Petition for Writ of Certiorari — Jose Joya Parada, Oscar Armando Sorto Romero, Milton Portillo Rodriguez, and Juan Carlos Sandoval Rodriguez, Petitioners v. United States

Supreme Court briefAug 8, 2025

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No. 25-__

IN THE

Supreme Court of the United States

_________

JOSE JOYA PARADA, OSCAR ARMANDO SORTO

ROMERO, MILTON PORTILLO RODRIGUEZ, AND JUAN

CARLOS SANDOVAL RODRIGUEZ,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Fourth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

ANDREW DESIMONE

JENNIFER C. LEISTEN

JACLYN L. TARLTON

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

150 Fayetteville Street,

Suite 450

Raleigh, NC 27601

JO-ANN TAMILA SAGAR

Counsel of Record

AMANDA NECOLE ALLEN

TIANYU JOHN DONG

HOGAN LOVELLS US LLP

555 Thirteenth Street, NW

Washington, DC 20004

(202) 637-5600

jo-ann.sagar@hoganlovells.com

Counsel for Petitioners

Additional Counsel listed on inside cover

JEREMY A. THOMPSON

KIMBERLY H. ALBRO

OFFICE OF THE FEDERAL PUBLIC DEFENDER

1901 Assembly Street, Suite 200

Columbia, SC 29201

LAUREN M. MCLARNEY

ROSENBERG MARTIN GREENBERG, LLP

25 South Charles Street

21st Floor

Baltimore, MD 21202

STUART A. BERMAN

LERCH, EARLY & BREWER, CHARTERED

7600 Wisconsin Avenue, Suite 700

Bethesda, MD 20814

QUESTION PRESENTED

In Ramos v. Louisiana, 590 U.S. 83 (2020), this

Court overruled Apodaca v. Oregon, 406 U.S. 404

(1972)—a case that had previously endorsed nonunanimous juries as constitutionally permissible. In

so doing, Ramos clarified that the scope of the Sixth

Amendment jury trial right is defined by “historical

meaning,” not by a “functionalist analysis.” 590 U.S.

at 89–90, 106.

Shortly before Apodaca, this Court had held in Williams v. Florida, 399 U.S. 78, 86, 98–99 (1970), that a

12-member panel “is not a necessary ingredient” of the

Sixth Amendment jury trial right. The Court conceded

that “the size of the jury at common law” was “fixed”

at “12,” and “the Framers, the First Congress, [and]

the States in 1789” “may well” have had “the usual

expectation * * * that the jury would consist of 12.” Id.

at 89–90, 98–99. The Court nevertheless concluded

that 12-member panels were not required because the

“function” of the jury does not depend on any “particular number” of jurors. Id. at 100–101.

The Federal Rules of Criminal Procedure, as

amended following Williams, “permit a jury of 11 persons to return a verdict,” even over a defendant’s objection, “if the court finds good cause to excuse a juror.” Fed. R. Crim. P. 23(b)(3). In this case, a federal

district court applied that rule to accept a guilty verdict from 11 jurors after one of the originally empaneled jurors became ill during deliberations.

The question presented is:

Whether the Court should overrule Williams v. Florida, 399 U.S. 78 (1970).

(i)

PARTIES TO THE PROCEEDING

Jose Joya Parada, Oscar Armando Sorto Romero,

Milton Portillo Rodriguez, and Juan Carlos Sandoval

Rodriguez, petitioners on review, were appellants before the United States Court of Appeals for the Fourth

Circuit, and defendants before the United States District Court for the District of Maryland.

The United States of America, respondent on review, was the appellee before the United States Court

of Appeals for the Fourth Circuit, and the plaintiff before the United States District Court for the District

of Maryland.

iii

RELATED PROCEEDINGS

United States Court of Appeals for the Fourth Circuit:

United States v. Parada et al., Nos. 22-4262, 224281, 22-4290, 22-4324 (4th Cir. Apr. 10, 2025) (reported at 134 F.4th 188).

United States v. Sandoval-Rodriguez, No. 22-4330

(4th Cir. Apr. 14, 2025) (unpublished).

United States District Court for the District of Maryland:

United States v. Parada et al., Nos. 1:16-cr-00259JKB-30; 1:16-cr-00259-JKB-29; 1:16-cr-00259JKB-10; 1:16-cr-00259-JKB-11.

United States v. Sandoval-Rodriguez, No. 1:17-cr00589-JKB-5.

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING ........................... ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES ....................................... vi

OPINIONS BELOW .................................................... 1

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.................................... 2

INTRODUCTION ........................................................ 3

STATEMENT .............................................................. 5

Legal Background ............................................. 5

Factual Background and Procedural

History ............................................................ 12

REASONS FOR GRANTING THE PETITION ....... 14

THE COURT SHOULD OVERRULE

WILLIAMS ........................................................ 14

A. Williams Was Wrong The Day It Was

Decided ............................................................ 15

1. Williams discarded history and

tradition ..................................................... 15

2. Williams departed from precedent ............ 19

3. Williams’s textual analysis was

flawed......................................................... 21

4. Williams relied on bad science .................. 22

B. Williams’s Reasoning Has Been

Further Eroded By Subsequent Legal

And Factual Developments ............................ 25

TABLE OF CONTENTS—Continued

Page

1. This Court fatally undermined

Williams’s reasoning in subsequent

cases ........................................................... 25

2. Empirical evidence shows that

Williams’s analysis is factually

flawed......................................................... 27

C. All Remaining Criteria Counsel In

Favor Of Overruling Williams ....................... 28

II.

