Opposition Brief — Andrew Sposato, Petitioner v. Florida
Supreme Court briefOct 20, 2023
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No. 23-5575
IN THE
Supreme Court of the United States
_______________
ANDREW SPOSATO,
Petitioner,
v.
STATE OF FLORIDA,
_______________
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
FLORIDA DISTRICT COURT OF APPEAL,
FOURTH 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). After examining the history and purpose of the
right to trial by jury, the Court concluded that the
framers enshrined no 12-juror requirement in the
Constitution, even though most founding-era juries
consisted of 12 persons. 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 six-member juries, roughly 5,000 criminal convictions are currently
pending on direct appeal.
The question presented is whether the Court
should overrule Williams and hold that the Sixth
Amendment requires the use of 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 ............ 4
I. THIS COURT LACKS JURISDICTION BECAUSE
PETITIONER FAILED TO PURSUE AN AVAILABLE
AVENUE FOR FLORIDA SUPREME COURT
REVIEW. ..............................................................5
II. THE COURT SHOULD REJECT PETITIONER’S
INVITATION TO RECONSIDER AND OVERRULE
WILLIAMS. ..........................................................8
CONCLUSION .......................................................... 21
iii
TABLE OF AUTHORITIES
Cases
Apodaca v. Oregon,
406 U.S. 404 (1972) ................................ 3, 11–13, 20
Atkins v. Virginia,
536 U.S. 304 (2002) ................................................ 14
Ballew v. Georgia,
435 U.S. 223 (1978) .......................................... 13, 15
Brady v. Maryland,
373 U.S. 83 (1963) .................................................. 14
Colgrove v. Battin,
413 U.S. 149 (1973) .................................... 12–13, 21
Collins v. Youngblood,
497 U.S. 37 (1990) .................................................. 13
Davis v. Florida,
143 S. Ct. 380 (2022) ................................................ 4
Dobbs v. Jackson Women’s Health Org.,
142 S. Ct. 2228 (2022) ............................................ 10
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) ................................................ 14
Gonzalez v. Thaler,
565 U.S. 134 (2012) .................................................. 5
Gorman v. Washington Univ.,
316 U.S. 98 (1942) ................................................ 5, 7
Gotthilf v. Sills,
375 U.S. 79 (1963) ................................................ 7–8
Griffin v. California,
380 U.S. 609 (1965) ................................................ 15
iv
In re The Fla. Bar Rules of App. P.,
536 So. 2d 240 (Fla. 1988)........................................ 7
Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,
Council 31,
138 S. Ct. 2448 (2018) ........................................ 8, 15
Kennedy v. Louisiana,
554 U.S. 407 (2008) .................................................. 2
Khorrami v. Arizona,
143 S. Ct. 22 (2022) .......................... 4, 11, 15, 17, 19
Lockhart v. McCree,
476 U.S. 162 (1986) ................................................ 19
Ludwig v. Massachusetts,
427 U.S. 618 (1976) ................................................ 13
Miranda v. Arizona,
384 U.S. 436 (1966) ................................................ 14
Phillips v. Florida,
142 S. Ct. 721 (2021) ................................................ 4
Pretell v. Florida,
143 S. Ct. 1027 (2023) .............................................. 4
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ........................ 3, 9, 11–13, 20
Roper v. Simmons,
543 U.S. 551 (2005) ................................................ 14
Rupp v. Jackson,
238 So. 2d 86 (Fla. 1970).......................................... 7
Strickland v. Washington,
466 U.S. 668 (1984) ................................................ 14
Taylor v. Louisiana,
419 U.S. 522 (1975) ................................................ 14
United States v. Gaudin,
515 U.S. 506 (1995) ................................................ 13
Weeks v. United States,
232 U.S. 383 (1914) ................................................ 14
v
Williams v. Florida,
