Petition for Writ of Certiorari — Miguel Jaimes-Luviano, Petitioner v. Florida

NO:

ye]

—————————

IN THE SUPREME COURT OF THE UNITED STATES

MIGUEL JAIMES LUVIANO, PETITIONER

vB

STATE OF FLORIDA, RESPONDENT.

On Petition For a Writ of Certiorari to

The Fourth District Court of Appeal of Florida

PETITIONER FOR A WRIT OF CERTIORARI

CAREY HAUGHWOUT

Public Defender

Benjamin Hunter Eisenberg

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street, Florida 33401

(561) 355-7600

beisenberg@pd15.state.fl.us

appeals@pd15.org

QUESTION PRESENTED

Whether the Sixth and Fourteenth Amendments guarantee the right to a trial

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

RELATED PROCEEDINGS

The proceedings listed below are directly related to the above-captioned case

in this Court.

Jaimes-Luviano v. State, 878 So. 3d 349 (Fla. 4th DCA 2023).

- Jaimes-Luviano v. State, No. SC2023-1497 (Fla. Jan. 5, 2024).

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES uw. cs eeseeeeceseesesessescscsesesessesesescevsscssscsessessersesesstenes iv

OPINION BELOW ......ccccscccsssceecesccscetsessssessevecsarensasacatecessessessassessessseseesesssseeseeetesscscsesss 1

JURISDICTION occ cecessessssssssasasseseeeensosseeensssasssnssssenseeseesescecaceesescsescacscscesseusensas 2

CONSTITUTIONAL AND STATUTORY PROVISIONS .....ccccscssssessccsecsessesseessssescseees 2

STATEMENT OF THE CASE ...cscsosssssssssesssssssssssssssssssnsesscssssnsesssssessnnesstveseesee 3

REASONS FOR GRANTING THE PETITION .0....cseccccsssssesesesessssescsescssseessstscssersaversees 4

The reasoning of Williams v. Florida has been rejected and the case

Should be overruled ...cseeeescceeesessesesesessesssesesenscsesscccsssnsscassasseassnsssavesens 4

CONCLUSION .....cecccccsscscsscscsesessenenesneeescensesssacseseesssssessansussesesseseenscscansssvaseanevseseaseass 13

INDEX TO APPENDICES

District Court’s Decision .......cccscsccsesssteeecsetstecssesssensseseseeesecssssesssssesescssseseavevseseass Al

Florida Supreme Court’s Order ...c..ccccccscesccscssssssscsssscssesesscescscnsssersecsceesstessasesecacsuceease A38

Excerpt from Jaimes-Luviano’s Initial Brief..........ccccscccssssssscsesessssesecacesssecseeseseesees A5

Judgement and Sentence 0... cscsccecssssessssescsesecscsesesevevscsesssscacssssessecssussevaseeseeaeeaees A25

iti

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972) w.ccccccccescssssesssessssasssssssessvecsessucsscsseceuessessussaesseerevanes 6

Baldwin v. New York, 399 U.S. 117 (1970)...cccccssccessssssssssssscssessvessesatecsessessnesstesuessrarvessesarense 5

Ballew v. Georgia, 485 U.S, 228 (1978) ccccccssscsssssssscssssssessesecesserssesseescesesecssessesnsssssesecee 7,8

Burch, v. Lowisiana, 441 U.S. 180 (1979) ...cccessssssssscssssssssssssessesessveseesessessesacssessssseasessesseeesce 6

Duncan v. Louisiana, 891 U.S. 145 (1968) ..ccccccessssssssscecsecessesecsecsssesscsvsecsessussassstenssnsessese 5

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1908)... ccecceccsssesssessseessesons 10

Gibson v. State, 16 Fla. 291 (1877) .csccsscssessssscssssssesssssssssssssssucesaservecsuecasesssecsaressvesssuessens 10, 11

Guzman v. State, 350 So. 8d 72 (Fla. 4th DCA 2022)... csccssscsssessseccsecssecssrsesseasessseees 3,9

Khorrami v, Arizona, 143 S. Ct. 22 (2022) v.ciccsccsscecsesssessssssssssssecssessessesseresstesesseseeves 9, 10 ;

