Opposition Brief — Jimmie Jerome Manning, Jr., Petitioner v. Florida

No. 23-6049

IN THE

Supreme Court of the United States

_______________

JIMMIE JEROME MANNING, JR.,

Petitioner,

v.

STATE OF FLORIDA,

_______________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA DISTRICT COURT OF APPEAL,

SECOND 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 ............ 4

I. This Court should deny the petition

because the question presented was neither

addressed by, nor properly presented to,

the state court below. .......................................5

II. The Court should reject petitioner’s

invitation to reconsider and overrule

Williams. ...........................................................7

III.This case is a poor vehicle. .............................21

CONCLUSION .......................................................... 23

iii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) ............................................ 19

Adams v. Robertson,

520 U.S. 83 (1997) ................................................ 5–7

Apodaca v. Oregon,

406 U.S. 404 (1972) ................................................ 11

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................ 14

Ballew v. Georgia,

435 U.S. 223 (1978) .......................................... 12, 15

Bankers Life & Cas. Co. v. Crenshaw,

486 U.S. 71 (1988) .................................................... 5

Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537 (1987) .............................................. 6–7

Brady v. Maryland,

373 U.S. 83 (1963) .................................................. 14

Chafin v. Chafin,

568 U.S. 165 (2013) ................................................ 21

Chapman v. California,

386 U.S. 18 (1967) .................................................. 21

Colgrove v. Battin,

413 U.S. 149 (1973) .................................... 11, 13, 20

Collins v. Youngblood,

497 U.S. 37 (1990) .................................................. 12

Davis v. Florida,

143 S. Ct. 380 (2022) ................................................ 4

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) .............................................. 9

Duncan v. Louisiana,

391 U.S. 145 (1968) .................................................. 1

iv

Gibson v. State,

16 Fla. 291 (1877)..................................................... 1

Gideon v. Wainwright,

372 U.S. 335 (1963) ................................................ 14

Griffin v. California,

380 U.S. 609 (1965) ................................................ 14

Howell v. Mississippi,

543 U.S. 440 (2005) .............................................. 5, 7

Hurst v. Florida,

577 U.S. 92 (2016) .................................................. 22

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,

Council 31,

138 S. Ct. 2448 (2018) .................................... 7–8, 15

Kennedy v. Louisiana,

554 U.S. 407 (2008) .................................................. 2

Khorrami v. Arizona,

143 S. Ct. 22 (2022) .......................... 4, 10, 14, 16, 18

Lockhart v. McCree,

476 U.S. 162 (1986) ................................................ 18

Ludwig v. Massachusetts,

427 U.S. 618 (1976) ................................................ 12

Miranda v. Arizona,

384 U.S. 436 (1966) ................................................ 13

Neder v. United States,

527 U.S. 1 (1999) .............................................. 21–23

Phillips v. Florida,

142 S. Ct. 721 (2021) ................................................ 4

Pretell v. Florida,

143 S. Ct. 1027 (2023) .............................................. 4

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ............................ 8, 11–13, 20

