Petition for Writ of Certiorari — John A. Crane, Petitioner v. Florida

Supreme Court briefAug 21, 2023

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IN THE SUPREME COURT OF THE UNITED STATES

JOHN CRANE, PETITIONER

Vv.

STATE OF FLORIDA, RESPONDENT.

On Petition for a Writ of Certiorari to

the Fourth District Court of Appeal of Florida

PETITION FOR A WRIT OF CERTIORARI

CAREY HAUGHWOUT

Public Defender

Paul Edward Petillo

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, FL 33401

(561) 355-7600 .

ppetillo@pd15.state.fl.us

appeals@pd15.org

QUESTION PRESENTED

Whether the Sixth and Fourteenth Amendments guarantee the right to a

trial by a 12-person jury when the defendant is charged with a felony? |

RELATED PROCEEDINGS

The proceeding listed below is directly related to the above-captioned case in

this Court.

Crane v. State, 361 So. 3d 882 (Fla. 4th DCA 2023), rev. dismissed, $C2023-

0762, 2023 WL 3973917 (Fla. June 18, 2023)

TABLE OF CONTENTS

Page

Table of Authorities ............ sete csseesssecseesesseccceececereececescensoeeeseasessecescesaesesseneeneeeseensers iv

Opinion Below.........:csescsseeqeesecsecsseseesscscenseesceaaeneaceassaeeaesseeaesacsnesssenseaneasesescssensensenses 1

Jurisdiction .............. sssesavessssusessavesessausesssssssssesssssssussssssssssessssuuessssssssuuetessssssssusuesessencenene 2

Constitutional Provisions ...............scesessssceeceessesceecoceneesscensoeseesesatencasesssacacseesesneausecaeens 2

Statement of the Case 0... eccsessscsssecceteessenscseecsesssssessssesceessatessassereaeseessecseneseseneeeesees 3

Reasons for Granting the Petition ............ ee seseseeeeseceeceseeesceseecesseseaceseesensseeersnens . vee 4

THE REASONING OF WILLIAMS V. FLORIDA HAS BEEN REJECTED AND

THE CASE SHOULD BE OVERRULED......... sessseeuesessseasseseseneesesseccesetseeseresseeseeneaees 4

Conclusion... eessesseseeectesseeetsstenssennsarecneeenecotseneeneessessassnseassanssaseneeaeraesssansesessseeneeaes 13

INDEX TO APPENDICES

A. District Court’s Decision oc. esesceseerssesecsceseeteetecesecessesesessessstseseaceasaeseseneseescees A2

B. Florida Supreme Court’s Order .........c:sssssessssscsesessceresseseeseessseesseseeseessevecveccaesaces A3

C. Excerpt from Crane’s Initial Brief .....0...cccecsscsscesessssssesseceseseesserecscrssscuseusasssseasens A5

D. Judgment and Sentence .0.......ccccecsssssssssssescesscsecercoecssesecasessesessessusgusaeserserseesseees A18

ili

TABLE OF AUTHORITIES |

Cases .

Apodaca v. Oregon, 406 U.S. 404 (1972) oo. eeeecsccsssescescesscecseessnescscesecccssesseesessececosersanes 6

Baldwin v. New York, 399 U.S. 117 (1970)...c.cccessssscccsscecceceecessesccesecccceeseesessesnsessecs 5

Ballew v. Georgia, 435 U.S. 223 (1978).....ccccccccscsssssssssssssscesercecesscscesaseescesseesaesacaes

Burch v. Louisiana, 441 U.S. 180 (1979)

Duncan v. Louisiana, 391 U.S. 145 (1968) oo... ceccecesscsssscesesssecccccescecsssssensceececessaeeee 5

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241: (Bla. 1908) -vsessescssesseseeseee 10

Gibson v. State, 16 Fla. 291 (1877).....ccccccccscssssssssscsssscsssscarsessseseesscarssesceceaeseseeseee 10, 11

