Reply Brief — Joseph Aiken, Petitioner v. Florida

Supreme Court briefFeb 26, 2024

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No. 23-5794

IN THE SUPREME COURT OF THE UNITED STATES

JOSEPH AIKEN, PETITIONER

STATE OF FLORIDA, RESPONDENT.

_____________

On Petition for a Writ of Certiorari to

the District Court of Appeal of Florida, Fourth District

_____________

REPLY BRIEF IN SUPPORT 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

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ................................................................................................. i

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

REPLY BRIEF IN SUPPORT OF CERTIORARI ........................................................ 1

I. THIS COURT HAS JURISDICTION .................................................................... 2

II. THE COURT SHOULD OVERRULE WILLIAMS .............................................. 4

A. Egregiously Wrong ............................................................................................. 4

B. Significant Negative Consequences .................................................................. 8

C. Reliance .............................................................................................................. 9

CONCLUSION............................................................................................................. 10

TABLE OF AUTHORITIES

Cases

Alleyne v. United States, 570 U.S. 99 (2013) ................................................................ 4

Ballew v. Georgia, 435 U.S. 223 (1978)..................................................................... 6, 8

Colgrove v. Battin, 413 U.S. 149 (1973) ........................................................................ 8

DeBiasi v. Snaith, 732 So. 2d 14 (Fla. Dist. Ct. App. 1999) ......................................... 3

Gotthilf v. Sills, 375 U.S. 79 (1963)............................................................................... 3

Ibanez v. Florida Dep’t of Bus. & Prof’l Regul., 512 U.S. 136 (1994)........................... 2

Khorrami v. Arizona, 143 S.Ct. 22 (2022) ......................................................... 1, 5, 7, 8

KPMG LLP v. Cocchi, 565 U.S. 18 (2011) ..................................................................... 2

Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962) ......................................................... 4

Market St. Ry. Co. v. Railroad Comm’n, 324 U.S. 548 (1945) ..................................... 3

Nash v. Florida Indus. Comm’n, 389 U.S. 235 (1967).......................................... 1, 2, 3

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

Stogner v. California, 539 U.S. 607 (2003) ................................................................... 8

Whitaker v. Jacksonville Expressway Auth., 131 So. 2d 22 (Fla. Dist. Ct. App. 1961).

.................................................................................................................................... 3

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

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 2

Other Authorities

ABA, Principles for Juries and Jury Trials, Principle 3 cmt. .................................. 6, 8

Fay et al., Group Discussion as Interactive Dialogue or as Serial Monologue, 11

Psychol. Sci. 481 (2000).............................................................................................. 7

Guerra et al., Accuracy of Verdicts, 28 Sup. Ct. Econ. Rev. 221 (2020)....................... 7

Mukhopadhaya, Jury Size and the Free Rider Problem, 19 J. L. Econ. & Org. 24

(2003) .......................................................................................................................... 7

Parisi & Luppi, Jury Size and the Hung-Jury Paradox, 42 J. Legal Stud. 399 (2013)

.................................................................................................................................... 7

Rose et al., Jury Pool Underrepresentation in the Modern Era, 15 J. Empirical Legal

Stud. 2 (2018) ............................................................................................................. 7

Saks & Marti, A Meta-Analysis of the Effects of Jury Size, 21 Law & Hum. Behav.

451 (1997) ................................................................................................................... 6

Waller et al., Twelve (Not So) Angry Men, 14 Grp. Processes & Intergrp. Rels. 835

(2011) .......................................................................................................................... 7

iii

REPLY BRIEF IN SUPPORT OF CERTIORARI

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

American scheme of justice.” Ramos v. Louisiana, 140 S.Ct. 1390, 1395, 1397 (2020).

The scope of that right is controlled by “what the term ‘trial by an impartial jury’ …

meant at the time of the Sixth Amendment’s adoption.” Id. at 1395. Tellingly,

Florida does not dispute that “a mountain of evidence suggests that, both at the

time of the Amendment’s adoption and for most of our Nation’s history, the right to

a trial by jury for serious criminal offenses meant a trial before 12 members of the

community.” Khorrami v. Arizona, 143 S.Ct. 22, 23 (2022) (Gorsuch, J., dissenting).

To the contrary, Florida acknowledges that the common law did impose a “12person requirement.” Opp.13.

Florida instead seeks to distract from the fundamental right at stake with a

meritless vehicle issue and highlighting the one-time cost of correcting the Williams

error.

As to the vehicle issue, this Court already rejected Florida’s certification

argument nearly sixty years ago. See Nash v. Florida Indus. Comm’n, 389 U.S. 235,

237 & n.1 (1967). Florida’s suggestion that this Court should sub silentio overrule

Nash based on a ministerial change to the state Rules of Appellate Procedure is

meritless. Indeed, this Court granted review of several Florida Court of Appeal

decisions even after the tweak to Florida’s rules.

