Opposition Brief — Jhon Albert Carrizales Pretell, Petitioner v. Florida

No. 22-5546

IN THE

Supreme Court of the United States

_______________

JHON ALBERT CARRIZALES PRETELL,

Petitioner,

v.

STATE OF FLORIDA,

_______________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA DISTRICT COURT OF APPEAL,

FIRST DISTRICT

_______________

BRIEF IN OPPOSITION

_______________

ASHLEY MOODY

Attorney General of

Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

PL-01, The Capitol

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

henry.whitaker@

myfloridalegal.com

HENRY C. WHITAKER

Solicitor General

Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General

DARRICK W. MONSON

Assistant Solicitor General

Counsel for Respondent

i

QUESTION PRESENTED

More than half a century ago, this Court held that

Florida’s use of six-person juries satisfies the Sixth

Amendment. Williams v. Florida, 399 U.S. 78, 86

(1970). The Court reached that result by examining

the history and purpose of the right to trial by jury

and concluding that, while most founding-era juries

consisted of 12 jurors, the framers enshrined no such

requirement in the Constitution. Relying on Williams,

Florida and five other states continue to use fewer

than 12 jurors in at least some criminal trials. In Florida, where all noncapital crimes are tried before sixmember juries, roughly 4,500 criminal convictions are

pending on direct appeal.

The question presented is whether the Court

should overrule Williams and hold that the Sixth

Amendment requires that states use 12-person juries

in serious criminal cases.

ii

TABLE OF CONTENTS

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

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

STATEMENT .............................................................. 1

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

I. THE COURT SHOULD REJECT PETITIONER’S

INVITATION TO RECONSIDER AND OVERRULE

WILLIAMS. ..........................................................4

II. THIS CASE IS A POOR VEHICLE...........................17

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

CASES

Apodaca v. Oregon,

406 U.S. 404 (1972) .................................... 3, 8–9, 16

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................ 11

Ballew v. Georgia,

435 U.S. 223 (1978) .......................................... 10–12

Brady v. Maryland,

373 U.S. 83 (1963) .................................................. 11

Chafin v. Chafin,

568 U.S. 165 (2013) ................................................ 17

Chapman v. California,

386 U.S. 18 (1967) .................................................. 17

Colgrove v. Battin,

413 U.S. 149 (1973) ...................................... 9–10, 16

Collins v. Youngblood,

497 U.S. 37 (1990) .................................................. 10

Davis v. Florida,

143 S. Ct. 380 (2022) ................................................ 4

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) .............................................. 6

Duncan v. Louisiana,

391 U.S. 145 (1968) .................................................. 1

Gibson v. State,

16 Fla. 291 (1877)..................................................... 1

Gideon v. Wainwright,

372 U.S. 335 (1963) ................................................ 11

Gonzalez v. State,

982 So. 2d 77 (Fla. Dist. Ct. App. 2008) ................ 12

Griffin v. California,

380 U.S. 609 (1965) ................................................ 11

iv

Hurst v. Florida,

577 U.S. 92 (2016) .................................................. 18

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,

Council 31,

138 S. Ct. 2448 (2018) ........................................ 5, 12

Kennedy v. Louisiana,

554 U.S. 407 (2008) .................................................. 1

Khorrami v. Arizona,

143 S. Ct. 22 (2022) ............................ 4, 7, 12–13, 15

Lockhart v. McCree,

476 U.S. 162 (1986) ................................................ 15

Ludwig v. Massachusetts,

427 U.S. 618 (1976) ................................................ 10

Miranda v. Arizona,

384 U.S. 436 (1966) ............................................ 2, 11

Neder v. United States,

527 U.S. 1 (1999) .............................................. 17–19

Phillips v. Florida,

142 S. Ct. 721 (2021) ................................................ 4

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) .......................... 3, 5, 8–10, 16

Roper v. Simmons,

543 U.S. 551 (2005) ................................................ 11

Strickland v. Washington,

466 U.S. 668 (1984) ................................................ 11

Taylor v. Louisiana,

419 U.S. 522 (1975) ................................................ 11

United States v. Gaudin,

515 U.S. 506 (1995) ................................................ 10

Washington v. Recuenco,

548 U.S. 212 (2006) ................................................ 18

Weaver v. Massachusetts,

137 S. Ct. 1899 (2017) ...................................... 17–18

v

Weeks v. United States,

232 U.S. 383 (1914) ................................................ 11

Williams v. Florida,

399 U.S. 78 (1970) ..................... i, 1, 3–12, 15–17, 19

STATUTES

Act of February 17, 1877, ch. 3010, § 6,

1877 Fla. Laws 54 .................................................... 1

Ariz. Rev. Stat. § 21-102 ............................................. 4

Conn. Gen. Stat. § 54-82 ............................................. 4

Fla. Stat. § 794.011(2)(a) ............................................. 1

Fla. Stat. § 913.10 ................................................... 1, 4

Ind. Code § 35-37-1-1 .................................................. 4

Mass. Gen. Laws Ch. 218, § 26A ................................ 4

Utah Code. Ann. § 78B-1-104 ..................................... 4

RULES

Fed. R. Civ. P. 48(a)................................................... 16

OTHER AUTHORITIES

Alice Guerra et al., Accuracy of Verdicts Under

Different Jury Sizes and Voting Rules,

28 Sup. Ct. Econ. Rev. 221 (2020) ......................... 13

Annals of Cong. (1789) (Joseph Gales ed., 1834) ....... 7

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............... 10

Barbara Luppi & Francesco Parisi,

Jury Size and the Hung-Jury Paradox,

42 J. Legal Stud. 399 (2013) .................................. 13

vi

Bridget M. Waller et al., Twelve (Not So) Angry Men:

Managing Conversational Group Size Increases

Perceived Contribution by Decision Makers,

14 Grp. Processes & Intergrp. Rels. 835 (2011) .... 12

Chief Adm’r of Cts., New York State Unified Court

System 2017 Annual Report (2018),

https://tinyurl.com/yckheu9v ................................. 15

Chief Adm’r of Cts., New York State Unified Court

System 2018 Annual Report (2019),

https://tinyurl.com/yc7cvjhe................................... 15

Chief Adm’r of Cts., New York State Unified Court

System 2019 Annual Report (2020),

https://tinyurl.com/2wtwfmdm .............................. 15

Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts

Statistical Reference Guide FY 2016-17 (2018),

https://tinyurl.com/4drv24ky ................................. 14

Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts

Statistical Reference Guide FY 2017-18 (2019),

https://tinyurl.com/433vwfy3 ................................. 14

Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts

Statistical Reference Guide FY 2018-19 (2020),

https://tinyurl.com/43zywh5n ................................ 14

Henry G. Connor, The Constitutional Right to a Trial

by a Jury of the Vicinage,

57 U. Pa. L. Rev. & Am. L. Reg. 197 (1909) ............ 7

James Wilson,

Works of the Honourable James Wilson (1804)....... 9

Jud. Council of Cal., 2018 Court Statistics Report:

Statewide Caseload Trends (2018),

https://tinyurl.com/5n6tj9pr .................................. 14

Jud. Council of Cal., 2019 Court Statistics Report:

Statewide Caseload Trends (2019),

https://tinyurl.com/mwmby3h5 ............................. 15

vii

Jud. Council of Cal., 2020 Court Statistics Report:

Statewide Caseload Trends (2020),

https://tinyurl.com/2mym3hrx ............................... 15

Kaushik Mukhopadhaya, Jury Size and the Free

Rider Problem, 19 J.L. Econ. & Org. 24 (2003)..... 12

Letter from James Madison to Edmund Pendleton,

Sept. 14, 1789, 1 Letters and Other Writings of

James Madison (1865) ............................................. 8

Letter from Richard Henry Lee to Patrick Henry,

Sept. 14, 1789, https://tinyurl.com/muu5xzfa ......... 8

Nicolas Fay et al., Group Discussion as Interactive

Dialogue or as Serial Monologue: The Influence of

Group Size, 11 Psych. Sci. 481 (2000) ................... 13

Off. of Ct. Admin., Annual Statistical Report for the

Texas Judiciary Fiscal Year 2017 (2018),

https://tinyurl.com/mtrp379s ................................. 14

Off. of Ct. Admin., Annual Statistical Report for the

Texas Judiciary Fiscal Year 2018 (2019),

https://tinyurl.com/2s3fsmpf .................................. 14

Off. of Ct. Admin., Annual Statistical Report for the

Texas Judiciary Fiscal Year 2019 (2020),

https://tinyurl.com/ywh779v3 ................................ 14

Patrick E. Higginbotham et al., Better by the Dozen:

Bringing Back the Twelve-Person Civil Jury,

104 Judicature 46 (2020) ....................................... 16

Paul Samuel Reinsch, The English Common Law in

the Early American Colonies, 1 Select Essays in

Anglo-American Legal History 367 (1907) .............. 6

William Blackstone,

Commentaries on the Laws of England (1769) ....... 6

William S. Brackett,

The Freehold Qualification of Jurors,

29 Am. L. Reg. 436 (1881) ........................................ 7

1

STATEMENT

1. In 1877, Florida began using six-person juries

to try noncapital criminal defendants. See Act of February 17, 1877, ch. 3010, § 6, 1877 Fla. Laws 54. That

same year, the Florida Supreme Court held that the

use of six-person juries neither “destroy[ed] [n]or infring[ed] the right of trial by jury.” Gibson v. State, 16

Fla. 291, 300 (1877). Ninety years later, this Court

opened another avenue to challenge the validity of

Florida’s six-person juries, holding that states are

bound by the jury-trial guarantee in the Sixth Amendment to the federal Constitution. See Duncan v. Louisiana, 391 U.S. 145, 149 (1968). But just two years after that, this Court concluded that six-person juries

satisfy that guarantee. Williams v. Florida, 399 U.S.