Guzman v. State, 350 So. 8d 72 (Fla. 4th DCA 2022) .scsccscsucsssunssetieesntentinese 3,9

Khorrami v. Arizona, No, 21-1553, 2022 WL 16726030 (U.S. Nov. 7, 2022)...9, 10, 12

Maxwell v. Dow, 176 U.S. 581 (1900)... ec essescscceccecceceseescececesssecsessesssssvscesecsccesesses 4

Patton v. United States, 281 U.S. 276 (1980) .esccesscosssessisessesessesasesesnsessreststassstnsees 5

Ramos v. Louisiana, 206 L. Ed. 2d 583 (2020) passim

State v. Khorrami, 1 CA-CR 20-0088, 2021 WL 3197499 (Ariz. Ct. App. July 29,

2021) sesso seseeeensseeesetssanseeceuessnssesunineeresesanestuassestetnestseuesuneeeteneuanteesecnaset 9, 10

State v. West, 30 Fla. L. Weekly Supp. 607a (Fla. 11th Cir. Dec. 2, 2022)... 12

Thompson v. Utah, 170 U.S. 843 (1898) .....c.ccessessesseccesscsssessecsesssssssseasessesseseesectsseseeeeese 4

Statutes

/§ 918.10, Fla. Stat. eeeccccccsccsssssssssssessescesssssssssssensssssvesestsssesescesssssssssnssseeseseeneennansans 10

Ch. 3010, § 6, Laws of Fla. (1877) .cccccccssecsssssseesseecsees -_ sessuessssesssessesueeruessutssecarsesnseees 10

: Other Authorities

Diamond et al., Achieving Diversity on the Jury: Jury Size and the Peremptory

Challenge, 6 J. of Empirical Legal Stud. 425 (Sept. 2009) ........ceeeessssessssesesseseens 8

Higginbotham ét al., Better by the Dozen: Bringing Back the Twelve-Person Civil

Jury, 104 Judicature 47 (Summer 2020) .....ccccccscsssssscscscscesscecsesecesecsesssssaseseseceeee 8,9

Jerrell H. Shofner, Reconstruction and Renewal, 1865-1877, in The History of

Florida 273 (Michael Gannon, ed., first paperback edition 2018) .............. 11, 12

Richard L. Hume, Membership of the Florida Constitutional Convention of 1868: A

Case Study of Republican Factionalism in the Reconstruction South, 51 Fla. Hist.

Q. 1 1972) oo eee ccccecenssececeeceeessensaeseessesseccnseseeeeeseessonseneeneeaseessssseseneseneeseeneeees 11, 12

Smith & Saks, The Case for Overturning Williams v. Florida and the Six-Person

Jury, 60 Fla. L, Rev. 441 (2008) .0......eeececccceseeseeeSesceseanenseceseecencceceseeeseateeseeessenenses 9

Fla. R. Crim. P. 3.270 ooo... cccccscsssescsssssscecsssccecsncceeconsaescesaseevsccanceceaseasescersensesseceseessense 10

Amend. VI, U.S. Const.

Amend. XIV, U.S. Const. ......cccccccccssccscessnecesseecsseecsscessscesensesececessaeceneuscessensceesseasenneee 3

Art. L, § 22, Pla. Const. 0... ccc cecsssecssecescscecesscceecsessesscescessessesesanseeessenseeecetseseuseeeneeases 10

IN THE SUPREME COURT OF THE. UNITED STATES

No.

JOHN CRANE, PETITIONER,

STATE OF FLORIDA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

PETITION FOR A WRIT OF CERTIORARI

John Crane respectfully petitions for a writ of certiorari to review the

judgment in this case of the Fourth District Court of Appeal of Florida.

OPINION BELOW

The opinion of Florida’s Fourth District Court of Appeal is reported as Crane

v. State, 361 So. 3d 882 (Fla. 4th DCA 2023), rev. dismissed, SC2023-0762, 2023 WL

3973917 (Fla. June 13, 2023), and is reprinted in the appendix. A2.

