Petition for Writ of Certiorari — Jarvis Parker, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

JARVIS PARKER, 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

QUESTIONS PRESENTED

1. Whether, contrary to the Due Process and Jury Clauses, the

trial court erred in imposing an enhanced sentence under a statute

authorizing the enhancement based on nonjury fact-findings upon

proof by a preponderance of the evidence?

2. Whether Petitioner was deprived of his right to bear arms,

under the Second and Fourteenth Amendments, where he was

convicted of possession of a firearm by a convicted felon?

3. 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: Parker v. State, 392 So. 3d 214 (Fla.

4th DCA 2024) (table).

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................................... i

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

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

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

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

CONSTITUTIONAL AND STATUTORY PROVISIONS ........................ 2

STATEMENT OF THE CASE ........................................................... 7

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

I. Florida’s Habitual Felony Offender statute is unconstitutional.11

II. Florida’s broad felon-in-possession statute violates the

Second Amendment. .................................................................. 14

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

the case should be overruled. .................................................... 18

CONCLUSION .............................................................................. 30

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

Almendarez-Torres v. United States, 523 U.S. 224 (1998) .. 11, 12, 13

Apodaca v. Oregon, 406 U.S. 404 (1972) ....................................... 21

Ballew v. Georgia, 435 U.S. 223 (1978)................................... 24, 25

Blair v. State, 698 So. 2d 1210 (Fla. 1997) ...................................... 9

Burch v. Louisiana, 441 U.S. 130 (1979) ....................................... 20

District of Columbia v. Heller, 554 U.S. 570 (2008) ........................ 15

Duncan v. Louisiana, 391 U.S. 145 (1968) .................................... 20

Edenfield v. State, 48 Fla. L. Weekly D1113 (Fla. 1st DCA May 31,

2022) ........................................................................................... 9

Erlinger v. United States, 602 U.S. 821 (2024) ........................ 12, 13

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) ...... 27

Gibson v. State, 16 Fla. 291 (1877) ............................................... 27

Jackson v. State, 926 So. 2d 1262 (Fla. 2006) ................................ 2

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

Maxwell v. Dow, 176 U.S. 581 (1900) ........................................... 19

New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022)..... 15

Parker v. State, 392 So. 3d 214 (Fla. 4th DCA 2024) ....................... 1

Patton v. United States, 281 U.S. 276 (1930) ................................. 19

Ramos v. Louisiana, 590 U. S. 83 (2020)................................. 21, 22

Thompson v. Utah, 170 U.S. 343 (1898) .................................. 18, 19

Trushin v. State, 425 So. 2d 1126 (Fla. 1982) ................................. 9

United States v. Rahimi, 602 U.S. 680 (2024) .......................... 16, 17

Wallace v. State, 722 So. 2d 913 (Fla. 2d DCA 1998) ...................... 9

Westerheide v. State, 831 So. 2d 93 (Fla. 2002) .............................. 9

iv

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

Statutes

§ 775.082, Fla. Stat. ....................................................................... 7

§ 775.084, Fla. Stat. ................................................................. 3, 11

§ 790.23, Fla. Stat. ................................................................... 5, 14

§ 913.10, Fla. Stat. ......................................................................... 6

Ch. 3010, § 6, Laws of Fla. (1877) ................................................ 27

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) ......................................................................................... 25

Higginbotham et al., Better by the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 Judicature 47 (Summer 2020) .......... 25, 26

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

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

edition 2018) ....................................................................... 28, 29

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) .................................. 30

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) ............... 28, 29

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

127 Q.J. Of Econ. 1017 (2012) .................................................. 25

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

Six-Person Jury, 60 Fla. L. Rev. 441 (2008) ................................ 26

United States Courts, Juror Experiences, available at

https://www.uscourts.gov/services-forms/jury-service/learnabout-jury-service/juror-experiences ......................................... 30

William Blackstone, Commentaries on the Laws of England .... 18, 19

v

Constitutional Provisions

Fla. Const. art. I, § 22 .................................................................... 3

U.S. Const. amend II. ................................................................. 2, 8

U.S. Const. amend VI. .................................................................. 11

U.S. Const. amend XIV. ................................................................ 11

U.S. Const. amend. VI ........................................................... passim

U.S. Const. amend. XIV .............................................................. 2, 8

vi

IN THE SUPREME COURT OF THE UNITED STATES

_____________

N O.