Maxwell v. Dow, 176 U.S. 581 (1900) .ccsscececsessessesscsscssssssssssseasecsesssssessesscsssessesarserseverseces 5

Patton v. United States, 281 U.S. 276 (1980) v.ciscccssccecsscsessecssesssssssessssessesessssssssescsesssecercess 5

Ramos v. Louisiana, 140 S. Ct. 1890 (2020) .v.cciccceccsescessesssesssessesssssssssessevesecesessesseses passim

State v. Khorrami, 1 CA-CR 20-0088, 2021 WL 3197499 (Ariz. Ct. App. July 29,

ZOZL) ersesscssssercecssessssensasscsscousessssesusecsusssueessuessssssssessessavessusssssessuessesssusasssesusssascssvessucsavecsusesses 9, 10

State v. West, 30 Fla. L. Weekly Supp. 607a (Fla. 11th Cir. Dec. 2, 2022) eee 13

Thompson. v. Utah, 170 U.S. 848, 8349-350 (1898) ..cccsccecccsssssesecsesessscssessssesssesssesssssesesasecees 4

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

Statutes

§$ 913.10, Fla. State... ecsssssssssecsssecsssesssssssssssssssssssvesssevsecevecszessssascnssscsssesssareessasanareceneseens 10

Other Authorities

4 W. Blackstone, Commentaries on the Laws of England 348 (1'769) ......ccssscssssscsscssees 4

DIAMOND ET AL., Achieving Diversity on the Jury: Jury Size and the Peremptory

Challenge, 6 J. OF EMPIRICAL LEGAL STUD. 425, 427 (Sept. >7101 01°) rr 8

iv

HIGGINBOTHAM ET AL., Better by the Dozen: Bringing Back the Twelve-Person Civil

Jury, 104 JUDICATURE 47, 52 (Summer 2020) wicccccccccccscsecscssssssssssessessessssessessssecssssere 8,9

JERRELL H. SHOFNER, Reconstruction and Renewal, 1865-1877, in THE HISTORY OF

FLORIDA 273 (Michael Gannon, ed., first paperback edition 2018)... 11,12

John Gastil & Phillip J. Weiser, Jury Service as an Invitation to Citizenship:

Assessing the Civic Values of Institutionalized Deliberation, 34 Pol'y Stud. J. 605

(2006) .oeeecssessesessecsusseccussnscsscessvecsssscssssnssusanseuseusesssusvssuessesscsucsussussussrssussesusasssasssesaesscseseuseusavease 13

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. A, 5-6 (1972) eeccecceccsescessessesssssessssnnsesssessneessssesusssnessusessesauseasucssssssssasasessuecaressessaesesnees 11,12

SMITH & SAKS, The Case for Overturning Williams v. Florida and the Six-Person

Jury, 60 FLA. L. REV. 441, 465 (2008) onc. ccsccscccssssssesssessessscsvessessrsssssssssssssssavesevesessesseveseecs 9

United States Courts, Juror Experiences, available at

https://www.uscourts.gov/services-forms/jury-service/learn-about-jury-

SETVICE/JULOL-EXPCLICNICES ......ecescsesssesseccsecssessessucssvssseauessessesenussusssussassssesuessesssssusssessessueceeeece 12

Fla, R. Crim. P. 8.270 w..scssseesscsssssssescsssssnseseseesssssssescossssseesessssssvusessssssessssarauasvecesrsanaseesasasveeeeen 10

Constitutional Provisions

Amend. VI, U.S. Const. .0.ccccccccsssscsssssssssesssessssssssecsavesurssssssssracsusssesssssasesassseseresuvssucsessessesessecess 2

Amen. XTV, U.S. Comst..c...essssssssessssssssssesssssssssssssessucssussensesuesssosenssssuscszessascssesssusesssesaveserecsaee 2

Art. I, § 22, Fla. Const. i... cessssssssssssssecsssssesssessssesssssscsssevsssusessuseersvsssssessavcssavsssssassesenasaveseneees 10

IN THE SUPREME COURT OF THE UNITED STATES

No.

MIGUEL JAIMES LUVIANO, PETITIONER,

Vv.

STATE OF FLORIDA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

PETITION FOR A WRIT OF CERTIORARI

Miguel Jaimes Luviano respectfully petitions for a writ of certiorari to review

the judgement in this case of the Fourth District Court of Appeal of Florida.