JURISDICTION

Florida’s Fourth District Court of Appeal affirmed Crane’s conviction and

sentence on May 24, 2023. A2. The Florida Supreme Court dismissed his petition

for review on June 13, 2023. A3. This Court has jurisdiction under 28 U.S.C. §

125T(@).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment of the United States Constitution provides: “In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence.”

Section 1 of the Fourteenth Amendment of the United States Constitution .

provides:. “[NJor shall any State deprive any person of life, liberty, or property,

without due process of law....”

STATEMENT OF THE CASE

Petitioner, John Crane, was convicted by a six-person jury of a drug

trafficking offense and he was sentenced to 25 years in prison. ‘A18-A24. He

‘appealed to the Fourth District Court of Appeal of Florida. Relying on Ramos v.

Louisiana, 206. L. Ed. 2d 583 (2020), he argued that he was entitled under the Sixth

and Fourteenth Amendments to a twelve-person jury. A5-A17. The District Court

rejected his argument on the authority of Guzman v. State, 350 So. 3d 72 (Fla. 4th

DCA 2022). A2: In his concurring opinion in Guzman, Judge Gross said that “Ramos

. suggests that Williams was wrongly decided,” that “Guzman has a credible.

argument that the original public meaning of the Sixth Amendment right to a ‘trial

by an impartial jury’ included the right to a 12-person jury,” and that “Williams

hovers in the legal ether, waiting for further examination by the [United States]

Supreme Court.” Jd. at 78 (emphasis and citations omitted). (Guzman’s petition is

pending before this Court in case no. 23-5173.)

Crane sought review in the Florida Supreme Court, but that court would only

have jurisdiction if it accepted review of Guzman. See Jollie v. State, 405 So. 2d 418

(Fla. 1981). When the court denied review of Guzman, it dismissed Crane’s petition.

A8.

REASONS FOR GRANTING THE PETITION

‘THE REASONING OF WILLIAMS V. FLORIDA HAS BEEN

REJECTED AND THE CASE SHOULD BE OVERRULED

This Court’s decision in Williams v. Florida, 399 US. 78 (1970), is impossible

to square with the ruling in Ramos v. Louisiana, 140 S. Ct. 1890 (2020), that the

Sixth Amendment’s “trial by an impartial jury” requirement encompasses what the

term “meant at the Sixth Amendment’s adoption,” id. at 1895. What the term

meant was a jury of twelve. As this Court stated in Ramos, Blackstone recognized

that under the common law, “no person could be found guilty of a serious crime

unless ‘the truth of every accusation ... should... be confirmed by the unanimous

suffrage of twelve of his equals and neighbors[.]” 140 S. Ct. at 1395. “A ‘verdict,

taken from eleven, was no verdict’ at all.” Id.

This Court said in Thompson v. Utah, 170 U.S. 348, 349-350 (1898), that

since the time of Magna Carta, the word “jury” had been understood to mean a body

of twelve people. Given that that understanding had been accepted since 1215, the

Court reasoned, “ lit must” have been “that the word jury” in the Sixth Amendment

was “placed in the constitution of the United States with reference to [that]

meaning affixed to [it].” Id. at 350.

This Court continued to cite the basic principle that the Sixth Amendment

requires a twelve-person jury in criminal cases for severity more years. In 1900, the

Court explained that “there [could] be no doubt” “[t]hat a jury composed, as at

common law, of twelve jurors was intended by the Sixth Amendment to the Federal

Constitution.” Maxwell v. Dow, 176 U.S. 581, 586 (1900). Thirty years later, this

Court reiterated that it was “not open to question” that “the phrase ‘trial by jury” in

the Constitution incorporated juries’ “essential elements” as “they were recognized

in this country and England,” including the requirement that they “consist of twelve .

men, neither more nor less.” Pation v. United States, 281 U.S. 276, 288 (1980). And

as recently as 1968, the Court remarked that “by the time our Constitution was

written, jury trial in criminal cases had been in existence for several centuries and

carried impressive credentials traced by many to Magna Carta,” such as the

necessary inclusion of twelve members. Duncan v. Louisiana, 391 U.S. 145, 151-152

(1968).