THIS CASE IS AN EXCELLENT

VEHICLE FOR RECONSIDERATION

OF WILLIAMS .................................................. 30

III. THE QUESTION PRESENTED IS

IMPORTANT AND RECURRING.................... 33

CONCLUSION .......................................................... 35

APPENDIX

TABLE OF AUTHORITIES

Page(s)

CASES:

Alleyne v. United States,

570 U.S. 99 (2013) ................................................ 29

Apodaca v. Oregon,

406 U.S. 404 (1972) ........................................ 10, 26

Argersinger v. Hamlin,

407 U.S. 25 (1972) ................................................ 18

Baldwin v. New York,

399 U.S. 117 (1970) .................................... 7, 22, 29

Ballew v. Georgia,

435 U.S. 223 (1978) .................................. 24, 25, 32

Blakely v. Washington,

542 U.S. 296 (2004) .............................................. 23

Bosse v. Oklahoma,

580 U.S. 1 (2016) .................................................. 35

Briant v. Russel,

2 N.J.L. 146 (1806) ............................................... 18

Burch v. Louisiana,

441 U.S. 130 (1979) ........................................ 26, 29

Burk v. State,

2 H. & J. 426 (Md. 1809) ...................................... 17

Byrd v. State,

2 Miss. 163 (1834) ................................................ 17

Capital Traction Co. v. Hof,

174 U.S. 1 (1899) .................................................. 19

Carey v. Musladin,

549 U.S. 70 (2006) ................................................ 32

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Crawford v. Washington,

541 U.S. 36 (2004) .......................................... 18, 23

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................................. 22

Dixon v. Richards,

3 Miss. 771 (1838) ................................................ 18

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .............................................. 33

Doebler v. Commonwealth,

3 Serg. & Rawle 237 (Pa. 1817) ........................... 18

Duncan v. Louisiana,

391 U.S. 145 (1968) ................................................ 6

Foote v. Lawrence,

1 Stew. 483 (Ala. 1828) ........................................ 17

Giles v. California,

554 U.S. 353 (2008) .............................................. 23

Grayson v. Cummins,

Dallam 391 (Tex. 1841) ........................................ 17

Guzman v. State,

350 So. 3d 72 (Fla. Dist. Ct. App. 2022) .............. 33

Jackson v. State,

6 Blackf. 461 (Ind. 1843) ...................................... 18

Janus v. American Fed’n of State, Cnty., &

Mun. Emps., Council 31,

585 U.S. 878 (2018) .................................. 15, 25, 30

Khorrami v. Arizona,

143 S. Ct. 22 (2022) .................................... 4, 19, 27

Maxwell v. Dow,

176 U.S. 581 (1900) ................................................ 4

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Patton v. United States,

281 U.S. 276 (1930) .............................................. 19

Phillips v. State,

316 So. 3d 779 (Fla. Dist. Ct. App.

2021) ......................................................... 27, 31, 33

Ramos v. Louisiana,

590 U.S. 83 (2020) ............... 3, 4, 11, 15, 16, 18, 22,

25–27, 29, 30, 32, 35

Rassmussen v. United States

197 U.S. 516 (1905) .............................................. 19

Respublica v. Oswald,

1 Dall. 319 (Pa. 1788) ........................................... 17

Ring v. Arizona,

536 U.S. 584 (2002) .............................................. 29

State v. Burket,

9 S.C.L. 155 (S.C. Const. Ct. App. 1818) ............. 17

State v. Meyers,

68 Mo. 266 (1878) ................................................. 18

Sweeney v. Graham,

No. 22-6513, 2025 WL 800452 (4th Cir.

Mar. 13, 2025) ...................................................... 34

Thompson v. Utah,

170 U.S. 343 (1898) .......................... 5, 7, 15, 19, 20

United States v. Ahmad,

974 F.2d 1163 (9th Cir. 1992) .............................. 10

United States v. Armstead,

116 F.4th 519 (D.C. Cir. 2024) ............................ 34

United States v. Dixon,

509 U.S. 688 (1993) .............................................. 29

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Gabay,

923 F.2d 1536 (11th Cir. 1991) ............................ 10

United States v. Garske,

939 F.3d 321 (1st Cir. 2019) ................................ 34

United States v. Gaudin,

515 U.S. 506 (1995) .............................................. 30

United States v. Islam,

102 F.4th 143 (3d Cir. 2024) ................................ 34

United States v. Johnson,

117 F.4th 28 (2d Cir. 2024) .................................. 33

United States v. Ramos,

801 F. App’x 216 (5th Cir. 2020) ......................... 34

United States v. Smith,

789 F.2d 196 (3d Cir. 1986) ................................. 10

United States v. Stratton,

779 F.2d 820 (2d Cir. 1985) ................................... 9

Williams v. Florida,

399 U.S. 78 (1970) ........ 3, 5, 7, 9, 15, 18–23, 26, 32

Wofford v. Woods,

969 F.3d 685 (6th Cir. 2020) .......................... 33, 34

RULES:

Fed. R. Crim. P. 23

(b)(1) ....................................................................... 8

(b)(2) ....................................................................... 8

(b)(3) ....................................................................... 8

Fed. R. Crim. P. 24(c)(3) ............................................ 13

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES:

Advisory Committee’s Notes on 1983

Amendments to Fed. R. Crim. P. 23, 18

U.S.C. App. ............................................................. 8

1 Joel Prentiss Bishop, Commentaries on

the Law of Criminal Procedure (Boston,

Little, Brown & Co. 1872) .................................... 17

4 William Blackstone, Commentaries............. 3, 16, 33

1 Edward Coke, The Institutes of the Lawes

of England (London 3d ed. 1633) ........................ 16

Daniel E. Cummins, Does Jury Size Really

Matter? Maybe. Maybe Not., 60 Judges J.

26 (2021) ............................................................... 28

T. Ward Frampton, The Uneven Bulwark:

How (And Why) Criminal Jury Trial

Rates Vary By State, 100 Calif. L. Rev.

