Reply Brief — David Lesh, Petitioner v. United States

Supreme Court briefMay 23, 2025

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No. 24-654

IN THE

DAVID LESH,

Petitioner,

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

REPLY BRIEF FOR PETITIONER

Kara M. Rollins

Jenin Younes

Philip Hamburger

Mark S. Chenoweth

NEW CIVIL LIBERTIES

ALLIANCE

4250 N. Fairfax Drive

Suite 300

Arlington, VA 22203

Jeffrey L. Fisher

Counsel of Record

Easha Anand

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

jlfisher@stanford.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

REPLY BRIEF FOR PETITIONER ............................ 1

The “petty offense” exception has no footing

in any constitutional interpretive principle ........ 2

II. The Court should grant review to reconsider

the petty-offense exception ................................... 8

CONCLUSION ........................................................... 11

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99 (2013) ................................................. 8

Baldwin v. New York,

399 U.S. 66 (1970) ............................................... 10

Blanton v. City of N. Las Vegas,

489 U.S. 538 (1989) ............................................. 10

Callan v. Wilson,

127 U.S. 540 (1888) ........................................... 8, 9

District of Columbia v. Clawans,

300 U.S. 617 (1937) ........................................... 8, 9

Duncan v. Louisiana,

391 U.S. 145 (1968) ..................................... 2, 9, 11

Erlinger v. United States,

144 S. Ct. 1840 (2024) ....................................... 2, 8

Gideon v. Wainwright,

372 U.S. 335 (1963) ............................................... 4

Kirby v. Illinois,

406 U.S. 682 (1972) ............................................... 6

Ramos v. Louisiana,

590 U.S. 83 (2020) ............................................. 3, 8

Rothgery v. Gillespie County,

554 U.S. 191 (2008) ............................................... 5

Schick v. United States,

195 U.S. 65 (1904) ............................................. 3, 8

Scott v. Illinois,

440 U.S. 367 (1979) ............................................... 4

iii

SEC v. Jarkesy,

144 S. Ct. 2117 (2024) ......................................... 10

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) ............................................... 4

United States v. Gouveia,

467 U.S. 180 (1984) ............................................... 6

United States v. Haymond,

588 U.S. 634 (2019) ............................................... 5

Constitutional Provisions

U.S. Const., art. III, § 2, cl. 3 ....................... 1, 2, 3, 4, 7

U.S. Const., amend. VI ........................................... 1-11

U.S. Const., amend. VII ............................................. 10

Other Authorities

Blackstone, William, Commentaries on the

Laws of England (1769) ................................ 5, 6, 7

Paley, William, The Law and Practice of

Summary Convictions (1814) ............................... 6

Records of the Federal Convention of 1787

(Max Farrand ed. 1911) ........................................ 3

Roth, Andrea, The Lost Right to Jury Trial in

“All” Criminal Prosecutions, 72 Duke L.J.

599 (2022) .............................................................. 8

Scalia, Antonin & Bryan Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............ 3

Sharpe, J.A., Crime in Early Modern England:

1550-1750 (1999) ................................................... 6

REPLY BRIEF FOR PETITIONER

The Sixth Amendment provides that “[i]n all

criminal prosecutions,” the accused shall enjoy the

right to trial by jury. U.S. Const. amend. VI. Yet the

Government never disputes that the proceeding in

which petitioner was convicted of “petty offenses” was

a “criminal prosecution.” For that reason alone,

certiorari should be granted. If the Government

cannot conjure up any plausible textual defense of the

constitutional rule applied in a case, that precedent

demands this Court’s attention—especially where, as

here, the Government does not contest that the case is

an ideal vehicle for pinning down the meaning of the

Constitution.