Roper v. Simmons,

543 U.S. 551 (2005) ................................................ 14

v

State v. Hogan,

451 So. 2d 844 (Fla. 1984).................................... 1–2

Strickland v. Washington,

466 U.S. 668 (1984) ................................................ 14

Taylor v. Louisiana,

419 U.S. 522 (1975) ................................................ 13

United States v. Gaudin,

515 U.S. 506 (1995) ................................................ 12

Washington v. Recuenco,

548 U.S. 212 (2006) ................................................ 22

Weaver v. Massachusetts,

137 S. Ct. 1899 (2017) ...................................... 21, 22

Webb v. Webb,

451 U.S. 493 (1981) .................................................. 6

Weeks v. United States,

232 U.S. 383 (1914) ................................................ 14

Williams v. Florida,

399 U.S. 78 (1970) .................... 1, 4, 8–10, 12–14, 18

Statutes & Constitutional Provisions

Act of February 17, 1877, ch. 3010, § 6,

1877 Fla. Laws 54 .............................................. 1, 19

Ariz. Rev. Stat. § 21-102 ............................................. 5

Conn. Gen. Stat. § 54-82 ............................................. 5

Fla. Const. art. I, § 22 ............................................... 19

Fla. Stat. § 794.011 ..................................................... 1

Fla. Stat. § 913.10 ............................................... 1–2, 5

Ind. Code § 35-37-1-1 .................................................. 5

Mass. Gen. Laws Ch. 218, § 26A ................................ 5

Utah Code. Ann. § 78B-1-104 ..................................... 5

vi

Rules

Fed. R. Civ. P. 48(a)................................................... 20

Sup. Ct. R. 14.1(g) ....................................................... 6

Other Authorities

Alice Guerra et al., Accuracy of Verdicts Under

Different Jury Sizes and Voting Rules,

28 Sup. Ct. Econ. Rev. 221 (2020) ......................... 16

Annals of Cong. (1789) (Joseph Gales ed., 1834) ..... 10

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............... 13

Barbara Luppi & Francesco Parisi,

Jury Size and the Hung-Jury Paradox,

42 J. Legal Stud. 399 (2013) .................................. 16

Bridget M. Waller et al., Twelve (Not So) Angry Men:

Managing Conversational Group Size Increases

Perceived Contribution by Decision Makers,

14 Grp. Processes & Intergrp. Rels. 835 (2011) .... 15

Chief Adm’r of Cts., New York State Unified Court

System 2017 Annual Report (2018),

https://tinyurl.com/yckheu9v ................................. 18

Chief Adm’r of Cts., New York State Unified Court

System 2018 Annual Report (2019),

https://tinyurl.com/yc7cvjhe................................... 18

Chief Adm’r of Cts., New York State Unified Court

System 2019 Annual Report (2020),

https://tinyurl.com/2wtwfmdm .............................. 18

Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts

Statistical Reference Guide FY 2017-18 (2019),

https://tinyurl.com/433vwfy3 ................................. 17

Fla. Off. of State Cts. Adm’r, Florida’s Trial Courts

Statistical Reference Guide FY 2018-19 (2020),

https://tinyurl.com/43zywh5n ................................ 17

vii

Fla. Off. of State Cts. Adm'r, Florida's Trial Courts

Statistical Reference Guide FY 2016-17 (2018),

https://tinyurl.com/4drv24ky ................................. 17

Henry G. Connor, The Constitutional Right to a Trial

by a Jury of the Vicinage,

57 U. Pa. L. Rev. & Am. L. Reg. 197 (1909) ............ 9

James Wilson, Works of the Honourable

James Wilson (1804) ........................................ 11–12

Jud. Council of Cal., 2018 Court Statistics Report:

Statewide Caseload Trends (2018),

https://tinyurl.com/5n6tj9pr .................................. 17

Jud. Council of Cal., 2019 Court Statistics Report:

Statewide Caseload Trends (2019),

https://tinyurl.com/mwmby3h5 ............................. 17

Jud. Council of Cal., 2020 Court Statistics Report:

Statewide Caseload Trends (2020),

https://tinyurl.com/2mym3hrx ............................... 17

Kaushik Mukhopadhaya, Jury Size and the Free

Rider Problem, 19 J.L. Econ. & Org. 24 (2003)..... 15

Letter from James Madison to Edmund Pendleton,

Sept. 14, 1789, 1 Letters and Other Writings of

James Madison (1865) ........................................... 10

Letter from Richard Henry Lee to Patrick Henry,

Sept. 14, 1789, https://tinyurl.com/muu5xzfa ....... 11

Nicolas Fay et al., Group Discussion as Interactive

Dialogue or as Serial Monologue: The Influence of

Group Size, 11 Psych. Sci. 481 (2000) ................... 15

Off. of Ct. Admin., Annual Statistical Report for the

Texas Judiciary Fiscal Year 2017 (2018),

https://tinyurl.com/mtrp379s ................................. 17

Off. of Ct. Admin., Annual Statistical Report for the

Texas Judiciary Fiscal Year 2018 (2019),

https://tinyurl.com/2s3fsmpf .................................. 17

viii

Off. of Ct. Admin., Annual Statistical Report for the

Texas Judiciary Fiscal Year 2019 (2020),

https://tinyurl.com/ywh779v3 ................................ 17

Patrick E. Higginbotham et al., Better by the Dozen:

Bringing Back the Twelve-Person Civil Jury,

104 Judicature 46 (2020) ....................................... 20

Paul Samuel Reinsch, The English Common Law in

the Early American Colonies, 1 Select Essays in

Anglo-American Legal History 367 (1907) .............. 9

William Blackstone,

Commentaries on the Laws of England (1769) ....... 9

William S. Brackett,

The Freehold Qualification of Jurors,

29 Am. L. Reg. 436 (1881) ...................................... 10

1

STATEMENT

1. In 1877, Florida began using six-person juries

to try noncapital criminal defendants. See Act of February 17, 1877, ch. 3010, § 6, 1877 Fla. Laws 54. That

same year, the Florida Supreme Court held that the

use of six-person juries neither “destroy[ed] [n]or infring[ed] the right of trial by jury.” Gibson v. State, 16

Fla. 291, 300 (1877). Ninety years later, this Court

opened another avenue to challenge the validity of

Florida’s six-person juries, holding that states are

bound by the jury-trial guarantee in the Sixth Amendment to the federal Constitution. See Duncan v. Louisiana, 391 U.S. 145, 149 (1968). But just two years after that, this Court concluded that six-person juries

satisfy that guarantee. Williams v. Florida, 399 U.S.

78, 86 (1970). For nearly as long as states have had a

Sixth Amendment duty to provide criminal jury trials,

this Court’s message to the people of Florida has been

clear: the jury structure that they have settled on for

a century and a half fulfills that duty. Unsurprisingly

then, Florida has continued its longstanding practice

of using six-person juries in trials of noncapital offenses. See Fla. Stat. § 913.10.

2. Petitioner was tried on two counts of capital sexual battery of a child under 12. See Fla. Stat.

§ 794.011(2)(a). Because child rape is not punishable

by death under existing precedent, the trial court empaneled a six-person jury as dictated by Florida law.1

1

Florida law provides for 12-member juries in “capital cases,”

Fla. Stat. § 913.10, which the Florida Supreme Court has interpreted to mean any case in which the death penalty is a legally

available punishment, State v. Hogan, 451 So. 2d 844, 845 (Fla.

1984). Although Florida law categorizes sexual battery of a child

2

See Fla. Stat. § 913.10. At the pre-trial conference, petitioner argued that his charges constituted “capital

offense[s]” and thus Florida law entitled him to a 12person jury. Pet. App. 4. The trial court rejected petitioner’s request. Id. Petitioner’s counsel went on to

question the venire panel extensively and participate

in jury selection, exercising cause and peremptory

challenges to various prospective jurors petitioner

deemed undesirable. Tr. 282–328. Once jurors were

selected, petitioner accepted the jury as empaneled

and proceeded to trial without objection. Tr. 328–40.

At trial, the jury heard overwhelming evidence of

petitioner’s guilt. Petitioner’s wife testified that her

two daughters, ages seven and eight, came to her because petitioner—their stepfather—was forcing them

to engage in anal sex. According to petitioner’s wife,

her daughters told her that petitioner was “hurting”

them by “trying to push his pee pee into [their anal

cavities].” Tr. 442, 444. This was happening in the office of their home. Tr. 446. Petitioner would lock the

door, place the girls “on the floor” on their “hands and

knees” with their “bottoms down,” and then assault

them. Tr. 445–46, 467.

Petitioner’s stepdaughters recounted the same incidents. M.M. testified that petitioner, on multiple occasions, took her into his office, locked the door, undressed her, and touched her “on [her] bottom” with

his “pee pee” while she was “laying on [her] belly.” Tr.