As to the one-time cost of overruling Williams v. Florida, 399 U.S. 78

(1970)—that it would require a slice of cases to be retried in a half-dozen States—

this is the “usual” consequence of adopting a “new rule[] of criminal procedure,”

Ramos, 140 S.Ct. at 1407. This Court vacated “nearly 800 decisions” following

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

rulings. Id. at 1406. Here, nearly 50 million Americans are currently being denied

their right to a 12-person jury in nearly all circumstances. “[T]he competing

interests” of a handful of States cannot outweigh “the reliance the American people

place in their constitutionally protected liberties.” Id. at 1408 (plurality op.).

I. THIS COURT HAS JURISDICTION

Mr. Aiken obtained a decision from the “highest court of a State in which a

decision could be had,” 28 U.S.C. § 1257(a), because the Florida Supreme Court had

no jurisdiction to review the Court of Appeal’s decision affirming his conviction, as

Mr. Aiken explained in his petition. Pet.2.

Florida contends that Mr. Aiken should have sought certification in the Court

of Appeal. Opp.4-7. But this Court rejected in Nash the certification argument

Florida now presses, and has granted certiorari to the Florida Court of Appeal

under similar circumstances. E.g., 389 U.S. at 237 n.1 (seeking certification not

required); Ibanez v. Florida Dep’t of Bus. & Prof’l Regul., 512 U.S. 136, 142 (1994)

(granting certiorari when the “Court of Appeal ... affirmed the Board’s final order

per curiam without opinion,” leaving “no right of review in the Florida Supreme

Court”); KPMG LLP v. Cocchi, 565 U.S. 18, 22 (2011) (per curiam) (similar). As the

Florida case Nash cited explains, “[i]nherent in every decision rendered by a

District Court of Appeal is the implication, unless otherwise stated or contrary

action taken, that it does not pass upon a question of great public interest.”

Whitaker v. Jacksonville Expressway Auth., 131 So. 2d 22, 23-24 (Fla. Dist. Ct. App.

1961). In other words, under Florida law, a request for certification is akin to a

request for rehearing. And “finality is not deferred by the existence of a latent

power in the rendering court to reopen or revise its judgment” because “[s]uch

latent powers of state courts over their judgments are too variable and

indeterminate to serve as tests of [this Court’s] jurisdiction.” Market St. Ry. Co. v.

Railroad Comm’n, 324 U.S. 548, 551-552 (1945).

Florida tries to circumvent Nash because Florida’s Supreme Court later made

a minor amendment to its appellate rules that codified a litigant’s ability to “move

for certification.” Opp.7. But Nash recognized litigants could already “file a

suggestion” that certification was appropriate, 389 U.S. at 327 n.1, and Florida

points to nothing suggesting the State intended such a ministerial change to have

substantive implications. Instead, “the purpose of the new language ... was not to

provide for a different type of reconsideration, but rather to permit a party to move

for certification without being first required to move for rehearing.” DeBiasi v.

Snaith, 732 So. 2d 14, 16 (Fla. Dist. Ct. App. 1999). The Florida Supreme Court

accordingly had no occasion to reconsider the principle that underlay the Nash

ruling—i.e., a certification request is akin to a request for rehearing. Florida’s

authority is not to the contrary. The two cases Florida cites both involve other

States and predated Nash (meaning the Nash Court necessarily took them into

consideration). Gotthilf v. Sills turned on the peculiarities of New York’s procedure

for certifying interlocutory appeals of nonfinal orders, and—unlike here—the state

high court did not have direct jurisdiction over the petitioner’s request for review.

375 U.S. 79, 80 (1963). Because Section 1257 accounts for “the structure of [the

relevant state’s] judicial system” and “the particularized provisions of [that state’s]

laws,” Local 174 v. Lucas Flour Co., 369 U.S. 95, 98 (1962), Gotthilf’s analysis of

New York law says nothing about Florida law. Similarly, Gorman dealt with a

Missouri law that “expressly conferred the right to an en banc rehearing by the

Supreme Court of Missouri.” Local 174, 369 U.S. at 99. Here, there was no

rehearing “as a matter of right.” Id.

II. THE COURT SHOULD OVERRULE WILLIAMS

“[T]he force of stare decisis is at its nadir” in cases “concerning [criminal]

procedur[e] rules that implicate fundamental constitutional protection.” Alleyne v.

United States, 570 U.S. 99, 116 n.5 (2013). Here, every factor this Court considers

when evaluating precedent favors overruling Williams. That decision is egregiously

wrong both because of its inconsistency with history and Ramos and because the

empirical studies it relied upon were almost immediately undermined. Pet.7-9

Williams has had significant negative consequences, both in creating confusion in

the case law and in permitting the use of six-member juries (which are less likely to

be representative and reliable than 12-member bodies). Pet.8-9. And overruling

Williams affects only limited reliance interests—i.e., it necessitates retrials of a

finite number of pending cases.

