Reply 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

ARIZONA COURT OF APPEALS

REPLY BRIEF FOR PETITIONER

BENJAMIN L. COLEMAN

BENJAMIN L. COLEMAN LAW

1350 Columbia St., Ste 600

San Diego, CA 92101

THOMAS G. SPRANKLING

WILMER CUTLER PICKERING

HALE AND DORR LLP

2600 El Camino Real, Ste 400

Palo Alto, CA 94306

ELEANOR DAVIS

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich St.

New York, NY 10007

SETH P. WAXMAN

Counsel of Record

EDWARD C. O’CALLAGHAN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

ETHAN A. SACHS

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State St.

Boston, MA 02109

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................... ii

ARGUMENT ....................................................................... 2

I.

ARIZONA’S VEHICLE ARGUMENTS

MISSTATE THE LAW ..................................................... 2

II. WILLIAMS IS NOT BINDING ......................................... 4

A. Ramos Effectively Overruled

Williams ................................................................. 4

B. Williams Has No Bearing On

The Privileges-Or-Immunities Clause ............... 8

III. IF WILLIAMS IS BINDING, IT SHOULD

BE FORMALLY OVERRULED ....................................... 8

A. Egregiously Wrong............................................... 9

B. Significant Negative Consequences .......................10

C. Reliance ................................................................ 11

CONCLUSION ................................................................. 12

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Alabama v. Shelton, 535 U.S. 654 (2002) ......................... 3

Alleyne v. United States, 570 U.S. 99 (2013) ................... 9

Apprendi v. New Jersey, 530 U.S. 466 (2000) ................ 10

Blakely v. Washington, 542 U.S. 296 (2004) .................. 10

Blanton v. City of North Las Vegas,

489 U.S. 538 (1989) ................................................... 1, 2

Bosse v. Oklahoma, 137 S.Ct. 1 (2016) ............................. 4

Colgrove v. Battin, 413 U.S. 149 (1973) ............................ 6

Cutter v. Wilkinson, 544 U.S. 709 (2005) ......................... 3

Dobbs v. Jackson Women’s Health

Organization, 142 S.Ct. 2228 (2022) .......................... 8

Duncan v. Louisiana, 391 U.S. 145 (1968) ...................... 2

Frank v. United States, 395 U.S. 147 (1969) ................... 2

Janus v. American Federation of State,

County, & Municipal Employees,

Council 31, 138 S.Ct. 2448 (2018) ............................. 10

Lewis v. United States, 518 U.S. 322 (1996)..................... 3

McCoy v. Louisiana, 138 S.Ct. 1500 (2018) ..................... 3

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

State v. Soliz, 219 P.3d 1045 (Ariz. 2009) ......................... 3

Stogner v. California, 539 U.S. 607 (2003)....................... 6

Texas v. Johnson, 491 U.S. 397 (1989)............................ 12

U.S. Term Limits v. Thornton, 514 U.S. 779

(1995) .............................................................................. 6

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Booker, 543 U.S. 220 (2005) ................ 10

United States v. Curbelo, 343 F.3d 273

(4th Cir. 2003)................................................................ 3

Webster v. United States, 667 F.3d 826

(7th Cir. 2011)................................................................ 3

West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1943) .................................... 10

Williams v. Florida, 399 U.S. 78 (1970) ............... 1, 4, 6, 9

DOCKETED CASES

Ramos v. Louisiana, No. 18-5924 (U.S.)........................ 11

STATUTES

Ariz. Rev. Stat. Ann.

