Petition for Writ of Certiorari — Jermaine Anderson, Jr., Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

JERMAINE ANDERSON, JR., PETITIONER

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

APPENDIX TO PETITION FOR A WRIT 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, Florida 33401

(561) 355-7600

ppetillo@pd15.state.fl.us

appeals@pd15.org

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JERMAINE ANDERSON, JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2023-0391

[October 25, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Hon. Daliah H. Weiss, Judge; L.T. Case No. 50-2020-CF008579-AXXX-MB.

Carey Haughwout, Public Defender, and Alan Terry Lipson, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Luke Robert

Napodano, Senior Assistant Attorney General, West Palm Beach, for

appellee.

PER CURIAM.

Affirmed. See Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022).

GERBER, LEVINE and CONNER, JJ., concur.

*

*

*

Not final until disposition of timely filed motion for rehearing.

Filing # 185369520 E-Filed 11/02/2023 04:49:31 PM

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA,

FOURTH DISTRICT

JERMAINE ANDERSON, JR.

CASE NO. 4D23-0391

Defendant-Appellant,

vs.

STATE OF FLORIDA,

Plaintiff-Appellee.

____________________________/

MOTION FOR WRITTEN OPINION AND CERTIFICATION OF

QUESTION OF GREAT PUBLIC IMPORTANCE

ON UNADDRESSED POINT

Pursuant to Fla. R. App. P. 9.330, Defendant-Appellant, JERMAINE

ANDERSON, JR., by and through undersigned counsel, files this Motion for

the Issuance of a Written Opinion and Certification of Great Public Importance

On Unaddressed Point challenging a six-person jury for defendant charged

with a felony, from the per curiam decision rendered on October 25, 2023.

1. Rehearing in the form of a written opinion is necessary in order to

enable the Supreme Court of Florida to revisit the constitutional authority

requiring a twelve-person juries for all felonies. The constitutional parameters

of jury composition in criminal cases is a question of great public importance

that is being considered by the Supreme Court of the United States in two

-1-

pending cases.

2. Whether the Sixth and Fourteenth Amendments of the United States

Constitution guarantee the right to a trial by a twelve person jury when

charged with a felony is a fundamental question that is ripe for review by the

Supreme Court of Florida. The precedent supporting a reduced sized jury of

six in Williams v. Florida, 399 U.S. 78 (1970), has been effectively invalidated

by Ramos v. Louisiana, 140 S.Ct. 1390 (2020), recognizing that the Sixth

Amendment’s “trial by an impartial jury” requirement encompasses what the

term “meant at the Sixth Amendment’s adoption.” Ramos, Id. at 1395. What

the term meant then, as now, is a twelve-person jury. Blackstone recognized

that under the common law, “no person could be found guilty of a serious

crime unless the truth of every accusation . . . should . . . be confirmed by the

unanimous suffrage of twelve of his equals and neighbors[.] Id. [quoting 4 W.

Blackstone, Commentaries on the laws of England 343 (1769)]. “A verdict,

taken from eleven, was no verdict at all.”

quotations removed.]

-2-

Id. [Internal citation and

THIS COURT SHOULD ISSUE A WRITTEN OPINION

ON THE TWELVE PERSON JURY

3. A written opinion will provide a legitimate basis for the Supreme

Court of Florida to review an express construction of a United States

Constitution provision as authorized by Fla. R. App. P. 9.030(a)(2)(A)(ii). As

argued in appellate briefs, Florida precedent allowing a six-person jury in nonmurder capital cases, State v. Hogan, 451 So. 2d 844, 845 (Fla. 1984), is

incompatible with the prevailing Supreme Court of the United States

precedent and is inconsistent with the purpose and meaning of the Sixth and

Fourteenth Amendments to the United States Constitution, thus providing

timely and justified opportunity for Supreme Court of Florida review. See,

Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022) (Gross, J. Concurring),

rev. denied, 2923 WL 3830251 (Fla. 2023); Hall v. State, 853 So. 2d 546, 547

(Fla. 1st DCA 2023) (appellate court certified whether defendant entitled to

twelve-person jury as a question of great public importance), rev. denied, 865

So. 2d 480 (Fla. 2003).

