Opposition Brief — Cody Enrriquez, Petitioner v. Florida
Supreme Court briefFeb 7, 2024
Ask Donna
What actually matters in this document.
Text
No. 23-5965
IN THE
Supreme Court of the United States
_______________
CODY ENRRIQUEZ,
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 5,200 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 ............ 5
I. This Court lacks jurisdiction because
petitioner failed to pursue an available
avenue for Florida Supreme Court review. .....6
II. The Court should reject petitioner’s
invitation to reconsider and overrule
Williams. .........................................................12
III.This case is a poor vehicle. .............................25
CONCLUSION .......................................................... 28
iii
TABLE OF AUTHORITIES
Cases
Abbott v. Perez,
138 S. Ct. 2305 (2018) ........................................... 24
Apodaca v. Oregon,
406 U.S. 404 (1972) ................................ 4, 16–17, 25
Atkins v. Virginia,
536 U.S. 304 (2002) ................................................ 19
Ballew v. Georgia,
435 U.S. 223 (1978) .......................................... 18–20
Brady v. Maryland,
373 U.S. 83 (1963) .................................................. 19
Chafin v. Chafin,
568 U.S. 165 (2013) ................................................ 25
Chapman v. California,
386 U.S. 18 (1967) .................................................. 26
Colgrove v. Battin,
413 U.S. 149 (1973) .................................... 17–18, 25
Collins v. Youngblood,
497 U.S. 37 (1990) .................................................. 18
Davis v. Florida,
143 S. Ct. 380 (2022) ................................................ 5
Dobbs v. Jackson Women’s Health Org.,
142 S. Ct. 2228 (2022) ............................................ 14
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) ................................................ 19
Gonzalez v. Thaler,
565 U.S. 134 (2012) .................................................. 6
iv
Gorman v. Washington Univ.,
316 U.S. 98 (1942) .............................................. 6, 10
Gotthilf v. Sills,
375 U.S. 79 (1963) ............................................ 10–12
Griffin v. California,
380 U.S. 609 (1965) ................................................ 19
Guzman v. State,
350 So. 3d 72 (Fla. Dist. Ct. App. 2022) ................. 8
Guzman v. State,
2023 WL 3830251 (Fla. June 6, 2023) .................... 9
Harrison v. Hyster Co.,
515 So. 2d 1279 (Fla. 1987) ................................. 8–9
Hurst v. Florida,
577 U.S. 92 (2016) .................................................. 27
In re The Fla. Bar Rules of App. P.,
536 So. 2d 240 (Fla. 1988)...................................... 12
Jackson v. State,
926 So. 2d 1262 (Fla. 2006) ..................................... 7
Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,
Council 31,
138 S. Ct. 2448 (2018) ...................................... 13, 20
Jollie v. State,
405 So. 2d 418 (Fla. 1981) ................................... 8–9
Khorrami v. Arizona,
143 S. Ct. 22 (2022) .......................... 5, 15, 20–21, 23
Lipsius v. Bristol-Myers Co.,
269 So. 2d 680 (Fla. Dist. Ct. App. 1972) ............. 12
Lockhart v. McCree,
476 U.S. 162 (1986) ................................................ 23
Ludwig v. Massachusetts,
427 U.S. 618 (1976) ................................................ 18
Miranda v. Arizona,
384 U.S. 436 (1966) ................................................ 19
v
Nash v. Fla. Indus. Comm’n,
389 U.S. 235 (1967) .......................................... 11–12
Neder v. United States,
527 U.S. 1 (1999) .............................................. 26–27
Phillips v. Florida,
142 S. Ct. 721 (2021) ................................................ 5
Pretell v. Florida,
143 S. Ct. 1027 (2023) .............................................. 5
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ...................... 4, 13, 16–18, 25
Roper v. Simmons,
543 U.S. 551 (2005) ................................................ 19
Rupp v. Jackson,
238 So. 2d 86 (Fla. 1970)........................................ 10
Strickland v. Washington,
466 U.S. 668 (1984) ................................................ 19
Taylor v. Louisiana,
419 U.S. 522 (1975) ................................................ 19
United States v. Gaudin,
515 U.S. 506 (1995) ................................................ 18
Washington v. Recuenco,
548 U.S. 212 (2006) ................................................ 27
Weaver v. Massachusetts,
137 S. Ct. 1899 (2017) ............................................ 26
Weeks v. United States,
232 U.S. 383 (1914) ................................................ 19
Whitaker v. Jacksonville Expy. Auth.,
131 So. 2d 22 (Fla. Dist. Ct. App. 1961) ............... 11
Williams v. Florida,
399 U.S. 78 (1970) .................... 1, 4–5, 12–20, 23–28
Zirin v. Charles Pfizer & Co.,
128 So. 2d 594 (Fla. 1961)...................................... 10
vi
Statutes & Constitutional Provisions