§ 13-702 .......................................................................... 2

§ 13-1802 ........................................................................ 2

§ 13-2310 ........................................................................ 2

OTHER AUTHORITIES

2 Collected Works of James Wilson (2007 ed.),

tinyurl.com/46s6rx9p ................................................... 5

The Sixth Amendment’s “promise of a jury trial” is

“fundamental to the American scheme of justice.” Ramos v. Louisiana, 140 S.Ct. 1390, 1395 (2020). The

scope of that right is controlled by “what the term ‘trial

by an impartial jury’ … meant at the time of the Sixth

Amendment’s adoption.” Id. Mr. Khorrami and his

amici have presented a mountain of historical evidence

establishing the original meaning of the term required

a 12-member jury. Arizona has cited nothing to the

contrary and concedes the historical record is “littered

with … references to 12-member juries.” Opp.13.

Rather than address the fundamental right at issue, Arizona tries to shrink the stakes down to one man

and six States. As to the former, Arizona makes the

frivolous argument that Mr. Khorrami has no cognizable interest in the question presented because he was

sentenced to less than six months in prison. The very

authority Arizona cites refutes the point: Whether the

jury trial right applies depends on the maximum possible sentence, not the sentence actually imposed. See

Blanton v. City of N. Las Vegas, 489 U.S. 538, 542-543

(1989). Here, Mr. Khorrami was charged with two felonies, both of which could have resulted in twelve-year

sentences.

And as to the latter—i.e., the fact that overruling

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

a slice of cases to be retried in a half-dozen States—this

is the “usual” consequence of adopting a “new rule[] of

criminal procedure,” Ramos, 140 S.Ct. at 1406. This

Court vacated “nearly 800 decisions” following Booker

v. United States and “[s]imilar consequences likely followed” other landmark Confrontation Clause and

Fourth Amendment rulings. Id. In the end, “the competing interests” of a handful of States cannot outweigh

“the reliance the American people place in their consti-

2

tutionally protected liberties”—particularly when, as

here, the decision at issue is a “mistaken … outlier”

that has “become lonelier with time.” Id. at 1408 (plurality op.).

ARGUMENT

I.

ARIZONA’S VEHICLE ARGUMENTS MISSTATE THE LAW

A. Arizona wrongly argues that Mr. Khorrami was

not constitutionally entitled to a jury trial, as he was ultimately sentenced to less than six months in prison.

Opp.3-4, 5-8. “[A] defendant is entitled to a jury trial

whenever the offense for which he is charged carries a

maximum authorized prison term of greater than six

months.” Blanton, 489 U.S. at 542. The actual sentence

imposed is not dispositive; what matters is the “possibility of a sentence exceeding six months.” Id.; accord

Duncan v. Louisiana, 391 U.S. 145, 159-162 (1968).

Here, even Arizona admits that Mr. Khorrami’s

“charges authorized a potential prison sentence longer

than six months.” Opp.8. More specifically, Mr.

Khorrami could have been sentenced to over ten years

for each felony charged. Compare A.R.S. § 13-2310.A

and A.R.S. § 13-1802.A(3) with A.R.S. § 13-702(D). Accordingly, a jury trial was required under Blanton and

Duncan.

Arizona’s contrary authority is inapposite. Frank

v. United States assessed the jury trial right in the specific context of a contempt of court conviction—i.e.,

where “Congress … has authorized courts to impose

penalties but has not placed any specific limits on their

discretion.” 395 U.S. 147, 149 (1969). Frank made clear

that “[i]f the statute creating the offense specifies a

maximum penalty, then of course that penalty is the

relevant criterion.” Id. at 149 n.2. Lewis v. United

3

States, too, reaffirmed that whether the jury trial right

attaches depends on “the maximum penalty attached to

the offense.” 518 U.S. 322, 326 (1996).1

B. Arizona relatedly suggests that any error was

harmless because Mr. Khorrami would not necessarily

be entitled to a new trial under Arizona law. Opp.7.

But the only case it cites was predicated on the assumption that a less-than-twelve-person jury does not

violate the Sixth Amendment. State v. Soliz, 219 P.3d

1045, 1047 (Ariz. 2009) (citing Williams). Soliz thus

provides no guidance for whether a new trial would be

required if Williams is overturned.

In contrast, federal courts have routinely held that

“[d]epriving a defendant of the verdict of twelve jurors” is a structural error requiring automatic reversal.

