

authority, that the “wise men who framed the

constitution of the United States and the people who

approved it were of opinion that life and liberty, when

involved in criminal prosecutions, would not be

adequately secured except through the unanimous

verdict of twelve jurors.” 170 U.S. at 353. 3

A clear majority of the Court has already found

Thompson’s reasoning to be flawed. Williams, 399

U.S. at 90-92; id. at 107 (Black, J., concurring in part)

(“The broad implications in early cases indicating that

only a body of 12 members could satisfy the Sixth

Amendment requirement arose in situations where

the issue was not squarely presented and were based,

in my opinion, on an improper interpretation of that

amendment.”).

And

later

cases

reaffirming

Thompson, “often in dictum,” failed to engage in any

meaningful analysis to discern whether the number of

jurors was, in fact, an “essential element” of the jurytrial right. Id. at 91-92 (citing Patton v. United States,

281 U.S. 276, 288 (1930), Rasmussen v. United States,

197 U.S. 516, 519 (1905), and Maxwell v. Dow, 176

U.S. 581, 586 (1900)).

Significantly—20 years after Williams—the Court

expressly overruled Thompson’s Ex Post Facto Clause

analysis because it was inconsistent “with the

understanding of the term ‘ex post facto law’ at the

time the Constitution was adopted.” Collins v.

Youngblood, 497 U.S. 37, 47 (1990). While overruling

3 Because the question before the Court in Thompson could have

been resolved purely on statutory grounds, no Sixth Amendment

analysis was even necessary. Williams, 399 U.S. at 90 & n.26.

Thompson, the Court reaffirmed Williams. Id. at 52

n.4 (noting that Thompson’s holding “that the Sixth

Amendment requires a jury panel of 12 persons” is

“obsolete” in light of Williams).

The mere fact that Ramos has now cited Thompson

for a different proposition (that the Sixth Amendment

requires jury unanimity), see Pet. at 8, does not justify

using Thompson to upend decades of precedent that

firmly establishes 12-member juries in criminal cases

are not required in the States. Williams is not

“egregiously wrong,” 4 as Khorrami contends. Pet. at

20.

B. This Court Has Repeatedly Affirmed

Williams Throughout The Past HalfCentury

Khorrami argues that Williams is an outlier, Pet.

at 20, but this Court’s precedent shows the opposite.

Unlike Apodaca, this Court has not been “studiously

ambiguous” or “inconsistent” about what Williams

held. Ramos, 140 S. Ct. at 1399.

In the 52 years since Williams was decided, this

Court has reaffirmed Williams’ holding on several

occasions. See Collins, 497 U.S. at 52 n.4; see also

United States v. Gaudin, 515 U.S. 506, 510 n.2 (1995)

(endorsing Williams’ analysis while emphasizing

jury’s determination of guilt, not the number of jurors,

is an indispensable element of a jury); Burch v.

Louisiana, 441 U.S. 130, 136-37 (1979) (detailing

development of Williams and related cases); Ballew v.

Georgia, 435 U.S. 223 (1978) (expressly reaffirming

Williams while holding constitutional minimum jury

4 Williams is also not “demonstrably incorrect.” See Gamble v.

United States, 139 S. Ct. at 1981 (Thomas, J. concurring).

size is six); Ludwig, 427 U.S. at 625-26 (discussing

Williams and upholding constitutionality of

Massachusetts’ two-tiered jury system).

As discussed, supra, pp. 5, 10-13, the Court

followed Williams while interpreting the scope of the

Seventh Amendment’s jury-trial right in Colgrove. See

413 U.S. at 153. Given Colgrove’s heavy reliance on

Williams, overruling Williams would compel

overruling Colgrove, too.

Then in Ballew (five years after Colgrove), the

Court restated Williams’ holding and endorsed it

again: “Rather than requiring 12 members, [] the

Sixth Amendment mandate[s] a jury only of sufficient

size to promote group deliberation, to insulate

members from outside intimidation, and to provide a

representative cross-section of the community.”

Ballew, 435 U.S. at 230 (citing Williams, 399 U.S. at

100). The Court then noted that Williams and

Colgrove “generated a quantity of scholarly work on

jury size.” Id. at 231. But those writings did not “draw

or identify a bright line below which the number of

jurors would not be able to function as required by the

standards announced in Williams.” Id. at 231-32.

However, “they raise[d] significant questions about

the wisdom and constitutionality of a reduction below

six.” Id. at 232. The Court thoroughly examined those

concerns, “reaffirm[ed] [its] holding in Williams,” and

decided the post-Williams studies compelled a

conclusion that “the purpose and functioning of the

jury in a criminal trial is seriously impaired, and to a

constitutional degree, by a reduction in size to below

six members.” Id. at 232-39.