183 (2012) ............................................................. 24

2 Matthew Hale, Historia Placitorum

Coronae: The History of the Pleas of the

Crown (London, 1736) .......................................... 16

Patrick E. Higginbotham, Lee H. Rosenthal

& Steven S. Gensler, Better By the

Dozen: Bringing Back the Twelve-Person

Civil Jury, 104 Judicature 47 (2020) .................. 24

Giles Jacob, A New Law Dictionary (J.

Morgan ed., London, W. Strahan & W.

Woodfall 10th ed. 1782) ....................................... 21

TABLE OF AUTHORITIES—Continued

Page(s)

Isaac Kennen, et al., The Impact of Panel

Size on the Reliability of Criminal

Verdicts in a Military Justice Context,

231 Mil. L. Rev. 301 (2024) .................................. 28

Michael J. Saks & Mollie Weighner Marti,

A Meta-Analysis of the Effects of Jury

Size, 21 Law & Hum. Behav. 451 (1997) ............ 28

2 Joseph Story, Commentaries on the

Constitution of the United States

(Boston, Little, Brown & Co. 1891) ..................... 16

Wanling Su & Rahul Goravara, What Is A

Jury?, 103 N.C. L. Rev. 969 (2025)................ 21, 28

James Bradley Thayer, A Preliminary

Treatise on Evidence at the Common

Law (Boston, Little, Brown & Co. 1898) ............. 16

Joel Tiffany, A Treatise on Government and

Constitutional Law (Albany, W.C. Little

1867) ..................................................................... 17

Hans Zeisel, And Then There Were None:

The Diminution of the Federal Jury,

38 U. Chi. L. Rev. 710 (1971)......................... 24, 27

IN THE

Supreme Court of the United States

_________

No. 25-__

_________

JOSE JOYA PARADA, OSCAR ARMANDO SORTO

ROMERO, MILTON PORTILLO RODRIGUEZ, AND JUAN

CARLOS SANDOVAL RODRIGUEZ,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

_________

On Petition for A Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

Jose Joya Parada, Oscar Armando Sorto Romero,

Milton Portillo Rodriguez, and Juan Carlos Sandoval

Rodriguez respectfully petition for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Fourth Circuit in this case.

OPINIONS BELOW

The Fourth Circuit’s opinion is reported at 134 F.4th

188. See Pet. App. 1a-35a. The District Court’s oral

ruling on the size of the jury is not reported and is not

publicly available, but a transcript of the ruling is included in the appendix. See Pet. App. 36a-60a.

(1)

JURISDICTION

The Fourth Circuit entered judgment on April 9,

2025. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Sixth Amendment to the U.S. Constitution

provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which district shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense.

2. Federal Rule of Criminal Procedure 23(b) provides:

(1) In General. A jury consists of 12 persons unless this rule provides otherwise.

(2) Stipulation for a Smaller Jury. At any time

before the verdict, the parties may, with the

court’s approval, stipulate in writing that:

(A) the jury may consist of fewer than 12 persons; or

(B) a jury of fewer than 12 persons may return

a verdict if the court finds it necessary to excuse

a juror for good cause after the trial begins.

(3) Court Order for a Jury of 11. After the jury

has retired to deliberate, the court may permit a

jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds

good cause to excuse a juror.

INTRODUCTION

At the time of the Sixth Amendment’s adoption and

for most of history, “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.”’ Ramos v.

Louisiana, 590 U.S. 83, 90 (2020) (quoting 4 William

Blackstone, Commentaries *343). “A verdict, taken

from eleven, was no verdict at all.” Id. (quotation

marks omitted).

Petitioners Jose Joya Parada, Oscar Armando Sorto

Romero, Milton Portillo Rodriguez, and Juan Carlos

Sandoval Rodriguez were convicted of serious crimes

by an 11-member jury. The Fourth Circuit affirmed

these convictions as a valid application of Federal

Rule of Criminal Procedure 23(b)(3), which “permit[s]

a jury of 11 persons to return a verdict” if the district

court “finds good cause to excuse a juror.” The “good

cause” cited by the court here was that one of the 12

originally-empaneled jurors fell ill. Petitioners urged

the court to either wait for her recovery, or to replace

her with an alternate. Instead, the court pushed forward to verdict with the remaining 11 jurors.

Rule 23(b)(3)’s authorization of convictions by 11member juries was made possible by this Court’s decision in Williams v. Florida, 399 U.S. 78 (1970).

There, this Court held that a 12-member panel “is not

a necessary ingredient” of the right to trial by jury. Id.

at 86. The Court conceded that the Framers “may

well” have had “the usual expectation that the jury

would consist of 12” members. 399 U.S. at 98–99. But

the Court claimed that such “purely historical considerations” are not dispositive. Id. at 99. The Court instead took a “function[al]” approach, reasoning that

“the essential feature” of a jury is the reliance on the

“commonsense judgment of a group of laymen” with

“shared responsibility” for the verdict. Id. at 100–101.

Because that function could be served by smaller juries, the Court concluded that the Sixth Amendment

does not require a 12-member panel. Id.

Williams was wrong in its reasoning and wrong in

its assessment of the implications. Williams’s rejection of “historical considerations” was already foreclosed by precedent when Williams was decided, and

has been repudiated since. This Court acknowledged

long ago that “a jury composed, as at common law, of

twelve jurors was intended by the Sixth Amendment.”

Maxwell v. Dow, 176 U.S. 581, 586 (1900). And this

Court has recently reaffirmed that the Sixth Amendment’s scope is determined by its “original public

meaning.” Ramos, 590 U.S. at 92. Williams’s holding

to the contrary has had negative consequences.

Among other problems, permitting smaller juries increases the odds of an erroneous conviction and decreases the representative nature of the jury.

In sum, “Williams was wrong the day it was decided,

it remains wrong today, and it impairs both the integrity of the American criminal justice system and the

liberties of those who come before our Nation’s

courts.” Khorrami v. Arizona, 143 S. Ct. 22, 23 (2022)

(Gorsuch, J., dissenting from the denial of certiorari).

