Petition for Writ of Certiorari — David Phillip Ryan, Petitioner v. Florida

Supreme Court briefMar 12, 2024

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No. 24-

DAVID PHILLIP RYAN,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

On Petition for Writ of Certiorari to the

Third District Court of Appeal of Florida

PETITION FOR A WRIT OF CERTIORARI

CARLOS J. MARTINEZ

Public Defender

MARIA LAUREDO

Chief Assistant Public Defender

Counsel of Record

ANDREW STANTON

NICHOLAS LYNCH

Assistant Public Defenders

1320 NW 14th Street

Miami, Florida 33125

(305) 545-1961

appellatedefender@pdmiami.com

QUESTION PRESENTED

Whether the jury guaranteed by the Sixth and Fourteenth

Amendments is a 12-person jury?

TABLE OF CONTENTS

Question Presented......................................................................... i

Table of Authorities ...................................................................... iii

Opinions Below .............................................................................. 1

Jurisdiction .................................................................................... 1

Constitutional Provisions and Statutes ........................................ 2

Statement ....................................................................................... 3

Reasons for Granting the Petition ................................................ 5

The Court Should Overrule Williams v. Florida. ............... 5

Williams lacked any grounding in constitutional

Williams was based on a functionalist method of

Williams was based on erroneous factual

assumptions and overlooked significant negative

consequences........................................................... 12

text, history or precedent. To the contrary, it made a

break with the history of an ancient fundamental

right that is deeply rooted in our history and

tradition. ................................................................... 6

interpreting the Sixth Amendment that this Court

later disavowed. ........................................................ 8

Conclusion .................................................................................... 13

Appendix A: Decision of the Third District Court of Appeal of

Florida, dated December 13, 2023 .............................................. 1a

Appendix B: David Ryan’s appellate brief .................................. 7a

Appendix C: Circuit Court judgment dated March 13, 2023 ... 52a

Appendix D: Excerpt of the trial transcript.............................. 56a

Appendix E: Ryan’s motion in the Circuit Court...................... 59a

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon,

406 U.S. 404 (1972) .............................................................. 9, 10

Apprendi v. New Jersey,

530 U.S. 466 (2000) .............................................................. 9, 10

Ballew v. Georgia,

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

Brown v. State,

359 So. 3d 408 (Fla. 1st DCA 2023) ........................................... 4

Capital Traction Co. v. Hof,

174 U.S. 1 (1899) ........................................................................ 7

Crawford v. Washington,

541 U.S. 36 (2004) .................................................................... 10

Gibson v. State,

16 Fla. 291 (1877) ................................................................... 6, 7

Giles v. California,

554 U.S. 353 (2008) .................................................................. 10

Gonzalez v. State,

982 So. 2d 77 (Fla. 2d DCA 2008) .............................................. 4

Guzman v. State,

350 So. 3d 72 (Fla. 4th DCA 2022)....................................... 4, 11

Jimenez v. State,

167 So. 3d 497 (Fla. 3d DCA 2015) ............................................ 4

Khorrami v. Arizona,

143 S. Ct. 22 (2022) ............................................................ 12, 13

iii

Maxwell v. Dow,

176 U.S. 581 (1900) .................................................................... 7

Patton v. United States,

281 U.S. 276 (1930) .................................................................... 8

Phillips v. State,

316 So. 3d 779 (Fla. 1st DCA 2021) ..................................... 4, 11

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ...................................................... 6, 9, 11

Ryan v. State,

3D23-0589, 2023 WL 8608723 (Fla. 3d DCA Dec. 13, 2023) .... 1

Simpson v. State,

368 So. 3d 513 (Fla. 5th DCA 2023)........................................... 4

Thompson v. Utah,

170 U.S. 343 (1898) .................................................................... 6

Williams v. Florida,

399 U.S. 78 (1970) ................................ 3, 4, 5, 6, 8, 9, 11, 12, 13

Constitutional Provisions

U.S. Const. amend. VI ................................................................... 6

U.S. Const. amend. XIV, § 1 .......................................................... 6

Statutes

28 U.S.C. § 1257(a) ........................................................................ 1

Section 775.082, Florida Statutes (2019)...................................... 3

Section 913.10, Florida Statutes (1970).................................... 2, 7

Other Authorities

4 W. Blackstone, Commentaries on the Laws of England 343

(1769) .......................................................................................... 6

S. Diamond, et al., Achieving Diversity on the Jury: Jury Size

and the Peremptory Challenge, 6 J. Empirical Legal Studies

425 (2009).................................................................................. 12