28 U.S.C. § 1257 .......................................................... 6
Act of February 17, 1877, ch. 3010, § 6,
1877 Fla. Laws 54 .............................................. 1, 24
Ariz. Rev. Stat. § 21-102 ............................................. 6
Conn. Gen. Stat. § 54-82 ............................................. 6
Fla. Const. art. I, § 22 ............................................... 24
Fla. Const. art. V, § 3 .................................................. 7
Fla. Stat. § 794.011 ..................................................... 1
Fla. Stat. § 800.04 ....................................................... 1
Fla. Stat. § 913.10 ................................................... 1, 6
Ind. Code § 35-37-1-1 .................................................. 6
Mass. Gen. Laws Ch. 218, § 26A ................................ 6
Utah Code. Ann. § 78B-1-104 ..................................... 6
Rules
Fed. R. Civ. P. 48 ....................................................... 25
Fla. R. App. P. 9.330................................................ 4, 7
Other Authorities
Alice Guerra et al., Accuracy of Verdicts Under
Different Jury Sizes and Voting Rules,
28 Sup. Ct. Econ. Rev. 221 (2020) ......................... 21
Annals of Cong. (1789) (Joseph Gales ed., 1834) ..... 15
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ............... 18
Barbara Luppi & Francesco Parisi,
Jury Size and the Hung-Jury Paradox,
42 J. Legal Stud. 399 (2013) .................................. 21
vii
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) .... 20
Chief Adm’r of Cts., New York State Unified Court
System 2017 Annual Report (2018),
https://tinyurl.com/yckheu9v ................................. 23
Chief Adm’r of Cts., New York State Unified Court
System 2018 Annual Report (2019),
https://tinyurl.com/yc7cvjhe................................... 23
Chief Adm’r of Cts., New York State Unified Court
System 2019 Annual Report (2020),
https://tinyurl.com/2wtwfmdm .............................. 23
Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts
Statistical Reference Guide FY 2016-17 (2018),
https://tinyurl.com/4drv24ky ................................. 22
Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts
Statistical Reference Guide FY 2017-18 (2019),
https://tinyurl.com/433vwfy3 ................................. 22
Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts
Statistical Reference Guide FY 2018-19 (2020),
https://tinyurl.com/43zywh5n ................................ 22
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) .......... 15
James Wilson,
Works of the Honourable James Wilson (1804)..... 17
Jud. Council of Cal., 2018 Court Statistics Report:
Statewide Caseload Trends (2018),
https://tinyurl.com/5n6tj9pr .................................. 22
Jud. Council of Cal., 2019 Court Statistics Report:
Statewide Caseload Trends (2019),
https://tinyurl.com/mwmby3h5 ............................. 22
viii
Jud. Council of Cal., 2020 Court Statistics Report:
Statewide Caseload Trends (2020),
https://tinyurl.com/2mym3hrx ............................... 22
Kaushik Mukhopadhaya, Jury Size and the Free
Rider Problem, 19 J.L. Econ. & Org. 24 (2003)..... 20
Letter from James Madison to Edmund Pendleton,
Sept. 14, 1789, 1 Letters and Other Writings of
James Madison (1865) ........................................... 16
Letter from Richard Henry Lee to Patrick Henry,
Sept. 14, 1789, https://tinyurl.com/muu5xzfa ....... 16
Nicolas Fay et al., Group Discussion as Interactive
Dialogue or as Serial Monologue: The Influence of
Group Size, 11 Psych. Sci. 481 (2000) ................... 20
Off. of Ct. Admin., Annual Statistical Report for the
Texas Judiciary Fiscal Year 2017 (2018),
https://tinyurl.com/mtrp379s ................................. 22
Off. of Ct. Admin., Annual Statistical Report for the
Texas Judiciary Fiscal Year 2018 (2019),
https://tinyurl.com/2s3fsmpf .................................. 22
Off. of Ct. Admin., Annual Statistical Report for the
Texas Judiciary Fiscal Year 2019 (2020),
https://tinyurl.com/ywh779v3 ................................ 22
Patrick E. Higginbotham et al., Better by the Dozen:
Bringing Back the Twelve-Person Civil Jury,
104 Judicature 46 (2020) ....................................... 25
Paul Samuel Reinsch, The English Common Law in
the Early American Colonies, 1 Select Essays in
Anglo-American Legal History 367 (1907) ............ 14
William Blackstone,
Commentaries on the Laws of England (1769) ..... 14
William S. Brackett,
The Freehold Qualification of Jurors,
29 Am. L. Reg. 436 (1881) ...................................... 15
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 sexual battery of a child
under 18 and lewd or lascivious molestation of a child
under 16. See Fla. Stat. §§ 794.011(5)(a),
800.04(5)(c)2. Because those crimes are not punishable by death, the trial court empaneled a six-person
jury as dictated by Florida law. See Fla. Stat. § 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. 92–136.