Federal Rule of Criminal Procedure 23(b)(3) relies on

and reproduces Williams’s error. The Court should

grant certiorari, overrule Williams, invalidate Rule

23(b)(3), and reverse the judgment below.

STATEMENT

A. Legal Background

1. Williams v. Florida, 399 U.S. 78 (1970). In Williams, this Court held that the Sixth Amendment does

not require a jury in a criminal trial to consist of 12

members. 399 U.S. at 102. The petitioner there had

been convicted in state court of robbery by a 6 member

jury. Id. at 86. He argued that he had been denied his

right to a “trial by jury” under the Sixth Amendment

because the Florida court had not empaneled 12 jurors. Id. This Court rejected that argument. Id. at 102.

The Court began by acknowledging the historical

tradition of 12-member criminal juries at common

law. Id. at 87. From at least the 14th century, English

criminal juries typically had 12 members, and by the

time of the American founding, this feature was

widely regarded as essential. Id. at 87–90. However,

in the Court’s view, “while sometime in the 14th century the size of the jury at common law came to be

fixed generally at 12, that particular feature of the

jury system appears to have been a historical accident, unrelated to the great purposes which gave rise

to the jury in the first place.” Id. at 89–90.

The Court next surveyed its precedent. The Court

acknowledged that “earlier decisions” stated that “the

jury referred to in the [Sixth] Amendment was a jury

‘constituted, as it was at common law, of twelve persons, neither more nor less.’” Id. at 90 (quoting

Thompson v. Utah, 170 U.S. 343, 349 (1898)). But the

Court dismissed these statements as “dictum,” because those decisions were “usually * * * relying—

where there was any discussion of the issue at all—

solely on the fact that the common-law jury consisted

of 12.” Id. at 91–92 (footnote and citations omitted).

The Williams Court then turned to the Sixth

Amendment’s text and drafting history. The Court

noted that James Madison’s original draft of the Sixth

Amendment would have guaranteed a trial “with the

accustomed requisites” of the common law jury, which

the Court conceded would have connoted the 12-person requirement. Id. at 95. However, that language

was later cut from the draft. Id. at 95–96.

Having found tradition, precedent, and textual indicators ambiguous, the Court concluded that “[t]he relevant inquiry * * * must be the function that the particular feature performs and its relation to the purposes of the jury trial.” Id. at 99–100. The Court observed that “the essential feature of a jury obviously

lies in the interposition between the accused and his

accuser of the commonsense judgment of a group of

laymen, and in the community participation and

shared responsibility that results from that group’s

determination of guilt or innocence.” Id. at 100.

And because “[t]he performance of this role is not a

function of the particular number of the body that

makes up the jury,” id., the Court concluded that “the

fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect

the purposes of the jury system and wholly without

significance ‘except to mystics,’” id. at 102 (quoting

Duncan v. Louisiana, 391 U.S. 145, 182 (1968) (Harlan, J., dissenting)). And though the Court admitted

that empirical evidence was limited, the Court said

that “[w]hat few experiments have occurred—usually

in the civil area—indicate that there is no discernible

difference between the results reached by the two different-sized juries.” Id. at 102.

There were several separate opinions, two of which

are relevant here.

Justice Harlan wrote separately to object to the

manner in which the majority had “stripp[ed] off the

livery of history from the jury trial.” Baldwin v. New

York, 399 U.S. 117, 122 (1970) (Harlan, J., concurring

in part).1 As Justice Harlan explained, “[n]either” the

Court’s attempts to “liberate[] itself from the ‘intent of

the Framers’” nor “the policy protected by the jury

guarantee,” was “an acceptable reason for disregarding history and numerous pronouncements of this

Court that * * * the Sixth Amendment’s jury was one

composed of 12 individuals.” Id. at 122–123. Although

recognizing that “history should not imprison those

broad guarantees of the Constitution whose proper

scope is to be determined in a given instance by a

blend of historical understanding and the adaptation

of purpose to contemporary circumstances,” Justice

Harlan argued that this method was inappropriate

here because “[t]he right to a trial by jury * * * has no

enduring meaning apart from historical form.” Id. at

124–125.

Justice Marshall dissented for similar reasons, lamenting that the majority’s decision to “overrule[]” an

“unbroken line of precedent going back over 70 years.”

Williams, 399 U.S. at 117 (Marshall, J., dissenting).

He would have “adhere[d] to the decision of the Court

in Thompson v. Utah, 170 U.S. 343, 349 (1898), that

the jury guaranteed by the Sixth Amendment consists

‘of twelve persons, neither more nor less,’” opining

Baldwin and Williams were issued the same day and, although

some separate opinions were attached to one decision or the

other, the Justices addressed the two cases jointly.

that “the Court has not made out a convincing case

that the Sixth Amendment should be read differently

than it was in Thompson even if the matter were now

before us de novo—much less that * * * precedent * * *

should be overruled.” Id.

2. Federal Rule of Criminal Procedure 23(b)(3).

Rule 23(b) outlines the procedural rules associated

with the size of the jury in federal criminal trials. It

provides that, “[i]n [g]eneral,” a federal criminal jury

“consists of 12 persons.” Fed. R. Crim. P. 23(b)(1).

There are two exceptions. First, “[a]t any time before

the verdict, the parties may, with the court’s approval,

stipulate” that (A) “the jury may consist of fewer than

12 persons” or (B) “a jury of fewer than 12 persons

may return a verdict if the court finds it necessary to

excuse a juror for good cause after the trial begins.”

Id. at 23(b)(2). Second, “[a]fter the jury has retired to

deliberate, the court may permit a jury of 11 persons

to return a verdict, even without a stipulation by the

parties, if the court finds good cause to excuse a juror.”

Id. at 23(b)(3) (emphasis added).