Friedman, Trial by Jury: Criteria for Convictions, Jury Size and

Type I and Type II Errors, 26-2 Am. Stat. 21 (Apr. 1972) ...... 12

R. Miller, Comment, Six of One Is Not A Dozen of the Other: A

Reexamination of Williams v. Florida and the Size of State

Criminal Juries, 146 U. Pa. L. Rev. 621 (1998) ........................ 5

M. Saks & M. Marti, A Meta-Analysis of the Effects of Jury

Size, 21 Law & Hum. Behav. 451 (1997) ................................. 13

OPINIONS BELOW

Florida’s Third District Court of Appeal filed its opinion

affirming David Ryan’s conviction and sentence on December 13,

2023. App. 1a-6a. The opinion is reported at Ryan v. State,

3D23-0589, 2023 WL 8608723 D2342 (Fla. 3d DCA Dec. 13, 2023).

The trial court, the Eleventh Judicial Circuit of Florida,

entered judgment under docket number F21-20316 on March 14,

2023. App. 52a-55a. The judgment is unreported.

STATEMENT OF JURISDICTION

Florida’s Third District Court of Appeal affirmed Ryan’s

conviction and sentence on December 13, 2023. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS AND STATUTES

The Sixth Amendment to 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

defence.

Section 1 of the Fourteenth Amendment of the United States

Constitution provides:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 913.10, Florida Statutes provides: “Number of

jurors.—Twelve persons shall constitute a jury to try all capital

cases, and six persons shall constitute a jury to try all other

criminal cases.”

STATEMENT

Accused of serious offenses, David Ryan maintained his

innocence and demanded a jury trial. On March 6, 2023, he moved

the trial judge to empanel a 12-person jury. App. 60a-63a. Ryan’s

written motion argued that, from the time of the Magna Carta to

the adoption of the Constitution, the concept of a trial by jury

meant the unanimous verdict of twelve people. App. 60a-63a. He

argued that the Founders enshrined this right in the constitution,

and that the Sixth and Fourteenth Amendments entitled him to

a jury of twelve peers. App. 60a-63a. Ryan acknowledged that this

Court held otherwise in Williams v. Florida, 399 U.S. 78 (1970).

App. 60a-63a. But, he argued, Williams is wrong. App. 60a-63a.

The trial judge denied Ryan’s motion. App. 57a. A 6-person

jury then convicted him of resisting an officer without violence

and trespassing on property other than a structure or conveyance.

App. 70a.

Both

crimes

are

punishable

one

year

incarceration. § 775.082, Fla. Stat. (2019).

Ryan appealed. App. 8a. He argued—among other things—

that the trial judge erred in denying his motion to empanel a 12person jury. App. 28a-50a. Florida’s Third District Court of

Appeal affirmed and wrote an opinion to address one of Ryan’s

challenges to his sentence. App. 2a-6a.

The Third District Court of Appeal addressed the pertinent

argument in a footnote, writing:

As to the first issue (denial of a motion to empanel a

twelve-person jury), Ryan candidly concedes that we

are bound by our precedent to affirm. See Jimenez v.

State, 167 So. 3d 497 (Fla. 3d DCA 2015). See also

Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26

L.Ed.2d 446 (1970); Simpson v. State, 368 So. 3d 513

(Fla. 5th DCA 2023); Brown v. State, 359 So. 3d 408

(Fla. 1st DCA 2023); Guzman v. State, 350 So. 3d 72

(Fla. 4th DCA 2022); Phillips v. State, 316 So. 3d 779

(Fla. 1st DCA 2021); Gonzalez v. State, 982 So. 2d 77

(Fla. 2d DCA 2008). We note, however, that this

issue is currently pending on a petition for writ of

certiorari in the United States Supreme Court. See

Guzman v. Florida, No. 23-5173 (Docketed July 17,

2023); Cunningham v. Florida, No. 23-5171

(Docketed July 21, 2023).

App. 6a.

This petition follows.

REASONS FOR GRANTING THE PETITION

The Court Should Overrule Williams v. Florida.

In Williams v. Florida, 399 U.S. 78 (1970), this Court held

that Florida’s use of 6-person juries to try serious offenses does

not violate the Sixth and Fourteenth Amendments because “the

12-man panel is not a necessary ingredient of ‘trial by jury.’”

Williams v. Florida, 399 U.S. 78, 86 (1970). To reach this result,

the Court overturned nearly eight hundred years of settled

jurisprudence recognizing that a “jury” means a jury of 12

members. See R. Miller, Comment, Six of One Is Not A Dozen of

the Other: A Reexamination of Williams v. Florida and the Size

of State Criminal Juries, 146 U. Pa. L. Rev. 621 (1998).