Because Williams is consistent with these related

decisions, this stare decisis factor does not support

overruling Williams. See Ramos, 140 S. Ct. at 1405.

C. Williams Has Not Caused Significant

Negative Jurisprudential or Real-World

Consequences

Khorrami contends Williams has caused

jurisprudential difficulties and negative real-world

consequences, Pet. 24-26, but these arguments fail. In

conducting this inquiry, courts “may consider

jurisprudential consequences,” such as “workability,”

“consistency and coherence with other decisions,” and

“the precedent’s real-world effects on the citizenry, not

just its effects on the law and the legal system.”

Ramos, 140 S. Ct. at 1415 (Kavanaugh, J.,

concurring).

As an initial matter, Williams’ holding that 12member juries are not mandated by the Sixth

Amendment is workable, which Khorrami does not

dispute. Williams and its progeny allow states to be

flexible in their criminal jury trials by deciding

whether to empanel 6, 8, or 12 jurors, or some other

number of jurors. Williams’ rule is clear and “can be

understood and applied in a consistent and

predictable manner.” Dobbs, 142 S. Ct. at 2272.

Indeed, both the states and federal courts have

readily adapted to Williams in a manner that leads to

predictable jury sizes. For example, Arizona amended

its state constitution to designate jury sizes in

accordance with the severity of the potential sentence

a defendant faces. Ariz. Const. art. II, § 23 (approved

1972). Statutes and court rules effectuate this

constitutional amendment. A.R.S. § 21-102; Ariz. R.

Crim. P. 18.1(a).

Similarly, in 1983, this Court—relying on

Williams—approved Federal Rule of Criminal

Procedure 23(b)(3), which is still on the books and

allows a jury of 11 to return a verdict if there is good

cause to excuse a juror during deliberation. See Fed.

R. Crim. P. 23(b), Advisory Committee Note to 1983

Amendments. The Advisory Committee specifically

stated that “[t]he alignment of the Court and

especially the separate opinion by Justice Powell in

Apodoca [] makes it at best uncertain whether lessthan-unanimous verdicts would be constitutionally

permissible in federal trials,” but “it hardly follows

that a requirement of unanimity of a group slightly

less than 12 is similarly suspect.” Id. Consistent with

Rule 23(b)(3), federal courts have routinely upheld 11person verdicts. See United States v. Paulino, 445 F.3d

211, 225-26 (2d Cir. 2006) (upholding 11-person

verdict under Rule 23(b)(3)); United States v. Hively,

437 F.3d 752, 766-67 (8th Cir. 2006) (same); United

States v. Geffrard, 87 F.3d 448, 450-52 (11th Cir.

1996) (same); United States v. Acker, 52 F.3d 509, 51516 (1995) (same); United States v. Glover, 21 F.3d 133,

135-36 (6th Cir. 1994) (same); United States v.

Egbuniwe, 969 F.2d 757, 760-63 (9th Cir. 1992)

(same); United States v. O’Brien, 898 F.2d 983, 986

(5th Cir. 1990) (same).

Williams also did not create other jurisprudential

difficulties. Khorrami points to Ballew, Pet. at 21-22,

24, but acknowledges that “Ballew declined to

overrule Williams,” id. at 22. The only concern with

Ballew’s approach was that three concurring justices

noted that the validity and methodology of the

statistical studies the Court considered had not been

subjected to the adversarial process, and questioned

the wisdom of relying on them at all. 435 U.S. at 245-

46 (Powell, J., concurring). Notably, the same justices

maintained the Sixth Amendment should not have

been fully incorporated anyway. Id.

Further, Khorrami cannot show that Williams has

resulted in other negative real-world consequences.

See Ramos, 140 S. Ct. at 1415 (Kavanaugh, J.,

concurring). The non-unanimous juries permitted by

Apodaca clearly allowed for convictions where juries

in other States would have hung or at least

deliberated more, essentially “sanction[ing] the

conviction at trial or by guilty plea of some defendants

who might not be convicted under the proper

constitutional rule.” Id. at 1417 (Kavanaugh, J.,

concurring). No study was necessary to illustrate that

real-world consequence. Here, Khorrami points to

academic studies, and to Ballew, in an attempt to

show Arizona’s eight-person jury trials must have the

same effect, Pet. at 25-26, but his arguments are

speculative at best.

