Petition for Writ of Certiorari — Roy E. Terrell, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

ROY E. TERRELL, PETITIONER

v.

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

CAROL STAFFORD HAUGHWOUT

Public Defender

Gary Lee Caldwell

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

jcwalsh@pd15.org

appeals@pd15.org

QUESTION PRESENTED

1. Whether, contrary to the Due Process Clause, the trial court

erred in instructing the jury on the elements of the charged crimes

as defined by a statute amended after the dates of the alleged

crimes?

2. Whether Petitioner was derived of his right, under the Sixth

and Fourteenth Amendments, to a trial by a 12-person jury when

the defendant is charged with a serious felony?

i

RELATED PROCEEDINGS

The proceeding listed below is directly related to the abovecaptioned case in this Court:

Terrell v. State, 384 So. 3d 790 (Fla. 4th DCA 2024).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................. i

RELATED PROCEEDINGS .............................................................. ii

TABLE OF AUTHORITIES ...............................................................iv

OPINION BELOW ........................................................................... 1

JURISDICTION ............................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS ........................ 3

STATEMENT OF THE CASE ........................................................... 5

REASONS FOR GRANTING THE PETITION ................................... 11

1. The convictions for sexual battery violate the Due Process

Clause because they are based on retroactive application of

amendments to the sexual battery statute. ................................ 11

2. The reasoning of Williams v. Florida has been rejected, and

the case should be overruled. .................................................... 16

CONCLUSION .............................................................................. 29

INDEX TO APPENDICES

A. District Court’s Decision .......................................................... 1a

B. Order Denying Rehearing ......................................................... 2a

C. Excerpts from Initial Brief ........................................................ 3a

iii

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972) ....................................... 19

Ballew v. Georgia, 435 U.S. 223 (1978)................................... 21, 22

Burch v. Louisiana, 441 U.S. 130 (1979) ....................................... 18

Calder v. Bull, 3 U.S. 386 (1798)................................................... 11

Carmell v. Texas, 529 U.S. 513 (2000) .......................................... 11

Duncan v. Louisiana, 391 U.S. 145 (1968) .................................... 18

Flores v. State, 4D2023-1837 (Fla. 4th DCA July 24, 2024) .......... 10

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) ...... 25

Gibson v. State, 16 Fla. 291 (1877) ............................................... 25

Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022) ................ 2, 10

Mallet v. State, 280 So. 3d 1091 (Fla. 2019) .................................... 2

Maxwell v. Dow, 176 U.S. 581 (1900) ........................................... 17

Patton v. United States, 281 U.S. 276 (1930) ................................. 17

Persaud v. State, 838 So. 2d 529 (Fla. 2003) .................................. 2

Ramos v. Louisiana, 590 U. S. 83 (2020)................................. 19, 20

Reed v. State, 837 So. 2d 366 (Fla. 2002) ....................................... 9

State v. Spencer, 216 So. 3d 481 (Fla. 2017) ................................... 9

Thompson v. Utah, 170 U.S. 343 (1898) .................................. 16, 17

United States v. Marcus, 560 U.S. 258 (2010) ......................... 11, 14

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

Statutes

§ 794.011, Fla. Stat. (2019) .......................................................... 14

§ 794.011, Fla. Stat. (2022) .......................................................... 14

iv

§ 913.10, Fla. Stat. ......................................................................... 4

794.011, Fla. Stat. (2019) ............................................................... 3

794.011, Fla. Stat. (2022) ......................................................... 4, 14

Ch. 2022-165, Laws of Fla. ...................................................... 4, 14

Ch. 3010, § 6, Laws of Fla. (1877) ................................................ 25

Other Authorities

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

Peremptory Challenge, 6 J. of Empirical Legal Stud. 425 (Sept.