4. The Supreme Court of the United States is currently considering

whether to grant certiorari on this very question in seven petitions originating

-3-

from Florida courts.1 The certiorari petitions ask the same question that is at

issue in this case: Whether the Sixth and Fourteenth Amendments guarantee

the right to a trial by a twelve-person jury when defendant is charged with a

felony.

5. The United States Supreme Court directed the State of Florida to

respond to all of these petitions, a signal that the Court considers the question

to be significant. The State of Florida has responded to two of those petitions

and has argued that the Court lacks jurisdiction because Petitioners did not

move to certify a question and thereby seek review in the Supreme Court of

Florida.

6. A written opinion on this important question allows the Supreme

Court of Florida to evaluate precedent and practical issues arising from a sixperson jury system. The time to grapple with the Williams legacy is now.

1

. See, Guzman v. Florida, 23-5173; Cunningham v. Florida, 23-5171;

Arellano-Ramirez v. Florida, 23-5567; Sposato v. Florida, 23-5575; Morton

v. Florida, 23-5579; Jackson v. Florida, 23-5570; Crane v. Florida, 235455.

-4-

IN THE ALTERNATIVE THIS HONORABLE COURT SHOULD CERTIFY

TO THE SUPREME COURT OF FLORIDA A QUESTION OF GREAT

PUBLIC IMPORTANCE

7. The following question of great public importance should be certified

to the Supreme Court of Florida:

Do the Sixth and Fourteenth Amendments guarantee the right

to a trial by a twelve-person jury when defendant is charged

with a felony?

8. This appeal involves an issue of great public importance to the

fundamental principles of constitutional construction and definition of what is

meant by a trial by jury. The Supreme Court of Florida should be given the

opportunity to revisit Williams in light of the recognition by the Supreme Court

of the United States that the Williams Court relied upon misinformation and

a strained analysis when approving six-person juries in felony cases.

WHEREFORE, Defendant-Appellant, JERMAINE ANDERSON, JR.,

respectfully requests that this Honorable Court either issue a written opinion

in this cause or certify a question of great public importance.

-5-

Respectfully submitted,

CAREY HAUGHWOUT

Public Defender

15th Judicial Circuit of Florida

Criminal Justice Building

421 3rd Street/6th Floor

West Palm Beach, Florida 33401

(561) 355-7600, ALipson@pd15.org

appeals@pd15.state.fl.us

/s/ Alan T. Lipson

ALAN T. LIPSON

Assistant Public Defender

Florida Bar No. 0151810

Attorney for Jermaine Anderson, Jr.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

Motion for Written Opinion and Certification of Question of Great Public

Importance on Unaddressed Point has been furnished by E-mail to Assistant

Attorney General, Luke R. Napodano [CrimAppWPB@myfloridalegal.com]

and E-filed with this Honorable Court, this 2nd day of November, 2023.

/s/ Alan T. Lipson

ALAN T. LIPSON

-6-

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT, 110 SOUTH TAMARIND AVENUE, WEST PALM BEACH, FL 33401

December 5, 2023

JERMAINE ANDERSON, JR.,

Appellant(s)

v.

CASE NO. - 4D2023-0391

L.T. No. - 502020CF008579A

STATE OF FLORIDA,

Appellee(s).

BY ORDER OF THE COURT:

ORDERED that Appellant's November 02, 2023 motion for written opinion and

certification is denied.

Served:

Attorney General-W.P.B.

Alan Terry Lipson

Luke Robert Napodano

Palm Beach Public Defender

KR

I HEREBY CERTIFY that the foregoing is a true copy of the court’s order.