Rule 23(b)(3)’s provision permitting a district court

to accept a verdict from a jury of 11 persons, even over

the defendant’s objection, was added to the Rules following Williams. The Advisory Committee Notes explain that Rule 23(b)(3) was added to address a situation “in which, after the jury has retired to consider

its verdict and any alternate jurors have been discharged, one of the jurors is seriously incapacitated or

otherwise found to be unable to continue service upon

the jury.” See Advisory Committee’s Notes on 1983

Amendments to Fed. R. Crim. P. 23, 18 U.S.C. App.,

p. 1568. The Advisory Committee believed that, “when

a juror is lost during deliberations,” “it is essential

that there be available a course of action other than

mistrial.” Id. And, in considering the available solutions, the Advisory Committee noted that “[p]roceeding with the remaining 11 jurors, though heretofore

impermissible under rule 23(b) absent stipulation by

the parties and approval of the court, is constitutionally permissible.” Id. (citation omitted).

The Advisory Committee cited and relied on Williams to justify Rule 23(b)(3)’s constitutionality. Id. As

the Committee explained, “Williams held that a sixperson jury was constitutional because such a jury

had the ‘essential feature of a jury,’ i.e., ‘the interposition between the accused and his accuser of the common-sense judgment of a group of laymen.’” Id. (quoting Williams, 399 U.S. at 100). In light of the Williams

Court’s conclusion that “‘the fact that the jury at common law was composed of precisely 12 is an historical

accident, unnecessary to effect the purposes of the

jury system and wholly without significance except to

mystics,’” the Committee opined that “quite clearly

the occasional use of a jury of slightly less than 12, as

contemplated by the amendment to rule 23(b), is constitutional.” Id. (quoting Williams, 399 U.S. at 102).

In the wake of the amendment, federal defendants

challenged the constitutionality of Rule 23(b)(3). But

the federal courts of appeals uniformly rebuffed these

attempts, explaining that “[a] twelve-member jury

was once thought to be a constitutional requirement

in federal criminal trials, but the Supreme Court has

more recently made clear that the Constitution does

not require twelve jurors for conviction.” United States

v. Stratton, 779 F.2d 820, 831 (2d Cir. 1985), cert. denied, 476 U.S. 1162 (1986). As these courts explained,

Williams “explicitly observed that the considerations

bearing on the desirability of a twelve-member jury in

federal criminal trials were left ‘to Congress.’” Id. And

“[s]ince Congress may legislate as to jury size, the Supreme Court may prescribe by rule, pursuant to the

Enabling Act, that under certain circumstances a trial

judge may excuse a juror and accept a verdict of eleven

jurors.” Id.; see also, e.g., United States v. Ahmad, 974

F.2d 1163, 1164 (9th Cir. 1992); United States v.

Gabay, 923 F.2d 1536, 1543 (11th Cir. 1991); United

States v. Smith, 789 F.2d 196, 204–205 (3d Cir. 1986),

cert. denied, 479 U.S. 1017 (1986).

3. Ramos v. Louisiana, 590 U.S. 83 (2020). Nearly

40 years later, in Ramos, this Court overruled Apodaca v. Oregon, 406 U.S. 404 (1972)—a case holding

that the Sixth Amendment jury right does not include

a unanimity requirement.

Apodaca was decided just two years after Williams

and relied on Williams throughout. For instance, the

Apodaca plurality reasoned that, as “we found in Williams,” the Framers’ deletion of “references to unanimity and to the other ‘accustomed requisites’ of the

jury” was likely “intended to have some substantive

effect.” Id. at 409–410 (plurality op.). The plurality

concluded, “[a]s in Williams,” that “in determining

what is meant by a jury we must turn to other than

purely historical considerations.” Id. at 410. And the

plurality cited Williams for the proposition that “[o]ur

inquiry must focus upon the function served by the

jury in contemporary society.” Id. at 410.

Ramos rejected this line of reasoning. It expressly

denounced Apodaca for “subject[ing] the Constitution’s jury trial right to an incomplete functionalist

analysis of its own creation” rather than “grappling

with the historical meaning of the Sixth Amendment’s

jury trial right.” 590 U.S. at 106. In Ramos’s view, the

Apodaca plurality had “reframed” the “question before

them []as whether unanimity serves an important

‘function’ in ‘contemporary society”’ and quickly concluded that “unanimity’s costs outweigh its benefits in

the modern era.” Id. at 94. Not only was this “breezy

cost-benefit analysis” “skimpy” in its reasoning, the

Court explained, but it also “overlook[ed] 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.” Id. at 99–100. In other words, Ramos cautioned, it is “not our role to reassess whether” a right

“enshrine[d] * * * in the Constitution” is “‘important

enough’ to retain.” Id. at 100.

In place of Apodaca’s functionalist approach, the Ramos Court, conducting the analysis anew, started

with the premise that a “trial by an impartial jury”

“meant something” because “[t]he text and structure

of the Constitution clearly suggest that the term ‘trial

by an impartial jury’ carried with it some meaning

about the content and requirements of a jury trial.”

Id. at 89. The Court then reviewed the history and tradition of the jury trial right, considering its original

meaning at common law and its place in the AngloAmerican legal tradition. Id. at 90–93. Citing cases

from the late 19th century and early 20th century to

1948, the Ramos Court also observed that “[a]s early

as 1898, the Court [had] said that a defendant enjoys

a ‘constitutional right to demand that his liberty

should not be taken from him except by the joint action of the court and the unanimous verdict of a jury

of twelve persons.’” Id. at 92 (emphasis added).

B. Factual Background and Procedural History

1. In 2021, Petitioners were tried in federal district

court on various racketeering offenses related to their

alleged involvement with a gang. See Pet. App. 5a. At

the start of trial, the District Court empaneled 12 jurors and 3 alternate jurors. Id. at 6a, 14a. These jurors

then spent the next three months hearing evidence

and arguments in the case. Id. at 14a.