399 U.S. 78 (1970) ...................... 1, 3–4, 8–15, 19–21
Zirin v. Charles Pfizer & Co.,
128 So. 2d 594 (Fla. 1961)........................................ 7
Statutes & Constitutional Provisions
28 U.S.C. § 1257 .......................................................... 5
Act of February 17, 1877, ch. 3010, § 6,
1877 Fla. Laws 54 .............................................. 1, 19
Ariz. Rev. Stat. § 21-102 ............................................. 5
Conn. Gen. Stat. § 54-82 ............................................. 5
Fla. Const. art. I, § 22 ............................................... 20
Fla. Const. art. V, § 3 .................................................. 6
Fla. Stat. § 794.011 ..................................................... 1
Fla. Stat. § 913.10 ............................................... 1–2, 5
Ind. Code § 35-37-1-1 .................................................. 5
Mass. Gen. Laws Ch. 218, § 26A ................................ 5
Utah Code. Ann. § 78B-1-104 ..................................... 5
Rules
Fed. R. Civ. P. 48 ....................................................... 21
Fla. R. App. P. 9.330................................................ 4, 6
Other Authorities
Alice Guerra et al., Accuracy of Verdicts Under
Different Jury Sizes and Voting Rules,
28 Sup. Ct. Econ. Rev. 221 (2020) ......................... 16
Annals of Cong. (1789) (Joseph Gales ed., 1834) ..... 11
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ............... 14
vi
Barbara Luppi & Francesco Parisi,
Jury Size and the Hung-Jury Paradox,
42 J. Legal Stud. 399 (2013) .................................. 16
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) .... 16
Chief Adm’r of Cts., New York State Unified Court
System 2017 Annual Report (2018),
https://tinyurl.com/yckheu9v ................................. 18
Chief Adm’r of Cts., New York State Unified Court
System 2018 Annual Report (2019),
https://tinyurl.com/yc7cvjhe................................... 18
Chief Adm’r of Cts., New York State Unified Court
System 2019 Annual Report (2020),
https://tinyurl.com/2wtwfmdm .............................. 18
Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts
Statistical Reference Guide FY 2016-17 (2018),
https://tinyurl.com/4drv24ky ................................. 17
Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts
Statistical Reference Guide FY 2017-18 (2019),
https://tinyurl.com/433vwfy3 ................................. 17
Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts
Statistical Reference Guide FY 2018-19 (2020),
https://tinyurl.com/43zywh5n ................................ 17
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) .......... 10
James Wilson,
Works of the Honourable James Wilson (1804)..... 12
Jud. Council of Cal., 2018 Court Statistics Report:
Statewide Caseload Trends (2018),
https://tinyurl.com/5n6tj9pr .................................. 18
vii
Jud. Council of Cal., 2019 Court Statistics Report:
Statewide Caseload Trends (2019),
https://tinyurl.com/mwmby3h5 ............................. 18
Jud. Council of Cal., 2020 Court Statistics Report:
Statewide Caseload Trends (2020),
https://tinyurl.com/2mym3hrx ............................... 18
Kaushik Mukhopadhaya,
Jury Size and the Free Rider Problem,
19 J.L. Econ. & Org. 24 (2003) ........................ 15–16
Letter from James Madison to Edmund Pendleton,
Sept. 14, 1789, 1 Letters and Other Writings of
James Madison (1865) ........................................... 11
Letter from Richard Henry Lee to Patrick Henry,
Sept. 14, 1789, https://tinyurl.com/muu5xzfa ....... 11
Nicolas Fay et al., Group Discussion as Interactive
Dialogue or as Serial Monologue: The Influence of
Group Size, 11 Psych. Sci. 481 (2000) ................... 16
Off. of Ct. Admin., Annual Statistical Report for the
Texas Judiciary Fiscal Year 2017 (2018),
https://tinyurl.com/mtrp379s ................................. 18
Off. of Ct. Admin., Annual Statistical Report for the
Texas Judiciary Fiscal Year 2018 (2019),
https://tinyurl.com/2s3fsmpf .................................. 18
Off. of Ct. Admin., Annual Statistical Report for the
Texas Judiciary Fiscal Year 2019 (2020),
https://tinyurl.com/ywh779v3 ................................ 18