4D2023-0391 December 5, 2023

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

4D2023-0391 December 5, 2023

Filing # 155148090 E-Filed 08/11/2022 02:30:33 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT,

IN AND FOR PALM BEACH COUNTY, FLORIDA

CRIMINAL DIVISION “S”

STATE OF FLORIDA,

CASE NO. 20CF008579AMB

vs.

Jermaine Jr. Anderson,

Defendant.

____________________________/

DEFENDANT’S OBJECTION TO A SIX-PERSON JURY

AND MOTION FOR A TWELVE-PERSON JURY

The defendant, through counsel, objects to a six-person jury, and he moves for a twelveperson jury. He argues that the Sixth and Fourteenth Amendments guarantee the right to a

twelve-person jury when the defendant is charged with a felony.

The defendant recognizes that the state constitution provides that the “qualifications and

the number of jurors, not fewer than six, shall be fixed by law,” see art. I, § 22, Fla. Const.; that

section 913.10, Florida Statutes, provides for six jurors except in capital cases (see also Fla. R.

Crim. P. 3.270); and that the Supreme Court held in Williams v. Florida, 399 U.S. 78, 86 (1970),

that juries as small as six were constitutionally permissible. However, as explained below,

Williams is impossible to square with the Supreme Court’s ruling in Ramos v. Louisiana, 140 S.

Ct. 1390 (2020), which concluded that the Sixth Amendment’s “trial by an impartial jury”

requirement encompasses what the term “meant at the Sixth Amendment’s adoption,” id. at

1395. And a party that seeks reversal of current precedent must preserve that issue like any other.

See Espinosa v. State, 626 So. 2d 165, 167 (Fla. 1993) (holding that issue was waived

notwithstanding there was adverse authority that foreclosed it); Beltran-Lopez v. State, 626 So.

2d 163, 164 (Fla. 1993) (same); see, e.g., Hollingsworth v. State, 293 So. 3d 1049, 1051 (Fla. 4th

000138

FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 08/11/2022 02:30:33 PM

State v. Jermaine Jr. Anderson

Case No. 20CF008579AMB

Motion Defendant's Objection to a Six-Person Jury and Motion for a Twelve-Person Jury

Page 2

DCA 2020), rev. denied, 2020 WL 5902598 (Fla. Oct. 5, 2020). Therefore, the defendant objects

to a six-person jury and moves for a twelve-person jury on the following grounds.

Prior to 1970, subjecting a defendant charged with a felony to a trial with only six jurors

would indisputably violate his or her Sixth Amendment rights. As the Ramos Court observed,

Blackstone recognized that under the common law, “no person could be found guilty of a serious

crime unless ‘the truth of every accusation … should … be confirmed by the unanimous suffrage

of twelve of his equals and neighbors[.]” 140 S. Ct. at 1395. “A ‘verdict, taken from eleven, was

no verdict’ at all.” Id.

After the Sixth Amendment was enacted, state courts interpreted it to require a twelveperson jury. See Miller, Comment, Six of One Is Not A Dozen of the Other, 146 U. Pa. L. Rev.

621, 643 n.133 (1998) (collecting cases from the late 1700s to the 1860s). In 1898, the U.S.

Supreme Court added its voice to the chorus, noting that the Sixth Amendment protects a

defendant’s right to be tried by a twelve-person jury. Thompson v. Utah, 170 U.S. 343, 349-350

(1898). As the Thompson Court explained, since the time of Magna Carta, the word “jury” had

been understood to mean a body of twelve people. Id. Given that understanding had been

accepted since 1215, the Court reasoned, “[i]t must” have been “that the word ‘jury’” in the Sixth

Amendment was “placed in the constitution of the United States with reference to [that] meaning

affixed to [it].” Id. at 350.

The Supreme Court continued to cite the basic principle that the Sixth Amendment

requires a twelve-person jury in criminal cases for seventy more years. For example, in 1900, the

Court explained that “there [could] be no doubt” “[t]hat a jury composed, as at common law, of

twelve jurors was intended by the Sixth Amendment to the Federal Constitution.” Maxwell v.