Immediately prior to deliberations, the District

Court conditionally excused the alternate jurors. Id.

The court advised the alternates that if a juror became

ill during the deliberations, the court would contact

an alternate and summon that person back to the

courthouse for deliberations. Id.

The 12-member jury deliberated for two days and

then broke for the weekend. Id.

2. Over the weekend, one of the jurors contacted the

Clerk of Court to report that she had tested positive

for COVID-19. Id. Based on the court’s standing order

pertaining to COVID-19, the positive test meant that

the ill juror would be unable to return to the courthouse for at least one week. Id. at 14a & n.3. The sick

juror nevertheless inquired whether “Zoom would be

an option.” Id. The District Court advised the clerk to

defer answering the sick juror’s question about videoconferencing, but also directed that all three previously excused alternate jurors report to the courthouse on Monday. Id. at 15a.

3. When the parties returned to the courthouse on

Monday morning, the District Court sought input

from the parties regarding the appropriate path forward. Id.

The Government advocated proceeding under Rule

23(b)(3) with an 11-member jury. Id.

Petitioners disagreed, arguing that proceeding with

an 11-member jury would violate their rights under

the Sixth Amendment. Id. at 15a-16a. Petitioners also

expressed “concern that the 11 other members of the

jury would be eager to hurry up and be done in light

of the fact that they may be exposed to someone [ill]”

and therefore would “have very little incentive to slow

down and go through the process if they’re allowed to

proceed with just 11.” See United States v. Parada,

No. 22-04262 (4th Cir.), Doc. 87 at JA1509.

Mistrial was not the only alternative to proceeding

with an 11-member panel. The Petitioners urged the

District Court to either wait for the sick juror to recover or to replace the sick juror with an alternate juror.2 Id. at JA1504–1505. The Petitioners also noted

“that Zoom [as] an option shouldn’t be dismissed out

of hand.” Id.

The District Court adopted the government’s proposal, excusing the twelfth juror and proceeding with

an 11-person jury. See Pet. App. 16a. The District

Court explained it had rejected the options pressed by

the Petitioners because the court worried about the

potential for delay: waiting for the sick juror’s recovery would “require the suspension of this deliberation

for at least seven days,” and replacing the sick juror

with an alternate would waste the two days that the

Federal Rule of Criminal Procedure 24 permits a district court

to “replace[] a juror after deliberations have begun,” with an alternate, but if such a replacement occurs, “the court must instruct the jury to begin its deliberations anew.” Fed. R. Crim. P.

24(c)(3).

current jury had already spent on deliberations. Id. at

16a.

4. The remaining jurors resumed deliberations, and

later that day, returned guilty verdicts. Id. at 17a. The

District Court later sentenced Portillo Rodriguez,

Sandoval Rodriguez, and Sorto Romero to life imprisonment, and Parada to fifty years’ imprisonment. Id.

5. Petitioners appealed. Among other arguments,

the Petitioners pressed the argument that the District

Court’s decision to proceed with 11 jurors was erroneous and violated their Sixth Amendment rights. Id. at

17a–18a; see also United States v. Parada, No. 2204262 (4th Cir.), Doc. 84 at 50–52; Id. at Doc. 140 at

19–22.

The Fourth Circuit affirmed. Pet. App. 33a. With respect to the District Court’s decision to proceed with

an 11-member jury, the Fourth Circuit first observed

that “Rule 23(b)—and our case law—explicitly permit

the course of action taken by the district court,” and

that “[w]e have applied Rule 23 on various occasions

to affirm the excusal of a single juror during deliberations.” Id. at 32a (collecting cases). The remaining

question, then, was “whether the district court sufficiently considered and explained its decision.” Id.

Finding that the District Court did so, the court of appeals affirmed. Id. at 33a.

This petition follows.

REASONS FOR GRANTING THE PETITION

THE COURT SHOULD OVERRULE

WILLIAMS.

Williams is not just wrong, it is egregiously wrong.

It was demonstrably erroneous the day it was decided,

and its foundations have been further eroded over the

past 50 years. Indeed, all of the considerations that

come into play when determining whether to revisit

precedent—the quality of the reasoning, consistency

with prior and subsequent decisions, and workability

and reliance interests, see, e.g., Ramos, 590 U.S. at

106—counsel strongly in favor of overruling Williams.

That is especially so given that stare decisis “is at its

weakest” when it comes to constitutional questions

like this one. Janus v. American Fed’n of State, Cnty.,

& Mun. Emps., Council 31, 585 U.S. 878, 917 (2018).

A. Williams Was Wrong The Day It Was Decided.

The Williams Court’s analysis proceeded in four

steps: first, the Court considered and rejected evidence regarding the history and tradition of 12-person

juries; second, the Court reviewed its precedent regarding 12-person juries and dismissed its prior statements as dicta; third, the Court discussed the Sixth

Amendment’s drafting history and concluded that it

was not dispositive as to the Framers’ intent; and

fourth, the Court turned to a functional analysis, in

which it concluded that smaller juries work just as

well as 12-person juries. See supra at 5–8. The Williams Court erred at each step of this analysis.

1. Williams discarded history and tradition.

Start with history and tradition. As the Williams

Court conceded, “the size of the jury at common law”

was “fixed generally at 12.” 399 U.S. at 89.

Indeed, the historical tradition of the 12-person

criminal jury lies at the foundation of the English legal system. “When Magna Charta declared that no

freeman should be deprived of life, etc., ‘but by the

judgment of his peers or by the law of the land,’ it referred to a trial by twelve jurors.” Thompson, 170 U.S.

at 349. Blackstone similarly explained in his Commentaries on English Law that “no person could be

found guilty of a serious crime unless ‘the truth of

every accusation” was “confirmed by the unanimous

suffrage of twelve of his equals and neighbors.”’ Ramos, 590 U.S. at 90 (quoting 4 William Blackstone,

Commentaries *343). A ‘”verdict, taken from eleven,

was no verdict’ at all.” Id. (quoting James Bradley

Thayer, A Preliminary Treatise on Evidence at the

Common Law 88–89 n.4 (Boston, Little, Brown & Co.