JARVIS PARKER, 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

_____________

Jarvis Parker respectfully petitions for a writ of certiorari to

review the judgment of the Fourth District Court of Appeal of

Florida in this case.

OPINION BELOW

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

reported as Parker v. State, 392 So. 3d 214 (Fla. 4th DCA 2024)

(table). It is reprinted in the appendix. 1a.

1

JURISDICTION

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

convictions and sentences on July 8, 2024. 1a. The court denied

Petitioner’s motion for rehearing, written opinion and certification

on September 11, 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, it has no jurisdiction to review district court of appeal

decisions entered without written opinion. Jackson v. State, 926 So.

2d 1262, 1266 (Fla. 2006). Hence, Petitioner could not seek review

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

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Second Amendment provides: “A well regulated Militia,

being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed.”

The Sixth Amendment provides: “In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an

impartial jury … .”

Section 1 of the Fourteenth Amendment of the United States

Constitution provides:

2

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.

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 775.084, Florida Statutes, provides in relevant part:

(1) As used in this act:

(a) “Habitual felony offender” means a defendant for

whom the court may impose an extended term of

imprisonment, as provided in paragraph (4)(a), if it finds

that:

1. The defendant has previously been convicted of any

combination of two or more felonies in this state or

other qualified offenses.

2. The felony for which the defendant is to be sentenced was committed:

a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully

imposed supervision that is imposed as a result of a

prior conviction for a felony or other qualified offense;

or

b. Within 5 years of the date of the conviction of the

defendant’s last prior felony or other qualified offense, or within 5 years of the defendant’s release

from a prison sentence, probation, community control, control release, conditional release, parole or

3

court-ordered or lawfully imposed supervision or

other sentence that is imposed as a result of a prior

conviction for a felony or other qualified offense,

whichever is later.

3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is

not a violation of s. 893.13 relating to the purchase or

the possession of a controlled substance.

4. The defendant has not received a pardon for any

felony or other qualified offense that is necessary for

the operation of this paragraph.

5. A conviction of a felony or other qualified offense

necessary to the operation of this paragraph has not

been set aside in any postconviction proceeding.

…

(3)(a) In a separate proceeding, the court shall

determine if the defendant is a habitual felony offender or

a habitual violent felony offender. The procedure shall be

as follows:

1. The court shall obtain and consider a presentence

investigation prior to the imposition of a sentence as a

habitual felony offender or a habitual violent felony

offender.

2. Written notice shall be served on the defendant and

the defendant’s attorney a sufficient time prior to the

entry of a plea or prior to the imposition of sentence in

order to allow the preparation of a submission on

behalf of the defendant.

3. Except as provided in subparagraph 1., all evidence presented shall be presented in open court with

full rights of confrontation, cross-examination, and

representation by counsel.

4

4. Each of the findings required as the basis for such

sentence shall be found to exist by a preponderance of

the evidence and shall be appealable to the extent

normally applicable to similar findings.

….

6. For an offense committed on or after October 1,

1995, if the state attorney pursues a habitual felony

offender sanction or a habitual violent felony offender

sanction against the defendant and the court, in a

separate proceeding pursuant to this paragraph,

determines that the defendant meets the criteria under

subsection (1) for imposing such sanction, the court

must sentence the defendant as a habitual felony

offender or a habitual violent felony offender, subject to

imprisonment pursuant to this section unless the court

finds that such sentence is not necessary for the

protection of the public. … .

…

(4)(a) The court, in conformity with the procedure

established in paragraph (3)(a), may sentence the

habitual felony offender as follows:

…

2. In the case of a felony of the second degree, for a

term of years not exceeding 30.

(5) In order to be counted as a prior felony for purposes

of sentencing under this section, the felony must have

resulted in a conviction sentenced separately prior to the

current offense and sentenced separately from any other

felony conviction that is to be counted as a prior felony.

Section 790.23, Florida Statutes, provides in relevant part:

(1) It is unlawful for any person to own or to have in his

or her care, custody, possession, or control any firearm,

5

ammunition, or electric weapon or device, or to carry a

concealed weapon, including a tear gas gun or chemical

weapon or device, if that person has been:

(a) Convicted of a felony in the courts of this state;

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.