78, 86 (1970). For nearly as long as states have had a

Sixth Amendment duty to provide criminal jury trials,

this Court’s message to the people of Florida has been

clear: the jury structure that they have settled on for

a century and a half fulfills that duty. Unsurprisingly

then, Florida has continued its longstanding practice

of using six-person juries in trials of noncapital offenses. See Fla. Stat. § 913.10.

2. Petitioner was tried for capital sexual battery of

a child under the age of 12. See Fla. Stat.

§ 794.011(2)(a). Because child rape is not punishable

by death under existing precedent, the trial court empaneled a six-person jury as dictated by Florida law.1

See Fla. Stat. § 913.10. Petitioner’s counsel questioned

1

Although Florida law categorizes sexual battery of a child

under 12 as a capital felony, this Court has held that the Constitution prohibits capital punishment for such crimes. See Kennedy

v. Louisiana, 554 U.S. 407, 413 (2008).

2

the venire panel extensively and participated in jury

selection, exercising cause and peremptory challenges

to various prospective jurors petitioner deemed undesirable. R. 272–302, 306–11. When the jury was empaneled, petitioner stated that he was satisfied with

the jury and proceeded to trial without objection. R.

316.

At trial, the jury heard overwhelming evidence of

petitioner’s guilt. J.P.P., the victim, testified that she

is petitioner’s half-sister. Tr. 41–42 When petitioner

was 19 years old and she was nine or ten, J.P.P. briefly

stayed at his home. Tr. 43–44, 61, 93. During that

time, petitioner brought J.P.P. to his bedroom and

asked her to look for something under his bed. Tr. 44–

45. He then locked the door and tried to bribe J.P.P.

to engage in sexual conduct. Tr. 45–46. Despite

J.P.P.’s refusal, petitioner removed her clothing,

forced her on top of him, and began kissing her. Tr.

46–48. J.P.P. tried to get away, but petitioner held her

down. Tr. 48. He then repeatedly penetrated her genitalia with his own, causing her pain. Tr. 50–51. He

also forced his genitalia into her mouth. Tr. 49–50. Petitioner ended the assault only when someone

knocked on the bedroom door. Tr. 55.

Police interviewed petitioner after he waived his

Miranda rights. Tr. 100–01. A recording of the interview played at trial revealed that petitioner’s story

was largely consistent with J.P.P.’s. He lured J.P.P. to

his bedroom and closed the door behind her. Tr. 104.

He then demanded that J.P.P. “have sex” with him,

but she refused. Tr. 104. Undeterred, petitioner eventually got J.P.P. to remove her clothes and get onto his

3

bed where he began kissing her. Tr. 105–06. Then, petitioner “got on top of her” but found it difficult to insert his penis because she was young enough that “her

vagina still wasn’t there yet.” Tr. 106–07. So he slowly

forced it. Id.

Petitioner admitted to police that J.P.P. told him

the penetration was painful, but that did not stop him

from continuing to “have sex” with her for 14 minutes.

Tr. 107, 109. Petitioner said he stopped the assault because he “was starting to get bored,” felt like he was

close to ejaculating, and heard his son knocking on the

bedroom door. Tr. 109–10.

Presented with this evidence, the jury returned a

unanimous guilty verdict in under 22 minutes. See R.

148.

3. Petitioner appealed his conviction to Florida’s

First District Court of Appeal, arguing that the Sixth

Amendment entitled him to be tried by a 12-person

jury because this Court undermined Williams in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), which held

that the Sixth Amendment requires unanimous verdicts in state court as in federal court, overruling Apodaca v. Oregon, 406 U.S. 404 (1972). The First District

affirmed in a per curiam, summary decision. While

the court briefly addressed other issues petitioner

raised, the court did not address the Sixth Amendment issue, noting only that petitioner had “presented

no reversible error.” Pet. App. 1.

REASONS FOR DENYING THE PETITION

Petitioner contends that the Court should review

the First District’s summary decision and use it as a

vehicle to overrule Williams v. Florida, 399 U.S. 78

4

(1970), which held that the Sixth Amendment permits

six-person juries in criminal cases. As the Court has

done in several recent cases, see Khorrami v. Arizona,

143 S. Ct. 22 (2022); Davis v. Florida, 143 S. Ct. 380

(2022); Phillips v. Florida, 142 S. Ct. 721 (2021), it

should decline that invitation. Petitioner makes no serious attempt to show that overruling Williams is

warranted under traditional principles of stare decisis, and it is not. Not only was Williams correctly decided, but overruling it would also imperil thousands

of criminal convictions in Florida and five other states

that for more than 50 years have relied on its rule.2

And taking that step would be a gratuitous gesture in

this appeal: given the overwhelming evidence presented below, any error would be harmless.

The petition should be denied.

I.

THE

COURT SHOULD REJECT PETITIONER’S

INVITATION TO RECONSIDER AND OVERRULE

WILLIAMS.

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

Court held that the Sixth Amendment permits juries

comprised of six members in serious criminal cases.