1898)); see also, e.g., 1 Edward Coke, The Institutes of

the Lawes of England 155 (London 3d ed. 1633) (noting that the law “delighteth her selfe in the number of

12[;] for there must ... be 12 Jurors for the tryall of all

matters of fact”).

And in a passage that bears a startling resemblance

to the fact pattern in this case, Hale similarly insisted

that if the jurors numbered less than twelve, they had

no power to act. 2 Matthew Hale, Historia Placitorum

Coronae: The History of the Pleas of the Crown 293

(London, 1736). If one juror “goes out of town,” he

noted, “whereby only eleven remain, these eleven cannot give any verdict without the twelfth.” Id. at 295.

To reach a valid verdict, the eleven remaining jurors

had to “be discharged, and a new jury sworn, and new

evidence given, and the verdict taken of the new

jury.” Id. at 295–296. Likewise, “[i]f only eleven be

sworn by mistake, no verdict can be taken of the

eleven.” Id. at 296.

America’s forbearers “brought this great privilege

[of trial by jury] with them, as their birthright and inheritance.” 2 Joseph Story, Commentaries on the Constitution of the United States § 1779, at 559 (Boston,

Little, Brown & Co. 1891). And those forbearers

“understood” that privilege to include “a trial by a jury

of twelve men, impartially selected, who must unanimously concur in the guilt of the accused before a legal

conviction can be had.” Id. at 559 n.2 (emphasis in

original); see also, e.g., 1 Joel Prentiss Bishop, Commentaries on the Law of Criminal Procedure § 897, at

546 (Boston, Little, Brown & Co. 1872) (“in a case in

which the Constitution guarantees a jury trial,” a

statute allowing “a verdict upon any thing short of the

unanimous consent of the twelve jurors” is “void”);

Joel Tiffany, A Treatise on Government and Constitutional Law § 549, at 367 (Albany, W.C. Little 1867) (“a

trial by jury is understood to mean–generally–a trial

by a jury of twelve men”).

Early state court decisions confirm that understanding. As Justice Johnson of the Constitutional Court of

Appeals of South Carolina put it shortly after the

Founding, “[t]o constitute a jury, every lawyer knows

that twelve lawful men are necessary, and that without this number no jury can exist.” State v. Burket, 9

S.C.L. 155, 155 (S.C. Const. Ct. App. 1818). His contemporaries agreed. See, e.g. Respublica v. Oswald, 1

Dall. 319, 323 (Pa. 1788) (“I have always understood

it to be the law, independent of [the state constitution’s bill of rights],” that there should be “twelve jurors.”); Burk v. State, 2 H. & J. 426, 426 (Md. 1809)

(referring to “the legal number of twelve sworn on the

jury”); Foote v. Lawrence, 1 Stew. 483, 483 (Ala. 1828)

(“The term jury is well understood to be twelve men.”);

Byrd v. State, 2 Miss. 163, 177 (1834) (“[T]he number

twelve, known as the number at common law, is no

doubt what is meant by the constitution and all the

statutes, when a jury is mentioned.”); Grayson v.

Cummins, Dallam 391, 393 (Tex. 1841) (“[A] less number than twelve is no jury.”).

On the rare occasions when cases were tried to putative juries of eleven, the resulting judgments were

accordingly reversed. See, e.g., Briant v. Russel, 2

N.J.L. 146, 146 (1806) (“It appeared by the record,

that the cause was tried by eleven jurors; for which

cause the judgment was reversed.”); Doebler v. Commonwealth, 3 Serg. & Rawle 237, 237 (Pa. 1817) (reversing conviction obtained by a jury of eleven); Dixon

v. Richards, 3 Miss. 771, 771 (1838) (“The third error

assigned is fatal. A jury must consist of twelve men:

no other number is known to the law: here there was

but eleven.”); Jackson v. State, 6 Blackf. 461, 461 (Ind.

1843) (“The judgment must be reversed. It appears

from the transcript of the record, that the jury that

tried the cause was composed of eleven men only, and

not twelve as the law requires.”); State v. Meyers, 68

Mo. 266, 266 (1878) (“It appears from the record that

only eleven jurors were present when the verdict of

the jury was received by the court. This is a fatal defect, and the judgment must, therefore, be reversed.”).

The Williams Court gravely erred in dismissing this

evidence as “a historical accident.” 399 U.S. at 89–90.

As this Court has repeatedly held in its Sixth Amendment jurisprudence, “historical background” is the

touchstone of Constitutional interpretation. Crawford

v. Washington, 541 U.S. 36, 43–50 (2004); see also,

e.g., Argersinger v. Hamlin, 407 U.S. 25, 30 (1972) (analyzing historical support in relation to right to assistance of counsel). The scope of the Sixth Amendment

jury trial right is defined by its “original public meaning,” which is determined from, inter alia, “the common law, state practices in the founding era, or opinions and treatises written soon afterward.” Ramos,

590 U.S. at 90, 92.

2. Williams departed from precedent.

“The Court first addressed the question of jury composition in 1898,” repeatedly reaffirmed that a criminal jury must be comprised of 12 persons in the years

that followed, and “[b]y 1930, the Court declared that

it was ‘not open to question’ that the right to trial by

jury” requires twelve members. Khorrami, 143 S. Ct.

at 24 (quoting Patton v. United States, 281 U.S. 276,

288 (1930)); see also, e.g., Thompson, 170 U.S. at 349

(“[T]he jury referred to in the original constitution and

in the sixth amendment is a jury constituted, as it was

at common law, of twelve persons, neither more nor

less.”); Capital Traction Co. v. Hof, 174 U.S. 1, 13

(1899) (“‘Trial by jury,’ in the primary and usual sense

of the term at the common law and in the American

constitutions, is * * * a trial by a jury of 12 men.”).