Patrick E. Higginbotham et al., Better by the Dozen:
Bringing Back the Twelve-Person Civil Jury,
104 Judicature 46 (2020) ....................................... 21
Paul Samuel Reinsch, The English Common Law in
the Early American Colonies, 1 Select Essays in
Anglo-American Legal History 367 (1907) .............. 9
William Blackstone,
Commentaries on the Laws of England (1769) ..... 10
viii
William S. Brackett,
The Freehold Qualification of Jurors,
29 Am. L. Reg. 436 (1881) ...................................... 10
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
child under 12 and sexual battery of a child over 12 by
a person in a position of familial or custodial authority. See Fla. Stat. §§ 794.011(2)(a), (8)(b). Because
child rape is not punishable by death under existing
precedent, the trial court empaneled a six-person jury
2
as dictated by Florida law.1 See id. § 913.10. Petitioner’s counsel questioned the venire panel extensively and participated in jury selection, exercising
cause and peremptory challenges to various prospective jurors petitioner deemed undesirable. Tr. 164–
261. Once jurors were selected, petitioner accepted the
jury as empaneled and proceeded to trial with no objection to the jury’s size. Tr. 254–55.
The evidence at trial showed that the victim, E.S.,
was petitioner’s stepdaughter and that she viewed petitioner as a father figure. Tr. 302–04. She lived with
her mother and petitioner from ages 4 to 14. Tr. 301.
Petitioner first sexually battered E.S. when she was
eight years old. Tr. 308. While E.S. was watching television in petitioner’s bedroom, petitioner removed
her clothes, told her to shut up, and penetrated her
genitalia with his own. Tr. 310–15. The assault lasted
around five minutes, causing E.S. pain and making
her bleed. Tr. 314.
Over the next five years, petitioner sexually assaulted E.S. in a similar manner around 30 times. Tr.
322, 326, 339. One time, petitioner grabbed E.S. by the
hair, told her to open her mouth and inserted his penis, only to retreat when E.S. defended herself by biting his penis. Tr. 318–20. Other times, petitioner used
sexual battery as a form of discipline. E.S. testified to
an incident where petitioner was spanking her because she got in trouble. Tr. 327. Petitioner then laid
her on her back, removed her clothing, covered her
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).
3
mouth with his hand, and penetrated her vagina with
his penis. Tr. 327–28. When E.S. protested, petitioner
told her to “shut up” and that she “deserve[d] it.” Tr.
328. After enduring years of petitioner’s sexual abuse,
E.S. ran away to live with her grandparents when she
was 14. Tr. 338–39.
After the abuse was reported to police, officers interviewed petitioner. Petitioner at first denied any
sexual contact with E.S. before admitting that he
“probably” did some “accidental touching” “not knowingly.” Tr. 449, 455–56. Eventually, petitioner confirmed that he made a “bad mistake.” Tr. 463. According to petitioner, E.S. was in middle school the first
time they “had sex.” Tr. 467. Petitioner confessed to
“ha[ving] sex” with E.S. one to five times. Tr. 468. He
claimed that he always ejaculated in a towel to avoid
getting E.S. pregnant. Tr. 466.
Despite petitioner’s attempt to impeach E.S. with
an entry from her journal that suggested she once accused petitioner of “touch[ing her]” to “cover[ ] up” an
alleged sexual relationship with another teenager, Tr.
408, the jury returned unanimous guilty verdicts on
both counts. R. 265–66.
3. Petitioner appealed his conviction to Florida’s
Fourth District Court of Appeal, arguing—for the first
time—that the Sixth Amendment entitled him to be
tried by a 12-person jury because this Court abrogated
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 Fourth District affirmed in a per curiam,
summary decision. Pet. App. 1. Petitioner did not ask
4
the Fourth District to certify a question of great public
importance under Florida Rule of Appellate Procedure
9.330(a), which, if granted, would have authorized
him to seek further review in the Florida Supreme
Court. He instead sought discretionary review in the
Florida Supreme Court without a certified question.