2009) ......................................................................................... 23

Higginbotham et al., Better by the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 Judicature 47 (Summer 2020) .......... 23, 24

Jerrell H. Shofner, Reconstruction and Renewal, 1865–1877, in The

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

edition 2018) ....................................................................... 26, 27

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) .................................. 28

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 (1972) ............... 26, 27

Shamena Anwar, et al., The Impact of Jury Race In Criminal Trials,

127 Q.J. Of Econ. 1017 (2012) .................................................. 23

Smith & Saks, The Case for Overturning Williams v. Florida and the

Six-Person Jury, 60 Fla. L. Rev. 441 (2008) ................................ 24

United States Courts, Juror Experiences, available at

https://www.uscourts.gov/services-forms/jury-service/learnabout-jury-service/juror-experiences ......................................... 28

William Blackstone, Commentaries on the Laws of England .... 16, 17

Constitutional Provisions

Fla. Const. Art. I, § 22 .................................................................... 4

v

U.S. Const. Amend. VI ........................................................... passim

U.S. Const. Art. I, § 10 ................................................................ 11

vi

IN THE SUPREME COURT OF THE UNITED STATES

_____________

NO.

EDWIN K. DAVIS, PETITIONER,

V.

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

_____________

Edwin K. Davis respectfully petitions for a writ of certiorari to

review the judgment of the Fourth District Court of Appeal of

Florida.

OPINION BELOW

The decision of Florida’s Fourth District Court of Appeal is

reported as Terrell v. State, 384 So. 3d 790 (Fla. 4th DCA 2024). It

is reprinted in the appendix. 1a.

1

JURISDICTION

Florida’s Fourth District Court of Appeal affirmed Petitioner’s

convictions and sentences on April 3, 2024. 1a. The court denied

Petitioner’s motion for rehearing and certification on May 8, 2024.

2a.

The Florida Supreme Court is “a court of limited jurisdiction,”

Mallet v. State, 280 So. 3d 1091, 1092 (Fla. 2019) (citation omitted),

Specifically, the state supreme court has no jurisdiction to review

district court of appeal decisions such as the one at bar, which

consists only of an unelaborated affirmance with citation to a prior

case. Such a decision, termed a citation PCA, is subject to state

supreme court review only if the cited case is then pending in the

state supreme court. See Persaud v. State, 838 So. 2d 529, 531–32

(Fla. 2003) (“this Court does not have jurisdiction to review per

curiam decisions of the district courts of appeal that merely affirm

with citations to cases not pending review in this Court”).

In the present case, the Fourth District cited only Guzman v.

State, 350 So. 3d 72 (Fla. 4th DCA 2022), rev. denied, No. SC20221597, 2023 WL 3830251 (Fla. June 6, 2023), cert. den. No. 23-5173

(U.S. May 28, 2024). That case was not pending in the state

2

supreme court at the time of the Fourth District’s decision in this

case, so that review in the state supreme court was unavailable.

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

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment 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: “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 794.011(1)(h), Florida Statutes (2019), provides:

(h) “Sexual

battery”

means

3

oral,

anal,

or

vaginal

penetration by, or union with, the sexual organ of

another or the anal or vaginal penetration of another by

any other object; however, sexual battery does not

include an act done for a bona fide medical purpose.

In 2022, the Florida Legislature amended section 794,011 to

move the definition of sexual battery to paragraph (1)(j) and to

redefine the crime as follows:

(j) “Sexual battery” means oral, anal, or female genital

penetration by, or union with, the sexual organ of

another or the anal or female genital penetration of

another by any other object; however, sexual battery does

not include an act done for a bona fide medical purpose.

Ch. 2022-165, § 4 Laws of Fla.; § 794.011(1)(j), Fla. Stat. (2022).

At the same time, the Legislature enacted the following

definition of female genitals:

(b) “Female genitals” includes the labia minora, labia

majora, clitoris, vulva, hymen, and vagina.

Ch. 2022-165. See § 794.011(1)(b), Fla. Stat. (2022).

Article I, section 22 of the Florida Constitution provides:

Trial by jury.—The right of trial by jury shall be secure to

all and remain inviolate. The qualifications and the

number of jurors, not fewer than six, shall be fixed by

law.