In 1970, however, the Williams Court overruled this line of precedent in a

decision that Justice Harlan described as “stripping off the livery of history from the

jury trial” and ignoring both “the intent of the Framers” and the Court’s long held

understanding that constitutional “provisions are framed in the language of the

English common law [] and ... read in the light of its history.” Baldwin v. New York,

399 U.S. 117, 122-123 (1970) (citation omitted) (Harlan, J., concurring in the result

in Williams)..Indeed, Williams recognized that the Framers “may well” have had

“the usual expectation” in drafting the Sixth Amendment “that the jury would

consist of 12” members. Williams, 399 U.S. at 98-99. But Williams concluded that

such “purely historical considerations” were not dispositive. Id. at.99. Rather, the - -

Court focused on the “function” that the jury plays in the Constitution, concluding

that the “essential feature” of a jury is it leaves justice to the “commonsense

judgment of a group of laymen” and thus allows “guilt or innocence” to be

determined via “community participation and [with] shared responsibility.” Id. at

100-01. According to the Williams Court, both “currently available evidence [and]

theory” suggested that function could just as easily be performed with six jurors as. ,

with twelve. Id. at 101-102 & n.48; cf. Burch v. Louisiana, 441 U.S. 180, 137 (1979)

_ (acknowledging that Williams and its progeny “departed from the strictly historical

requirements of jury trial”).

Williams’s ruling that the Sixth Amendment (as incorporated to the States.

by the Fourteenth) permits a six-person jury cannot stand in light of Ramos. There, ;

this Court held that the Sixth Amendment requires a unanimous verdict to convict

a defendant of a serious offense. In reaching that conclusion, the Ramos Court

overturned Apodaca v. Oregon, 406 U.S. 404 (1972), a decision that it faulted for

“subject[ing] the ancient guarantee of a unanimous jury verdict to its own

functionalist assessment.” 140 S. Ct. at 1401-1402.

That reasoning undermines Williams as well. Ramos rejected the same kind

of “cost-benefit analysis” this Court undertook in Williams, observing that it is not

the Court’s role to “distinguish between the historic features of common law jury

trials that (we think) serve ‘important enough functions to migrate silently into the

” Sixth Amendment and those that don’t.” 140 S. Ct. at 1400-01. Rather, the Ramos

Court explained, the question: is whether “at the time of the Sixth Amendment’s

adoption, the right to trial by jury included” the particular feature at issue. Id. at

1402. As the history summarized above establishes, there can be no serious doubt

that the common understanding of the jury trial during the Revolutionary War era

‘was that twelve jurors were required—“a verdict, taken from eleven, was no verdict

at all.” See 140 S, Ct. at 1395 (quotation marks omitted).

Even setting aside Williams’s disfavored functionalist logic, its ruling

suffered from another flaw: it was based on research that was out of date shortly

after the opinion issued. Specifically, the Williams ‘Court “floujnd little reason to

think” that the goals of the jury guarantee—including, among others, “to provide a

faix possibility for obtaining a representative[] cross-section of the community’—

“are in any meaningful sense less likely to be achieved when the jury numbers six,

than when it numbers 12.” Id. at 100. The Court theorized that “in practice the

difference between the 12-man and the six-man jury in terms of the cross-section of

the community represented seems likely to be negligible.” Id. at 102.