Nor are any of the arguments the Government

does make convincing. The jury-trial guarantee in

Article III for “all Crimes,” upon which the

Government trains its focus, does not affect the plain

meaning of the Sixth Amendment—and, in any event,

does not contain an implied “petty offense” proviso

either. Contrary to the Government’s suggestion, the

common law did not sanction prosecuting people for

minor crimes without providing juries. Just the

opposite: the common-law method of trial forbade such

proceedings, and the Framers codified that prohibition

in the Constitution. Finally, modern cost-benefit

analyses cannot limit the scope of the right to trial by

jury. The Sixth Amendment expressly guarantees the

right in “all” criminal prosecutions, leaving no room

for a “petty offense” exception. U.S. Const. amend. VI.

Lacking any persuasive argument on the merits,

the Government seeks refuge in stare decisis. But that

is no help either. The right to trial by jury supplies a

crucial foundation for the legitimacy and justice of the

criminal law system, providing a vital bulwark against

the “corrupt or overzealous prosecutor” and “the

compliant, biased, or eccentric judge.” Duncan v.

Louisiana, 391 U.S. 145, 156 (1968). It also ensures

public participation will counterbalance the

government power inherent in prosecutions. See

Erlinger v. United States, 144 S. Ct. 1840, 1848-49

(2024). Yet the “petty offense” exception is egregiously

wrong and (probably not coincidentally) was born from

scant briefing and dicta; the exception implicates no

valid reliance interest; and it imposes profound harm

on defendants and the populace alike. This Court

should reconsider and abolish the exception.

The “petty offense” exception has no footing in

any constitutional interpretive principle

The Government is unable to advance any

persuasive defense of the “petty offense” exception.

1. Text. It is hard to deny that the proceeding

below—in which the Government charged petitioner

by information with a misdemeanor, a federal

prosecutor sought to convict him at trial, and the judge

imposed criminal punishment—was, in the words of

the Sixth Amendment, a “criminal prosecution.” See

Pet. 13-15. So hard that the Government does not even

try to argue otherwise. Instead, in the only textual

argument it advances, the Government maintains

that Article III’s guarantee of the right to trial by jury

for “all Crimes” implicitly excludes petty offenses. BIO

8-10. But this argument is doubly ineffectual.

First, Article III’s text does not exclude “petty

offenses” from its reach. The Government notes that,

in “common usage” or “popular understanding,” the

word “crimes” can exclude misdemeanors. BIO 8-10

(citation omitted). But “when the law is the subject” of

constitutional or statutory language, “ordinary legal

meaning is to be expected, which often differs from

common meaning.” Antonin Scalia & Bryan Garner,

Reading Law: The Interpretation of Legal Texts 73

(2012) (emphasis added). And as petitioner has made

clear and the Government does not dispute, the legal

definition of “crimes” has always included

misdemeanors. Pet. 15-16; see also Amicus Br. of

Crim. Law Profs. 12-18. Accordingly, Article III’s text

does not undercut—but rather reinforces—the case for

enforcing the Sixth Amendment as written.1

Second, Article III could not undercut the Sixth

Amendment anyway. Whenever there is divergence

between the original Constitution and an amendment,

the amendment controls. Otherwise, the States would

not necessarily have sovereign immunity, women

could still be denied the right to vote, and Senators

Contrary to the Government’s suggestion (BIO 9), the

“drafting history” of Article III does not indicate otherwise.

“[R]ather than dwelling on text left on the cutting room floor, we

are much better served by interpreting the language . . . the

States ratified.” Ramos v. Louisiana, 590 U.S. 83, 98 (2020).

Where, as here, there is no recorded explanation or even

discussion regarding the change in wording, sticking to ratified

text makes all the more sense. See id.; 2 Records of the Federal

Convention of 1787, 438 (Max Farrand ed. 1911). Besides, not

even the Government defends the full implication of its draftinghistory argument, which would be that the Framers changed the

phrase “all criminal offenses” to “all Crimes” to exclude all

“misdemeanors”—and thus that the Constitution does not

require jury trials for prosecution of any misdemeanor, even if

punishable by a full year in prison. See Schick v. United States,

195 U.S. 65, 69-70 (1904).

would still be chosen by state legislatures. Therefore,

even if it were unclear whether Article III guarantees

jury trials in criminal prosecutions for petty offenses,

there is no doubt the Sixth Amendment does, and that

puts an end to the matter.

