Reply Brief — Cody Enrriquez, Petitioner v. Florida

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 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. FLORIDA’S HARMLESS ERROR ARGUMENT HAS BEEN UNIVERSALLY

REJECTED BY THE U.S. COURT OF APPEALS ................................................... 2

II. THIS COURT HAS JURISDICTION ................................................................... 4

III. THE COURT SHOULD OVERRULE WILLIAMS............................................. 8

A. Egregiously Wrong ............................................................................................. 9

B. Significant Negative Consequences ................................................................ 12

C. Reliance ............................................................................................................ 13

CONCLUSION............................................................................................................. 14

i

TABLE OF AUTHORITIES

Cases

Alleyne v. United States, 570 U.S. 99 (2013) ................................................................ 8

Atwell v. State, 197 So. 3d 1040 (Fla. 2016) ................................................................. 5

Ballew v. Georgia, 435 U.S. 223 (1978)................................................................. 10, 12

Chesapeake & O. Ry. Co. v. Mihas, 280 U.S. 102 (1929) .............................................. 6

Colgrove v. Battin, 413 U.S. 149 (1973) ...................................................................... 12

Cutter v. Wilkinson, 544 U.S. 709 (2005) ...................................................................... 3

DeBiasi v. Snaith, 732 So. 2d 14 (Fla. Dist. Ct. App. 1999) ......................................... 7

Gotthilf v. Sills, 375 U.S. 79 (1963)............................................................................... 8

Guzman v. State, 350 So. 3d 724 (Fla. Dist. Ct. App. 2022) ........................................ 4

Harrison v. Hyster Co., 515 So. 2d 1279 (Fla. 1987) .................................................... 5

Hegwood v. State, 132 So. 3d 862 (Fla. Dist. Ct. App. 2014), review granted, decision

quashed, 41 Fla. L. Weekly S621 (Fla. Dec. 13, 2016).............................................. 6

Ibanez v. Florida Dep’t of Bus. & Prof’l Regul., 512 U.S. 136 (1994)........................... 6

Jollie v. State, 405 So. 2d 418 (Fla. 1981) ............................................................. 4, 5, 6

Khorrami v. Arizona, 143 S.Ct. 22 (2022) ..................................................... 1, 9, 12, 13

KPMG LLP v. Cocchi, 565 U.S. 18 (2011) ..................................................................... 7

LeCroy v. State, 137 So. 3d 557 (Fla. Dist. Ct. App. 2014), review granted, decision

quashed, 41 Fla. L. Weekly S621 (Fla. Dec. 13, 2016).............................................. 6

Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962) ......................................................... 8

Market St. Ry. Co. v. Railroad Comm’n, 324 U.S. 548 (1945) ..................................... 7

McCoy v. Louisiana, 138 S.Ct. 1500 (2018) .................................................................. 3

Nash v. Florida Indus. Comm’n, 389 U.S. 235 (1967).......................................... 2, 6, 7

Neder v. United States, 527 U.S. 1 (1999)..................................................................... 3

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

Stogner v. California, 539 U.S. 607 (2003) ................................................................. 12

United States v. Curbelo, 343 F.3d 273 (4th Cir. 2003)............................................ 1, 3

ii

Wallace v. State, 134 So. 3d 473 (Fla. Dist. Ct. App. 2014), review granted, decision

quashed, 41 Fla. L. Weekly S621 (Fla. Dec. 13, 2016).............................................. 6

Weaver v. Massachusetts, 582 U.S. 286 (2017) ............................................................. 3

Webster v. United States, 667 F.3d 826 (7th Cir. 2011)................................................ 3

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

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

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

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 4

Other Authorities

ABA, Principles for Juries and Jury Trials, Principle 3 cmt. .............................. 11, 13

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

Psychol. Sci. 481 (2000)............................................................................................ 11

Guerra et al., Accuracy of Verdicts, 28 Sup. Ct. Econ. Rev. 221 (2020)..................... 11

Kogan & Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18

Nova L. Rev. 1151 (1994) ........................................................................................... 5

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

(2003) ........................................................................................................................ 11

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

.................................................................................................................................. 11

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

Stud. 2 (2018) ........................................................................................................... 11

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

451 (1997) ................................................................................................................. 11

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

(2011) ........................................................................................................................ 11

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

meritless vehicle issues and highlighting the one-time cost of correcting the

Williams error.