OPINION BELOW

The opinion of Florida’s Fourth District Court of Appeal is reported as Jaimes-

Luviano v. State, 373 So. 8d 349 (Fla. 4th DCA 2023 rev. denied SC2023-1497 (Fla.

dan. 5, 2024), and is reprinted in appendix. Al. The Florida Supreme Court’s order

dismissing review is also reprinted in the appendix. A38.

JURISDICTION

Florida’s Fourth District Court of Appeal affirmed Jaimes-Luviano’s conviction

and sentence on October 18, 2023. Al. The Florida Supreme Court dismissed review

January 5, 2024. A3. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment of the United States Constitution provides: "In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defense."

Section 1 of the Fourteenth Amendment of the United States Constitution

provides: “[NJor shall any State deprive any person of life, liberty, or property,

without due process of law...”

STATEMENT OF THE CASE

Petitioner, Miguel Jaimes-Luviano, was convicted by a six-person jury of

serious crimes and he was sentenced to fifteen years imprisonment. He appealed to

the Fourth District Court of Appeal of Florida. Relying on Ramos v. Louisiana, 140

S. Ct. 1890 (2020), he argued that he was entitled under the Sixth and Fourteenth

Amendments to a twelve-person jury. A5-24. The District Court rejected his

argument on the authority of Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022). In

his concurring opinion in Guzman, Judge Gross wrote that "Ramos... suggests that

Williams [v. Florida, 399 U.S. 78 (1970)] was wrongly decided," that "Guzman has a

credible argument that the original public meaning of the Sixth Amendment right to

a ‘trial by an impartial jury' included. the right to a 12-person jury," and that

; "Williams hovers in the legal ether, waiting for further examination by the [United

States] Supreme Court." Guzman, 350 So. 3d at 78 (emphasis and citations omitted).

Guzman has filed a petition for writ of certiorari in this Court, which is pending under

case number 23-5173. 1

Jaimes-Luviano sought review in the Florida Supreme Court, which denied his

request on January 5, 2024. A3.

1 There are eleven other cases raising the same question presented.

Cunningham v. Florida, No. 23-5171; Arellano-Ramirez v. Florida, No. 28-5567;

Sposato v, Florida, 23-5575; Morton v. Florida, No. 23-5579; Jackson v. Florida, No.

23-5570; Crane v. Florida, No. 23-5455; Aiken v. Florida, No. 23-5794; Manning v.

Florida, No. 23-6049; Enrriquez v. Florida, No. 23-5965; Bartee v. Florida, No. 23-

6143; and Tillman v. State, No. 23-6304. This case should at least be held pending

resolution of Guzman and those other petitions.

3

REASONS FOR GRANTING THE PETITION

The reasoning of Williams v. Florida has been rejected and the case

should be overruled

This Court's decision in Williams v. Florida, 399 U.S. 78 (1970), is impossible

to square with the ruling in Ramos v. Louisiana, 140 S. Ct. 1890 (2020), 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. What the term meant

was a jury of twelve. As this Court stated in Ramos, 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. at 1895 (quoting 4 W. BLACKSTONE, Commentaries

on the Laws of England 348 (1769)). “A verdict, taken from eleven, was no verdict at

all.” Id. Gnternal quotations and citations removed).

This Court said in Thompson v. Utah, 170 U.S. 848, 349-350 (1898), that since

the time of Magna Carta, the word “jury” had been understood to mean a body of

twelve people. Given that 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.

This Court continued to cite the basic principle that the Sixth Amendment

requires a twelve-person jury in criminal cases for seventy more years. 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. Dow, 176 U.S. 581, 586 (1900). Thirty years later, this

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, 151-152

(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, 122-128 (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. Jd. at

101-102 & n.48; ef. 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, this

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 1401-1402.

That reasoning undermines Williams as well. Ramos rejected the same kind of

“cost-benefit analysis” this 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. Rather, 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 1895 (quotation omitted).