6

STATEMENT OF THE CASE

The state charged Petitioner Jarvis Parker by amended

information with: attempted first degree murder with a firearm with

serious bodily injury (count I); shooting at, within or into an

occupied vehicle (count II); and possession of a firearm by a

convicted felon (count III). R 116–17.

At trial, the prosecution presented a video in which a man got

into an altercation with two women. One of the women admitted to

hitting the man with a bottle, and the video shows her rushing him

and hitting him. Eventually she was shot by the man. Both women

identified Petitioner as the shooter. Petitioner contended the

identifications were not reliable, pointing out that, unlike the man

described by the women, he did not have a scar on his face.

Petitioner was convicted by a six-member jury of the lesser

offense of attempted second degree murder with a firearm and with

great bodily harm as to count I, and was convicted of counts II and

III as charged. R 267–69. All three convictions were second degree

felonies, as noted in the judgment of guilt. R 508–09.

Second degree felonies carry a maximum sentence of 15 years

in prison. § 775.082(3)(d), Fla. Stat. The court entered enhanced 30

7

year concurrent sentences for each count under Florida’s Habitual

Felony Offender statute for all three crimes, and imposed firearmrelated mandatory minimum conditions of 25 years for count I and

three years for count III. R 512–20.

While his direct appeal was pending in the Fourth District

Court of Appeal, Petitioner moved to correct his sentence under

Florida Criminal Rule 3.800(b)(2). He argued that Florida’s Habitual

Felony Offender statute is unconstitutional in violation of the Jury

and Due Process Clauses of the state and federal constitutions. The

trial court denied the motion, and denied rehearing.

Petitioner then filed his brief in the appellate court. Among

other issues, he argued that: His conviction for possession of a

firearm by a convicted felon violated the Second Amendment. a3–

a8. He was denied his right to a twelve-member jury under the

Sixth Amendment. a9–a12. And his habitual felony offender

sentences violate the Sixth and Fourteenth Amendments, and the

court could not rewrite the unconstitutional statute. a12–a19.

Conceding that — unlike the Habitual Felony Offender issue —

the Second Amendment and twelve-member jury issues had not

been raised in the trial court, he contended that they were subject

8

to review under Florida’s fundamental error doctrine. Under that

doctrine, a defendant may for the first time on appeal challenge a

facially unconstitutional statute, Westerheide v. State, 831 So. 2d

93, 105 (Fla. 2002), Trushin v. State, 425 So. 2d 1126, 1129 (Fla.

1982), and Edenfield v. State, 48 Fla. L. Weekly D1113, n.1 (Fla. 1st

DCA May 31, 2022) (holding that defendant could raise facial

challenge to felon-in-possession statute for first time on appeal, but

denying claim on the merits), and also may contend on the first

time on appeal that he or she was tried by less than the number of

jurors required by the jury unless he or she personally waived that

right. Compare Blair v. State, 698 So. 2d 1210, 1217 (Fla. 1997)

(finding defendant’s agreement to verdict by five-member jury valid

when made in a colloquy with the court “including a personal onthe-record waiver sufficient to pass muster under the federal and

state constitutions,” and his decision was made “toward the end of

his trial, after having ample time to analyze the jury and assess the

prosecution's case against him. He affirmatively chose to proceed

with a reduced jury as opposed to a continuance or starting with

another jury.”) to Wallace v. State, 722 So. 2d 913 (Fla. 2d DCA

1998) (reversing on grounds of fundamental error where defendant

9

was tried by five-member jury and judge did not inform the

defendant of his constitutionally mandated right to six-person jury).

The district court of appeal affirmed the conviction and

sentence without a written opinion. 1a. Subsequently, it denied

Petitioner’s motion for rehearing, for written opinion and for

certification to the state supreme court. 2a.

10

REASONS FOR GRANTING THE PETITION

I. FLORIDA’S HABITUAL FELONY OFFENDER STATUTE

IS UNCONSTITUTIONAL.

Florida’s Habitual Felony Offender statute provides for

enhanced punishments when the judge, at a nonjury proceeding,

determines, by a preponderance of the evidence, a variety of facts

regarding the defendant’s prior criminal record including the dates

or at least two prior convictions and sentences, the date of the

defendant’s release from incarceration, and whether the defendant

has been pardoned for those prior convictions. § 775.084(1)(a),

(3)(a), (4)(a), and (5), Fla. Stat. The statute doubles the statutory

maximum sentence for second degree felonies, and had that effect

in this case, raising the maximum sentence for each crime from 15

years to 30 years.