In the time since Williams, that determination has proven incorrect. This

Court acknowledged as much eight years later in Ballew v. Georgia, 435 U.S. 223

(1978), when it concluded that the Sixth Amendment barred the use of a five-person

jury. Although Ballew did not overturn Williams, the Ballew Court observed that

empirical studies conducted in the handful of intervening years highlighted several

problems with Williams’ assumptions. For example, Ballew noted that more recent

research showed that (1) “smaller juries are less likely to foster effective group

deliberation,” id. at 233, (2) smaller juries may be less’ accurate -and cause

“increasing inconsistency” in verdict results, id. at 234, (8) the chance for hung

juries decreases with smaller juries, disproportionally harming the defendant, id. at

236; and (4) decreasing jury sizes “foretell[] problems ... for the representation of

minority groups in the community,” undermining a jury’s likelihood of being “truly

representative of the community,” id. at 236-37. Moreover, the Ballew Court

“admit[ted]” that it “dfid] not pretend to discern a clear line between six members

and five,” effectively acknowledging that the studies it relied on also cast doubt on

the effectiveness of the six-member jury. Id. at 239; see also id. at 245-46 (Powell, J.)

(agreeing that five-member juries are uriconstitutional, while acknowledging that

“the line between five- and six-member juries is difficult to justify”).

Post-Ballew research has further undermined Williams. Current empirical

evidence indicates that “reducing jury size inevitably has a drastic effect on the

representation of minority group members on the jury.” Diamond et al., Achieving

Diversity on the Jury: Jury Size and the Peremptory Challenge, 6 J. of Empirical

Legal Stud. 425, 427 (Sept. 2009); see also Higginbotham et al., Better by the Dozen:

‘Bringing Back the. Twelve-Person Civil Jury, 104 Judicature 47, 52 (Summer 2020)

(‘Larger juries are also more inclusive and more representative of the community.

.. In reality, cutting the. size of the jury dramatically increases the chance of

excluding minorities.”). Because “the 12-member jury produces significantly greater

heterogeneity than does the six-member jury,” Diamond et al., Achieving Diversity

on the Jury, supra, at 449, it increases “the opportunity for meaningful and

appropriate representation” and helps ensure that juries “represent adequately a’

cross-section of the community.” Ballew, 435 U.S. at 237.

Other important considerations also weigh in favor of the twelve-member

jury. Studies indicate that.twelve-member juries deliberate longer, recall evidence

better, and rely less on irrelevant factors.during deliberation. See Smith & Saks,

The Case for Overturning Williams v. Florida and the Six-Person Jury, 60 Fla. L.

Rev. 441, 465 (2008). Minority views are also more likely to be thoroughly expressed

in a larger jury, as “having a large minority helps make the minority subgroup more

influential,” and, unsurprisingly, “the chance of minority members having allies is

greater on a twelve-person jury.” Id. at 466. Finally, larger juries deliver more

predictable results. In the civil context, for example, “Islix-person juries are four

times more likely to return extremely high or low damage awards compared to the

average.” Higginbotham et al., Better by the Dozen, supra, at 52.

In Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022), the District Court

cited the Arizona case of State uv. Khorrami, 1 CA-CR 20-0088, 2021 WL 3197499

(Ariz. Ct. App. July 29, 2021). At the time of the District Court’s decision,

Khorrami’s petition for writ of certiorari was pending in this Court. Khorrami’s

petition was denied, over dissents by Justices Kavanaugh and Gorsuch. Khorrami v.

Arizona, No, 21-1553, 2022 WL 16726030 (U.S. Nov. 7, 2022).

Although there is no legal significance to the denial of a petition for writ of

certiorari,! there are ‘important differences between Florida’s and Arizona’s

systems. In Arizona, criminal defendants are guaranteed on twelve-person jury in

- cases when the sentence authorized by law is death or imprisonment for thirty

years or more. ok Otherwise, a criminal defendant may be tried with an eight-

1 See Ramos, 140 S. Ct. 1890 at n.56 (“The significance of a denial of a

petition for certiorari ought no longer require discussion. This Court has said again

and again and again that such a denial has no legal significance whatever bearing

on the merits of the claim.”) (cleaned up).

person jury.” State v. Khorrami, 2021 WL 3197499, at *8 (citations omitted). Florida

juries are smaller (six versus eight), and those smaller juries are mandated in every

case except capital cases. Art. I, § 22, Fla. Const.; § 913.10, Fla. Stat.; Fla. R. Crim.