000139

State v. Jermaine Jr. Anderson

Case No. 20CF008579AMB

Motion Defendant's Objection to a Six-Person Jury and Motion for a Twelve-Person Jury

Page 3

Dow, 176 U.S. 581, 586 (1900). Thirty years later, the Court reiterated that it was “not open to

question” that “the phrase ‘trial by jury’” in the Constitution incorporated juries’ “essential

elements” as “they were recognized in this country and England,” including the requirement that

they “consist of twelve men, neither more nor less.” Patton v. United States, 281 U.S. 276, 288

(1930). And as recently as 1968, the Court remarked that “by the time our Constitution was

written, jury trial in criminal cases had been in existence for several centuries and carried

impressive credentials traced by many to Magna Carta,” such as the necessary inclusion of

twelve members. Duncan v. Louisiana, 391 U.S. 145, 151-52 (1968).

In 1970, however, the Williams Court overruled this line of precedent in a decision that

Justice Harlan described as “stripping off the livery of history from the jury trial” and ignoring

both “the intent of the Framers” and the Court’s long held understanding that constitutional

“provisions are framed in the language of the English common law [] and … read in the light of

its history.” Baldwin v. New York, 399 U.S. 117, 122-23 (1970) (citation omitted) (Harlan, J.,

concurring in the result in Williams). Indeed, Williams recognized that the Framers “may well”

have had “the usual expectation” in drafting the Sixth Amendment “that the jury would consist

of 12” members. Williams, 399 U.S. at 98-99. But Williams concluded that such “purely

historical considerations” were not dispositive. Id. at 99. Rather, the Court focused on the

“function” that the jury plays in the Constitution, concluding that the “essential feature” of a jury

is it leaves justice to the “commonsense judgment of a group of laymen” and thus allows “guilt

or innocence” to be determined via “community participation and [with] shared responsibility.”

Id. at 100-01. According to the Williams Court, both “currently available evidence [and] theory”

suggested that function could just as easily be performed with six jurors as with twelve. Id. at

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State v. Jermaine Jr. Anderson

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Motion Defendant's Objection to a Six-Person Jury and Motion for a Twelve-Person Jury

Page 4

101-102 & n.48; cf. Burch v. Louisiana, 441 U.S. 130, 137 (1979) (acknowledging that Williams

and its progeny “departed from the strictly historical requirements of jury trial”).

Williams’s ruling that the Sixth Amendment (as incorporated to the States by the

Fourteenth) permits a six-person jury cannot stand in light of Ramos. There, the Supreme Court

held that the Sixth Amendment requires a unanimous verdict to convict a defendant of a serious

offense. In reaching that conclusion, the Ramos Court overturned Apodaca v. Oregon, 406 U.S.

404 (1972), a decision that it faulted for “subject[ing] the ancient guarantee of a unanimous jury

verdict to its own functionalist assessment.” 140 S. Ct. at 1401-02.

That reasoning undermines Williams as well. Ramos rejected the same kind of “costbenefit analysis” the Court undertook in Williams, observing that it is not the Court’s role to

“distinguish between the historic features of common law jury trials that (we think) serve

‘important enough functions to migrate silently into the Sixth Amendment and those that don’t.’”

140 S. Ct. at 1400-01. Ultimately, the Ramos Court explained, the question is whether “at the

time of the Sixth Amendment’s adoption, the right to trial by jury included” the particular feature

at issue. Id. at 1402. As the history summarized above establishes, there can be no serious doubt

that the common understanding of the jury trial during the Revolutionary War era was that

twelve jurors were required—“a verdict, taken from eleven, was no verdict at all.” See 140 S. Ct.

at 1395 (quotation marks omitted).