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.

4

STATEMENT OF THE CASE

The state charged Petitioner Roy E. Terrell by amended

information with: one count of sexual battery on a person under the

age of twelve (count 1); one count of lewd and lascivious molestation

of a person under the age of twelve (count 2); one count of sexual

battery on a person aged twelve or older but younger than 18 (count

3); and one count of lewd and lascivious molestation of a person

aged twelve or older but younger than 16. R 129-30. Counts 1 and

2 were alleged to have occurred between dates in 2013 and 2016,

and counts 3 and 4 were alleged to have occurred between the 2016

date and a date in 2018. None of the counts alleged penetration.

Before jury selection, defense counsel objected to trial by a

jury of six, and asked for a jury of twelve, arguing that it was a

constitutional right, while recognizing that there is contrary case

law. T 5-6. The court denied the request. T 6. Counsel renewed the

objection before the six-member jury was sworn. T 185-86.

The alleged victim, was the daughter of Petitioner’s former

girlfriend. T 234.

She testified that Petitioner committed many inappropriate

interactions with her before she turned twelve. These included

5

rubbing her vagina, putting her hand on his penis, having union

with her vagina in that he touched it under her clothes without

penetrating her vagina, having her put her mouth on his penis, and

putting his mouth on her vagina. T 313-33.

She further testified he committed further such acts after she

turned twelve: licking her vagina, putting his hand on his vagina,

penetrating her vagina with his tongue, oral sex involving the penis,

and penetration of her vagina with his penis. T 345-62.

In a recorded phone call, she told Petitioner that she was

worried because he had not used a condom and she was sick; he

replied there was no way, he was positive she was okay. T 284

When questioned by the police, Petitioner denied any

wrongdoing and said the girl was angry at him because he had

caught her talking to someone on the computer and using her

mother’s vibrator, and he found a ledger where she was charging

guys. T 405-06, 412.

The state presented evidence that a bra in the girl’s bedroom

had seminal fluid on it, and DNA on it matched Petitioner. T 44142.

At the trial, which was in February 2023, the assistant state

6

attorney prepared jury instructions which were discussed at the

charge conference. T 454 (“ [ASA]: And just for the record, as I wrote

these, I have no objection to my own suggestions.”). In the charge

conference, there was no substantive discussion of the instructions

on sexual battery, and no objection was made to the state’s

proposed instructions on sexual battery. T 453-60.

The court then instructed the jury on sexual battery using the

elements of the 2022 statute rather than the elements of the crime

as it existed at the time of the alleged crimes at bar:

Count 1, Sexual battery on a child under 12 by a

perpetrator 18 or older. To prove the crime of sexual

battery upon a person less than 12 years of age, the

State must prove the following three elements beyond a

reasonable doubt: One, A, Roy Terrell committed an act

upon or with [alleged victim] in which the sexual organ of

the Defendant penetrated or had union with the anus,

female genitals, or mouth of the victim. Or B, Roy Terrell

committed an act upon or with [alleged victim] in which

the anus or female genitals of [alleged victim] were

penetrated by an object. Two, at the time, [alleged victim]

was less than 12 years of age. Three, at the time, Roy

Terrell was 18 years of age or older.

…

Female genitals includes the labia minora, the labia

majora, clitoris, vulva, hymen and vagina.

T 529; R 201.

7

Count 3, sexual battery on a child familial or custodial

authority. To prove the crime of engaging in an act that

constitutes sexual battery upon or with a child 12 years

of age or older, but younger than 18 years of age by a

person in a familial or custodial authority, the State must

prove the following three elements beyond a reasonable

doubt: Roy Terrell engaged in any act that constituted

sexual battery. Two, at the time, [alleged victim] was 12

years of age or older, but younger than 18 years of age.

Three, at the time, Roy Terrell was in a position of

familial or custodial authority to [alleged victim].