This statutory procedure and Petitioner’s resulting sentence

are unconstitutional under the Jury and Due Process Clauses. U.S.

Const. amend. VI, XIV.

Despite the general rule forbidding a sentence enhancement

based on judicial fact-finding, the Court held in the 5-4 decision of

Almendarez-Torres v. United States, 523 U.S. 224 (1998), that a

11

court may enhance a sentence based on a judge’s finding of a prior

conviction authorizing the enhancement.

The Court recently cast doubt on the correctness and viability

of Almendarez-Torres in Erlinger v. United States, 602 U.S. 821

(2024):

Almost immediately …, the decision came under scrutiny.

Jones, 526 U.S., at 249, n. 10. The Court has since

described Almendarez-Torres as “at best an exceptional

departure” from “historic practice.” Apprendi, 530 U.S.,

at 487. That decision, we have said, parted ways from the

“uniform course of decision during the entire history of

our jurisprudence.” Id., at 490. It was “arguabl[y] ...

incorrec[t].” Id., at 489. And it amounted to an “unusual

... exception to the Sixth Amendment rule in criminal

cases that ‘any fact that increases the penalty for a crime’

must be proved to a jury.” Pereida v. Wilkinson, 592 U.S.

224, 238 (2021) (quoting Apprendi, 530 U.S., at 490).

In separate opinions, a number of Justices have criticized

Almendarez-Torres further yet, and Justice THOMAS,

whose vote was essential to the majority in that case, has

called for it to be overruled. See, e.g., Mathis v. United

States, 579 U.S. 500 (2016) (THOMAS, J., concurring);

Descamps v. United States, 570 U.S. 254, 280 (2013)

(THOMAS, J., concurring in judgment); Shepard v. United

States, 544 U.S. 13, 27 (2005) (THOMAS, J., concurring

in part and concurring in judgment); see also Jones, 526

U.S., at 252–253 (Stevens, J., concurring); Monge v.

California, 524 U.S. 721 (1998) (Scalia, J., joined by

Souter and Ginsburg, JJ., dissenting).

Still, no one in this case has asked us to revisit

Almendarez-Torres. Nor is there need to do so today. In

the years since that decision, this Court has expressly

12

delimited its reach. It persists as a “narrow exception”

permitting judges to find only “the fact of a prior

conviction.” Alleyne, 570 U.S., at 111, n. 1. Under that

exception, a judge may “do no more, consistent with the

Sixth Amendment, than determine what crime, with what

elements, the defendant was convicted of.” Mathis, 579

U.S., at 511–512. We have reiterated this limit on the

scope of Almendarez-Torres “over and over,” to the point

of “downright tedium.” 579 U.S., at 510, 519. And so

understood, Almendarez-Torres does nothing to save the

sentence in this case. To determine whether Mr.

Erlinger’s prior convictions triggered ACCA’s enhanced

penalties, the district court had to do more than identify

his previous convictions and the legal elements required

to sustain them. It had to find that those offenses

occurred on at least three separate occasions. And, in

doing so, the court did more than Almendarez-Torres

allows.

Erlinger, 602 U.S. at 837–39 (footnote omitted).

For the reasons set out in Erlinger, the time has come to push

Almendarez-Torres overboard. There is no reason to allow

governments to continue to impose enhanced sentences based on

unconstitutional procedures such as Florida’s Habitual Felony

Offender law.

Further, regardless of whether Almendarez-Torres’s day has

come, the Florida law and procedure are plainly unconstitutional

under Erlinger and should not be allowed to stand. Here, the court

went beyond finding the simple fact that Petitioner had been

13

convicted of certain crimes. It made the additional fact findings

required by the statute, including when he was convicted and when

he was released from prison.

Florida’s Habitual Felony Offender law is unconstitutional.

Since it provides the basis for Petitioner’s sentences, those

sentences cannot stand.

Accordingly, the sentences should be reversed and remanded

to the lower court for resentencing without use of the invalid

statute.

II. FLORIDA’S BROAD FELON-IN-POSSESSION STATUTE

VIOLATES THE SECOND AMENDMENT.