2
Once jurors were selected, petitioner accepted the jury
as empaneled and proceeded to trial without objection.
Tr. 136–39.
The evidence at trial revealed that petitioner’s victim, K.D.M., was 14 years old and living with her siblings, mother, and mother’s boyfriend. Tr. 166–67. Petitioner, who was friends with the boyfriend, came
over one day to help move furniture. Tr. 193–94. Those
plans, however, were abandoned after everyone
started drinking alcohol and “hanging out.” Tr. 169.
Although K.D.M. had not met petitioner before that
day, petitioner took K.D.M. with him to get more beer
from a gas station where he also bought K.D.M. chips
and a candy bar. Tr. 194–95. When they returned,
they got into the swimming pool with K.D.M.’s siblings while K.D.M.’s mother made dinner. Tr. 195–96.
While playing with the children in the pool, petitioner
proposed that K.D.M. sit on his shoulders as part of a
game, which she did. Tr. 196. Petitioner and K.D.M.
then got out of the water only to get back in when petitioner threw K.D.M. into the pool while they were
drying off. Tr. 197.
When dinner was ready, K.D.M. returned to the
house and sat down at the counter to eat. Tr. 199.
With everyone else spread around the house, petitioner sat down next to K.D.M. and offered her some
of his alcohol and an e-cigarette. Tr. 199–200. After
dinner, the younger children went to their rooms
while petitioner and K.D.M. went to watch a movie
with the rest of the adults in K.D.M.’s mother’s room.
Tr. 202–03. The adults began smoking marijuana, and
petitioner offered some to K.D.M. Tr. 203.
3
After K.D.M.’s mother fell asleep, petitioner and
K.D.M. went to the living room and watched another
movie. Tr. 205, 207–08. While sitting on the couch, petitioner began rubbing K.D.M.’s leg. Tr. 211. K.D.M.
attempted to move her leg away from petitioner, but
he continued rubbing her. Tr. 211. Petitioner then
“crawl[ed] up on [K.D.M.] and started kissing [her].”
Tr. 212. He lay on her so she was unable to move, put
his tongue in her mouth, kissed her neck, and kissed
her breasts. Tr. 213. He touched her breasts and genitalia with his hands, first outside her clothing and
then inside. Tr. 214. He penetrated her genitalia with
his fingers. Tr. 214. Petitioner then removed both of
their clothing, told K.D.M. that she had “nice boobs”
and a “nice ass” and performed oral sex on her. Tr.
215. Petitioner then penetrated K.D.M.’s genitalia
with his own and was “being aggressive with it” to the
point that it “burn[ed].” Tr. 215. Petitioner ejaculated
on K.D.M.’s legs. Tr. 216.
Unrelenting, Petitioner next asked K.D.M. to
“suck his penis,” which she refused. Tr. 217. So petitioner had “sexual intercourse” with her again and
was even “more aggressive with it,” again ejaculating
on K.D.M.’s legs. Tr. 217–18. By the early morning
hours, petitioner stopped assaulting K.D.M. and fell
asleep on the couch. Tr. 219–20. Once K.D.M. determined that petitioner was asleep, she broke down crying then fell asleep. Tr. 221. When she woke up,
K.D.M. waited for petitioner to leave the house and
then told her mother that petitioner had “raped [her]”
during the night. Tr. 223. K.D.M.’s mother called the
police. Tr. 223.
4
Police found traces of seminal fluid on K.D.M.’s
shirt, shorts, and underwear. Tr. 318–20. They also
found seminal fluid on petitioner’s swim shorts, three
couch cushions, and a blanket from the couch. Tr.
320–24. K.D.M. received a sexual assault exam, including internal and external vaginal swabs, an anal
swab, and a swab of her right thigh, all of which tested
positive for the presence of semen. Tr. 333–34. A DNA
analysis of the semen from the thigh, anal, and external vaginal swabs showed a match to the DNA sample
taken from petitioner. Tr. 351.