Sexual battery means, A, the sexual organ of Roy Terrell

penetrated or had union with the anus, female genitals or

mouth of [alleged victim] or B, the anus or female genitals

of [alleged victim] were penetrated by an object.

…

Female genitals includes the labia minora, the labia

majora, clitoris, vulva, hymen and vagina.

T 531-32 (emphasis added); R 207-08.

The jury convicted Petitioner of all charges, making specific

findings that “there was sexual penetration between” Petitioner and

the alleged victim in its verdict as to counts 2, 3 and 4. R 235-38.

After the court entered judgment of guilt and imposed two

consecutive life sentences followed by two other long prison

sentences, Petitioner filed an appeal to Florida’s Fourth District

Court of Appeal.

8

There, he argued for the first time that the jury instructions

violated the Due Process, Jury and Ex Post Facto Clauses in that

they applied the 2022 statute retroactively to crimes committed in

the previous decade, and the error was subject to review under

Florida’s fundamental error doctrine. Under that doctrine, a

conviction will be reversed due to an erroneous jury instruction on

the elements of the crime unless the defense has conceded the

element. See, e.g., Reed v. State, 837 So. 2d 366 (Fla. 2002)

(reversing on grounds of fundamental due to trial court’s

unobjected-to erroneous instruction on element of malice as to

charge of aggravated child abuse); State v. Spencer, 216 So. 3d 481,

486–87 (Fla. 2017) (for purposes of fundamental error analysis of a

jury instruction, an element is disputed unless except where “a

defendant expressly concedes” the element). 3a-10a.1

1 After the denial of rehearing and issuance of the mandate in

Petitioner’s case, a panel of the Fourth District issued an opinion

reversing a defendant’s sexual battery conviction on grounds of

fundamental error in circumstances identical to those in the

present case. As in the present case, without objection, the trial

court instructed the jury on the 2022 sexual battery statute despite

the fact that the alleged crime occurred between a date in 2019 and

one in 2020. The panel ruled that, despite the absence of an

objection, the error amounted to reversible error under Florida’s

fundamental error doctrine. See Flores v. State, 4D2023-1837, 2024

9

Petitioner also argued that he was denied his Sixth

Amendment right to a trial by a twelve-member jury. He conceded

that the court had denied a similar argument in . Guzman v. State,

350 So. 3d 72 (Fla. 4th DCA 2022). 11a-14a.

The district court of appeal affirmed the convictions and

sentences, writing only: “Affirmed. See Guzman v. State, 350 So. 3d

72 (Fla. 4th DCA 2022).” 1a. Subsequently, it denied Petitioner’s

motion for rehearing and for certification to the state supreme

court. 2a.

WL 3514130 (Fla. 4th DCA July 24, 2024). Petitioner will move to

recall the mandate in his case in the Fourth District for the purpose

of reconsideration of the retroactivity issue in view of Flores, and

will inform the Court of the resolution of his motion.

10

REASONS FOR GRANTING THE PETITION

1. THE CONVICTIONS FOR SEXUAL BATTERY VIOLATE

THE DUE PROCESS CLAUSE BECAUSE THEY ARE

BASED ON RETROACTIVE APPLICATION OF AMENDMENTS TO THE SEXUAL BATTERY STATUTE.

The Ex Post Facto Clause prohibits retroactive laws are that

aggravate a crime, or make it greater than it was, when committed,

and those that alter the legal rules of evidence, and receive less, or

different, testimony, than the law required at the time of the

commission of the offence, in order to convict the offender. U.S.

Const. Art. I, § 10. Calder v. Bull, 3 U.S. 386, 390 (1798) (Chase,

J.); Carmell v. Texas, 529 U.S. 513, 522 (2000).

Although the Court has determined that the Ex Post Facto

Clause does not directly forbid instructions that apply such a law

retroactively, it has determined that the retroactive application of

such a statute may violate the Due Process Clause in United States

v. Marcus, 560 U.S. 258 (2010). Id. at 260.