397–401. E.M. testified that petitioner would lock the

under 12 as a “capital felony,” the death penalty is not legally

available under existing Eighth Amendment precedent, see Kennedy v. Louisiana, 554 U.S. 407, 413 (2008), and Florida law thus

provides for six-member juries, see Hogan, 451 So. 2d at 845–46.

3

door to the office, undress her, place her on her “knees

and hands,” and touch her on her “bottom” with his

“personal part.” Tr. 414–18.

Responding officers who interviewed both girls

contemporaneously also testified. They recounted

M.M.’s describing how “the tip” of petitioner’s penis

“went into her bottom hole a little bit” and “it hurt.”

Tr. 543. On one occasion, petitioner used a “coconut

hair product” to “lubricate his penis” prior to assaulting his stepdaughter. Tr. 545. E.M. detailed a similar

account to the officers. Tr. 539.

After the allegations were reported to the police,

petitioner himself confirmed much of his wife and

stepdaughters’ accounts. On a controlled phone call

with his wife, petitioner admitted “numerous” times

that she was “right,” that “[he] did do it,” and that he

was “sorry.” Tr. 496–97. He told her he wanted to

“work through the situation and that people go

through it all the time.” Tr. 452.

When officers arrived at the family’s home to arrest petitioner, they found the front door “barricaded”

with furniture. Tr. 571. The officers later discovered

that petitioner had fled to Tampa. Tr. 603. When

Tampa Police attempted to arrest him, “he fled on

foot.” Tr. 606–07, 616–17. The officers were able to apprehend petitioner only after deploying a taser. Tr.

606, 617–619.

Presented with this evidence, the jury returned

unanimous guilty verdicts on both counts. R. 223–28.

3. Petitioner appealed his conviction to Florida’s

Second District Court of Appeal, renewing his argument that Florida law entitled him to a 12-person jury

4

because he was charged with a “capital offense.” Pet.

App. 10–16. The Second District affirmed in a per curiam, summary decision. Pet. App. 1. Petitioner asked

the Second District to certify a question of great public

importance to the Florida Supreme Court. Pet. App.

18–33. The Second District denied the motion. Pet.

App. 2.

REASONS FOR DENYING THE PETITION

Petitioner contends that the Court should review

the Second District’s summary decision rejecting his

state statutory argument and use it as a vehicle to

overrule the Sixth Amendment holding in Williams v.

Florida, 399 U.S. 78 (1970), which held that the Sixth

Amendment permits six-person juries in criminal

cases. The Court should deny the petition because petitioner failed to raise that federal constitutional question in the Second District below. And even if he had

raised it, the Court 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 five other states that for more than 50

5

years have relied on its rule.2 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

SHOULD DENY THE PETITION

BECAUSE

THE

QUESTION

PRESENTED

WAS

NEITHER

ADDRESSED

BY,

NOR

PROPERLY

PRESENTED TO, THE STATE COURT BELOW.

This Court “adhere[s] to the rule” that it “will not

consider a petitioner’s federal claim unless it was either addressed by, or properly presented to, the state

court that rendered the decision [it] ha[s] been asked

to review.” Adams v. Robertson, 520 U.S. 83, 86

(1997). Whether that rule is jurisdictional or simply a

firm prudential rule, see Howell v. Mississippi, 543

U.S. 440, 445–46 (2005) (calling it an “unsettled question”), it dooms petitioner’s certiorari petition.

Petitioner’s claim that he has a Sixth Amendment

right to a 12-person jury was not “pressed or passed

upon” by the state court below. Bankers Life & Cas.

Co. v. Crenshaw, 486 U.S. 71, 79 (1988). The Second

District’s summary decision did not address it, Pet.

App. 1, and petitioner concedes as much, Pet. 7. And

“[w]hen the highest state court is silent on a federal

question” before this Court, the Court “assume[s] that

the issue was not properly presented.” Adams, 520

U.S. at 86–87; see also Bd. of Dirs. of Rotary Int’l v.