Even setting aside Williams’s now-disfavored functionalist logic, its ruling suffered from

another significant flaw: it was based on research that was out of date shortly after the opinion

issued. Specifically, the Williams Court “f[ou]nd little reason to think” that the goals of the jury

guarantee—including, among others, “to provide a fair possibility for obtaining a

000141

State v. Jermaine Jr. Anderson

Case No. 20CF008579AMB

Motion Defendant's Objection to a Six-Person Jury and Motion for a Twelve-Person Jury

Page 5

representative[] cross-section of the community”—“are in any meaningful sense less likely to be

achieved when the jury numbers six, than when it numbers 12.” Id. at 100. The Court theorized

that “in practice the difference between the 12-man and the six-man jury in terms of the crosssection of the community represented seems likely to be negligible.” Id. at 102.

In the time since Williams, that determination has proven incorrect. Indeed, the Court

acknowledged as much just eight years later in Ballew v. Georgia, 435 U.S. 223 (1978), when it

concluded that the Sixth Amendment barred the use of a five-person jury. Although Ballew did

not overturn Williams, the Ballew Court observed that empirical studies conducted in the handful

of intervening years highlighted several problems with Williams’ assumptions. For example,

Ballew noted that more recent research showed that (1) “smaller juries are less likely to foster

effective group deliberation,” id. at 233, (2) smaller juries may be less accurate and cause

“increasing inconsistency” in verdict results, id. at 234, (3) the chance for hung juries decreases

with smaller juries, disproportionally harming the defendant, id. at 236; and (4) decreasing jury

sizes “foretell[] problems … for the representation of minority groups in the community,”

undermining a jury’s likelihood of being “truly representative of the community,” id. at 236-37.

Moreover, the Ballew Court “admit[ted]” that it “d[id] not pretend to discern a clear line between

six members and five,” effectively acknowledging that the studies it relied on also cast doubt on

the effectiveness of the six-member jury. Id. at 239; see also id. at 245-46 (Powell, J.) (agreeing

that five-member juries are unconstitutional, while acknowledging that “the line between fiveand six-member juries is difficult to justify”).

Post-Ballew research has further undermined Williams. Current empirical evidence

indicates that “reducing jury size inevitably has a drastic effect on the representation of minority

000142

State v. Jermaine Jr. Anderson

Case No. 20CF008579AMB

Motion Defendant's Objection to a Six-Person Jury and Motion for a Twelve-Person Jury

Page 6

group members on the jury.” Diamond et al., Achieving Diversity on the Jury: Jury Size and the

Peremptory Challenge, 6 J. of Empirical Legal Stud. 425, 427 (Sept. 2009); see also

Higginbotham et al., Better by the Dozen: Bringing Back the Twelve-Person Civil Jury, 104

Judicature 47, 52 (Summer 2020) (“Larger juries are also more inclusive and more representative

of the community. … In reality, cutting the size of the jury dramatically increases the chance of

excluding minorities.”). Because “the 12-member jury produces significantly greater

heterogeneity than does the six-member jury,” Diamond et al., Achieving Diversity on the Jury,

supra, at 449, it increases “the opportunity for meaningful and appropriate representation” and

helps ensure that juries “represent adequately a cross-section of the community.” Ballew, 435

U.S. at 237.

Other important considerations also weigh in favor of the twelve-member jury. For

instance, studies indicate that twelve-member juries deliberate longer, recall evidence better, and

rely less on irrelevant factors during deliberation. See Smith & Saks, The Case for Overturning

Williams v. Florida and the Six-Person Jury, 60 Fla. L. Rev. 441, 465 (2008). Minority views are

also more likely to be thoroughly expressed in a larger jury, as “having a large minority helps

make the minority subgroup more influential,” and, unsurprisingly, “the chance of minority

members having allies is greater on a twelve-person jury.” Id. at 466. Finally, larger juries

deliver more predictable results. In the civil context, for example, “[s]ix-person juries are four

times more likely to return extremely high or low damage awards compared to the average.”

Higginbotham et al., Better by the Dozen, supra, at 52.