Khorrami alleges Williams “does real harm to

public perception of the jury as a legitimate,

representative body,” Pet. at 25, but fails to recognize

that it was the Arizona voters who approved the

reduction in jury sizes in 1972. Moreover, Khorrami

relies heavily on Ballew for his representative-body

argument, but that argument ignores Ballew’s

conclusion that a six-member jury was sufficient to be

representative of the community. See Ballew, 435 U.S.

at 239 (“adher[ing] to” and “reaffirm[ing]” its holding

in Williams, and finding “substantial doubt about the

reliability and appropriate representation” only in

“panels smaller than six”) (emphasis added).

In sum, neither jurisprudential nor real-world

consequences exist to support overruling Williams.

D. Arizona

And

Five

Other

States’

Significant Reliance Interests Support

Adherence To Williams

Finally, stare decisis counsels against overruling

Williams because doing so would upset significant

reliance interests of Arizona and five other States—

Connecticut, Florida, Indiana, Massachusetts, and

Utah. See Ramos, 140 S.Ct. at 1425-26 (Alito, J.,

dissenting) (reasoning that Apodaca “elicited

enormous and entirely reasonable reliance” where the

decision impacted only two States).

1. Revisiting Williams and imposing a 12-member

jury requirement in every criminal case involving a

serious offense would invalidate state constitutional

provisions in Arizona, Utah, and Connecticut, as well

as the state laws in Florida, Massachusetts, and

Indiana.

To start, Williams upheld Florida’s longestablished six-member jury system used in all noncapital cases. 399 U.S. at 79-80, 86; see Fla. Stat.

§ 913.10; Fla. Const. art. I, § 22 (requiring “number of

jurors, not fewer than six,” to be “fixed by law”).

Meanwhile, Utah has provided criminal juries

composed of less than 12 members in noncapital cases

ever since it was admitted into the Union in 1896. See

Utah Const. art. I, § 10 (“In capital cases the jury shall

consist of twelve persons, and in all other felony cases,

the jury shall consist of no fewer than eight persons.”);

Utah Code § 78B-1-104; Collins, 497 U.S. at 50-51.

Arizona has cemented Williams’ holding into its

state constitution. At statehood, the Arizona

Constitution guaranteed the right to a jury trial and

allowed for juries composed of less than 12 members

only in “courts not of record.” Ariz. Const. art. II, § 23

(1912). Just two years after the Court decided

Williams, however, Arizona voters amended this

provision to require 12-member juries only in

“criminal cases in which a sentence of death or

imprisonment for thirty years or more is authorized

by law.” Ariz. Const. art. II, § 23 (1972). “In all other

cases, the number of jurors, not less than six, and the

number required to render a verdict, shall be specified

by law.” Id.; see also A.R.S. § 21-102 (providing for

eight-person juries in all cases except those in which

12 jurors are mandated by article II, § 23).

Three other states—Connecticut, Massachusetts,

and Indiana—which currently allow criminal juries of

less than 12 in non-capital cases, followed a similar

path post-Williams. Two years after Williams,

Connecticut, like Arizona, modified its state

constitution to provide at least a six-member jury in

criminal cases and a 12-member jury in capital cases.

Conn. Const. art. I, § 19 (1972). Six years later,

Massachusetts passed a state law establishing sixmember juries. Mass. Gen. Laws Ch. 218, § 26A

(1978). Indiana modified its state laws not long after

that. Ind. Code § 35-37-1-1 (1981) (exempting certain

crimes from 12-member jury requirement).

The effect that overruling Williams would have in

these six States stands in stark contrast to the effect

of the Court’s jury-unanimity holding in Ramos—

which impacted only two states, Louisiana and

Oregon. See Ramos, 140 S. Ct. at 1407. Even then,

Louisiana had already abolished non-unanimous

verdicts and “Oregon seemed on the verge of doing the

same until the Court intervened.” Id. But the States

here have long relied on Williams. If the Court now

holds the Constitution requires 12-member juries in

all state criminal trials, that holding would eviscerate

the constitutional provisions in Arizona, Utah, and

Connecticut, as well as the laws prescribing jury size

in non-capital criminal trials in Florida, Indiana, and

Massachusetts. 5

2. The real-world impact of a departure from

Williams’ holding would also be enormous. Florida,

the third most-populous state in the nation with

roughly 22 million people, has approximately 3,500

criminal cases awaiting finality at any given time.

Florida employs a six-member jury for all non-capital

cases, while Arizona provides 12-member juries to

defendants whose crimes expose them to at least 30

years’ imprisonment. Consequently, Florida could be

forced to retry thousands of non-capital cases

involving serious offenses if the Court were to

overrule Williams.