2

See Ariz. Rev. Stat. § 21-102; Conn. Gen. Stat. § 54-82; Fla.

Stat. § 913.10; Ind. Code § 35-37-1-1; Mass. Gen. Laws Ch. 218,

§ 26A; Utah Code. Ann. § 78B-1-104.

6

Rotary Club of Duarte, 481 U.S. 537, 550 (1987). Petitioner bears the burden of overcoming that presumption, by “affirmatively show[ing]” that the state court

had an opportunity to address the question. Rotary

Int’l, 481 U.S. at 550; Adams, 520 U.S. at 86. Petitioner has made no such showing.

To meet that burden, petitioner needed to show

with specificity in his certiorari petition where in the

court below “the federal question[] sought to be reviewed w[as] raised,” see Sup. Ct. R. 14.1(g)(i), such

that there is “no doubt from the record that a claim

under a federal statute or the Federal Constitution

was presented,” Webb v. Webb, 451 U.S. 493, 501

(1981). He did not and cannot.

Petitioner argued in the Second District Court of

Appeals only that Florida law entitled him to a 12person jury because he was charged with a “capital

felony.” Pet. App. 10–16. He made no Sixth Amendment argument; indeed, he did not even mention the

Sixth Amendment.3 And while petitioner’s brief noted

one judge’s criticisms of the social science cited in Williams, it did so in support of his argument that the

Florida Supreme Court should reconsider its interpretation of Florida’s jury statute, not to argue that Williams’ Sixth Amendment holding has been abrogated

3

Petitioner made a cursory suggestion that his Florida statutory argument had “significant constitutional implications.”

Pet. App. 11. He did not specify what those implications were or

whether he was referring to the Florida or U.S. constitution. See

Adams, 520 U.S. at 89 n.3 (“[P]assing invocations of [constitutional principles]” that “fail to cite the Federal Constitution . . .

d[o] not meet our minimal requirement that it must be clear that

a federal claim was presented [to the state court].”).

7

or should be overruled. Pet. App. 13–14. Making “casual reference to a federal case, in the midst of an unrelated argument, is insufficient.” Rotary Int’l, 481

U.S. at 550 n.9. Petitioner thus “did not properly present his claim as one arising under federal law.” Howell, 543 U.S. at 443.4 Petitioner cannot obtain a writ of

certiorari to a state court in which he failed to properly

present the federal issue he now raises.

II. THE COURT

INVITATION

WILLIAMS.

SHOULD REJECT PETITIONER’S

TO RECONSIDER AND OVERRULE

Even if petitioner had properly presented the issue

to in the court below, petitioner has not justified revisiting Williams’ holding that the Sixth Amendment

permits juries comprised of six members in serious

criminal cases. Although petitioner urges the Court to

grant review to overrule that 53-year-old case, he does

not acknowledge his heavy burden to show that the

Court should do so.

This Court does not lightly overrule precedent.

“Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Janus v. Am.

Fed’n of State, Cnty., & Mun. Emps., Council 31, 138

4

Petitioner first raised the Sixth Amendment issue he now

presents in his post-judgment motion for certification of a question of great public importance and for a written opinion, which

the Second District denied without comment. Pet. App. 2, 18–19.

This Court does not review issues raised for the first time in postjudgment motions when the state court did not address them. See

Adams, 520 U.S. at 89 n.3.

8

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 “mistaken” because it “disregard[s] history and precedent.” Pet. 4; see also id. at

10–11. 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 jury-trial right”).

Williams examined the history surrounding the common-law 12-person requirement. See 399 U.S. at 87–

89, 87 nn.19–20, 88 n.23. It addressed the Court’s previous cases discussing jury size. See id. at 90–92, 90

n.26, 91 nn.27–28, 92 nn.29–31. It discussed the history of Article III’s jury-trial provision and the accompanying ratification debates. See id. at 93–94, 93

nn.34–35. It analyzed the drafting history of the Sixth

Amendment, including disputes over what language

to use. See id. at 94–97, 94 n.37, 95 n.39. And it considered contemporaneous constitutional provisions

and statutes regarding juries. See id. at 97 & nn.43–

9

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);

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]

10

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

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

11

(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. 11–12. 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

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,

12

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]

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

13

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

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

14

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

do not function as well as 12-person juries. Pet. at 13–

15; 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

15

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.