As to the vehicle issues, Florida argues that convicting Mr. Enrriquez with

only six jurors was harmless error. Every Circuit to consider the issue, however, has

held that failure to provide a 12-member jury is structural error, automatically

requiring reversal. See, e.g., United States v. Curbelo, 343 F.3d 273, 281 (4th Cir.

2003). Regardless, this Court need not reach that question, as it is most properly

addressed on remand in the first instance. Florida also argues Mr. Enrriquez failed

to exhaust his options for state court review because he did not ask the Florida

Court of Appeal to certify the question presented to the Florida Supreme Court. But

Mr. Enrriquez properly petitioned the Florida Supreme Court for review, and this

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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. FLORIDA’S HARMLESS ERROR ARGUMENT HAS BEEN

UNIVERSALLY REJECTED BY THE U.S. COURT OF APPEALS

Florida wrongly contends that any error in convicting Mr. Enriquez with a

jury of six rather than 12 was harmless, such that he would not benefit from a

decision overruling Williams. Opp.6, 25-28.

As an initial matter, this Court need not resolve that question in order to

grant review. Because the magnitude of the constitutional error was necessarily

“not addressed by the Court of Appeals,” the proper course would be to grant the

2

petition and then allow the court below to address the structural error issue in the

first instance on remand. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005); see

McCoy v. Louisiana, 138 S.Ct. 1500, 1517-1518 (2018) (Alito, J., dissenting)

(whether structural error applies should be decided on remand).

Regardless, federal courts have uniformly rejected Florida’s position, holding

that—even when a jury has eleven members—“depriving a defendant of the verdict

of twelve” is structural error requiring automatic reversal. Curbelo, 343 F.3d at 281;

accord Webster v. United States, 667 F.3d 826, 833 n.3 (7th Cir. 2011) (collecting

cases). This makes good sense, as a court “simply cannot know what affect” adding

one more juror “might have had on jury deliberations” without diverting into “pure

speculation.” Curbelo, 343 F.3d at 281-282; accord Weaver v. Massachusetts, 582

U.S. 286, 295 (2017) (effect of replacing defendant’s existing attorney with one of

their choice is unquantifiable). That logic applies with even greater force here,

where Mr. Enrriquez was wrongly deprived of six additional jurors. As in other

contexts where structural error applies, “the effects of the error are simply too hard

to measure.” Weaver, 582 U.S. at 295.

Florida nevertheless asserts (at 26-28) that conviction by 50% of the

constitutionally required 12 is analogous to the instructional error in Neder v.

United States, 527 U.S. 1, 7 (1999). Florida does not identify any court that has

adopted this argument and for good reason.

Neder emphasized that the flawed instruction did not implicate a “‘defect

affecting the framework in which the trial proceeds’”; it was “simply an error in the

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trial process itself.” Id. at 8-9. Because the error did not “‘vitiate all the jury’s

findings’” but only raised a question about one element, it was thus susceptible to a

harmless error analysis. Id. at 10-13. Not so here. Florida does not even attempt to

explain how a court could account for the views of a half-dozen unknown

individuals, all of whom would have to agree with the existing six in order for Mr.

Enrriquez’s conviction to stand. If anything, the available evidence suggests the

deliberative process is entirely different when a larger jury is used. Infra pp. 7-8.

II. THIS COURT HAS JURISDICTION

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

a decision could be had,” 28 U.S.C. § 1257(a), because he unsuccessfully petitioned

the Florida Supreme Court to review the Court of Appeal’s decision affirming his

conviction at a time when Florida’s high court had jurisdiction over his petition.

Specifically, the Florida Court of Appeal affirmed Mr. Enrriquez’s conviction

in a per curiam decision. Pet.App.2. The decision read in relevant part: “With

respect to his argument that he was entitled to a twelve-person jury, we affirm. See

Guzman v. State, 350 So. 3d 72, 73 (Fla. 4th DCA 2022), rev. pending, No. SC221597.” Pet.App.2. Guzman presented the same 12-member jury question as this

case. Guzman v. State, 350 So. 3d 72, 73-74 (Fla. Dist. Ct. App. 2022). And when the

Court of Appeal “cites as controlling authority a decision … pending review in” the

Florida Supreme Court, the court may exercise its discretionary jurisdiction to take

up the case. Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981). That is the situation

here—the Court of Appeal cited Guzman, which was then properly pending in the

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Florida Supreme Court. Pet.App.2; see also Guzman v. State, 2023 WL 3830251, at

*1 (Fla. June 6, 2023); Kogan & Waters, The Operation and Jurisdiction of the

Florida Supreme Court, 18 Nova L. Rev. 1151, 1155 n.9 (1994) (“A case is pending if

it has been properly filed and is awaiting review.”). Mr. Enrriquez thus could—and

did—invoke the Florida Supreme Court’s jurisdiction by filing a petition for review.