A. Egregiously Wrong

Florida’s chief defense of Williams rests on sleight of hand. Florida notes

Williams “devoted 13 pages to the history and development of the common-law jury

and the Sixth Amendment” but concluded “the word ‘jury’ in the Sixth Amendment

did not codify” the 12-person requirement. Opp.8-9. To be clear, Williams came to

that conclusion not because of the history but in spite of it. Williams rejected a test

governed by “purely historical considerations” in favor of a functionalist approach,

all while acknowledging the historical record is clear that “the size of the jury at

common law [was] fixed generally at 12.” 399 U.S. at 89, 99; accord Khorrami, 143

S.Ct. at 23-24 (Gorsuch, J., dissenting) (summarizing historical evidence). Had

Williams applied the proper, history-focused test laid out in Ramos, it could not

have reached the same result.

Florida’s remaining attempts to defend Williams are similarly unavailing.

First, Florida argues that not all common-law practices regarding the jury

were “‘codified’” in the Sixth Amendment. Opp.10. Ramos, however, rejected this

approach when it refused to distinguish between “the historic features of common

law jury trial that (we think) serve ‘important enough’ functions to migrate silently

into the Sixth Amendment and those that don’t.” 140 S.Ct. at 1400-1401. Instead,

the question is simply what “the right to trial by jury included” “at the time of the

Sixth Amendment’s adoption.” Id. at 1402. 1

Florida relatedly relies on the “drafting history” of the Sixth Amendment to

limit the jury-trial right. Opp.9. But Ramos explained that the “snippet of drafting

1 Florida’s suggestion (Opp.10) that the Ramos test requires

“that a jury

consist only of male landowners hailing from a particular county” was again

rejected in Ramos itself. 140 S.Ct. at 1402 n.47 (“further constitutional amendments

… prohibit [such] invidious discrimination”).

history” Williams and Florida rely upon “could just as easily support the opposite

inference”—i.e., certain omitted language was unnecessary “surplusage.” 140 S.Ct.

at 1400. In any event, this argument “proves too much” because ignoring commonlaw history would “leave the right to a ‘trial by jury’ devoid of meaning.” Id.

Second, Florida distinguishes Ramos because it overruled “a uniquely

fractured decision,” while Williams garnered “a solid majority.” Opp.12. But this

distinction does nothing to square Ramos’s six-vote holding with Williams. Indeed,

Ramos explained that to the extent Apodaca established binding precedent, it

should be overruled. 140 S.Ct. at 1404-1405.

Third, Florida defends Williams’s functionalist logic, including by noting it

was not overruled by Ballew. Opp.13-16. But Ballew refused to extend Williams’s

logic to 5-member juries precisely because Williams’s foundations had been

undermined. Ballew v. Georgia, 435 U.S. 223, 232-237 (1978); see also Pet.7-9.

Post-Ballew studies have repeatedly proved the Ballew Court right. Twelveperson juries deliberate longer and share more facts, ideas, and challenges to

conclusions during higher-quality deliberations. E.g., Saks & Marti, A MetaAnalysis of the Effects of Jury Size, 21 Law & Hum. Behav. 451, 458-459 (1997)

(considering 17 studies); see generally ABA, Principles for Juries and Jury Trials,

Principle 3 cmt., at 17-21 (2005) (collecting studies and endorsing 12-member-jury

rule). Empaneling a smaller jury also decreases the probability that members of

minority groups (be they racial, religious, political, or socio-economic) will serve.

See, e.g., Rose et al., Jury Pool Underrepresentation in the Modern Era, 15 J.

Empirical Legal Stud. 2 (2018).

Florida’s contrary “scholarship” is inapposite. One article did not study sixperson juries—it considered whether breaking a 12-member jury into four-person

discussion groups would promote deliberation. Waller et al., Twelve (Not So) Angry

Men, 14 Grp. Processes & Intergrp. Rels. 835, 839 (2011). The others studied (1)

unconstitutional five-member groups, Fay et al., Group Discussion as Interactive

Dialogue or as Serial Monologue, 11 Psychol. Sci. 481, 481 (2000) or (2)

mathematical models (as opposed to testing actual people/juries), Mukhopadhaya,

Jury Size and the Free Rider Problem, 19 J. L. Econ. & Org. 24, 27-43 (2003); Parisi

& Luppi, Jury Size and the Hung-Jury Paradox, 42 J. Legal Stud. 399, 408 (2013);

Guerra et al., Accuracy of Verdicts, 28 Sup. Ct. Econ. Rev. 221, 232 (2020). And

while Florida cites (Opp.15-16) bare conviction rates across different States, it

neither identifies scholarship interpreting those numbers nor attempts to control for

potentially divergent features and practices of state law (e.g., frequency of guilty

pleas).