Although petitioner urges the Court to grant review to

overrule this 53-year-old case, he does not

acknowledge his heavy burden to show that the Court

should do so.

2

See Ariz. Rev. Stat. § 21-102; Conn. Gen. Stat. § 54-82; Fla.

Stat. § 913.10; Ind. Code § 35-37-1-1; Mass. Gen. Laws Ch. 218,

§ 26A; Utah Code. Ann. § 78B-1-104.

5

This Court does not lightly overrule precedent.

“Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Janus v. Am.

Fed’n of State, Cnty., & Mun. Emps., Council 31, 138

S. Ct. 2448, 2478 (2018). To that end, this Court considers several factors before overruling a prior decision: the quality of the prior decision’s reasoning, the

workability of its holding, its consistency with other

cases, post-decision developments, and reliance on the

decision. Id. at 2478–79. Those factors favor leaving

Williams undisturbed.

1. Petitioner is wrong to dismiss the quality of Williams’ reasoning as a “functional approach” to jurytrial issues that this Court has since categorically

“discarded.” Pet. 9; see also id. at 18–20. On the contrary, Justice White’s opinion for the Court in Williams—thick with scholarly footnotes—extensively

canvassed the history of, and purposes behind, the

jury-trial right as established by “the Framers” in the

Sixth Amendment. 399 U.S. at 103. The Court devoted

13 pages to the history and development of the common-law jury and the Sixth Amendment. See id. at

87–99; see also Ramos, 140 S. Ct. at 1433 (Alito, J.,

dissenting) (observing that Williams contained “a detailed discussion of the original meaning of the Sixth

Amendment jury-trial right”). Williams examined the

history surrounding the common-law 12-person requirement. See 399 U.S. at 87–89, 87 nn.19–20, 88

n.23. It addressed the Court’s previous cases discussing jury size. See id. at 90–92, 90 n.26, 91 nn.27–28,

92 nn.29–31. It discussed the history of Article III’s

6

jury-trial provision and the accompanying ratification

debates. See id. at 93–94, 93 nn.34–35. It analyzed the

drafting history of the Sixth Amendment, including

disputes over what language to use. See id. at 94–97,

94 n.37, 95 n.39. And it considered contemporaneous

constitutional provisions and statutes regarding juries. See id. at 97 & nn.43–44. The upshot was that,

as a matter of original meaning, the word “jury” in the

Sixth Amendment did not codify any common-law

practice of empaneling 12 jurors. See id. at 99–100.

Petitioner makes no attempt to identify error in

that analysis. As Williams observed, while the “jury

at common law came to be fixed generally at 12, that

particular feature of the common law jury appears to

have been a historical accident,” 399 U.S. at 89 (footnote omitted), and was not uniform even at common

law, as the Pennsylvania colony “employed juries of

six or seven,” id. at 98 n.45 ((citing Paul Samuel Reinsch, The English Common Law in the Early American

Colonies, in 1 Select Essays in Anglo-American Legal

History 367, 398 (1907)).

But even assuming uniformity in common-law

practice, the Court explained that not every such practice was “immutably codified into our Constitution.”

Williams, 399 U.S. at 90; see Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228, 2255 (2022)

(“[T]he fact that many States in the late 18th and

early 19th century did not criminalize pre-quickening

abortions does not mean that anyone thought the

States lacked the authority to do so.”). For example, at

English common law, a jury consisted of 12 male freeholders (i.e., landowners) from the vicinage (i.e.,

county) of the alleged crime. 4 William Blackstone,

7

Commentaries on the Laws of England 343–44 (1769);

see also Henry G. Connor, The Constitutional Right to

a Trial by a Jury of the Vicinage, 57 U. Pa. L. Rev. &

Am. L. Reg. 197, 198–99 (1909) (quoting the Continental Congress’s explanation of the prevailing practice of

using “12 . . . countrymen and peers of [the accused’s]

vicinage”); William S. Brackett, The Freehold Qualification of Jurors, 29 Am. L. Reg. 436, 444–46 (1881)

(detailing the colonies’ widespread practice of following the common-law requirement that juries consist

only of “freeholders”). Yet petitioner does not contend

that the Sixth Amendment at any point in history

mandated that a jury consist only of male landowners

hailing from a particular county.

As Williams correctly observed, any such contention would be inconsistent with Sixth Amendment’s

drafting history. The Framers, the Court explained,

resoundingly rejected James Madison’s proposal to

constitutionalize in the Sixth Amendment all the “accustomed requisites” of the common-law jury. Williams, 399 U.S. at 94 (quoting 1 Annals of Cong. 452

(1789) (Joseph Gales ed., 1834)). Instead, the Sixth

Amendment that the Framers proposed and the people ratified required only that juries be impartial and

drawn from the state and district in which the crime

was committed, which departed from the common-law

practice by allowing Congress to establish the relevant vicinage through its creation of judicial districts.