The Florida Supreme Court dismissed the petition because, absent a certified question, the court generally
lacks jurisdiction to review summary decisions of the
district courts of appeal. Pet. App. 2.
REASONS FOR DENYING THE PETITION
Petitioner contends that the Court should review
the Fourth District’s summary decision and use it as
a vehicle to overrule Williams v. Florida, 399 U.S. 78
(1970), which held that the Sixth Amendment permits
six-person juries in criminal cases. But this Court
lacks jurisdiction to issue a writ of certiorari to the
Fourth District because petitioner failed to seek review in the Florida Supreme Court by moving the
Fourth District to certify a question of great public importance. And even if the Court had jurisdiction, it
should, as it has done in several recent cases, decline
the invitation to revisit Williams. See Pretell v. Florida, 143 S. Ct. 1027 (2023); Khorrami v. Arizona, 143
S. Ct. 22 (2022); Davis v. Florida, 143 S. Ct. 380
(2022); Phillips v. Florida, 142 S. Ct. 721 (2021). 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; overruling it also would imperil thousands of criminal convictions in Florida and
5
five other states that for more than 50 years have relied on its rule.2
The petition should be denied.
I. THIS COURT
LACKS JURISDICTION BECAUSE
PETITIONER FAILED TO PURSUE AN AVAILABLE
AVENUE FOR FLORIDA SUPREME COURT REVIEW.
In appeals from state-court litigation, this Court’s
jurisdiction is limited to reviewing decisions of the
“highest court of a State in which a decision could be
had.” 28 U.S.C. § 1257(a). That means that this Court
may review on certiorari only judgments of “a state
court of last resort” or “a lower state court if the state
court of last resort has denied discretionary review.”
Gonzalez v. Thaler, 565 U.S. 134, 154 (2012). If a petitioner fails to exhaust any available avenues to obtain review in the state court of last resort, then this
Court lacks jurisdiction to grant certiorari to an intermediate appellate court. See id.; Gorman v. Washington Univ., 316 U.S. 98, 100–01 (1942) (“[N]o decision
of a state court should be brought here for review . . .
until the possibilities afforded by state procedure for
its review by all state tribunals have been exhausted.”). Here, petitioner seeks certiorari from Florida’s district court of appeal—its intermediate appellate court. But because he failed to exhaust his available options for seeking review in the Florida Supreme Court, the district court of appeal is not in fact
the highest court in Florida in which he could have
sought a decision.
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.
6
The Florida Supreme Court has discretionary jurisdiction to review the final decision of a Florida district court of appeal in several circumstances. The
court may review the decision if it expressly declared
a state statute valid; expressly construed a provision
of the state or federal constitution; expressly affects a
class of constitutional or state officers; or expressly
and directly conflicts with a decision of another district court of appeal or the Florida Supreme Court.
Fla. Const. art. V, § 3(b)(3). The Florida Supreme
Court may also grant review if the district court certifies its decision “to be of great public importance” or
“to be in direct conflict with” another district court of
appeal’s decision. Id. § 3(b)(4). Litigants may move for
such a certification within 15 days of the district
court’s decision. Fla. R. App. P. 9.330(a)(1), (2)(C). If
the court grants the motion, the litigant may then
seek discretionary review in the Florida Supreme
Court.
Here, petitioner made no attempt to use an available procedure for further review in the Florida Supreme Court. Namely, petitioner did not ask the
Fourth District Court of Appeal to certify a question
of great public importance. He instead petitioned the
Florida Supreme Court for discretionary review even
though the Florida Supreme Court generally lacks jurisdiction, absent a certified question, to review summary decisions. Pet. App. 2. When the Florida Supreme Court dismissed his petition for lack of jurisdiction, petitioner came to this Court. Petitioner’s failure
to exhaust the procedures available to seek review in
7
the Florida Supreme Court deprives this Court of jurisdiction.3
That the district court may have denied certification does not excuse petitioner’s failure to try. What
matters is the “possibility” of further review. Gorman,
316 U.S. at 100–01. This Court is ill-positioned to
evaluate the likelihood that the district court would
have exercised its discretion to certify—a matter
“wholly within the province” of that court. Rupp v.