Even setting aside Williams's disfavored functionalist logic, its ruling suffered

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

opinion issued. Specifically, the Williams Court “flou]nd little reason to think” that

the goals of the jury guarantee-including, among others, “to provide a fair possibility

for obtaining a 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.” 399 U.S. at 100. The Court theorized that “in practice the difference

between the 12-man and the six-man jury in terms of the cross-section of the

community represented seems likely to be negligible.” Jd. at 102.

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

Court acknowledged as much 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; (8) 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. 435 U.S. at 239; see also id. at 245-46 (Powell, J.) (agreeing that

five-member juries are unconstitutional, while acknowledging that “the line between

five- and 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 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.

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.

In Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022), the District Court cited

State v. Khorrami, | CA-CR 20-0088, 2021 WL 3197499 (Ariz. Ct. App. July 29, 2021).

At the time of the District Court's decision, Khorrami's petition for writ of certiorari

was pending in this Court. Khorrami's petition was denied, over dissents by Justices

Kavanaugh and Gorsuch. Khorrami v. Arizona, 143 S. Ct. 22 (2022).

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

certiorari,? there are important differences between Florida's and Arizona's systems.

In Arizona, criminal defendants are: guaranteed “a twelve-person jury in cases when

? See Ramos, 140 S. Ct. 1390 at n.56 ("The significance of a denial of a

petition for certiorari ought no longer require discussion. This Court has said again

and again and again that such a denial has no legal significance whatever bearing

on the merits of the claim.") (cleaned up).

9

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, 2021 WL 3197499, at *8 (citations omitted). Florida juries are smaller (six

versus eight), and those smaller juries are mandated in every case except capital

cases. Art. I, § 22, Fla. Const.; § 913.10, Fla. Stat.; Fla. R. Crim. P. 3.270.

More importantly, the history of Florida's rule can be traced to the Jim Crow

era. Justice Gorsuch observed that “[d]uring 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, 148 S. Ct. at 27 (Gorsuch, J., dissenting) (citations omitted). He noted,

however, that Arizona's law was likely motivated by costs not race. Id. But Florida's

jury of six did arise in that Jim Crow era context of a "deliberate and systematic effort

to suppress minority voices in public affairs." Id.

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, Laws of Florida

(1877). See Gibson v. State, 16 Fla. 291, 297-98 (1877); Florida Fertilizer, 34 So. at

241.

10

The Florida 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 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 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 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

11

constitution, who wrote to Senator Yulee that the new constitution was constructed

to bar blacks from legislative office: “Under our Constitution the J udiciary & State

officers 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, 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 measures against African-

Americans, especially in voting and jury service.”). The history of Florida’s jury of six

arises from the same historical context.

And this history casts into relief another negative consequence of having sixperson juries. Six-person juries necessarily deny a great number of citizens the “duty,

honor, and privilege of jury service.” Powers v. Ohio, 499 U.S. 400, 415 (1991). Many

consider jury service an “amazing and powerful opportunity and experience—one that

will strengthen your sense of humanity and your own responsibility.” United States

Courts, Juror Experiences. Jury service, like civic deliberation in general, “not only

resolves conflicts in a way that yields improved policy outcomes, it also transforms

the participants in the deliberation in important ways—altering how they think of

themselves and their fellow citizens.” John Gastil & Phillip J. Weiser, Jury Service

3 Available at: https://Awww.uscourts.gov/services-forms/jury-service/learn-about-juryservice/juror-experiences

12

as an Invitation to Citizenship: Assessing the Civic Values of Institutionalized

Deliberation, 34 Pol'y Stud. J. 605, 606 (2006). Jury service is a “means of affording

every citizen the chance to step into the state’s shoes, to see the inner workings of the

justice system, and to feel first-hand the power of self-government. In other words,

the jury is a sacred, institutionalized opportunity for citizens to experience the

transformative power of public deliberation.” Id. at 22-23.

“[I]n Ramos v. Louisiana, the Court explained why Apodaca was wrong; and,

by unavoidable implication, why Williams must be wrong.” State v. West, 30 Fla. L.

Weekly Supp. 607a (Fla. 11th Cir. Dec. 2, 2022). This Court should grant the petition

to correct this error.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CAREY HAUGHWOUT

Public Defender

BENJAMIN HUNTER EISENBERG

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, FL 33401

(561) 355-7600

beisenberg@pd15.state.fl.us

appeals@pd15.org

JANUARY 24, 2024

13