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.

16

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

17

of 74.0%,5 73.3%,6 and 72.1%,7 respectively. In the

same years, felony juries in Texas convicted at rates

of 79.0%,8 81.0%,9 and 78.0%;10 felony juries in California convicted at rates of 86.0%,11 85.0%,12 and 84.0%;13

and felony juries in New York convicted at rates of

5

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).

6

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).

7

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).

8

Off. of Ct. Admin., Annual Statistical Report for the Texas

Judiciary Fiscal Year 2017 Court-Level - 20 (2018), https://tinyurl.com/mtrp379s.

9

Off. of Ct. Admin., Annual Statistical Report for the Texas

Judiciary Fiscal Year 2018 Court-Level - 21 (2019), https://tinyurl.com/2s3fsmpf.

10

Off. of Ct. Admin., Annual Statistical Report for the Texas

Judiciary Fiscal Year 2019 Court-Level 23 (2020), https://tinyurl.com/ywh779v3.

11

Jud. Council of Cal., 2018 Court Statistics Report:

Statewide

Caseload

Trends

69

(2018),

https://tinyurl.com/5n6tj9pr.

12

Jud. Council of Cal., 2019 Court Statistics Report:

Statewide

Caseload

Trends

69

(2019),

https://tinyurl.com/mwmby3h5.

13

Jud. Council of Cal., 2020 Court Statistics Report:

Statewide

Caseload

Trends

55

(2020),

https://tinyurl.com/2mym3hrx.

18

74.6%,14 73.7%,15 and 75.2%.16 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 100.17 It is thus not

true, as petitioner would have it, that Williams’ assessment of the six-person jury’s effectiveness has

proven “materially inaccurate.” Pet. 13.

5. Petitioner adds insult to error in suggesting (at

15) that Florida’s six-person-jury rule was adopted “to

reduce minority participation.” 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.

14

Chief Adm’r of Cts., New York State Unified Court System

2017 Annual Report 48 (2018), https://tinyurl.com/yckheu9v.

15

Chief Adm’r of Cts., New York State Unified Court System

2018 Annual Report 42 (2019), https://tinyurl.com/yc7cvjhe.

16

Chief Adm’r of Cts., New York State Unified Court System

2019 Annual Report 38 (2020), https://tinyurl.com/2wtwfmdm.

17

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. 13–15, 17–18; 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).

19

Florida history in fact shows quite the opposite. Petitioner believes it nefarious that “[t]he common law

rule of a jury of twelve was a staple of Florida’s justice

system so long as federal troops remained,” 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. 16. But as

petitioner acknowledges, 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.18 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’s suggestion (at 12) that overruling Williams would have “only a limited impact” is

patently false—it would have sweeping consequences

for the citizens of Arizona, Connecticut, Florida, Indiana, Massachusetts, and Utah, who have for decades

18

With no explanation as to why Florida’s purported racial

motivations for adopting six-person juries suddenly disappeared

in capital cases, petitioner moves the goalposts and argues that

Florida’s retention of 12-person juries for capital cases “essentially conced[es] that 12-person juries are more rights protective.” Pet. 17 n.2. But the legislature could have had any number

of reasons to want more community members involved in capital

cases, and petitioner’s speculation about those reasons certainly

does not amount to a concession by the State.

20

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

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

21

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.

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.

22

Pet. 13. 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

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 the 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

23

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

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.” Petitioner’s stepdaughters testified

in detail about his repeated sexual attacks on them.

Petitioner’s wife and law enforcement confirmed that

their accounts remained consistent over time. And the

jury heard a recorded call on which petitioner admitted to the crimes. Changing the size of the jury would

not have altered the 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.

24

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 16, 2023