In that case, the defendant was charged with forced labor and

sex trafficking over a two year period. Id. at 260. During that

period, a law was passed altering the altering the scope of the

criminal conduct subject to prosecution. Ibid. The defendant argued

11

for the first time on appeal that the charge and the indictment

allowed a conviction on the basis of acts occurring before the new

statute went into effect, and that his conviction therefore violated

the Ex Post Facto Clause. Ibid.

The Second Circuit held that the plain error occurred because

it was possible that the jury convicted the defendant exclusively on

the basis of pre-enactment acts in violation of the Ex Post Facto

Clause because the jurors “had not been given instructions

regarding the date of enactment,” and that a new trial is necessary “

‘whenever there is any possibility, no matter how unlikely, that the

jury could have convicted based exclusively on pre-enactment

conduct.’ ” Id. at 261 (emphasis in Marcus). Using this standard,

the Second Circuit ordered a new trial, and the Court granted

certiorari review to determine the scope of the federal plain error

rule. Id. at 262.

In addition to determining the standard of review, the Court

wrote that the issue turned on the jury instructions: ”The error at

issue in this case created a risk that the jury would convict

respondent solely on the basis of conduct that was not criminal

when the defendant engaged in that conduct. A judge might have

12

minimized, if not eliminated, this risk by giving the jury a proper

instruction.” Id. at 263–64.

Viewing the claim as a one involving a jury instruction issue,

the Court treated the issue as one of due process:

Marcus argues that, like the Second Circuit, we should

apply the label “Ex Post Facto Clause violation” to the

error in this case, and that we should then treat all

errors so labeled as special, “structural,” errors that

warrant reversal without a showing of prejudice. See

Brief for Respondent 27–29. But we cannot accept this

argument. As an initial matter, we note that the

Government has never claimed that the TVPA retroactively criminalizes preenactment conduct, see Brief for

United States 16, and that Marcus and the Second

Circuit were thus incorrect to classify the error at issue

here as an Ex Post Facto Clause violation, see Marks v.

United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51

L.Ed.2d 260 (1977) (“The Ex Post Facto Clause is a

limitation upon the powers of the Legislature, and does

not of its own force apply to the Judicial Branch of

government” (citation omitted)). Rather, if the jury, which

was not instructed about the TVPA’s enactment date,

erroneously convicted Marcus based exclusively on

noncriminal, preenactment conduct, Marcus would have

a valid due process claim. Cf. Bouie v. City of Columbia,

378 U.S. 347, 353–354, 84 S.Ct. 1697, 12 L.Ed.2d 894

(1964) (applying Due Process Clause to ex post facto

judicial decisions). In any event, however Marcus’ claim

is labeled, we see no reason why this kind of error would

automatically “affec[t] substantial rights” without a

showing of individual prejudice.

Id. at 264–65.

The Court then remanded the case for consideration of

13

whether the error affected the defendant’s substantial rights. Id. at

266–67.

In the present case, the constitutional error is more serious

than in Marcus. The jury instruction allowed retroactive application

of the new statute to conduct that occurred entirely before its

enactment.

Before 2022, at the time of the alleged crimes in this case,

sexual battery was defined as “oral, anal, or vaginal penetration by,

or union with, the sexual organ of another or the anal or vaginal

penetration of another by any other object.” § 794.011(1)(h), Fla.

Stat. (2019). (emphasis added).

But the jury was instructed, T 529, 531-32; R 201, 207-08, to

apply the 2022 version of the statute which referred to the more

expansive act of “female genital penetration,” with “female genitals”

defined broadly as including “the labia minora, labia majora,

clitoris, vulva, hymen, and vagina.” Ch. 2022-165. See §

794.011(1)(b), Fla. Stat. (2022); § 794.011(1)(b) and (j), Fla. Stat.

(2022).

The statutory change had the result of making the crime of

attempted sexual battery (that is, penetration of the female genitals

14

without vaginal penetration) into the more aggravated crime of

sexual battery, and it allowed conviction on different testimony or

evidence of penetration of female genitals rather than penetration of

the vagina. Hence, the instruction amounted to retroactive

application of the statute in violation of Petitioner’s constitutional

rights.