Presented with this evidence, the jury returned
unanimous guilty verdicts on both counts in under 36
minutes. R. 156–57.
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). On that issue, the Fourth District affirmed
with a per curiam, summary decision. Pet. App. 1. Petitioner did not ask 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 despite conceding
that the court lacked jurisdiction to grant review at
that time. See Pet. Br. on Jurisdiction at 4, Enrriquez
5
v. State, No. SC23-765 (Fla. May 30, 2023) (arguing
that the court might obtain jurisdiction in the future
and asking the court to stay consideration of his petition until then); Pet. Resp. to Order to Show Cause at
1, No. SC23-765 (Fla. June 27, 2023) (conceding that
the court should deny review). The Florida Supreme
Court denied review. Pet. App. 3.
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
6
five other states that for more than 50 years have relied on its rule.1 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.
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 Flor-
1
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.
7
ida’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.
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.
Because, absent certification by the district court,
the Florida Supreme Court has discretionary jurisdiction to review only cases in which the district court
took certain actions “expressly,” it generally lacks jurisdiction to review unelaborated, summary decisions.
Jackson v. State, 926 So. 2d 1262, 1266 (Fla. 2006).
8
The only exception to that rule occurs when a district
court’s summary decision cites as controlling authority a case that the Florida Supreme Court has either
reversed or accepted for review with a decision on the
merits still pending. See Jollie v. State, 405 So. 2d 418,
420 (Fla. 1981); Harrison v. Hyster Co., 515 So. 2d
1279, 1280 (Fla. 1987). Outside of that limited exception, a district court’s certification of conflict or question of great public importance is the only way to secure Florida Supreme Court review of an unelaborated, summary decision.
Here, although petitioner sought discretionary review in the Florida Supreme Court, that court lacked
jurisdiction, and petitioner failed to avail himself of
the only avenue that would have vested the Florida
Supreme Court with jurisdiction. Namely, petitioner
did not ask the Fourth District Court of Appeal to certify a question of great public importance. The Fourth
District summarily rejected petitioner’s Sixth Amendment argument, citing its prior decision in Guzman v.
State, 350 So. 3d 72 (Fla. Dist. Ct. App. 2022). Pet.
App. 1. Because Guzman had neither been reversed
nor accepted for review by the Florida Supreme Court
when petitioner petitioned for discretionary review,
the Florida Supreme Court lacked jurisdiction. See
Jollie, 405 So. 2d at 420; Harrison, 515 So. 2d at 1280.
True, the defendant in Guzman had petitioned the
Florida Supreme Court for discretionary review, and
that petition was still pending when petitioner sought
discretionary review. But the Florida Supreme Court
9
has made clear that the exception to the bar on its jurisdiction to review unelaborated, summary decisions
extends only to decisions citing as controlling authority a case that the Florida Supreme Court has already
accepted for review such that the case is pending review on the merits. Harrison, 515 So. 2d at 1280 (“Jollie’s reference to the ‘controlling authority that is
pending review’ refers to a case in which the petition
for jurisdictional review has been granted and the
case is pending for disposition on the merits.” (alterations omitted)). Thus, a summary decision’s citation to
a case in which merely a petition for discretionary review is pending does not vest the Florida Supreme
Court with jurisdiction.2 Id.
Petitioner acknowledged as much in his jurisdictional brief before the Florida Supreme Court, contending not that the court had jurisdiction, but that it
might obtain jurisdiction in the future if it granted review in Guzman and asking the court to stay consideration of his petition until then. See Pet. Br. on Jurisdiction at 4, Enrriquez v. State, No. SC23-765 (Fla.
May 30, 2023). Because the Florida Supreme Court
denied review in Guzman, see 2023 WL 3830251 (Fla.
2
Other petitioners seeking this Court’s review of the Fourth
District’s summary decisions citing Guzman have incorrectly
stated that the petition for discretionary review pending in Guzman meant that the Florida Supreme Court had jurisdiction at
the time they filed their petitions for discretionary review. See
Reply Brs. at 3 in 23-5455, 23-5567, 23-5570, 23-5575, 23-5579.
The Florida Supreme Court rejected that exact contention in
Harrison.
10
June 6, 2023), it never had jurisdiction to review petitioner’s case. Moving the Fourth District to certify his
appeal as presenting a question of great public importance was petitioner’s only avenue to secure Florida Supreme Court jurisdiction at the time he petitioned for Florida Supreme Court review.3 Petitioner’s
failure to exhaust the procedures available to seek review in the Florida Supreme Court deprives this
Court of jurisdiction.