United States v. Curbelo, 343 F.3d 273, 281 (4th Cir.

2003); accord Webster v. United States, 667 F.3d 826,

833 n.3 (7th Cir. 2011) (collecting cases). This makes

good sense, as a court “simply cannot know what affect

a twelfth juror might have had on jury deliberations”

without diverting into “pure speculation.” Curbelo, 343

F.3d at 281-282.

In any event, because the magnitude of the constitutional error was necessarily “not addressed by the

Court of Appeals,” the proper course would be to grant

the petition and then allow the court below to address

the structural error issue in the first instance on remand. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005); see McCoy v. Louisiana, 138 S.Ct. 1500, 15171518 (2018) (Alito, J., dissenting) (whether structural

error applies should be decided on remand).

1

Arizona’s remaining case, Alabama v. Shelton, 535 U.S. 654

(2002), does not address the jury right issue.

4

C. Finally, Arizona contends that the Ramos/Williams issue should be allowed “to percolate in

lower courts.” Opp.3-4. But “[i]t is this Court’s prerogative alone to overrule one of its precedents.” Bosse

v. Oklahoma, 137 S.Ct. 1, 2 (2016) (per curiam) (collecting cases). Any future, lower court confronted with the question presented will presumably

take the same approach as the Court of Appeals did

here and refuse to reject the Williams rule. This Court

alone can correct the “strange turn,” Ramos, 140 S.Ct.

at 1397, taken by Williams fifty-two years ago.2

II. WILLIAMS IS NOT BINDING

A. Ramos Effectively Overruled Williams

Ramos held that the scope of the Sixth Amendment jury right is defined by its “original public meaning,” which is determined from inter alia “the common

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

and treatises written soon afterward.” Pet.7-9 (citing

Ramos, 140 S.Ct. at 1396). All of those sources establish that the original public meaning of “trial by an impartial jury” included a right to a 12-person jury.

Pet.9-15. Accordingly, Williams cannot stand, as it (1)

acknowledged “the usual expectation” was that a “jury

would consist of 12” members” but (2) rejected a test

governed by “purely historical considerations.” Pet.1518 (citing Williams, 399 U.S. at 98-99).

Arizona does not dispute Ramos imposes precisely

the kind of “purely historical” test that Williams declined to adopt. Nor does Arizona identify a scrap of

2

Arizona notes this Court has denied certiorari on the question presented once before. Opp.4. But as explained, this Court

likely denied review because the issue had not been preserved.

Pet.15 n.5. Arizona has no response.

5

historical evidence regarding the Sixth Amendment’s

scope that contradicts the reams set forth in the petition and accompanying amicus briefs. Pet.9-15; accord

ACLU/Rutherford Br.2-16 (discussing English common

law, public meaning when the Constitution was ratified,

and post-ratification cases and treatises); CAC Br.6-10

(similar).3 The arguments Arizona does make (at 9-16)

for why Ramos can be “harmonized” with Williams are

unavailing.

First, Arizona argues that Williams “evaluate[d]”

the historical evidence and concluded “that not all

common law traditions have been grafted upon the

word ‘jury’ in the Sixth Amendment.” Opp.10-11. Ramos rejected precisely this approach when it refused

Louisiana’s invitation to distinguish between “the historic features of common law jury trial that (we think)

serve ‘important enough’ functions to migrate silently

into the Sixth Amendment and those that don’t.” 140

S.Ct. at 1400-1401. Instead, the question is simply what

“the right to trial by jury included” “at the time of the

Sixth Amendment’s adoption.” Id. at 1402

Arizona relatedly contends that Mr. Khorrami has

failed to identify historical evidence where the Framers

“expressed concern for the preservation of the traditional number 12.” Opp.12. But Arizona identifies nothing in Ramos that imposes this kind of clear-statement

3

The lone historical authority Arizona cites (at 11) is a sentence fragment from James Wilson, which says nothing more than

that a jury could be larger than twelve. See 2 Collected Works of

James Wilson 954 (2007 ed.) (“I feel no peculiar predilection for

the number twelve: a grand jury consists of more, and its number

is not precisely fixed.”), tinyurl.com/46s6rx9p. Wilson later makes

clear that twelve is the bare minimum: “To the conviction of a

crime, the undoubting and unanimous sentiment of the twelve jurors is of indispensable necessity.” Id. at 985, cited in Pet.9.