And though one might conclude that the Framers rejected the common-law requisites of jury composition

because they were implicit in the word “jury,” Williams, 399 U.S. at 96–97 (noting the possibility); see

also Khorrami, 143 S. Ct. at 25 (Gorsuch, J., dissenting from denial of certiorari), Madison certainly did

8

not think that was the case. He lamented that in removing the common-law requirements, the Framers

“str[uck] . . . at the most salutary articles.” Williams,

399 U.S. at 95 n.39 (quoting Letter from James Madison to Edmund Pendleton, Sept. 14, 1789, in 1 Letters

and Other Writings of James Madison 491 (1865)).

And Senator Richard Henry Lee “grieved” that they

had left the “Jury trial in criminal cases much loosened.” Letter from Richard Henry Lee to Patrick

Henry, Sept. 14, 1789, https://tinyurl.com/muu5xzfa.

That would seem a dramatic reaction to the mere

trimming of surplusage.

2. Petitioner errs in contending (at 18) that this

Court’s recent decision in Ramos requires overruling

Williams. Ramos held that the Sixth Amendment constitutionalized the common-law requirement that a

jury be unanimous, thus overruling this Court’s fractured decision to the contrary in Apodaca v. Oregon,

406 U.S. 404 (1972). In doing so, Ramos discounted

the relevance of the Amendment’s drafting history,

stating that “rather than dwelling on text left on the

cutting room floor, we are much better served by interpreting the language Congress retained and the

States ratified.” 140 S. Ct. at 1400. The Court instead

relied on the fact that the unanimity of a jury verdict

was “a vital right protected by the common law,” id. at

1395, to conclude that the Sixth Amendment protected the same.

But it does not follow that the Sixth Amendment

codified all aspects of the jury trial that obtained at

common law—in particular the common-law rules for

jury composition such as the number of jurors, vicinage, and juror landownership. James Wilson—a

9

framer of the Constitution and one of the first Justices

on this Court—for instance observed: “When I speak

of juries, I feel no peculiar predilection for the number

twelve.” 2 James Wilson, Works of the Honourable

James Wilson 305 (1804) (quoted in Colgrove v. Battin,

413 U.S. 149, 156 n.10 (1973)). Rather, Wilson wrote,

a jury “mean[s] a convenient number of citizens, selected and impartial, who . . . are vested with discretionary powers to try the truth of facts.” Id. at 306. Six

impartial jurors acting by unanimous consent satisfy

that definition. And the Court in Williams itself noted

that its holding that a jury of six is constitutional was

distinct from the requirement of unanimity, which, it

observed, “unlike [jury size], may well serve an important role in the jury function”—namely, “as a device for insuring that the Government bear the heavier burden of proof.” 399 U.S. at 100 n.46.

Still less does it follow that the Court should discard Williams as Ramos discarded Apodaca. Unlike

Williams, which commanded a solid majority of this

Court, Apodaca was a uniquely fractured decision

that several Justices concluded was not entitled to respect under the doctrine of stare decisis at all. See Ramos, 140 S. Ct. at 1398–99 (opinion of Gorsuch, J.,

joined by Ginsburg, Breyer, and Sotomayor, JJ.); id.

at 1409 (Sotomayor, J., concurring in part) (calling

Apodaca a “universe of one”); id. at 1402 (opinion of

Gorsuch, J., joined by Ginsburg and Breyer, JJ.) (concluding that Apodaca supplied no governing precedent). Unlike Apodoca’s holding that the Sixth

Amendment does not require unanimous juries in

state prosecutions, which subsequent cases referred to

as an “exception” and struggled to explain what it

“mean[t],” Ramos, 140 S. Ct. at 1399, Williams has

10

consistently been “adhere[d] to” and “reaffirm[ed].”

Ballew v. Georgia, 435 U.S. 223, 239 (1978) (opinion of

Blackmun, J., joined by Stevens, J.); see also Ludwig

v. Massachusetts, 427 U.S. 618, 625–26 (1976); Collins

v. Youngblood, 497 U.S. 37, 52 n.4 (1990); United

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

Colgrove, this Court followed Williams in holding that

six-person juries satisfy the Seventh Amendment’s

guarantee of a jury trial in civil cases. 413 U.S. at 158–

60. That does not reflect a decision that has “become

lonelier with time.” Ramos, 140 S. Ct. at 1408.

3. Nor is reconsidering Williams warranted on the

ground that the Court followed its detailed historical

analysis with an assessment of the purpose of the jury

trial and the functioning of a six-person jury. See 399

U.S. at 100–02. In Williams, this Court construed the

purpose of the jury right to be “the interposition between the accused and his accuser of the commonsense judgment of a group of laymen,” and reasoned that the difference between a jury of six and 12

is not likely to make a difference in that regard “particularly if the requirement of unanimity is retained.”

Id. at 100. The Court also found that the available

data “indicate that there is no discernible difference

between the results reached by” six- and 12-person juries. Id. at 101 & n.48 (citing studies).

Purpose may validly inform the meaning of text.

See Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 56 (2012) (“Of course,

words are given meaning by their context, and context

includes the purpose of the text.”). Not surprisingly,

this Court’s criminal-procedure precedents routinely

have considered purpose—and with far less analysis

11

of original meaning than Williams—in interpreting

constitutional meaning. See, e.g., Taylor v. Louisiana,

419 U.S. 522, 530 (1975) (Sixth Amendment requires

juries selected from fair cross section of community);

Miranda v. Arizona, 384 U.S. 436, 471–74 (1966) (law

enforcement must inform detainees of Fifth Amendment rights and obtain waiver before proceeding with

interrogation); Gideon v. Wainwright, 372 U.S. 335,

343–45 (1963) (Sixth Amendment requires court-appointed counsel for indigent defendants); Weeks v.

United States, 232 U.S. 383, 393 (1914) (evidence

seized in violation of Fourth Amendment is inadmissible at trial); Brady v. Maryland, 373 U.S. 83, 87–88

(1963) (prosecution must provide exculpatory evidence to defendant); Strickland v. Washington, 466

U.S. 668, 686–87 (1984) (Sixth Amendment requires

defense attorney to provide effective assistance); Atkins v. Virginia, 536 U.S. 304, 320–21 (2002) (Eighth

Amendment prohibits imposing capital punishment

on mentally disabled); Roper v. Simmons, 543 U.S.

551, 568–69 (2005) (Eighth Amendment prohibits imposing capital punishment for crimes committed when

defendant was under 18); Griffin v. California, 380

U.S. 609, 614–15 (1965) (Fifth Amendment prohibits

adverse inference from defendant’s failure to testify).

There is no basis for discounting Williams’ reasoning

simply because it also considered the “function”

served by the right. 399 U.S. at 99.

4. Petitioner is also wrong that post-decision developments have cast doubt on Williams’ reasoning that

a six-person jury fulfills the purposes of the Sixth

Amendment. Petitioner quotes Justice Blackmun’s

opinion in Ballew and the opinion of a Florida intermediate appellate court to suggest that post-Williams

12

research shows that six-person juries do not function

as well as 12-person juries. Pet. at 11–12, 15–17; see

also Khorrami, 143 S. Ct. at 26–27 (Gorsuch, J., dissenting from denial of certiorari). But those do not present the kinds of overwhelming developments sufficient to “erode” Williams’ “underpinnings,” Janus, 138

S. Ct. at 2482—and in many ways later developments

corroborate Williams.

To start, Ballew itself did not find that the purported developments warranted overruling Williams;

it “adhere[d] to” and “reaffirm[ed]” Williams. 435 U.S.

at 239 (opinion of Blackmun, J., joined by Stevens, J.).

And the Florida intermediate appellate court petitioner relies on conceded that “[t]he scholarship and

evidence in this regard, however, are not undisputed,

and the various scientific theories are not necessarily

cohesive.” Pet. 17 (quoting Gonzalez v. State, 982 So.

2d 77, 83 (Fla. Dist. Ct. App. 2008)).

In fact, social-science studies amply support Williams’ conclusions, leading some scholars to criticize

courts for claiming that six-person juries are inferior.

See Kaushik Mukhopadhaya, Jury Size and the Free

Rider Problem, 19 J.L. Econ. & Org. 24, 24 (2003).

Smaller juries are preferable to larger ones in several

ways. For one, larger juries can lead to a “free riding”

phenomenon where jurors pay less attention and participate less in deliberations because they think there

are plenty of other jurors to do the work. Id. at 40.

That, in turn, can lead to less accurate verdicts. Id.

Six-person juries, by contrast, are more likely to

make decisions as a group rather than by a few outgoing jurors who dominate deliberations. See Bridget

13

M. Waller et al., Twelve (Not So) Angry Men: Managing Conversational Group Size Increases Perceived

Contribution by Decision Makers, 14 Grp. Processes &

Intergrp. Rels. 835, 839 (2011); see also Nicolas Fay et

al., Group Discussion as Interactive Dialogue or as Serial Monologue: The Influence of Group Size, 11 Psych.

Sci. 481, 481 (2000) (reporting similar findings in nonjury groups). A juror is likelier to find his or her voice

in a smaller group setting.

Many assume that the additional jurors in a 12person jury make it more likely that one or more jurors will prevent the conviction of an innocent defendant. But if that were true, the rates of hung-juries

would be higher for 12-person juries than six-person

juries. Yet empirical data shows no significant differences in the rates of hung juries between six- and 12person juries. See, e.g., Barbara Luppi & Francesco

Parisi, Jury Size and the Hung-Jury Paradox, 42 J.

Legal Stud. 399, 402–04 (2013) (collecting studies).

And other studies show that, if required to be unanimous, six-person juries do not suffer from a meaningful increase in inaccurate verdicts. See Alice Guerra et

al., Accuracy of Verdicts Under Different Jury Sizes

and Voting Rules, 28 Sup. Ct. Econ. Rev. 221, 232

(2020) (concluding that unanimous six-person juries

“are alternative ways to maximize the accuracy of verdicts while preserving the functionality of juries”).