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,
3
Petitioner was apparently hoping that the Florida Supreme
Court would delay consideration of his petition long enough to
grant review in Guzman, which then—but only then—would
have vested the Florida Supreme Court with jurisdiction to review his case. But the fact remains that the Florida Supreme
Court lacked jurisdiction at the time petitioner filed his petition.
The only way petitioner could have secured Florida Supreme
Court jurisdiction at the time he petitioned for review—and the
only way that did not depend on the disposition of a different
case—was to move for certification in the Fourth District.
11
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. Like
the Florida Supreme Court here, the New York Court
of Appeals lacked jurisdiction and declined review. 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 available avenue of further review. Id. The same is true
here.
This Court’s footnote in Nash v. Florida Industrial
Commission, 389 U.S. 235, 237 n.1 (1967), noting that
a petitioner need not file a “suggestion” that the district court of appeals certify a question before seeking
certiorari does not suggest otherwise. When Nash was
decided, the district courts could certify questions for
review by the Florida Supreme Court only on their
own motions; there was no mechanism for litigants to
move for certification. Id. Even so, at least one district
court permitted “any interested person” to file a “suggestion” that the court certify a question. Whitaker v.
Jacksonville Expy. Auth., 131 So. 2d 22, 24 (Fla. Dist.
Ct. App. 1961). But that court made clear that such a
“suggestion” would have “no legal effect” because, unlike a motion, it required no ruling from the court and
any certification would still “in all cases be upon the
court’s own motion.” Id. That was so because the rules
at the time made no provision for certification upon
12
“motion of a party to the cause.” Lipsius v. Bristol-Myers Co., 269 So. 2d 680, 681–82 (Fla. Dist. Ct. App.
1972). Because such “suggestion[s]” had “no legal effect” and certification still occurred only “upon the district court of appeal’s own motion,” this Court said
that filing a “suggestion” was not a prerequisite to
seeking certiorari. Nash, 389 U.S. at 237 n.1 (emphasis added). But it is no longer the case under Florida
law that certification may occur only on the district
court’s own motion; the Florida Rules of Appellate
Procedure were amended in 1988 to permit certification of a question of great public importance on a litigant’s motion. See In re The Fla. Bar Rules of App. P.,
536 So. 2d 240, 241 (Fla. 1988). Far from a “minor”
“ministerial change,” Reply Brs. at 4–5 in 23-5455, 235567, 23-5570, 23-5575, 23-5579 & Reply Br. at 4 in
23-5171, that negates the exact ground this Court
gave for its footnote in Nash. Now, Gotthilf’s rule requiring a petitioner to move for certification in the intermediate appellate court when that is the only
means of establishing jurisdiction in the state high
court squarely applies.
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.
13
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 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 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,
14
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,
Commentaries on the Laws of England 343–44 (1769);
15
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
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
16
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
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
17
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 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 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]
18
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
19
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
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
20
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
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.
21
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
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
22
of 74.0%,4 73.3%,5 and 72.1%,6 respectively. In the
same years, felony juries in Texas convicted at rates
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
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).
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.
23
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
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.
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.
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).
24
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
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. See Abbott v.
Perez, 138 S. Ct. 2305, 2324 (2018) (“Past discrimination cannot, in the manner of original sin, condemn
governmental action that is not itself unlawful.”).
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 5,200 criminal convictions are pending on direct appeal in Florida. Overruling Williams would force the use of public resources to
25
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.
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).
III. 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.
26
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 argues that accuracy is the interest
protected by the purported 12-person requirement.
Pet. 7–9. 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
27
effect of violating a defendant’s Sixth Amendment
jury right is sometimes possible to determine because
a court can review the record and, if the evidence is
“overwhelming” and “uncontroverted,” determine beyond a reasonable doubt what a proper Sixth Amendment 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
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” such that there is no reasonable doubt that an
additional six jurors would not have affected the outcome. If anything, the case for harmless-error review
28
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.” The jury heard extensive testimony
of petitioner’s multiple sexual attacks on a 14-year-old
girl. The details of that testimony were confirmed by
the presence of petitioner’s semen all over the victim
as well as semen in both of their clothes and on the
couch where he perpetuated the assaults. Presented
with that evidence, petitioner’s jury needed fewer
than 36 minutes to unanimously convict him on two
counts. 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.
29
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 7, 2024
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.