Williams is an egregiously wrong decision. It ignored law and

history in favor of a functionalist analysis of the Sixth

Amendment that the Court later eschewed. Social science has

also disproven some of the Court’s key factual assumptions in

Williams. And the decision has been deeply damaging by enabling

a Jim Crow-era jury law to persist into the present day and

thwart the participation of Black jurors.

This case presents an opportunity to correct the error.

A. Williams lacked any grounding in constitutional text,

history or precedent. To the contrary, it made a break with

the history of an ancient fundamental right that is deeply

rooted in our history and tradition.

The Sixth Amendment guarantees “the right to a speedy and

public trial, by an impartial jury of the state and district wherein

the crime shall have been committed[.]” U.S. Const. amend. VI.

From the time of the Magna Carta to the adoption of the

Constitution, the concept of a trial by jury meant the unanimous

verdict of twelve people. See Ramos v. Louisiana, 140 S. Ct. 1390,

1396 (2020) (citing 4 W. Blackstone, Commentaries on the Laws

of England 343 (1769)); Thompson v. Utah, 170 U.S. 343, 349

(1898). “[T]he jury referred to in the original Constitution and in

the Sixth Amendment is a jury constituted, as it was at common

law, of twelve persons, neither more nor less.” Thompson, 170

U.S. at 350 (1898).

Florida replaced most 12-person juries with 6-person juries

during the Jim Crow era. In 1877, the Florida Supreme Court

acknowledged that historically the “right to trial by jury” meant

“a jury, according to the common law, to be composed of twelve

persons.” Gibson v. State, 16 Fla. 291, 300 (1877). But in 1875,

Florida amended its constitution to provide: “The number of

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

In 1877, the Florida legislature enacted chapter 3010, providing:

“[t]welve men shall constitute a jury to try all capital cases, and

six men shall constitute a jury to try all other offenses prosecuted

by indictment.” Ch. 3010, § 6, Laws of Fla. (1877). In light of the

amendment and legislation, the court held that a 6-person jury

did not violate the state constitution. Gibson, 16 Fla. at 300.

Almost a century and a half later, Florida’s law restricting the

size of juries remains in effect. The current version of the statute

provides: “Twelve persons shall constitute a jury to try all capital

cases, and six persons shall constitute a jury to try all other

criminal cases.” § 913.10, Fla. Stat. (1970).

Meanwhile, this Court continued to hold that the jury

guaranteed by the Sixth Amendment is a jury of twelve. After

Thompson, the Court went on to reaffirm this principal time and

again. See Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899) (trial

by jury “in the primary and usual sense of the term at the common

law and in the American constitutions, is. . . a trial by a jury of

twelve”); Maxwell v. Dow, 176 U.S. 581, 586 (1900) (“That a jury

composed, as at common law, of twelve jurors was intended by the

Sixth Amendment to the Federal Constitution, there can be no

doubt.”). In Patton v. United States, 281 U.S. 276, 292 (1930), the

Court wrote: “To uphold the voluntary reduction of a jury from

twelve to eleven upon the ground that the reduction—though it

destroys the jury of the Constitution—is only a slight reduction,

is not to interpret that instrument, but to disregard it.”

But the Court abruptly abandoned this precedent in 1970

when it approved the use of a 6-person jury in Williams v. Florida,

399 U.S. 78 (1970). The Court admitted that when the

Constitution was adopted, “[i]t may well be that the usual

expectation was that the jury would consist of 12.” Id. at 98. It

nevertheless determined that requirement that a jury would be

composed of twelve people is “a historical accident” devoid of

significance, “except to mystics.” Id. at 102.

B. Williams was based on a functionalist method of

interpreting the Sixth Amendment that this Court later

disavowed.

To justify the break with history in Williams, the Court used

a functionalist approach that considered the purpose that juries

serve: "to prevent oppression by the Government.” Id. at 100. The

Court concluded that this essential function could be met by juries

with as few as six members. Id. 98-100. The Court reasoned: “the

number should probably be large enough to promote group

deliberation, free from outside attempts at intimidation, and to

provide a fair possibility for obtaining a representatives crosssection of the community.” Id. at 100. It believed six jurors

sufficed. Id. at 98-100. The Court cited studies it believed showed

that the size of a jury did not affect the results of its deliberations.

Id. at 100 n.49.

Two years later, the Court relied on Williams to dispense with

the requirement that a jury be unanimous:

In Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893,

26 L.Ed.2d 446 (1970), we had occasion to consider a

related issue: whether the Sixth Amendment’s right

to trial by jury requires that all juries consist of 12

men. After considering the history of the 12-man

requirement and the functions it performs in

contemporary society, we concluded that it was not

of constitutional stature. We reach the same

conclusion today with regard to the requirement of

unanimity.