Jackson, 238 So. 2d 86, 88 (Fla. 1970); see also Zirin
v. Charles Pfizer & Co., 128 So. 2d 594, 597 (Fla. 1961)
(“solely for the district court to determine”).
This Court dismissed a writ of certiorari for lack of
jurisdiction under similar circumstances in Gotthilf v.
Sills, 375 U.S. 79 (1963) (per curiam). There, as here,
the petitioner made no attempt to ask New York’s intermediate appellate court to certify the decision for
review by the New York Court of Appeals, opting instead to petition the Court of Appeals directly for review without any jurisdictional basis. Id. at 80. As the
Florida Supreme Court did here, the New York Court
of Appeals dismissed the petition for lack of jurisdiction. Id. This Court held that it lacked jurisdiction because, in neglecting to ask the intermediate court for
certification, the petitioner had failed to exhaust that
3
In 1967, this Court exercised certiorari jurisdiction over a
Florida district-court-of-appeal decision because, at the time,
there was no mechanism under Florida law for a litigant to request certification of a question to the Florida Supreme Court.
See Nash v. Fla. Indus. Comm’n, 389 U.S. 235, 237 n.1 (1967).
That changed in 1988 when the Florida Supreme Court amended
the Rules of Appellate Procedure to allow litigants to move for
certification in the district courts. See In re The Fla. Bar Rules of
App. P., 536 So. 2d 240, 241 (Fla. 1988) (per curiam).
8
available avenue of further review. Id. The same is
true here.
II. THE COURT
INVITATION
WILLIAMS.
SHOULD REJECT PETITIONER’S
TO RECONSIDER AND OVERRULE
Even if this Court had jurisdiction, petitioner has
not justified revisiting Williams’ holding that the
Sixth Amendment permits juries comprised of six
members in serious criminal cases. Although petitioner urges the Court to grant review to overrule that
53-year-old case, he does not acknowledge his heavy
burden to show that the Court should do so.
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 “disfavored functionalist logic.”
Pet. 7; see also id. at 5–6. On the contrary, Justice
White’s opinion for the Court in Williams—thick with
scholarly footnotes—extensively canvassed the his-
9
tory 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 jurytrial 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 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
10
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,
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 the Sixth Amendment’s drafting history. The Framers, the Court explained, resoundingly rejected James Madison’s proposal to constitutionalize in the Sixth Amendment all
11
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 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. Those would seem dramatic reactions to the mere trimming of surplusage.
2. Petitioner errs in contending that this Court’s
recent decision in Ramos requires overruling Williams. Pet. 6. 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
12
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
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
13
Williams, which commanded a solid majority of this
Court, Apodaca was a uniquely fractured decision
that several Justices concluded in Ramos 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 only
in state prosecutions, which subsequent cases referred
to as an “exception” to settled incorporation doctrine
and struggled to explain what it “mean[t],” Ramos,
140 S. Ct. at 1399, Williams has 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 be-
14
tween 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
of original meaning than Williams—in interpreting
constitutional text. 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
15
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 cites Justice Blackmun’s
opinion in Ballew and subsequent research to suggest
that empirical evidence shows that six-person juries
do not function as well as 12-person juries. Pet. at 7–
9; 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 for good reason: post-Williams scholarship is, at
most, mixed on this point.
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
16
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
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). Put differently, a juror is more likely 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
17
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,
see Khorrami, 143 S. Ct. at 26 (Gorsuch, J., dissenting
from denial of certiorari), Florida juries convict criminal defendants at comparable—and possibly 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%,4 73.3%,5 and 72.1%,6 respectively. In the
same years, felony juries in Texas convicted at rates
4
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).
5
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).
6
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).