In view of the foregoing, Petitioner asks that this Court grant

certiorari and reverse his convictions for sexual battery.

15

2. THE REASONING OF WILLIAMS v. FLORIDA HAS

BEEN REJECTED, AND THE CASE SHOULD BE

OVERRULED.

In Thompson v. Utah, 170 U.S. 343 (1898), the Court

considered “whether the 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,” and

concluded that “[t]his question must be answered in the

affirmative.” Id. at 349. It noted that since the time of Magna Carta,

the word “jury” had been understood to mean a body of twelve. Id.

at 349-50. 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.

In addition to the citations in Thompson, one may note that

Blackstone indicated that the right to a jury of twelve is even older,

and more firmly established, than the unqualified right to counsel

in criminal cases. 4 William Blackstone, Commentaries on the Laws

of England, ch. 27 (“Of Trial and Conviction”). Blackstone traced the

right back to ancient feudal right to “a tribunal composed of twelve

16

good men and true,” and wrote that “it is the most transcendent

privilege which any subject can be enjoy or wish for, that he cannot

be affected in his property, his liberty or his person, but by the

unanimous consent of twelve of his neighbours and equals.” 3

Blackstone, ch. 23 (“Of the Trial by Jury”).

After Thompson, the Court continued to cite the basic principle

that the Sixth Amendment requires a twelve-person jury in criminal

cases for another seventy 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,”

17

such as the necessary inclusion of twelve members. Duncan v.

Louisiana, 391 U.S. 145, 151–152 (1968).

In Williams v. Florida, 399 U.S. 78 (1970), however, the Court

retreated from this line of precedent, holding that trial by a jury of

six does not violate the Sixth Amendment.

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. Id., 399 U.S. at 98–99. But it

concluded that such “purely historical considerations” were not

dispositive. Id. at 99. Rather, it 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. It wrote that “currently available

evidence [and] theory” suggested that function could just as easily

be performed with six jurors as with twelve. Id. at 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”).

18

Petitioner submits that Williams is contrary to the history and

precedents discussed above, nor with the subsequent ruling in

Ramos v. Louisiana, 590 U. S. 83 (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

90. That term meant trial by a jury of twelve whose verdict must be

unanimous. As the Court noted 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[.]” Ibid. (emphasis added). “A ‘verdict, taken from eleven,

was no verdict’ at all.” Ibid.

Ramos held that the Sixth Amendment requires a unanimous

verdict to convict a person of a serious offense. In reaching that

conclusion, it 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.” 509

U.S. at 100.

The reasoning of Ramos undermines Williams as well. It

rejected the same kind of “cost-benefit analysis” undertaken in

19

Williams, observing that it is not for the Court 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.’” 590 U.S. at 98. The Court

wrote that the Sixth Amendment right to a jury trial must be

restored to its original meaning, which included the right to jury

unanimity:

Our real objection here isn’t that the Apodaca plurality’s

cost-benefit analysis was too skimpy. The deeper problem

is that the plurality subjected the ancient guarantee of a

unanimous jury verdict to its own functionalist

assessment in the first place. And Louisiana asks us to

repeat the error today, just replacing Apodaca’s

functionalist assessment with our own updated version.

All this overlooks the fact that, at the time of the Sixth

Amendment’s adoption, the right to trial by jury included

a right to a unanimous verdict. When the American

people chose to enshrine that right in the Constitution,

they weren’t suggesting fruitful topics for future costbenefit analyses. They were seeking to ensure that their

children’s children would enjoy the same hard-won

liberty they enjoyed. As judges, it is not our role to

reassess whether the right to a unanimous jury is

“important enough” to retain. With humility, we must

accept that this right may serve purposes evading our

current notice. We are entrusted to preserve and protect

that liberty, not balance it away aided by no more than

social statistics.

