Petition for Writ of Certiorari — Ellancer Allen McGrady, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

ELLANCER ALLEN MCGRADY, 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

DANIEL EISINBGER

Public Defender

Jeffrey L. Anderson*

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

janderson@pd15.org

jcwalsh@pd15.org

appeals@pd15.org

* Member of the United States Supreme Court Bar

QUESTIONS PRESENTED

1. Whether the trial court’s performing its gatekeeping

function of questioning the child in order to determine competency

in the presence of the jury violates Petitioner’s right to a fair trial as

guaranteed under the Sixth and Fourteenth Amendments?

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: McGrady v. State, 395 So. 3d 539 (Fla.

4th DCA 2024).

ii

TABLE OF CONTENTS

Page

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

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

TABLE OF CONTENTS .................................................................. iii

TABLE OF AUTHORITIES ............................................................... v

PETITION FOR A WRIT OF CERTIORARI ........................................ 1

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

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

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

STATEMENT OF THE CASE ........................................................... 4

REASONS FOR GRANTING THE PETITION

I:

THE

TRIAL

COURT’S

PERFORMING

ITS

GATEKEEPING FUNCTION OF QUESTIONING THE

CHILD IN ORDER TO DETERMINE COMPETENCY IN

THE

PRESENCE

OF

THE

JURY

VIOLATED

PETITIONER’S

RIGHT

TO

A

FAIR

TRIAL

AS

GUARANTEED UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS ...................................................................... 7

II: THE REASONING OF WILLIAMS V. FLORIDA HAS

BEEN REJECTED, AND THE CASE SHOULD BE

OVERRULED........................................................................ 13

CONCLUSION .............................................................................. 26

iii

INDEX TO APPENDICES

A. District Court’s Decision ....................................................... a1-6

B. Order Denying Rehearing ......................................................... a7

C. Order Denying Review……………………………………………………a8

D. Excerpts from Initial Brief ................................................... a9-16

iv

TABLE OF AUTHORITIES

Page

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972) ....................................... 16

Ballew v. Georgia, 435 U.S. 223 (1978)................................... 19, 20

Burch v. Louisiana, 441 U.S. 130 (1979) ....................................... 15

Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998) ................. 8

Duncan v. Louisiana, 391 U.S. 145 (1968) .................................... 15

English v. State, 982 P.2d 139 (Wy. 1999)....................................... 8

Ex parte Brown, 74 So. 3d 1039 (Ala. 2011) ................................... 9

Flicker v. State, 374 So.2d 1141 (Fla. 5th DCA 1979).................... 11

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) ...... 22

Gibson v. State, 16 Fla. 291 (1877) ............................................... 22

Hamilton v. State, 109 So.2d 422 (Fla. 3d DCA 1959) ................... 12

Hildreth v. Key, 341 S.W.2d 601 (Mo. 1960) ................................... 9

Matthews v. State, 666 A.2d 912 (Md. 1995)................................... 8

Maxwell v. Dow, 176 U.S. 581 (1900) ........................................... 14

McGrady v. State, 395 So. 3d 539 (Fla. 4th DCA 2024) ................... 1

Patton v. United States, 281 U.S. 276 (1930) ................................. 14

Powers v. Ohio, 499 U.S. 400 (1991) ............................................. 25

Ramos v. Louisiana, 590 U. S. 83 (2020)........................... 16, 17, 24

State v. Chappell, 987 P.2d 1114, (Kan. Ct. App. 1999) .................. 7

State v. Gantt, 644 S.W.2d 656 (Mo. App. 1982) ............................. 8

State v. Kelly, 876 P.2d 298 (Mont. 1994) ....................................... 8

State v. Manlove, 441 P.2d 229 (N.M. Ct. App. 1968) ...................... 9

v

State v. Orlando, 163 A. 256 (Conn. 1932) ...................................... 9

Thompson v. Utah, 170 U.S. 343 (1898) .................................. 13, 14

Williams v. Florida, 399 U.S. 78 (1970) .....15, 16, 17, 18, 19, 20, 25

Statutes

§ 913.10, Fla. Stat. ......................................................................... 3

28 U.S.C. § 1257(a) ........................................................................ 2

Ch. 3010, § 6, Laws of Fla. (1877) ................................................ 22

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) ......................................................................................... 20

Higginbotham et al., Better by the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 Judicature 47 (Summer 2020) .......... 20, 21

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

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

edition 2018) ....................................................................... 23, 24

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

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) ............... 23, 24

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

127 Q.J. Of Econ. 1017 (2012) .................................................. 20

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

Six-Person Jury, 60 Fla. L. Rev. 441 (2008) ................................ 21

United States Courts, Juror Experiences, available at

https://www.uscourts.gov/services-forms/jury-service/learnabout-jury-service/juror-experiences ......................................... 25

William Blackstone, Commentaries on the Laws of England .... 13, 14

vi

Constitutional Provisions

Art. I, § 22, Fla. Const. ................................................................... 2

Amend. VI, U.S. Const......... 2, 4, 6, 7, 12, 14, 15, 16, 17, 18, 19, 20

Amend. XIV, U.S. Const. ..................................................... 2, 7, 12

vii

IN THE SUPREME COURT OF THE UNITED STATES

_____________

NO.