18
of 79.0%,7 81.0%,8 and 78.0%;9 felony juries in California convicted at rates of 86.0%,10 85.0%,11 and 84.0%;12
and felony juries in New York convicted at rates of
74.6%,13 73.7%,14 and 75.2%.15 Petitioner’s implication
that Florida juries are steamrolling criminal defendants relative to other jurisdictions thus lacks support
in the data. Instead, the data reflect what multiple
studies have shown: six- and 12-person juries similarly serve to “interpos[e] between the accused and his
accuser . . . the commonsense judgment of a group of
7
Off. of Ct. Admin., Annual Statistical Report for the Texas
Judiciary Fiscal Year 2017 Court-Level - 20 (2018), https://tinyurl.com/mtrp379s.
8
Off. of Ct. Admin., Annual Statistical Report for the Texas
Judiciary Fiscal Year 2018 Court-Level - 21 (2019), https://tinyurl.com/2s3fsmpf.
9
Off. of Ct. Admin., Annual Statistical Report for the Texas
Judiciary Fiscal Year 2019 Court-Level 23 (2020), https://tinyurl.com/ywh779v3.
10
Jud. Council of Cal., 2018 Court Statistics Report:
Statewide
Caseload
Trends
69
(2018),
https://tinyurl.com/5n6tj9pr.
11
Jud. Council of Cal., 2019 Court Statistics Report:
Statewide
Caseload
Trends
69
(2019),
https://tinyurl.com/mwmby3h5.
12
Jud. Council of Cal., 2020 Court Statistics Report:
Statewide
Caseload
Trends
55
(2020),
https://tinyurl.com/2mym3hrx.
13
Chief Adm’r of Cts., New York State Unified Court System
2017 Annual Report 48 (2018), https://tinyurl.com/yckheu9v.
14
Chief Adm’r of Cts., New York State Unified Court System
2018 Annual Report 42 (2019), https://tinyurl.com/yc7cvjhe.
15
Chief Adm’r of Cts., New York State Unified Court System
2019 Annual Report 38 (2020), https://tinyurl.com/2wtwfmdm.
19
laymen.” Williams, 399 U.S. at 100.16 It is thus not
true, as petitioner would have it, that Williams’ assessment of the six-person jury’s effectiveness “has
proven incorrect.” Pet. 7.
5. Petitioner adds insult to error in suggesting (at
10) that Florida’s six-person jury rule was adopted “to
suppress minority voices.” Beyond noting that the rule
dates from Reconstruction, however, petitioner cites
no evidence suggesting that is so, and makes no attempt to explain how a rule establishing the size of
juries without regard to race could be a covert instrument of racism.
Florida history in fact shows quite the opposite. Petitioner believes it nefarious that “[t]he common law
rule of a jury of twelve was still kept in Florida while
federal troops remained in the state,” but that Florida
then reduced the size of certain juries to six in 1877,
after the departure of federal troops that had occupied
Florida after the Civil War. Pet. 10–11. But petitioner
fails to note that, even after that, Florida also retained
12-person juries in capital cases, Act of February 17,
1877, ch. 3010, § 6, 1877 Fla. Laws 54, a fact inconsistent with petitioner’s charge of racism. And in any
event, petitioner does not contend that any part of
Florida’s current constitution, which was adopted in
16
Relying on studies purporting to show that smaller juries
result in fewer minority jurors, petitioner suggests that six-person juries threaten the right to a jury drawn from a fair crosssection of the community. See Pet. 8; 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).
20
1968 and provides that “the number of jurors, not
fewer than six, shall be fixed by law,” Fla. Const. art.
I, § 22, was motivated by racial animus.
6. Finally, petitioner does not so much as
acknowledge, let alone dispute, that overruling Williams would have sweeping consequences for the citizens of Arizona, 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 5,000 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 thousand.
21
As a last point on reliance, overruling Williams
would not affect only 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 only
roughly 12% of federal civil trials use 12-person juries). Petitioner fails to establish sufficient grounds
for this Court’s taking the extraordinary step of invalidating thousands of criminal and civil judgments.
CONCLUSION
The petition for a writ of certiorari should be denied.
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
October 20, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.