That reality is reflected in publicly available statistics. Far from returning higher rates of convictions,

Pet. 17; see also Khorrami, 143 S. Ct. at 26 (Gorsuch,

J., dissenting from denial of certiorari), Florida juries

convict criminal defendants at comparable—and pos-

14

sibly even slightly lower—rates than juries in jurisdictions that use 12 jurors. For example, between 2017

and 2019, felony juries in Florida convicted defendants at rates of 74.0%,3 73.3%,4 and 72.1%,5 respectively. In the same years, felony juries in Texas convicted at rates of 79.0%,6 81.0%,7 and 78.0%;8 felony

juries in California convicted at rates of 86.0%,9

3

See Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts Statistical Reference Guide FY 2016-17 3-21 (2018), https://tinyurl.com/4drv24ky (1,901 convictions out of 2,570 cases that

went to the jury).

4

See Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts Statistical Reference Guide FY 2017-18 3-21 (2019), https://tinyurl.com/433vwfy3 (1,784 convictions out of 2,434 cases that

went to the jury).

5

See Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts Statistical Reference Guide FY 2018-19 3-21 (2020), https://tinyurl.com/43zywh5n (1,621 convictions out of 2,248 cases that

went to the jury).

6

Off. of Ct. Admin., Annual Statistical Report for the Texas

Judiciary Fiscal Year 2017 Court-Level - 20 (2018), https://tinyurl.com/mtrp379s.

7

Off. of Ct. Admin., Annual Statistical Report for the Texas

Judiciary Fiscal Year 2018 Court-Level - 21 (2019), https://tinyurl.com/2s3fsmpf.

8

Off. of Ct. Admin., Annual Statistical Report for the Texas

Judiciary Fiscal Year 2019 Court-Level 23 (2020), https://tinyurl.com/ywh779v3.

9

Jud. Council of Cal., 2018 Court Statistics Report: Statewide

Caseload Trends 69 (2018), https://tinyurl.com/5n6tj9pr.

15

85.0%,10 and 84.0%;11 and felony juries in New York

convicted at rates of 74.6%,12 73.7%,13 and 75.2%.14 Petitioner’s implication that Florida juries are steamrolling criminal defendants relative to other jurisdictions thus lacks support in the data. This data set instead reflects what multiple studies have shown: sixand 12-person juries similarly serve to “interpos[e] between the accused and his accuser . . . the commonsense judgment of a group of laymen.” Williams,

399 U.S. at 100.15 It is thus not true, as petitioner

would have it, that “six- and twelve-person juries are

not functionally equivalent.” Pet. 17.

5. Petitioner does not so much as acknowledge, let

alone dispute, that overruling Williams would have

sweeping consequences for the citizens of Arizona,

10

Jud. Council of Cal., 2019 Court Statistics Report:

Statewide

Caseload

Trends

69

(2019),

https://tinyurl.com/mwmby3h5.

11

Jud. Council of Cal., 2020 Court Statistics Report:

Statewide

Caseload

Trends

55

(2020),

https://tinyurl.com/2mym3hrx.

12

Chief Adm’r of Cts., New York State Unified Court System

2017 Annual Report 48 (2018), https://tinyurl.com/yckheu9v.

13

Chief Adm’r of Cts., New York State Unified Court System

2018 Annual Report 42 (2019), https://tinyurl.com/yc7cvjhe.

14

Chief Adm’r of Cts., New York State Unified Court System

2019 Annual Report 38 (2020), https://tinyurl.com/2wtwfmdm.

15

Relying on studies purporting to show that smaller juries

result in fewer minority jurors, petitioner says that six-person

juries threaten the right to a jury drawn from a fair cross-section

of the community. See Pet. 11–12; see also Khorrami, 143 S. Ct.

at 26 (Gorsuch, J., dissenting from denial of certiorari). Even if

that were true, the fair-cross-section requirement applies only to

the venire, not the petit jury. Lockhart v. McCree, 476 U.S. 162,

173–74 (1986).

16

Connecticut, Florida, Indiana, Massachusetts, and

Utah, who have for decades relied on Williams in using criminal juries of less than 12 jurors.

Florida is the third most populous state in the

country and tries all noncapital crimes before six-person juries. Currently, roughly 4,500 criminal convictions are pending on direct appeal in Florida. Overruling Williams would force the use of public resources to

conduct thousands of retrials on top of the trials already pending and might well result in the release of

convicted criminals into the public.

The states’ reliance interests here far outstrip the

already “massive” and “concrete” reliance interests in

Ramos. 140 S. Ct. at 1438 (Alito, J., dissenting).

There, only two states allowed nonunanimous jury

verdicts, and overruling Apodaca affected only those

convictions that were actually obtained by nonunanimous verdicts. The affected convictions numbered

somewhere in the hundreds. Id. at 1406. Here, by contrast, six states use juries with less than 12 jurors in

at least some criminal prosecutions. And all convictions from those juries would suddenly be suspect. In

Florida, that is every conviction that is not a capital

case, which amounts to several thousands.