000143

State v. Jermaine Jr. Anderson

Case No. 20CF008579AMB

Motion Defendant's Objection to a Six-Person Jury and Motion for a Twelve-Person Jury

Page 7

The origins of Florida’s six-person juries are disturbing and further support reversal of

existing precedent. The jury of six stems from the dawn of the Jim Crow era, one month after

federal troops were withdrawn from the state. The historical background is as follows:

In 1875, the Jury Clause of the 1868 constitution was amended to provide that the

number of jurors “for the trial of causes in any court may be fixed by law.” See Florida Fertilizer

& Mfg. Co. v. Boswell, 34 So. 241, 241 (Fla. 1903).

The common law rule of a jury of twelve was still kept in Florida while federal troops

remained in the state. There was no provision for a jury of less than twelve until the Legislature

enacted a provision specifying a jury of six in Chapter 3010, section 6. See Gibson v. State, 16

Fla. 291, 297–98 (1877) (quoting and discussing Chapter 3010, section 6, Laws of Florida

(1877)); Florida Fertilizer, 34 So. 15 241 (noting that previously all juries had twelve members).

The Legislature enacted chapter 3010 with the jury-of-six provision on February 17,

1877. Gibson, 16 Fla. 294. This was less than a month after the last federal troops were

withdrawn from Florida in January 1877. See Jerrell H. Shofner, Reconstruction and Renewal,

1865-1877, in The History of Florida 273 (Michael Gannon, ed., first paperback edition 2018)

(“there were [no federal troops” in Florida after 23 January 1877”).

The jury-of-six thus first saw light at the birth of the Jim Crow era as former

Confederates regained power in southern states and state prosecutors made a concerted effort to

prevent blacks from serving on jurors.

On its face the 1868 constitution extended the franchise to black men. But the historical

context shows that that it was part of the overall resistance to Reconstruction efforts to protect

the rights of black citizens. The constitution was the product of a remarkable series of events

000144

State v. Jermaine Jr. Anderson

Case No. 20CF008579AMB

Motion Defendant's Objection to a Six-Person Jury and Motion for a Twelve-Person Jury

Page 8

including a coup in which leaders of the white southern (or native) faction took possession of the

assembly hall in the middle of the night, excluding Radical Republican delegates from the

proceedings. See Richard L. Hume, Membership of the Florida Constitutional Convention of

1868: A Case Study of Republican Factionalism in the Reconstruction South, 51 Fla. Hist. Q. 1,

5-6 (1972); Shofner at 266. A reconciliation was effected as the “outside” whites “united with

the majority of the body’s native whites to frame a constitution designed to continue white

dominance.” Hume at 15.

The racist purpose of the resulting constitution was spelled out by Harrison Reed, a

leader of the prevailing faction and the first governor elected under the 1868 constitution, who

wrote to Senator Yulee that the new constitution was constructed to bar blacks from legislative

office: “Under our Constitution the Judiciary & State officers will be appointed & the

apportionment will prevent a negro legislature.” Hume, 15-16. See also Shofner 266.

In Ramos, Justice Gorsuch noted that the Louisiana non-unanimity rule arose from Jim

Crow era efforts to enforce white supremacy. Id. at 1394; see also id. at 1417 (Kavanaugh, J.,

concurring) (non-unanimity was enacted “as one pillar of a comprehensive and brutal program of

racist Jim Crow measures against African-Americans, especially in voting and jury service.”).

The history of Florida’s jury of six arises from the same historical context.

In view of the foregoing, a jury of six at a felony criminal trial is unconstitutional under

the Sixth and Fourteenth Amendments of the United States Constitution.

000145

State v. Jermaine Jr. Anderson

Case No. 20CF008579AMB

Motion Defendant's Objection to a Six-Person Jury and Motion for a Twelve-Person Jury

Page 9

Respectfully submitted,

CAREY HAUGHWOUT

Public Defender, 15th Judicial Circuit

421 3rd Street

West Palm Beach, FL 33401

Telephone: (561) 355-7500

_________________________________

Joseph Walsh

Assistant Public Defender

Fla. Bar No. 506354

Certificate of Service

I HEREBY CERTIFY that a true and correct copy hereof has been served to Corey R

Oneal, Assistant State Attorney, Division “S” OR the Assistant State Attorney currently assigned

in STAC at the time of filing, via the STAC case management exchange on this 11th day of

August, 2022.