2. Structure. Nor does the Government provide

any real answer to petitioner’s point that there is no

basis for giving the Sixth Amendment’s phrase “all

criminal prosecutions” a different, less categorical

meaning with respect to the right to jury trial than it

has with respect to all of the other rights spelled out

in the Amendment. See Pet. 18-20. The Government

points out that the right established in Gideon v.

Wainwright, 372 U.S. 335 (1963), to appointed counsel

does not apply in certain criminal prosecutions. BIO

15. But that is because Gideon is based on a modern

judicial assessment of the essentials for a fair trial, not

the Sixth Amendment “as originally drafted by the

Framers of the Bill of Rights.” Scott v. Illinois, 440

U.S. 367, 370-72 (1979).

Here we deal with the Sixth Amendment’s

original public meaning. And even when it comes to

the original public meaning of the right to counsel—

that of the accused “to employ a lawyer to assist in his

defense”—there is no doubt that right applies in all

criminal prosecutions, just like all the other rights the

Framers enshrined in the Sixth Amendment. Scott,

440 U.S. at 370; see also United States v. GonzalezLopez, 548 U.S. 140, 147-48 (2006) (right to retained

counsel is the “root meaning of the constitutional

guarantee”). Hence, it would surely violate the Sixth

Amendment to bar defendants from retaining counsel

to assist in their defense in misdemeanor proceedings.

The right to trial by jury is cut from the same cloth.

3. History. Lacking any foothold in text or

structure, the primary refrain throughout the

Government’s brief is that “summary adjudications”

were tolerated in “pre-revolutionary English and

colonial practice,” as well as in some states after the

Founding even when those states’ constitutions

required jury trials in all criminal prosecutions. BIO

11-12. That being so, the Government postulates that

the Sixth Amendment must also be understood—

despite its unequivocal language—to condone this

practice. The Government’s conclusion, however, does

not follow from its historical premise.

To start, it is true that summary adjudications

were occasionally conducted for criminal offenses. BIO

12-13. But summary adjudications in England and

early America were not—in the words of the Sixth

Amendment—“criminal prosecutions.” That is

because, “[a]t the founding, a ‘prosecution’” “referred

to ‘the manner of formal accusation’” and proceeding.

United States v. Haymond, 588 U.S. 634, 641 (2019)

(plurality opinion) (quoting 4 William Blackstone,

Commentaries on the Laws of England *298 (1769)).

And a “prosecution” meant “‘instituting a criminal

suit’ by filing a formal charging document—an

indictment, presentment, or information—upon which

the defendant was tried by a court with the power to

punish the alleged offense.” Rothgery v. Gillespie

County, 554 U.S. 191, 221 (2008) (Thomas, J.,

dissenting) (quoting 4 Blackstone, Commentaries

*309); see also Pet. 14-15. The same is true today: A

“prosecution” under the Sixth Amendment is an

“adversary judicial criminal proceeding[]—whether by

way of formal charge, preliminary hearing,

indictment, information, or arraignment.” United

States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting

Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality

opinion)).

Summary adjudications were something else

entirely: They did not require any “indictment or

information.” 4 Blackstone, Commentaries *283; see

also William Paley, The Law and Practice of Summary

Convictions 46 (1814) (explaining that, in summary

adjudications, “the ancient course of indictment, &c is

dispensed with”); J.A. Sharpe, Crime in Early Modern

England: 1550-1750, 127 (1999) (same). They were

managed by justices of the peace, not judges. 4

Blackstone, Commentaries *281-82. And they were

inquisitorial, rather than adversarial, in practice; the

justices of the peace, not the parties, examined

witnesses. Id. *283 There was no right to confrontation

or compulsory process. It was not even “necessary to

summon the party accused before he [was]

condemned.” Id. *282-83.

Consequently, it does not matter whether or when

the Constitution might tolerate modern-day summary

adjudications for petty offenses. (The legitimacy of

such non-prosecutorial adjudications would depend on

how one interprets the Due Process Clause, which

governs all deprivations of liberty, not just criminal

prosecutions.) The question at issue here is whether

the Sixth Amendment allows the Government to

conduct a prosecution for a petty offense (or any other

crime) without respecting the right to trial by jury.