ELLANCER ALLEN MCGRADY, 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

_____________

Ellancer Allen McGrady 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 McGrady v. State, 395 So. 3d 539 (Fla. 4th DCA 2024).

It is reprinted in the appendix. a1-6.

1

JURISDICTION

Florida’s Fourth District Court of Appeal issued its opinion on

October 6, 2024. a1-6. The court affirmed Petitioner’s convictions

and sentences. a6. The Court denied Petitioner’s motion for

rehearing and certification on November 1, 2024. a7.

Petitioner sought review in the state’s highest court – the

Supreme Court of Florida.

On January 15, 2025 the Supreme

Court of Florida declined to review the case. a8. 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 …

.”

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.

Article I, section 22 of the Florida Constitution provides:

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

2

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.

3

STATEMENT OF THE CASE

The State charged Petitioner with: three counts of sexual

battery of a child and one count of lewd or lascivious molestation.

a2.

Petitioner was convicted by a six-member jury of : unnatural

lascivious act(a lesser offense of sexual battery); battery (a lesser

included offense of sexual battery); and lewd or lascivious

molestation--and he was acquitted of one count of sexual battery.

a3.

Petitioner was sentenced to twenty five years in prison followed

by lifetime probation on the lewd or lascivious conviction R215-218.

Petitioner timely filed a notice of appeal.

Petitioner then filed his brief in the appellate court-the Fourth

District of Appeal. Among other issues, he argued that: his rights

were violated by the trial court performing its gatekeeping function

as to the child victim’s competency in front of the jury; and he was

denied his right to a twelve-member jury under the Sixth

Amendment. a9-a16.

The Fourth District Court of Appeal addressed the gatekeeping

issue in relevant part as follows:

4

We affirm on all issues without further comment and

write only to discuss whether the trial court erred by

performing its gatekeeping function as to the child

victim’s competency in front of the jury instead of outside

the presence of the jury….

a1.

The appellate court then recognized the defense objection to

the judge’s gatekeeping questioning of the child in the presence of

the jury and the state’s response that this would help the jury

weigh the child’s credibility:

Defense counsel objected, arguing that inquiry into the

victim’s competency to testify needed to take place

outside the presence of the jury. Defense counsel was

concerned that these inquiries would “bolster” the child

victim’s testimony. The state responded that it was

appropriate to conduct the competency evaluation in

front of the jury, so the jury could weigh the victim’s

credibility and ability to tell the truth.

a2.

The judge continued the competency examination and when

finished turned the witness over to the state. a2.

The appellate court recognized it was better practice not to

conduct the gatekeeping function in the presence of the jury but

affirmed holding there was no error and any error would be

harmless because the questioning was merely cumulative to that of

5

a CPT interviewer:

Conducting the competency determination in the

presence of the jury was not error, but even if it was

determined to be error, at most it was harmless error

because the victim’s answers were cumulative to

statements she made in the CPT interview, which was

admitted into evidence.

However, we believe the better practice is to conduct this

examination outside the presence of the jury. We share

this view, of that being the better practice, with courts in

other jurisdictions. In sum, we find no reversible error

present in this case. While the better practice is to

conduct a competency determination outside the

presence of the jury, appellant was not prejudiced in this

case. As such, we affirm

a4-6. Petitioner also argued he was denied his right to a twelvemember jury under the Sixth Amendment a13-16.

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

convictions and sentences. a6. The Court denied Petitioner’s motion

for rehearing and certification on November 1, 2024. a7.

Petitioner sought review in the state’s highest court – the

Supreme Court of Florida.

On January 15, 2025 the Supreme

Court of Florida declined to review the case. a8.

6

REASONS FOR GRANTING THE PETITION

I. THE TRIAL COURT’S PERFORMING ITS GATEKEEPING FUNCTION OF QUESTIONING THE CHILD IN

ORDER TO DETERMINE COMPETENCY IN THE

PRESENCE OF THE JURY VIOLATED PETITIONER’S

RIGHT TO A FAIR TRIAL AS GUARANTEED UNDER THE

SIXTH AND FOURTEENTH AMENDMENTS.

The

trial

court

performed

its

gatekeeping

function

of

determining and ensuring that a child was competent to testify by

questioning the child.

This was done in front of the jury.

Petitioner objected to the gatekeeping function being done in

the presence of the jury. a2, T39 lines 17-20.

The trial court’s response to the objection was that case law

did not prohibit it from performing this gatekeeping function in

front of the jury T40.

The prosecutor argued that it was appropriate to do this in

front of the jury so they could weigh the child’s credibility. a2, T40

lines 7-10.