Jollie, 405 So. 2d at 420; Pet.App.4 Under these circumstances, the Florida

Supreme Court denying Mr. Enrriquez’s petition after denying review in Guzman is

not an indication the Court lacked jurisdiction when Mr. Enrriquez actually filed

his petition for review.

Contrary to Florida’s argument (Opp.8-9), Harrison v. Hyster Co., 515 So. 2d

1279 (Fla. 1987), does not hold that the case cited by the District Court (here,

Guzman) must first be accepted for review by the Florida Supreme Court. Harrison

merely holds that if the Florida Supreme Court denies review of the cited case

(here, Guzman), it will also deny review of the citing case (here, Enrriquez). And if

the court accepts review of the cited case, it will accept review of the citing case. 1

The Florida Supreme Court’s decision in Atwell v. State, 197 So. 3d 1040 (Fla. 2016),

is one example of this. That case was awaiting a decision on jurisdiction for nine

months (from January 2014 to September 2014). Inmates who lost their appeal on

the authority of the district court decision sought review in the Florida Supreme

Court even before that court had accepted review of Atwell. When the Florida

1 This makes sense because the purpose of jurisdiction under Jollie is to avoid

disparate treatment of appellate cases based on the timing of opinions. See Jollie,

405 So. 2d at 419.

5

Supreme Court accepted review of Atwell, the Court accepted review of these “tag

cases” as well. E.g., LeCroy v. State, 137 So. 3d 557 (Fla. Dist. Ct. App. 2014), review

granted, decision quashed, 41 Fla. L. Weekly S621 (Fla. Dec. 13, 2016); Hegwood v.

State, 132 So. 3d 862 (Fla. Dist. Ct. App. 2014), review granted, decision quashed, 41

Fla. L. Weekly S621 (Fla. Dec. 13, 2016); Wallace v. State, 134 So. 3d 473 (Fla. Dist.

Ct. App. 2014), review granted, decision quashed, 41 Fla. L. Weekly S621 (Fla. Dec.

13, 2016).

Florida’s contention (Opp.6-12) that Mr. Enrriquez should have instead

sought certification in the Court of Appeal because “the Florida Supreme Court

generally lacks jurisdiction ... to review summary decisions” simply ignores the

Jollie rule. As explained above, the Florida Supreme Court did have jurisdiction

when Mr. Enrriquez petitioned for review because Guzman was pending, then

declined to take up the question presented in both cases. This Court has held there

is no requirement for a litigant to avail itself of more than one path to review so

long as the higher court would have jurisdiction under the path the litigant did

take. E.g., Chesapeake & O. Ry. Co. v. Mihas, 280 U.S. 102, 104 (1929). “[I]t would

be unreasonable to require an application to the Appellate Court for a certificate of

importance and appeal when Supreme Court” had already denied a petition for

review of the same question. Id. That is precisely what Florida demands here.

Regardless, 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);

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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.10 n.3. 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

7

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.

IIi. 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

8

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.13. 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.16. 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,

9

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

Sixth Amendment’s adoption.” Id. at 1402. 2

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

limit the jury-trial right. Opp.10. But Ramos explained that the “snippet of drafting

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.17. 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.13-18. 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 Meta2 Florida’s suggestion (Opp.15) 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”).

10

Analysis 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.21-22) 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

11

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

troops left following Reconstruction. Opp.23-24. 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.24. 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.12) as “reaffirm[ing]” Williams mention the decision only in passing or rely on

the reasoning Ramos rejected. 3

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

Florida’s suggestion (Opp.20) 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).

3

12

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.

Supra pp. 11-12. 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.23 n.16. 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.25), 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.25. 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

13

number that is currently historically low due to the COVID-19 pandemic. 4 While

Florida claims without support (Opp.25) 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

“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.

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

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

14

Respectfully submitted,

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

FEBRUARY 16, 2024

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