See Apodaca v. Oregon, 406 U.S. 404, 406 (1972) (plurality

opinion).

Apodaca simply “built on the analysis in Williams.” See

Ramos, 140 S. Ct. at 1433 (Alito, J., dissenting). Following

Williams, the court held that the proper inquiry “must focus upon

the function served by the jury in contemporary society.” Apodoca,

406 U.S. at 410.

But in later cases the Court eschewed the functional method

of interpreting Sixth Amendment rights and replaced it with a

historical method. For example, in Apprendi v. New Jersey, 530

U.S. 466 (2000), the Court analyzed the scope of the Sixth

Amendment right to trial by jury by consulting the “practice at

common law.” Id. at 480. In Blakely v. Washington, the Court

turned to “the Framer’s paradigm for criminal justice” to

determine whether the Sixth Amendment prohibits judges—

rather than juries—from finding facts that increase the

maximum sentence for a crime. Id. at 313. Likewise, in Crawford

v. Washington, 541 U.S. 36 (2004), the Court consulted “the

historical record” to ascertain and revive the Framers’

understanding of the Confrontation Clause. See id. at 56-60. In

another Confrontation Clause case, Giles v. California, 554 U.S.

353, 375 (2008), the Court wrote: “It is not the role of courts to

extrapolate from the words of the Sixth Amendment to the values

behind it, and then to enforce its guarantees only to the extent

they serve (in the courts’ views) those underlying values.”

Most recently, in Ramos v. Louisiana, 140 S. Ct. 1390 (2020),

the Court returned to the original meaning of the right to jury

trial, repudiating Apodaca. The Court explained that Apodaca

erred by “subject[ing] the Constitution’s jury trial right to an

incomplete functionalist analysis of its own creation” rather than

“grappling with the historical meaning of the Sixth Amendment’s

jury trial right.” 140 S. Ct. at 1405.

So too in Williams. If the functionalist analysis no longer

supports a rejection of the original meaning of “jury” as to

unanimity, it cannot support it as to number either. “At a

minimum, Ramos—which relied on the original meaning of the

Sixth Amendment rather than an analysis of the jury’s role in

contemporary society—suggests that Williams was wrongly

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

(Gross, J., concurring), review denied, SC2022-1597, 2023 WL

3830251 (Fla. June 6, 2023); see also Phillips v. State, 316 So. 3d

779 (Fla. 1st DCA 2021) (Makar, J., concurring), review denied,

SC21-788, 2021 WL 3077438 (Fla. July 21, 2021), and cert. denied

sub nom. Phillips v. Florida, 211 L. Ed. 2d 406 (2021).

C. Williams was based on erroneous factual assumptions and

overlooked significant negative consequences.

Even if Williams’ functionalist approach survived Ramos, it

would fail its own test. Research shows that 6-person juries are

far less likely than 12-person juries to achieve a fair cross-section

of the community. One study found that 28.1 percent of the sixmember juries did not have any Black jurors, whereas 97.9

percent of the 12-member juries had at least one Black member).

See Khorrami v. Arizona, 143 S. Ct. 22, 23-27 (2022) (Gorsuch, J.,

dissenting from denial of certiorari) (citing S. Diamond, et al.,

Achieving Diversity on the Jury: Jury Size and the Peremptory

Challenge, 6 J. Empirical Legal Studies 425, 442 (2009)).

Florida’s use of 6-person juries also undermines the reliability

of verdicts. In Ballew, the Court cited a statistical study

suggesting that smaller juries are more likely to convict innocent

people. Ballew, 435 U.S. at 234 n.16 (citing Friedman, Trial by

Jury: Criteria for Convictions, Jury Size and Type I and Type II

Errors, 26-2 Am. Stat. 21 (Apr. 1972)). More recent empirical data

demonstrate that “12-member juries deliberate longer, recall

information better, and pay greater attention to dissenting

voices.” See Khorrami, 143 S. Ct. at 23-27 (Gorsuch, J., dissenting

from denial of certiorari) (citing M. Saks & M. Marti, A Meta-

Analysis of the Effects of Jury Size, 21 Law & Hum. Behav. 451,

455–466 (1997)).

In short, research has shown that Williams flunks its own

test. We now know that 6-person juries are not functionally

equivalent to 12-person juries.

CONCLUSION

The Court should grant the writ and overrule Williams v.

Florida, 399 U.S. 78 (1970).

Respectfully submitted,