_____________________________

Joseph Walsh

Assistant Public Defender

000146

225

1

MS. HOWE:

State accepts.

2

MR. WALSH:

We would accept.

3

THE COURT:

Excellent.

4

sides accept this jury?

5

MS. HOWE:

Yes, Judge.

6

MR. WALSH:

Judge, he needs to use

Okay, do both

7

the restroom but the only thing I will

8

state is we, having made all our

9

peremptories, we had a pretrial motion --

10

THE COURT:

Right.

11

MR. WALSH:

-- to have a 12-person

12

jury.

13

do that, we would not accept the jury.

14

Just basically put that on the record.

15

So within the sense of our motion to

THE COURT:

So that ore tense

16

motion -- was it written?

17

and I think I denied it.

18

MR. WALSH:

You did.

19

THE COURT:

Okay.

20

It was written

Other than that,

any other objections to the jury?

21

MR. WALSH:

No other objections.

22

THE COURT:

All right, then you guys

23

did a great job with this.

I would like to

24

bring, is he okay to bring in the jury and

25

swear them?

Actually --

SUSAN E CATUCCI, R.M.R. AND OFFICIAL COURT REPORTER

SUMMARY OF ARGUMENT

Point I

The US Supreme Court held in Ramos v. Louisiana, 140 S.Ct. 1390

(2020) that the 6th Amendment requires a trial by an impartial jury consisting

of 12 persons. Defendant’s convictions by a six person jury violated the 6th

and 14th Amendments to the US Constitution.

-8-

ARGUMENT

POINT I

DEFENDANT WAS ENTITLED TO A TWELVE PERSON JURY

UNDER THE SIXTH AND FOURTEENTH AMENDMENT.

Standard of Review

The standard of review of constitutional claims is de novo. See, A.B. v.

Florida Dep. of Childen & Family Services, 901 So. 2d 324, 326 (Fla. 3rd DCA

2005).

Argument

Pretrial defendant moved for a twelve person jury. (ER 138-146) The

motion was denied.

(T 225) He was convicted of a 1st degree felony

punishable by life and two second degree felonies. He argues that the Sixth

and Fourteenth Amendments guarantee the right to a twelve peson jury when

defendant is charged with a felony.

The U.S. Supreme Court held in Williams v. Florida, 399 U.S. 78, 86

(1970), that juries as small as six were constitutionally permissible. But

Williams is impossible to square with the Court’s ruling in Ramos v. Louisiana,

140 S.Ct. 1390 (2020), which concluded that the Sixth Amendment’s “trial by

an impartial jury” requirement encompasses what the term “meant at the Sixth

Amendment’s adoption.” Id. at 1395. “Defendant enjoys a constitutional right

-9-

to demand that his liberty should nt be taken from him except by the joint

action of the court and the unanimous verdict of a jury of twelve persons.”

Id. at 1396-99. Defendant’s conviction by a six person jury violated the Sixth

and Fourteenth Amendments to the U.S. Constitution.

Defendant acknowledges that this Honorable Court rejected this

argument in Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022). In rejecting

Guzman’s argument, this Honorable Court cited State v. Khorrami, 1 CA-CR

20-0088, 2021 WL 3197499 (Ariz. Ct. App. July 29, 2021. Guzman, 35o So.

3d at 73. At the time of this Honorable Court’s decision, Khorrami’s petition

fo writ of certiorari in the United States Supreme Court was pending.

The

petition was subsequently denied, over dissents by Justices Kavanaugh abd

Gorsuch. Khorrami v. Arizona, 21-1553, 2022 WL 16726030 (U.S. Nov. 7,

2022).