As a last point on reliance, overruling Williams

would not merely affect criminal cases. In Colgrove,

this Court relied on Williams in holding that the Seventh Amendment permits six-person juries in civil trials. 413 U.S. at 158–60. Consequently, nearly 90% of

federal civil verdicts would also be in jeopardy. See

Fed. R. Civ. P. 48(a); Patrick E. Higginbotham et al.,

Better by the Dozen: Bringing Back the Twelve-Person

Civil Jury, 104 Judicature 46, 50 (2020) (finding that

17

only roughly 12% of federal civil trials use 12-person

juries).

II. THIS CASE IS A POOR VEHICLE.

At any rate, this case is a poor vehicle for reconsidering Williams. This Court generally avoids deciding

legal issues when doing so will have no effect on the

litigants in the case. See Chafin v. Chafin, 568 U.S.

165, 172 (2013). Yet even if the Court granted the petition and overruled Williams, petitioner would not

obtain relief because the error would be harmless.

A constitutional error at trial generally does not

require automatic reversal. Chapman v. California,

386 U.S. 18, 22 (1967). An error usually requires reversal only if it was likely to have affected the outcome

of the trial. Id. Thus, “most constitutional errors can

be harmless.” Neder v. United States, 527 U.S. 1, 8

(1999). If the defendant had the assistance of counsel

in a trial with an impartial adjudicator, “there is a

strong presumption” that any errors are subject to

harmless-error analysis. Id.

The only exception to the general rule subjecting

constitutional errors to harmless-error analysis is for

so-called “structural errors.” Weaver v. Massachusetts,

137 S. Ct. 1899, 1907 (2017). But the exception applies

only to a “very limited class” of errors. Neder, 527 U.S.

at 8. Those errors fall under three categories—none of

which would include empaneling fewer than 12 jurors.

First, an error may be structural when the violated

right protects some interest other than preventing erroneous convictions. Weaver, 137 S. Ct. at 1908. But

petitioner himself contends that “accuracy of the re-

18

sults” at trial is the interest protected by the purported 12-person requirement. Pet. 12. Second, errors

are structural when they are inherently harmful such

that they always result in fundamental unfairness.

Weaver, 137 S. Ct. at 1908. Smaller juries, however,

cannot be said to always result in unfairness—in

many cases they will have no effect or may even benefit the defendant. Third, an error is structural if the

effect of the error is impossible to determine. Id. But

as this Court held in Neder, the effect of violating a

defendant’s Sixth Amendment jury right is not always

impossible to determine because a court can review

the record and, if the evidence is “overwhelming” and

“uncontroverted,” determine beyond a reasonable

doubt what the jury would have done. 527 U.S. at 9.

In Neder, an element of the charged offense was

omitted from the jury instructions such that the jury

did not find every element of the offense. See id. at 8.

Even though that error deprived the defendant of his

Sixth Amendment jury right because the omission

meant a jury never convicted him of the charged offense, the Court held that the error was harmless. Id.

at 15, 19–20. Because the record contained “overwhelming” and “uncontroverted” evidence of the omitted element, the Court found beyond a reasonable

doubt that the jury would have found the omitted element. See id. at 9, 19–20. Similarly, this Court has

subjected other deprivations of a Sixth Amendment

jury to harmless-error analysis. See Washington v.

Recuenco, 548 U.S. 212, 221–22 (2006) (subjecting a

judge’s unconstitutional finding of a fact that increased the maximum possible sentence to harmlesserror analysis); Hurst v. Florida, 577 U.S. 92, 102–03

(2016) (remanding to determine whether depriving

19

defendant of the right to have a jury find aggravating

factors necessary for a death sentence was harmless).

Were Williams overruled, the same reasoning

would apply here. A court can review the trial record

and evaluate whether the evidence was “overwhelming” and “uncontroverted” such that there is no reasonable doubt that an additional six jurors would have

had no effect on the outcome. If anything, the case for

harmless-error review is stronger here than in Neder

as an appellate court at least has the benefit of a jury

finding as to each element of the offense.

The State would prove any error here harmless beyond a reasonable doubt. The evidence at trial was

“overwhelming” and “uncontroverted.” The child testified in detail about petitioner’s sexual attack on her.

And petitioner confessed all the relevant details to the

police. Presented with that evidence, petitioner’s jury

needed less than 22 minutes to unanimously find him

guilty. Changing the size of the jury would not have

altered that outcome. Thus, petitioner would not be

entitled to reversal of his conviction whether or not

the Court overruled Williams. So even if the Court

wished to take the drastic step of overruling a 53-yearold precedent, the Court should at least do so in a case

where the decision will affect the ultimate outcome.

CONCLUSION

The petition for a writ of certiorari should be denied.

20

Respectfully submitted,

ASHLEY MOODY

Attorney General of Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

PL-01, The Capitol

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

henry.whitaker@

myfloridalegal.com

HENRY C. WHITAKER

Solicitor General

Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General

DARRICK W. MONSON

Assistant Solicitor General

Counsel for Respondent

February 6, 2023