Opposition Brief — Wisben Sanon, Petitioner v. Florida

No. 23-6289

IN THE

Supreme Court of the United States

_______________

WISBEN SANON,

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

_______________

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

PL-01, The Capitol

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

henry.whitaker@

myfloridalegal.com

ASHLEY MOODY

Attorney General of

Florida

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

THE COURT SHOULD REJECT PETITIONER’S

INVITATION TO RECONSIDER AND OVERRULE

WILLIAMS. ...............................................................5

CONCLUSION .......................................................... 18

iii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) ............................................ 17

Apodaca v. Oregon,

406 U.S. 404 (1972) .............................................. 4, 9

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................ 12

Ballew v. Georgia,

435 U.S. 223 (1978) .......................................... 10, 12

Brady v. Maryland,

373 U.S. 83 (1963) .................................................. 12

Colgrove v. Battin,

413 U.S. 149 (1973) ...................................... 9–10, 18

Collins v. Youngblood,

497 U.S. 37 (1990) .................................................. 10

Davis v. Florida,

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

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) .............................................. 7

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) ................................................ 11

Griffin v. California,

380 U.S. 609 (1965) ................................................ 12

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

Council 31,

138 S. Ct. 2448 (2018) .................................... 5–6, 12

Khorrami v. Arizona,

143 S. Ct. 22 (2022) ............................ 4, 8, 12, 14, 16

iv

Lockhart v. McCree,

476 U.S. 162 (1986) ................................................ 16

Ludwig v. Massachusetts,

427 U.S. 618 (1976) ................................................ 10

Miranda v. Arizona,

384 U.S. 436 (1966) ................................................ 11

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) .......................... 4, 6, 9–10, 17