6

rule. To the contrary, Ramos determined the scope of

the Sixth Amendment by looking to the same sources

discussed in the petition and amicus briefs (e.g., the

common law, state practices, opinions and treatises

written shortly after the founding). See Pet.7-15. Even

Arizona concedes that those materials are “littered”

with references to 12-member juries. Opp.13.

Second, Arizona argues Williams is “consistent”

with how this Court has interpreted the Seventh

Amendment. Opp.12-13, 21. But that says nothing

about whether Williams can be squared with Ramos.

In any event, the Seventh Amendment’s express reference to “Suits at common law”—which this Court has

explained “is not directed to jury characteristics, such

as size, but rather the kind of cases for which jury trial

is preserved,” Colgrove v. Battin, 413 U.S. 149, 152

(1973)—could well preclude wholesale adoption of other

attributes of the common-law jury in that context, see

U.S. Term Limits v. Thornton, 514 U.S. 779, 793 n.9

(1995) (applying expressio unius canon). There is good

reason for the Sixth Amendment to be more protective

than the Seventh: It protects “human liberty” rather

than “property.” Stogner v. California, 539 U.S. 607,

632 (2003).

Third, Arizona asserts that Mr. Khorrami has not

“refut[ed]” Williams’s conclusion that the Sixth

Amendment’s drafting history shows that the Framers

did not intend the Amendment to encompass “common

law jury traditions.” Opp.13 (citing 399 U.S. at 97).

Ramos itself refuted this argument, explaining that the

“snippet of drafting history” that Williams relied upon

“could just as easily support the opposite inference”—

i.e., certain language that was ultimately omitted was

unnecessary “surplusage.” 140 S.Ct. at 1400; accord

Pet.20-21. In any event, Ramos explained, this argu-

7

ment “proves too much” because ignoring entirely the

history of the common-law jury right when interpreting

the Sixth Amendment would “leave the right to a ‘trial

by jury’ devoid of meaning.” 140 S.Ct. at 1400.

Fourth, Arizona attempts to distinguish Ramos because it overruled a plurality decision that garnered

only four votes, while the Williams holding garnered

five. Opp.15-16. But this distinction does nothing to

explain why Ramos’s holding—which garnered six

votes—can be squared with Williams’s. The Ramos

majority explained that to the extent Apodaca established binding precedent, it should be formally overruled. 140 S.Ct. at 1404-1405. Notably, the portion of

Justice Gorsuch’s opinion suggesting that Apodaca

could be discarded because it was a plurality opinion

received just three votes. Id. at 1402-1404.

Fifth, Arizona suggests Ramos turned on the fact

that the underlying state laws had racist origins.

Opp.15. In reality, Ramos stated that “a jurisdiction

adopting a nonunanimous rule … for benign reasons

would still violate the Sixth Amendment.” 140 S.Ct. at

1401 n.44; see also id. at 1426 (Alito, J., dissenting) (“the

origins of the [state] rules have no bearing on the broad

constitutional question”). Moreover, Arizona does not

dispute that the Williams rule significantly increases

odds that a jury will not have any Black and Hispanic

members (or, indeed, members of any minority religion,

nationality, or political perspective). See CAC Br.18-20;

accord Utah Defenders Br.9-16; Pet.23-24.

Finally, Arizona contends that Williams is on

“stronger footing” than Apodaca because Williams

purportedly conducted a more “extensive historical

analysis.” Opp.16. To be clear, the reason why Apodaca’s reasoning was thin is the decision relied on

8

cross-references to Williams’ flawed analysis. Pet.17.