Ramos, 590 U.S. at 100 (emphasis in original; footnote omitted).

The same reasoning applies to the historical right to a jury of

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twelve: When the People enshrined the jury trial right in the

Constitution, they did not attach a rider that future judges could

adapt it based on latter-day social science views.

Further, even if one were to accept the functionalist logic of

Williams — that the Sixth Amendment is subject to reinterpretation

on the basis of social science — it invites, nay demands, that it be

periodically revisted to determine whether the social science holds

up. And here we encounter a serious problem: it was based on

research that was out of date shortly after the opinion issued.

Williams “f[ou]nd little reason to think” that the goals of the

jury guarantee, which included providing “a fair possibility for

obtaining a representative[] cross-section of the community,” were

“in any meaningful sense less likely to be achieved when the jury

numbers six, than when it numbers 12.” Id. 399 U.S. at 100. It

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.” Id. at 102.

Since Williams, that determination has proven incorrect. This

Court acknowledged as much just eight years later in Ballew v.

Georgia, 435 U.S. 223 (1978), when it concluded that the Sixth

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Amendment barred the use of a five-person jury. Although Ballew

did not overturn Williams, it observed that empirical studies

conducted in the intervening years highlighted several problems

with its 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. As

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already noted, Williams itself identified the “function” of the Sixth

Amendment as leaving justice to the “commonsense judgment of a

group of laymen” and thus allowing “guilt or innocence” to be

determined via “community participation and [with] shared

responsibility.” 399 U.S. at 100–01. That function is thwarted by

reducing the number of jurors to six. Smaller juries are perforce

less representative of the community, and they are less consistent

than larger juries. See, e.g., Shamena Anwar, et al., The Impact of

Jury Race In Criminal Trials, 127 Q.J. Of Econ. 1017, 1049 (2012)

(finding that “increasing the number of jurors on the seated jury

would substantially reduce the variability of the trial outcomes,

increase black representation in the jury pool and on seated juries,

and make trial outcomes more equal for white and black

defendants”); Diamond et al., Achieving Diversity on the Jury: Jury

Size and the Peremptory Challenge, 6 J. of Empirical Legal Stud.

425, 427 (Sept. 2009) (“reducing jury size inevitably has a drastic

effect on the representation of minority group members on the

jury”); 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

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the community. … In reality, cutting the size of the jury

dramatically increases the chance of excluding minorities.”).

Other important considerations also weigh in favor of the

twelve-member jury. 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.”

Smith & Saks, 60 Fla. L. Rev. at 466. Finally, larger juries deliver

more predictable results. In the civil context, for example, “[s]ixperson juries are four times more likely to return extremely high or

low damage awards compared to the average.” Higginbotham et al.,

104 Judicature at 52.

Importantly, the history of Florida’s rule can be traced to the

Jim Crow era. Justice Gorsuch has 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

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systematic effort to suppress minority voices in public affairs.”

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

dissenting from denial of certiorari) (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.

The Florida Legislature enacted chapter 3010 with the jury-ofsix 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

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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 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

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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 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.

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

Crow era effort “to suppress minority voices in public affairs.”

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

dissenting from denial of certiorari); see also Ramos, 590 U.S. at

126-27 (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 small juries: it denies a great number of citizens the

“duty, honor, and privilege of jury service.” Powers v. Ohio, 499 U.S.

27

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. 2 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 as an Invitation to Citizenship: Assessing the

Civic Values of Institutionalized Deliberation, 34 Pol’y Stud. J. 605,

606 (2006).

In view of the foregoing, this Court should grant the petition,

recede from Williams, restore the ancient right to a jury of twelve

and reverse Petitioner’s conviction.

2 Available at: https://www.uscourts.gov/services-forms/jury-

service/learn-about-jury-service/juror-experiences

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CAROL STAFFORD HAUGHWOUT

Public Defender

GARY LEE CALDWELL

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

jcwalsh@pd15.org

appeals@pd15.org

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