Roper v. Simmons,

543 U.S. 551 (2005) ................................................ 12

Strickland v. Washington,

466 U.S. 668 (1984) ................................................ 12

Taylor v. Louisiana,

419 U.S. 522 (1975) ................................................ 11

United States v. Gaudin,

515 U.S. 506 (1995) ................................................ 10

Weeks v. United States,

232 U.S. 383 (1914) ................................................ 11

Williams v. Florida,

399 U.S. 78 (1970) ................................ 1, 4, 6–12, 15

Statutes & Constitutional Provisions

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

1877 Fla. Laws 54 .............................................. 1, 16

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

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

Fla. Const. art. I, § 22 ............................................... 16

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

Fla. Stat. § 800.04 ....................................................... 1

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

v

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

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

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

Rules

Fed. R. Civ. P. 48(a)................................................... 18

Other Authorities

Alice Guerra et al., Accuracy of Verdicts Under

Different Jury Sizes and Voting Rules,

28 Sup. Ct. Econ. Rev. 221 (2020) ......................... 14

Annals of Cong. (1789) (Joseph Gales ed., 1834) ....... 8

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............... 11

Barbara Luppi & Francesco Parisi,

Jury Size and the Hung-Jury Paradox,

42 J. Legal Stud. 399 (2013) .................................. 14

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) ................. 13

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

System 2017 Annual Report (2018),

https://tinyurl.com/yckheu9v ................................. 15

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

System 2018 Annual Report (2019),

https://tinyurl.com/yc7cvjhe................................... 15

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

System 2019 Annual Report (2020),

https://tinyurl.com/2wtwfmdm .............................. 15

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

Statistical Reference Guide FY 2017-18 (2019),

https://tinyurl.com/433vwfy3 ................................. 14

vi

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

Statistical Reference Guide FY 2018-19 (2020),

https://tinyurl.com/43zywh5n ................................ 14

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

Statistical Reference Guide FY 2016-17 (2018),

https://tinyurl.com/4drv24ky ................................. 14

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) ............ 7

James Wilson,

Works of the Honourable James Wilson (1804)....... 9

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

Statewide Caseload Trends (2018),

https://tinyurl.com/5n6tj9pr .................................. 15

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

Statewide Caseload Trends (2019),

https://tinyurl.com/mwmby3h5 ............................. 15

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

Statewide Caseload Trends (2020),

https://tinyurl.com/2mym3hrx ............................... 15

Kaushik Mukhopadhaya, Jury Size and the Free

Rider Problem, 19 J.L. Econ. & Org. 24 (2003)..... 13

Letter from James Madison to Edmund Pendleton,

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

James Madison (1865) ............................................. 8

Letter from Richard Henry Lee to Patrick Henry,

Sept. 14, 1789, https://tinyurl.com/muu5xzfa ......... 8

Nicolas Fay et al., Group Discussion as Interactive

Dialogue or as Serial Monologue: The Influence of

Group Size, 11 Psych. Sci. 481 (2000) ................... 13

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

Texas Judiciary Fiscal Year 2017 (2018),

https://tinyurl.com/mtrp379s ................................. 15

vii

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

Texas Judiciary Fiscal Year 2018 (2019),

https://tinyurl.com/2s3fsmpf .................................. 15

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

Texas Judiciary Fiscal Year 2019 (2020),

https://tinyurl.com/ywh779v3 ................................ 15

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

Bringing Back the Twelve-Person Civil Jury,

104 Judicature 46 (2020) ....................................... 18

Paul Samuel Reinsch, The English Common Law in

the Early American Colonies, 1 Select Essays in

Anglo-American Legal History 367 (1907) .............. 7

William Blackstone,

Commentaries on the Laws of England (1769) ....... 7

William S. Brackett,

The Freehold Qualification of Jurors,

29 Am. L. Reg. 436 (1881) ........................................ 7

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 sexual battery of a child over 12 while in a position of familial

authority and one count of lewd or lascivious molestation of a child under 16. See Fla. Stat. §§ 794.011(8)(b),

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

2

cause and peremptory challenges to various prospective jurors petitioner deemed undesirable. Tr. 143–

211. After jury selection, petitioner accepted the jury

as empaneled and proceeded to trial without objection.

Tr. 211–13.

At trial, the jury was presented with the following

evidence. Petitioner’s thirteen-year-old stepdaughter,

N.F.A., arrived at school one Monday, and her friend

quickly noticed that she was “very not herself.” Tr.

327. N.F.A.’s friend pressed her about what was troubling her, and N.F.A. eventually revealed that petitioner had done something sexual to her over the

weekend. Tr. 328–30. N.F.A.’s friend convinced her to

tell their school guidance counselor. Tr. 330.

Once with the guidance counselor, N.F.A. reported

that “her stepfather raped her.” Tr. 332. The guidance

counselor contacted police, who interviewed N.F.A. Tr.

372–73. N.F.A. reported that the previous Friday, after coming home from school, petitioner called her to

his room. Tr. 393–94. N.F.A. observed that petitioner

“had his belt ready over his neck” and anticipated that

he was “getting ready to whoop” her for something. Tr.

394. Instead, petitioner “started kissing” her and

sticking his hand inside her underwear. Tr. 396–97.

Petitioner then took her to the bathroom, pulled both

their pants down, lay her down, got on top of her, and

put his penis “inside [her] private area.” Tr. 398, 400–

01. While on top of her, petitioner would “shake[] and

stop[], shake[] and stop[].” Tr. 400. N.F.A. “didn’t

know what [they] were doing,” but it “hurt really bad”

and she “started crying because [she] just wanted him

to stop[].” Tr. 400.

3

After multiple requests by N.F.A. to stop, petitioner told her to “just wait” and continued “kissing

[her], squeezing [her], [and] squeezing [her] butt.” Tr.

401–02. He also pulled up her shirt and “started

touching . . . both of [her] nipples.” Tr. 402. When one

of N.F.A.’s sisters knocked on the door, petitioner finally stopped and told N.F.A. to go clean her mom’s

closet and to tell her sisters that she had been doing

that the whole time. Tr. 402, 409.

The next evening, petitioner called N.F.A. to his

room again and took her to the bathroom. Tr. 417–18.

He removed all of their clothing and told N.F.A. to lie

on the floor. Tr. 418. He then “shove[d] his penis inside

[her] again,” and she “started crying.” Tr. 419. Petitioner became angry when N.F.A. would not do what

he told her to do. Tr. 419. He told her to kiss him, and

when she protested that she did not know how to kiss,

he responded: “Do you want me to whoop you?” Tr.

419. N.F.A. asked petitioner why he was doing this to

her, and he responded that they were “just trying to

have some fun.” Tr. 420. When N.F.A. stated that she

was not having fun, petitioner asked if she would rather he “whoop [her]” or “hug and kiss [her].” Tr. 420.

When petitioner finally stopped, N.F.A. saw “white

stuff” on his penis and became worried that she was

going to get pregnant. Tr. 421.