The answer is plainly no. The Sixth Amendment left

room for justice-of-the-peace proceedings by excluding

non-prosecutorial proceedings, not by differentiating

between different levels of offense.

Lest there be any doubt, this Court itself has

recognized time and again that the Sixth Amendment

and Article III guarantee a “trial by jury” as

understood under “the common law.” Pet. 20 (citing

cases). The Government asserts that the historical,

“common law” concept of trial by jury embraces “the

full scope of English legal tradition,” including “the

permissibility of statutory exceptions for petty

offenses.” BIO 14. But the Government could not be

more wrong. It is elementary that English common

law consisted of judge-made law, not statutory

exceptions in opposition to it. And English

commentators and others since have been particularly

emphatic that the inquisitorial practice of summary

adjudication was a “stranger” to the common law. 4

Blackstone, Commentaries *280; see also Pet. 21-22

(citing numerous other sources).

In short, the Framers of the Sixth Amendment

insisted that “all criminal prosecutions” proceed per

the common-law method of right to trial by jury. The

Government overlooks the fact that summary

adjudications were not “criminal prosecutions.” Once

that misconception is corrected, the Government’s

historical argument collapses.

And once the Government’s historical argument

collapses, it is left with no argument at all. The only

other potential argument in defense of the judicially

created “petty offense” exception to the Sixth

Amendment would be naked cost-benefit balancing.

But the Government studiously avoids making any

such argument here. BIO 15-16. Rightly so. The Sixth

Amendment’s Jury Trial Clause permits no such

judicial “cost-benefit analyses” based on “efficiency” or

any similar atextual consideration. Pet. 23-24 (quoting

Ramos, 590 U.S. at 100, and Erlinger v. United States,

144 S. Ct. 1840, 1859 (2024)); see also Amicus Br. of

Americans for Prosperity Found. 19-20. The Clause

guarantees a right to jury trial in “all” criminal

prosecutions. That word conveys a categorical

guarantee that must be enforced according to its

terms. Pet. 17.

II. The Court should grant review to reconsider the

petty-offense exception

Given that the “petty offense” exception to the

Sixth Amendment right to jury trial has no basis in

law, this Court should reconsider the exception. “The

force of stare decisis is at its nadir in cases concerning

[criminal]

procedur[e]

rules

that

implicate

fundamental constitutional protections.” Ramos, 590

U.S. at 113 (Sotomayor, J., concurring) (quoting

Alleyne v. United States, 570 U.S. 99, 116 n.5 (2013));

see also Amicus Br. of Southern Policy Law Inst. 1415. All the more so here, where the rule has never fully

been tested in an adversarial setting. See Andrea

Roth, The Lost Right to Jury Trial in “All” Criminal

Prosecutions, 72 Duke L.J. 599, 614-17, 632 (2022).

The Government’s arguments to the contrary lack

force.

The

Government

first

defends

the

jurisprudential origins of the “petty offense” exception,

suggesting that the exception emerged from “extensive

briefing” in Callan v. Wilson, 127 U.S. 540 (1888), and

District of Columbia v. Clawans, 300 U.S. 617 (1937).

BIO 16. Not so. This Court adopted the exception in

Schick v. United States, 195 U.S. 65 (1904), not Callan

(in which the Court merely suggested in dicta that the

exception might exist) or Clawans (in which the Court

took the holding of Schick as a given). And the

Government does not contest that neither party in

Schick briefed the petty-offense exception. Pet. 26.

That fact alone should dispel any suggestion that the

exception is the product of meaningful adversarial

testing.