Once again, Arizona has no answer.

B. Williams Has No Bearing On The PrivilegesOr-Immunities Clause

Because the historical evidence and pre-Williams

case law suggests that the Sixth Amendment imposes a

12-member jury requirement, this Court could permissibly hold that the right has been extended to the

States through the Privileges-or-Immunities Clause.

Cf. Ramos, 140 S.Ct. at 1421-1425 (Thomas, J., concurring in the judgment).

Arizona does not take specific issue with any of

Justice Thomas’s Ramos analysis. Instead, it insists

that this approach would require overruling this

Court’s case law on the Privileges-or-Immunities

Clause. Opp.28-29. To the contrary, this Court has indicated that a constitutional-rights analysis can be considered under either the Fourteenth “Amendment’s

Due Process Clause or its Privileges Or Immunities

Clause.” Dobbs v. Jackson Women’s Health Org., 142

S.Ct. 2228, 2248 n.22 (2022). Arizona also contends that

the Privileges-or-Immunities Clause does not apply to

“unenumerated rights.” Opp.29. Regardless of whether this is true, the right to a 12-person jury—like the

right to unanimous jury—is part and parcel of the enumerated Sixth Amendment right to an impartial jury.

See Ramos, 140 S.Ct. at 1421-1425.

III. If Williams Is Binding, It Should Be Formally

Overruled

Williams is egregiously wrong both because of its

inconsistency with history and Ramos and because the

empirical studies it relied upon were almost immediate-

9

ly undermined. Pet.20-24. Williams has had significant

negative consequences (e.g., juries with less than 12members are less likely to be representative of minority viewpoints and are more likely to convict). Pet.2425. And overruling Williams affects only limited reliance interests—i.e., it necessitates retrials of a finite

number of pending cases. Pet.19-27. These considerations justify overruling Williams, especially given “the

force of stare decisis is at its nadir” in cases “concerning

[criminal] procedur[e] rules that implicate fundamental

constitutional protection.” Alleyne v. United States, 570

U.S. 99, 116 n.5 (2013).

A. Egregiously Wrong

Arizona asserts that Williams’s ruling is understandable in light of the “ambiguous historical record”

on the 12-person jury right. Opp.17-18. To the contrary, the historical record is clear that—as even Williams

acknowledged—“the size of the jury at common law

[was] fixed generally at 12.” 399 U.S. at 89. Moreover,

there is a mountain of unrebutted historical evidence

showing that this understanding governed until Williams was decided 52 years ago. See supra pp. 1, 4.

Arizona also argues that Williams’s functionalist

reasoning is proper and has the policy benefit of giving

States “flexibility.” Opp.18-20. But Ramos is clear

that the Sixth Amendment does not permit courts to

make such “cost-benefit analys[e]s” to determine

whether a particular aspect of the traditional trial-byjury right is protected. 140 S.Ct. at 1401-1402. In any

event, Arizona has no answer to the slew of postWilliams empirical studies that have undermined that

decision’s reasoning—beyond the unexplained assertion

that such research is “speculative.” Compare Pet.21-24

and CAC Br.16-22 with Opp.24.

10

B. Significant Negative Consequences

Arizona does not appear to dispute that the Williams rule statistically increases the likelihood of an

erroneous conviction and decreases the representativeness of the jury. Pet.3, 23-25. Instead, Arizona takes

issue with the use of empirical evidence itself. Opp.24.

But this Court has previously considered such evidence

as part of the stare decisis analysis. E.g., Janus v.

American Fed’n, 138 S.Ct. 2448, 2466, 2483 (2018).