By the time petitioner stood trial five years later,

N.F.A. recalled that petitioner touched her underneath her underwear during the first incident but

could not recall many other details about that incident. Tr. 254, 267–70. N.F.A. recalled the second incident in greater detail, recounting materially the same

4

story that she told police at the time. Tr. 271–77. Petitioner contended that N.F.A. and her mother fabricated the allegations and attempted to frame him out

of personal animosity. Tr. 823–26, 834–44.

Presented with that evidence, the jury returned

unanimous guilty verdicts on all counts. See R. 538–

40.

3. Petitioner appealed his convictions to Florida’s

Fourth District Court of Appeal, arguing—for the first

time—that the Sixth Amendment entitled him to be

tried by a 12-person jury because this Court abrogated

Williams in Ramos v. Louisiana, 140 S. Ct. 1390

(2020), which held that the Sixth Amendment requires unanimous verdicts in state court as in federal

court, overruling Apodaca v. Oregon, 406 U.S. 404

(1972). The Fourth District affirmed on the jury issue

without discussion. Pet. App. 1. The Florida Supreme

Court denied discretionary review. Pet. App. 36.

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. As the Court has

done in several recent cases, it should decline that invitation. 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

5

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

years have relied on its rule.1

The petition should be denied.

THE

COURT SHOULD REJECT PETITIONER’S

INVITATION TO RECONSIDER AND OVERRULE

WILLIAMS.

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 this 53-year-old case, he does not

acknowledge his heavy burden to show that the Court

should do so.

This Court does not lightly overrule precedent.

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

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

S. Ct. 2448, 2478 (2018). To that end, this Court considers several factors before overruling a prior decision: the quality of the prior decision’s reasoning, the

workability of its holding, its consistency with other

cases, post-decision developments, and reliance on the

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.

6

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,

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

7

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]

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

8

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

(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.

9

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

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

10

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

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.

11

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

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

12

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 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.

13

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.

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 12-

14

person 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

of 74.0%,2 73.3%,3 and 72.1%,4 respectively. In the

same years, felony juries in Texas convicted at rates

2

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).

3

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).

4

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).

15

of 79.0%,5 81.0%,6 and 78.0%;7 felony juries in California convicted at rates of 86.0%,8 85.0%,9 and 84.0%;10

and felony juries in New York convicted at rates of

74.6%,11 73.7%,12 and 75.2%.13 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 100.14 It is thus not

5

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

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

6

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

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

7

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

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

8

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

Caseload Trends 69 (2018), https://tinyurl.com/5n6tj9pr.

9

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

Caseload Trends 69 (2019), https://tinyurl.com/mwmby3h5.

10

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

Statewide

Caseload

Trends

55

(2020),

https://tinyurl.com/2mym3hrx.

11

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

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

12

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

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

13

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

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

14

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 cross-

16

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

proven incorrect.” Pet. 7.

5. Petitioner adds insult to error in suggesting (at

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

suppress minority voices.” Beyond noting that the rule

dates from Reconstruction, however, petitioner cites

no evidence suggesting that is so, and makes no attempt to explain how a rule establishing the size of

juries without regard to race could be a covert instrument of racism.

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

rule of a jury of twelve was still kept in Florida while

federal troops remained in the state,” but that Florida

then reduced the size of certain juries to six in 1877,

after the departure of federal troops that had occupied

Florida after the Civil War. Pet. 10–11. But petitioner

fails to note that, even after that, Florida also retained

12-person juries in capital cases, Act of February 17,

1877, ch. 3010, § 6, 1877 Fla. Laws 54, a fact quite

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.

section of the community. See Pet. 8–9; 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).

17

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

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.

18

As a last point on reliance, overruling Williams

would not affect only criminal cases. In Colgrove, this

Court relied on Williams in holding that the Seventh

Amendment permits six-person juries in civil trials.

413 U.S. at 158–60. Consequently, nearly 90% of federal civil verdicts would also be in jeopardy. See Fed.

R. Civ. P. 48(a); Patrick E. Higginbotham et al., Better

by the Dozen: Bringing Back the Twelve-Person Civil

Jury, 104 Judicature 46, 50 (2020) (finding that only

roughly 12% of federal civil trials use 12-person juries). Petitioner fails to establish sufficient grounds

for this Court’s taking the extraordinary step of invalidating thousands of criminal and civil judgments.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ASHLEY MOODY

Attorney General of Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

PL-01, The Capitol

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

henry.whitaker@

myfloridalegal.com

HENRY C. WHITAKER

Solicitor General

Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General

DARRICK W. MONSON

Assistant Solicitor General

Counsel for Respondent

March 18, 2024