P. 3.270.

More importantly, the history of Florida’s rule can be traced to the Jim Crow

era. Justice Gorsuch observed that “[djuring the Jim Crow era, some States

restricted the size of juries and abandoned the demand for a unanimous verdict as

part of a deliberate and systematic effort to suppress minority voices in public

affairs.” Khorrami v. Arizona, 2022 WL 167260380, at *5 (Gorsuch, J., dissenting)

(citations omitted). He noted, however, that Arizona’s law was likely motivated by

costs not race. Id. But Florida’s jury of six did arise in that Jim Crow era context of

a “deliberate and systematic effort to suppress minority voices in public affairs.” Id.

The historical background is as follows:

In 1875, the Jury Clause of the 1868 constitution was amended to provide

that the number of jurors “for the trial of causes in any court may be fixed by law.”

See Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241, 241 (Fla. 1903). The

common law rule of a jury of twelve was still kept in Florida while federal troops

remained in the state. There was no provision for a jury of less than twelve until the

Legislature enacted a provision specifying a jury of six in Chapter 3010, section 6,

Laws of Florida (1877). See Gibson v. State, 16 Fla. 291, 297-98 (1877); Florida

Fertilizer, 34 So. at 241.

The Florida Legislature enacted chapter 3010 with the jury-of-six provision

on February 17, 1877. Gibson, 16 Fla. 294. This was less than a month after the last

federal troops were withdrawn from Florida in January 1877. See Jerrell H.

Shofner, Reconstruction and Renewal, 1865-1877, in The History of Florida 273

(Michael Gannon, ed., first paperback edition 2018) (‘there were [no federal troops”

in Florida after 23 January 1877”).

The jury-of-six thus first saw light at the birth of the Jim Crow era as former

Confederates regained power in southern states and state prosecutors made a

concerted effort to prevent blacks from serving on jurors.

On its face the 1868 constitution extended the franchise to black men. But

the historical context shows that that it was part of the overall resistance to

Reconstruction efforts to protect the rights of black citizens. The constitution was

the product of a remarkable series of events including a coup in which leaders of the

white southern (or native) faction took possession of the assembly hall in the middle

of the night, excluding Radical Republican delegates from the proceedings. See

Richard L. Hume, Membership of the Florida Constitutional Convention of 1868: A

Case Study of Republican Factionalism in the Reconstruction South, 51 Fla. Hist. Q.

1, 5-6 (1972); Shofner at 266. A reconciliation was effected as the “outside” whites

“united with the majority of the bodys native whites to frame a constitution

designed to continue white dominance.” Hume at 15.

The purpose of the resulting constitution was spelled out by Harrison Reed, a

leader of the prevailing faction and the first governor elected under the 1868

constitution, who wrote to Senator Yulee that the new constitution was constructed

to bar blacks from legislative office: “Under our Constitution the Judiciary & State

officers will be appointed & the apportionment will prevent a negro legislature.”

Hume, 15-16. See also Shofner 266. .

Smaller juries and non-unanimous verdicts were part of a Jim Crow era

effort “to suppress minority voices in public affairs.” Khorrami v. Arizona, 2022 WL

16726030, at *5 (Gorsuch, J., dissenting); see also Ramos, 140 S. Ct. at 1417

(Kavanaugh, J., concurring) (non-unanimity was enacted “as one pillar of a

comprehensive and prutal program of racist Jim Crow measures against African-

Americans, especially in voting and jury service.”). The history of Florida’s jury of

six arises from the same historical context.

“[I]n Ramos v. Louisiana, the Court explained why Apodaca was wrong; and,

by unavoidable implication, why Williams must be wrong.” State v. West, 30 Fla. L.

Weekly Supp. 607a (Fla. 11th Cir. Dec. 2, 2022). This Court should grant the

petition to correct this mistake.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,