Finally, Florida argues there is nothing “nefarious” about the fact that

Florida law changed the minimum jury size from 12 to six a few weeks after federal

troops left following Reconstruction. Opp.19-20. But Florida does not dispute that at

least some States “restricted the size of juries … to suppress minority voices in

public affairs,” Khorrami, 143 S.Ct. at 27 (Gorsuch, J., dissenting), and identifies no

reason the racist political forces that held sway in late 19th century Florida were

any different.

It responds that “Florida … retained 12-person juries in capital cases.”

Opp.19. But that 12-member juries are warranted in cases where the defendant

faces death only supports that 12-member juries are more rights-protective than

six-person juries.

B. Significant Negative Consequences

Williams has had negative jurisprudential consequences. In Ballew, a split

Court struggled to apply the functionalist approach, with multiple members

acknowledging that the six-member line had little foundation in law or fact. Pet.7-8.

And Ramos necessarily rejected Williams’s approach. The cases Florida cites

(Opp.13) as “reaffirm[ing]” Williams mention the decision only in passing or rely on

the reasoning Ramos rejected. 2

Williams has also had negative, real-world consequences, as a “drop in jury

size” poses a threat to the “representativeness” of the jury and the “reliability” of

the verdict. ABA, Principles for Juries and Jury Trials, Principle 3 cmt., at 19-20;

see also supra pp. 7-8. “[T]hat smaller panels tend to skew jury composition and

impair the right to a fair trial … is a sad truth borne out by hard experience.”

Khorrami, 143 S.Ct. at 27 (Gorsuch, J., dissenting).

Florida’s response to the “reliability” concern is based on inapposite studies.

Florida’s suggestion (Opp.21) that interpreting the Sixth Amendment

requires a change in Seventh Amendment jurisprudence is meritless. The Seventh

Amendment’s reference to “Suits at common law”—which “is not directed to jury

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

preserved,” Colgrove v. Battin, 413 U.S. 149, 152 (1973)—could well preclude

adopting attributes of the common-law jury in that context. And the Sixth

Amendment should be more protective: It protects “human liberty” rather than

“property.” Stogner v. California, 539 U.S. 607, 632 (2003).

Op.16-17. And Florida does not dispute a 12-member jury will sweep in a broader

cross-section of the community than a six-member body. It argues only that the

“fair-cross-section requirement applies” to the jury pool, not the jury itself. Opp.18

n.14. But the available evidence establishes that the 12-member-jury requirement

at least increases the odds that jurors will embody the cross-section of humanity in

the venire—an outcome Williams wrongly dismissed as “unrealistic,” 399 U.S. at

102.

C. Reliance

Florida argues the reliance interests here “far outstrip” those in Ramos

(Opp.20), but the interest asserted is the same: The need to re-try a discrete number

of nonfinal felony convictions. Almost any new rule of criminal procedure will

“affect[] significant numbers of pending cases across the whole country.” Ramos, 140

S.Ct. at 1406.

Florida also contends the number of convictions affected distinguishes this

case from Ramos. Opp.20. To be clear, this case would affect only those felony

proceedings where a trial has been held and the case is not yet final on appeal—a

number that is currently historically low due to the COVID-19 pandemic. 3 While

Florida claims without support (Opp.20) that it would have to conduct “several

thousand” retrials, this Court granted certiorari in Ramos despite Louisiana’s

argument that requiring jury unanimity “could ... upset” “[t]housands of final

convictions.” Opp.4, Ramos, No. 18-5924 (U.S.). Moreover, this Court vacated

3 E.g., Florida Office of the State Courts Administrator, FY2021-22 Statistical

Reference Guide 3-20 to 3-22 (2023), https://tinyurl.com/22tn3z32.

“nearly 800 decisions” following Booker and “similar consequences likely followed

when Crawford v. Washington overturned prior interpretations of the Confrontation

Clause or Arizona v. Gant changed the law for searches incident to arrests.” Ramos,

140 S.Ct. at 1406 (citations omitted).

In the end, Florida ignores “the most important” “reliance interest” of all—

that “of the American people” “in the preservation of our constitutionally promised

liberties.” Ramos, 140 S.Ct. at 1408 (plurality op.). Nearly 50 million Americans are

currently denied a right the Framers intended all to enjoy, even while Florida

recognizes that a 12-member jury is so important and fundamental that it is a

necessary safeguard in death-penalty cases. This Court alone has authority to step

in and protect the rights of those millions. It should do so.

CONCLUSION

The petition should be granted or held. See n.1 in the petition.

Respectfully submitted,