Arizona also contends that this Court has been

“[]consistent” in applying the Williams rule. Opp.2021. But the cases cited mention Williams in passing or

rely on the functionalist reasoning that Ramos rejected. Indeed, two of them—Burch and Ballew—

expressly note that Williams departed from the common-law tradition. Pet.16-17. In any event, a trio of

subsequent, 21st century decisions have created confusion by reaffirming the traditional 12-member requirement. See CAC Br.11-12 (citing United States v. Booker, 543 U.S. 220, 238-239 (2005); Blakely v. Washington,

542 U.S. 296, 301 (2004); Apprendi v. New Jersey, 530

U.S. 466, 477 (2000)).

Finally, Arizona argues that the fact that a quorum

of Arizona voters approved the eight-person-jury rule

in 1972 means that the rule necessarily enjoys popular

support today. Opp.24. Even if that were true, it ignores that “[t]he very purpose of a Bill of Rights was

… to place [certain subjects] beyond the reach of majorities.” West Virginia v. Barnette, 319 U.S. 624, 638

(1943). Such fundamental rights “may not be submitted

to vote; they depend on the outcome of no elections.”

Id.

11

C. Reliance

Arizona argues that the reliance interests here

“stand[] in stark contrast to the effect of the Court’s

jury-unanimity holding in Ramos.” Opp.26-28. To the

contrary, the chief reliance interest asserted is the

same: The need to try a discrete number of non-final

felony convictions. Almost any new rule of criminal

procedure will “affect[] significant numbers of pending

cases across the whole country.” Ramos, 140 S.Ct. at

1406.

Arizona also contends that the sheer number of

convictions that will be affected by overturning Williams distinguishes this case from Ramos. Opp.27-28.

To be clear, this case would affect only those felony

proceedings where a trial has been held and the case is

not yet final on appeal. Arizona provides no guidance

on what those numbers would be, beyond unsourced

speculation that “hundreds, if not thousands” of cases

could be retried. Opp.27. But as Arizona admits in the

next breath, that number is comparable to the rough

estimates of how many cases were affected by Ramos.

Id. (“several hundred to more than one thousand pending cases affected”).4 Moreover, this Court vacated

“nearly 800 decisions” following Booker and a “similar

consequence[] likely followed when Crawford v. Washington overturned prior interpretations of the Confrontation Clause or Arizona v. Gant changed the law for

searches incident to arrests.” Ramos, 140 S.Ct. at 1406

(citations omitted).

In the end, Arizona ignores “the most important”

“reliance interest” of all—that “of the American peo4

This Court granted certiorari despite Louisiana’s similar argument that requiring jury unanimity “could upset” “[t]housands

of final convictions.” Opp.4, Ramos, No. 18-5924 (U.S.).

12

ple” “in the preservation of our constitutionally promised liberties.” Ramos, 140 S.Ct. at 1408 (plurality op.).

This Court alone has the authority to vindicate that interest—to review Arizona’s “clear and simple statute”

permitting eight jurors in a felony case and to “judge[]

[it] against a pure command of the Constitution.” Texas v. Johnson, 491 U.S. 397, 420 (1989) (Kennedy, J.,

concurring). It should do so.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

SETH P. WAXMAN

BENJAMIN L. COLEMAN

Counsel of Record

BENJAMIN L. COLEMAN LAW

EDWARD C. O’CALLAGHAN

1350 Columbia St., Ste 600

WILMER CUTLER PICKERING

San Diego, CA 92101

HALE AND DORR LLP

THOMAS G. SPRANKLING

1875 Pennsylvania Ave., NW

WILMER CUTLER PICKERING

Washington, DC 20006

HALE AND DORR LLP

(202) 663-6000

2600 El Camino Real, Ste 400

seth.waxman@wilmerhale.com

Palo Alto, CA 94306

ETHAN A. SACHS

ELEANOR DAVIS

WILMER CUTLER PICKERING

WILMER CUTLER PICKERING

HALE AND DORR LLP

HALE AND DORR LLP

60 State St.

7 World Trade Center

Boston, MA 02109

250 Greenwich St.

New York, NY 10007

AUGUST 2022