And hundreds, if not thousands, of other cases in

Arizona,

Utah,

Connecticut,

Indiana,

and

Massachusetts could have to be retried. The Court’s

opinion in Ramos compelled retrial only in Louisiana

and Oregon, and only in those cases where a jury was

non-unanimous—a potentially small subset of all nonfinal convictions in those States. See Brief of Amicus

Curiae State of Oregon in Support of Respondent at

12, Ramos v. Louisiana (No. 18-5924), 2019 WL

4013302 (estimating several hundred to more than

one thousand pending cases affected in Oregon); Brief

of Respondent at 39, Ramos v. Louisiana (No. 185924), 2019 WL 3942901 (noting that offenses

committed after January 1, 2019 required unanimous

juries in Louisiana, but offering no estimate of nonunanimous jury cases before that date still pending).

5 Overruling Williams would also necessitate revision of Federal

Rule of Criminal Procedure 23(b).

Establishing a new floor for the constitutionallypermissible jury size, however, would have a drastic

impact on non-final convictions in six States here.

These substantial reliance interests further weigh

against overruling Williams.

IV. Khorrami’s Other Fourteenth Amendment

Arguments Do Not Warrant Review

Finally, Khorrami argues this Court should grant

certiorari to recognize a right to a 12-member jury

under the Privileges or Immunities Clause. Pet. at 18.

This argument is not meritorious.

The Court has narrowly applied the Privileges or

Immunities Clause of the Fourteenth Amendment to

“protect[] only those rights ‘which owe their existence

to the Federal government, its National character, its

Constitution, or its laws.’” McDonald v. City of

Chicago, Ill., 561 U.S. 742, 754 (2010) (quoting

Slaughter-House Cases, 16 Wall. 36, 79 (1873)). Under

that narrow reading, “other fundamental rights—

rights that predated the creation of the Federal

Government and that ‘the State governments were

created to establish and secure’—[are] not protected

by the Clause.” Id. at 755. Khorrami makes no

attempt to explain how any purported right to a 12member jury owes its existence to the Federal

government and is thus binding on the States under

the Court’s current interpretation of the Privileges or

Immunities Clause.

Instead, Khorrami relies exclusively on Justice

Thomas’s concurring opinion in Ramos, which

advocated incorporation of the jury-unanimity right

via the Privileges or Immunities Clause. Pet. at 18.

Khorrami does not explain, however, why the Court

should use this case as a vehicle to (1) overrule the

Court’s long-standing interpretation of the Privileges

or Immunities Clause, (2) hold that the Privileges or

Immunities Clause extends to unenumerated rights,

and (3) explain how to identify those unenumerated

rights. See Dobbs, 142 S. Ct. at 2302 (Thomas, J.,

concurring). “[E]ven if the Clause does protect

unenumerated rights,” Williams and its progeny have

already firmly established that a 12-member jury “is

not one of them under any plausible interpretive

approach.” See id.

Moreover, reframing Khorrami’s argument under

the Due Process Clause does not make the argument

any more compelling. See Ramos, 140 S.Ct. at 1424

(Thomas, J., concurring in judgment) (stating the

Court’s narrow construction of the Privileges or

Immunities Clause “has made the Due Process Clause

serve the function that the Privileges or Immunities

Clause should serve”). Khorrami acknowledges that

Williams already rejected a 12-member jury

requirement under the Due Process Clause. Pet. at 18.

And “beyond the specific guarantees enumerated in

the Bill of Rights, the Due Process Clause has limited

operation.” Dowling v. United States, 493 U.S. 342,

352 (1990).

The Court’s decisions rightly allow States to retain

flexibility in determining whether to empanel a jury

of six or more in their criminal cases. Ballew, 435 U.S.

at 232-39; Williams, 399 U.S. at 103. This settled rule

does not violate the core value of “fundamental

fairness” that is “embodied in the Due Process

Clause.” In Re Winship, 397 U.S. 358, 369 (1970)

(Harlan, J., concurring). Finding otherwise now—

after endorsing the rule for over five decades—would

lead to an erroneous expansion of the Bill of Rights’

“constitutional guarantees under the open-ended

rubric of the Due Process Clause.” Medina v.

California, 505 U.S. 437, 443 (1992). The Court should

not “invite[] undue interference with both considered

legislative judgments and the careful balance that the

Constitution strikes between liberty and order.” Id.

CONCLUSION

The petition for writ of certiorari should be denied.

August 10, 2022