At any rate, the Court did not receive “extensive

briefing” on the subject in Callan or Clawans. The

defendant in Callan did not discuss whether the Sixth

Amendment contained any carve-out for minor

offenses. Instead, he argued that his ability to appeal

to a jury after his bench trial did not cure the Sixth

Amendment problem that he assumed would

otherwise have existed in his case. Petr. Br. at 7-9, 1517, Callan, 127 U.S. 540 (1888) (No. 1318); see also

Pet. 26. In Clawans, the parties contested whether the

defendant’s crime fell within the “petty offense”

exception that Schick had created, not whether Schick

itself was right. See Resp. Br. at 5-21, Clawans, 300

U.S. 617 (1937) (No. 103); Petr. Br. at 6, 43-45,

Clawans, 300 U.S. 617 (1937) (No. 103). And

regardless of the briefing this Court received a century

ago, the fact that the “petty offense” exception is

egregiously wrong provides reason enough to

overcome stare decisis.

The Government is also wrong to suggest that the

“petty offense” exception remains consistent with

recent advances in constitutional interpretation. No

doubt mindful that judicial balancing is no longer a

permissible way to approach the right to jury trial, the

Government asserts that the “petty offense” exception

does not “giv[e] undue weight to ‘policy

considerations.’” BIO 15-16. But the Government

makes no effort to explain the policy-driven reasoning

of Duncan v. Louisiana, 391 U.S. 145, 160 (1968),

Baldwin v. New York, 399 U.S. 66, 75 (1970), and

Blanton v. City of N. Las Vegas, 489 U.S. 538, 542-43

(1989). That silence speaks volumes. See Pet. 24. Nor

does the Government offer any way to reconcile the

new insight in SEC v. Jarkesy, 144 S. Ct. 2117, 212728 (2024), that administrative agencies may not

curtail the Seventh Amendment right to jury trial by

regulatory fiat with the fact that the “petty offense”

exception allows agencies to deprive people of their

parallel Sixth Amendment right. See Pet. 25.

The Government next asserts that the federal

government and many states “have substantial

reliance interests in adherence to this Court’s

precedent on the subject.” BIO 17. Certainly they

cannot be related to how “burdensome” in future

prosecutions it might be to honor the full scope of the

right to jury trial. Id. That is not only a forwardlooking interest, but also a consideration that is

inappropriate when the right to jury trial is at stake.

See supra at 7-8. At any rate, the experience of the

numerous states from Texas to California that provide

jury trials for “petty offenses” confirms that it is not

overly difficult to provide jury trials in such

prosecutions. See Pet. 30; Amicus Br. of Crim. Law

Profs. 22-24; Amicus Br. of Cato Inst. 12-13.

Meanwhile, the “petty offense” exception inflicts

real harm upon criminal defendants and society in

general. Convictions for such offenses can carry

“serious consequences” for “tens of thousands” of

individuals each year, yet the exception deprives

defendants of a vital protection against “overzealous

prosecutors and desensitized judges.” Amicus Br. of

NACDL 12-16. It also denies the public the

opportunity to bring its own common sense to bear in

these prosecutions. Id. at 17. Those consequences were

bad enough in years gone by, but they are intolerable

now that “crimes swept under the word ‘petty’ include

everything under the sun.” Id. at 12.2

In sum, the Court is confronted here with a

judicially authorized deprivation of rights within the

judicial system—in “disregard” of the plain text of the

Sixth Amendment. Pet. App. 28a (Tymkovich, joined

by Rossman, JJ., concurring). That makes this case

one of the utmost seriousness, not only for defendants

but also for the reputation of the courts. It is long past

time for the Court to face up to this problem of its own

creation and consider the arguments on the merits.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

The Government also says that petitioner “provide[s] no

evidence” that applying the Court’s test for distinguishing petty

from non-petty offenses “has proven difficult to apply in practice.”

BIO 17. But the Government ignores this Court’s own admission

years ago that “the boundaries of the petty offense category

[were] ill-defined, if not ambulatory.” Duncan, 391 U.S. at 160.

The Government also turns a blind eye to the modern reality that

courts continue to be “sucked into endless line-drawing exercises”

in this regard. Amicus Br. of NACDL 18-20 (providing examples).

Abrogating the “petty offense” exception would rescue courts from

this “never-ending uncertainty.” Id.

Respectfully submitted,