Count III of the amended information alleged that Appellant

“on the 13th day of June, A.D. 2021, … having previously been

convicted on November 30, 2012 of the Felony crime of Burglary

Dwelling Armed … , did then and there have in his care, custody,

possession or control a firearm, to-wit: a firearm of undetermined

caliber, and during the commission thereof, [he] actually possessed

or carried that firearm on his person” in violation of section

790.23(1), Florida Statues. R 117.

Section 790.23(1) makes it a crime for one previously

14

convicted of a felony to “own or to have in his or her care, custody,

possession, or control any firearm, ammunition, or electric weapon

or device, or to carry a concealed weapon, including a tear gas gun

or chemical weapon or device.” Here, the prosecution proceeded on

the statutory provision making it a crime for a convicted felon to

have a firearm, regardless of the manner in which that person bears

the firearm.

In District of Columbia v. Heller, 554 U.S. 570 (2008)], the

Court wrote that at the time of the Founding the right to keep arms

was “a common way of referring to possessing arms, for militiamen

and everyone else.” Id. at 583 (emphasis in original). The right to

“bear arms” refers to carrying a weapon for the purpose of being

armed and ready for offensive or defensive action in a case of

conflict with another person. Id. at 584.

In New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1

(2022), the Court wrote that, to justify a regulation on the right to

bear arms, “the government may not simply posit that the

regulation promotes an important interest. Rather, the government

must demonstrate that the regulation is consistent with this

Nation’s historical tradition of firearm regulation.” Id. at 17. The

15

Court emphasized this rule by repeating it at page 24 of Bruen.

The Court shed light on the application of this rule in United

States v. Rahimi, 602 U.S. 680 (2024).

In Rahimi, the Court noted the historical evolution of surety

laws allowing for the limitation of a persons’ right to bear arms

based on an individualized determination that the person presented

a physical threat to a person seeking the surety. Id. at 695–97. It

also noted the parallel development of “going armed” laws”

forbidding arming oneself “to the Terror of the people.” Id. at 697.

Based on these developments, the Court wrote: “Taken

together, the surety and going armed laws confirm what common

sense suggests: When an individual poses a clear threat of physical

violence to another, the threatening individual may be disarmed.” Id.

at 698 (emphasis added).

Rahimi involved a statute providing that a person could be

deprived of the right to possess a firearm based on an individualized

judicial determination that he or she presented a “a credible threat

to the physical safety” of a specific person. Id. at 688–89. The Court

determined that the law’s “prohibition on the possession of firearms

by those found by a court to present a threat to others fits neatly

16

within the tradition the surety and going armed laws represent.” Id.

at 688.

Unlike the narrow application of the statute in Rahimi with its

individualized determination of dangerousness, section 790.23(1)

has broad application, covering almost 10% of the adult population

of Florida. In 2023, the Census Bureau put the total population of

Florida at 22.6 million (an estimated 5% growth since 2020), of

which 19.4% was under the age of 18, for a total adult population of

over 18 million in 2023.1 As of 2020, there were an estimated 1.6

million non-incarcerated convicted felons in Florida. 2

This broad statute does not comport with the historical

restrictions on the right to bear arms allowed by the Second

Amendment. The Court should grant review to determine whether

section 790.23(1) is constitutionally viable in light of Rahimi.

1

https://www.census.gov/quickfacts/fact/table/FL/PST045223

(last visited December 5, 2024).

2 ABC News, “Florida convicted felons allowed to vote for 1st

time in presidential election after completing sentences” (Oct. 25,

2020). https://abcnews.go.com/Politics/convicted-florida-felonsallowed-vote-1st-time-presidential/story?id=73822173 (last visited

December 5, 20204).

17

III. 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. Because 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 as to this point 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 the ancient feudal

18

system of trial by “a tribunal composed of twelve 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

19

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 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

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requirements of jury trial”).

Petitioner submits that Williams is contrary to the history and

precedents discussed above, and cannot be squared 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 the reasoning on which

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Williams rests. Ramos rejected the same kind of “cost-benefit

analysis” undertaken in 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).

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

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.

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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, 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”).

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Post-Ballew research has further undermined Williams. As

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)

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(“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.”).

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

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the demand for a unanimous verdict as part of a deliberate and

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 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

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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 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

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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 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

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“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. 3 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.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

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

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

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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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