Jurisdictions are divided on whether the gatekeeping function

should be done in the presence of the jury. In State v. Chappell, 987

P.2d 1114, 1119 (Kan. Ct. App. 1999) the court ruled the

7

defendant’s constitutional right to a fair trial was infringed upon by

conducting the gatekeeping function concerning the credibility of a

child in the presence of the jury:

In those instances where the qualification of a child witness to

testify is in issue, the voir dire, whether conducted by court or

counsel, should occur outside the presence of the jury. The

failure to adopt this procedure in conducting the voir dire of B.C.

allowed the jury to hear the improper comments of the trial court

and prosecutor. This compels us to find that Chappell was seriously

prejudiced and his constitutional right to a fair trial was,

accordingly, denied. Chappell's convictions are, therefore,

reversed, and this matter is remanded for a new trial. In view of this

determination, other issues raised on appeal need not be

addressed.

Reversed and remanded for a new trial.

987 P.2d at 1119 (emphasis added.

Other jurisdictions also hold this gatekeeping function should

be done outside the presence of the jury when requested or objected

to. See e.g. State v. Gantt, 644 S.W.2d 656, 658 (Mo. App. 1982);

Commonwealth v. Washington, 722 A.2d 643, 647 (Pa. 1998);

English v. State, 982 P.2d 139, 147, n.2 (Wy. 1999); Matthews v.

State, 666 A.2d 912 (Md. 1995) (when the issue is raised, the trial

judge should conduct an examination out of the presence of the

jury to develop the factual basis for a competency determination);

State v. Kelly, 876 P.2d 298 (Mont. 1994); Hildreth v. Key, 341

8

S.W.2d 601 (Mo. 1960).

As noted by the appellate court in this case, not all

jurisdictions require this gatekeeping function be done outside the

presence of the jury. See State v. Orlando, 163 A. 256, 258 (Conn.

1932); State v. Manlove, 441 P.2d 229, 233 (N.M. Ct. App. 1968); Ex

parte Brown, 74 So. 3d 1039, 1044-45 (Ala. 2011). Those

jurisdictions indicate the decision is up to the discretion of the trial

judge. a4.

A trial court’s gatekeeping function is to determine whether

the jury should be exposed to certain evidence or witnesses. It

makes no sense to expose jurors to the evidence/witness while

deciding if they should be exposed to such evidence/witness.

Regardless of the result of the gatekeeping, if done in the

presence of the jury it results in prejudice to the defendant. For

example, if the judge holds the inquiry into the voluntariness of a

confession in front of the jury and decides it is voluntary – this

infringes upon a defendant’s right to have the jury independently

determine whether it is voluntary. Also, if the judge rules it is not

voluntary there is still prejudice because the jury knows of the

confession.

9

The same applies to competency of a prosecution witness. The

result of the gatekeeping will be known to the jury. If found not

competent the witness will not testify but the jury will know there

was an additional witness for the prosecution it would not hear

from. If, as in this case, after the gatekeeping function the judge

passes the witness to the prosecutor to begins its case – the jury

has been made aware of the judge’s approval of the competency to

understand and tell the truth. While the defense may still question

the witness on this, its effort will be severely hampered by the jury

knowing the trial court’s position.

Gatekeeping functions in front of the jury have no legitimate

purpose, they only result in prejudice to a defendant’s right to a fair

trial.

In this case after the defense objection to this procedure, the

only explanation by the judge was that case law did not prohibit the

procedure. This is hardly an exercise of discretion.

Defense counsel was concerned the inquiry by the judge in

front of the jury would “bolster” the child victim’s testimony. The

state’s response seemed to agree to the judge questioning –“so the

jury could weigh the victim’s credibility and ability to tell the

10

truth.” a2. (emphasis added). There is no problem with the

advocates establishing or challenging the witnesses credibility. But

this should not be done through the judge.

The appellate court relied on the judge’s words being neutral

and thus there was no prejudice. However, the judge did not have

to make direct comments for the jury to infer credibility. As the

prosecutor indicated the judge’s questioning and participation in

front of the jury was done so the jury could weigh credibility.

Words were not needed it. The action of accepting the witness

and passing the witness to the prosecution inferred credibility

which the prosecution wanted. It was the judge’s prominence and

position that would speak to the jury.

As far as impact on the jury, the appellate court compared the

words and acts of the judge to a CPT interviewer. They are different.

The interviewer is seen as a witness and advocate. The judge is not

an advocate and has a much greater impact on the jury. See Flicker

v. State, 374 So.2d 1141, 1142 (Fla. 5th DCA 1979) (“Because of the

trial judge's position in the courtroom, the jury hangs on his every

word and is most attentive to any indication of his view of the

proceedings”); Hamilton v. State, 109 So.2d 422, 424 (Fla. 3d DCA

11

1959)( due to the dominant position occupied by a judge his actions

“overshadow those of the litigants, witnesses and other court

officers”).

Conducting the gatekeeping function in the presence of the

jury served no legitimate purpose and could be misapplied by the

jury (as stated by the prosecutor) to weigh the credibility of the

witness. As such, the gatekeeping in the presence of the jury

deprived Petitioner of his Sixth and Fourteenth Amendment rights.

12

II. 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

13

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

14

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

15

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

16

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).

17

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.

18

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”).

19

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)

20

(“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

21

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

22

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

23

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

24

“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.1 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.

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

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

25

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DANIEL EISINGER

Public Defender

JEFFREY L. ANDERSON *

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

* Member of the United States Supreme Court Bar

26