Although there is no legal significance to the denial of a petition for writ

of certiorari, there are significant differences between Florida’s and Arizona’s

justice systems that may account for the denial of the writ.

-10-

In Arizona, criminal defendants are guaranteed a “twelve person jury”

in cases where the sentence authorized by law is death or imprisonment for

thirty years or more. Otherwise, a criminal defendant may be tried with an

eight person jury. State v. Khorrami, 202 WL 3197499, at *8 (citations

omitted). In contrast, in Florida the juries are smaller, six persons versus the

eight persons in Arizona. Moreover, the six person juries are mandated in

every case except capital cases.

Further, the origin of Florida’s mandated six person jury is very

disturbing. As Justice Gorsuch observed: “During the Jim Crow era, some

states restricted the size of juries and abandoned the demand for a

unanimous verdict as part of a deliberate and systematic effort to suppress

minority voices in public affairs.” Khorrami v. Arizona, 2022 WL 16726030,

at *5 (Gorsuch, J., dissenting) (citations omitted). However, he did note that

Arizona’s law was likely motivated by costs, not race. Id.

In contrast, Florida’s six person jury did arise in that Jim Crow era

context of a “deliberate and systematic effort to suppress minority voices in

public affairs,” as reflected by its historical background. In 1875, the Jury

Clause of the 1868 Florida Constitution was amended to provide that the

number of jurors “for the trial of causes in any court may be fixed by law.”

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See, Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903). The

common law rule of a jury of twelve persons was still kept in Florida while

federal troops remained in the state. There was no provision for a jury of less

than twelve until the legislature enacted a provision specifying a jury of six

persons in Chapter 3010, Section 6. See, Gibson v. State, 16 Fla. 291, 29798 (1877); Florida Fertilizer, surpra, at 241.

The legislature enacted Chapter 3010 with the six persons jury on

February 17, 1877. Gibson, supra, at 294. This enactment was less than a

month after the last federal troops were withdrawn from Florida in January,

1877. See, Jerrell H. Shofner, Reconstruction and Renewal, 1865-1877, in

The History of Florida, 273 (Michael Gannon, ed., first paperback edition

2018) (“there were no federal troops” in Florida after 23 January 1877).

The six person jury first saw light at the birth of the Jim Crow era as

former Confederates regained power in Southern states and state

prosecutors made a concerted effort to prevent blacks from serving on juries.

On it’s face the 1868 Constitution extended the franchise to black men.

Nevertheless, the historical context shows that it was part of the overall

resistance to Reconstruction efforts to protect the rights of black citizens. The

constitution was the product of a remarkable series of events including a coup

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in which leaders of the white southern (or native) faction took possession of

the assembly hall in the middle of the night, excluding Radical Republican

delegates from the proceedings. See, Richard L. Hume, Membeship of he

Florida Consitutional Convention of 1868: A Case Study of Republican

Factionalism South, 51 Fla. Hist. Q. 1, 5-6 (1972), Shofner at 266.

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reconciliation was effected as the “outside” whites “united with the majority of

the body’s native whites to frame a constitution designed to continue white

dominance.” Hume at 15.

The purpose of the resulting constitution was spelled out by Harrison

Reed, a leader of the prevailing faction and the first govern elected under the

1868 Constitution. He wrote to Senator Yulee that the new constitution was

constructed to bar blacks from legislative office: “Under our constitution the

Judiciary and State offices will be appointed & the apportionment will prevent

a negro legislature.” Hume, 15-16; See also, Shofner 266.

Smaller juries and non-unanimous verdicts were part of a Jim Crow era

effort “to suppress minority voices in public affairs.” Khorrami v. Arizona,

2022 WL 16726030, at *5 (Gorsuch, J., dissenting); see also, Ramos, supra,

140 S.Ct. at 1417 (Kavanaugh, J., concurring) (non-unanimity was enacted

“as one pillar of a comprehensive and brutal program of racist Jim Crow

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measures against African-Americans, especially in voting and jury service.”)

The history of the six person jury arises from the same historical context.

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