The Williams Court dismissed these statements as

“dictum,” 399 U.S. at 92, but several of these cases directly presented the question whether a conviction

could stand even when the jury included fewer than

12 members.

In Rassmussen v. United States, for example, the

Court invalidated a statute as unconstitutional precisely because it permitted 6-person juries. 197 U.S.

516, 528 (1905). The case involved a conviction for “the

keeping of a disreputable house” in violation of a federal statute that had provided a criminal code for

Alaska. Id. at 518. The “cause [was] tried before a jury

composed of six jurors,” id. at 519, and the conviction

was “prosecuted directly to this court,” in “reliance” on

an argument that a “violation of the Constitution

[was] alleged to have resulted from the trial of the case

by a jury of six persons,” id. The Court agreed with the

petitioner, concluding that “the provision of the act of

Congress under consideration, depriving persons accused of a misdemeanor in Alaska of a right to trial by

a common-law jury, was repugnant to the Constitution and void.” Id. at 528; see also id. at 529 (Harlan,

J., concurring) (“The constitutional requirement that

‘the trial of all crimes * * * shall be by jury,’ means, as

this court has adjudged, a trial by the historical, common-law jury of twelve persons.”).

The size of the jury was similarly central to Thompson v. Utah, where the defendant had been tried for

grand larceny by an 8-person jury, and argued that

the Ex Post Facto Clause prohibited the application to

his case of a change in Utah law reducing the size of

juries in criminal cases from 12 persons to 8. 170 U.S.

at 349. The case required the Court to decide “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.” Id. And the Court concluded that “[t]his question must be answered in the affirmative.” Id. As the

Court explained, “when Thompson committed the offense of grand larceny in the Territory of Utah—which

was under the complete jurisdiction of the United

States for all purposes of government and legislation—the supreme law of the land required that he

should be tried by a jury composed of not less than

twelve persons.” Id. at 350.

These cases contradict the claim that the Court’s

prior decisions acknowledged the common law tradition of 12-person juries only in “dictum.” Williams,

399 U.S. at 92. As Justice Marshall explained in dissent in Williams, an “unbroken line of precedent going

back over 70 years” recognized that “the jury guaranteed by the Sixth Amendment consists of twelve

persons.” Williams, 399 U.S. at 117 (Marshall, J., dissenting) (quotation marks omitted).

3. Williams’s textual analysis was flawed.

The Court in Williams relied primarily on the drafting history of the Sixth Amendment to support its conclusion that the Framers did not mean to include the

essential features of the jury from the common law in

the Constitution, noting that “provisions spelling out

such common-law features of the jury as ‘unanimity’

or ‘the accustomed requisites”’ that appeared in

James Madison’s original draft were omitted from the

final version. Williams, 399 U.S. at 93–96. That omission suggested to the Williams Court that the Sixth

Amendment was not intended to include a jury’s “accustomed requisites,” such as the common law practice of including 12 members. Id. at 95–97.

But founding-era legal dictionaries contradict the

Williams Court’s interpretation of the text. Those legal dictionaries use the term “twelve men” synonymously with the term “jury.” For example, Giles Jacob’s A New Law Dictionary—which “[a]mong dictionaries available at the Founding * * * enjoyed unparalleled popularity in law libraries,” and has “been catalogued in the private libraries of Founders, and later

Presidents, John Adams and Thomas Jefferson”—defines the term “Twelve Men” to mean “twelve persons

or upwards, by whom and whose oath * * * all trials

pass,” and states that “[t]hey are otherwise called

the jury or inquest.” Wanling Su & Rahul Goravara,

What Is A Jury?, 103 N.C. L. Rev. 969, 997 (2025)

(quoting Giles Jacob, A New Law Dictionary 949 (J.

Morgan ed., London, W. Strahan & W. Woodfall 10th

ed. 1782)). The definition of the term “verdict” similarly suggests that a jury must be comprised of 12

people. “Jacob defines ‘verdict’ as ‘the answer of a jury

given to the court, concerning the matter of fact in any

cause committed to their trial; wherein every one of

the twelve jurors must agree or it cannot be a verdict.’”

Id. (quoting Jacob, supra, at 954).

Even if you could set the dictionary evidence aside,

the Williams Court’s analysis would still be flawed.

The Williams Court relied only on omitted language,

and “[i]t is always perilous to derive the meaning of

an adopted provision from another provision deleted

in the drafting process.” District of Columbia v. Heller,

554 U.S. 570, 590 (2008). And, as this Court pointed

out in Ramos, Williams’s interpretation of the drafting history proves too much because it requires the

Court to discard “everything history might have

taught us about what it means to have a jury trial,”

which would “leave the right to a ‘trial by jury’ devoid

of meaning.” Ramos, 590 U.S. at 98. Instead, these deletions “just as easily support” the inference that the

language was unnecessary in light of the well-understood meaning of the term “jury” at common law. Id.

at 97; see also Baldwin, 399 U.S. at 123 n.9 (Harlan,

J., dissenting) (similarly noting that “a more likely explanation of the Senate’s action is that it was streamlining the Madison version on the assumption that the

most prominent features of the jury would be preserved as a matter of course”).

4. Williams relied on bad science.

Having dismissed tradition, precedent, and textual

indicators, the Williams Court decided to pin its analysis on “the function” of the criminal jury and how

many jurors are needed to serve that function. 399

U.S. at 99–100. It concluded that “the essential feature” of a jury is that it leaves justice to the

“commonsense judgment of a group of laymen,” and

“[w]hat few experiments have occurred—usually in

the civil area—indicate that there is no discernible

difference between the results reached by the” 6-person and 12-person juries. Id. at 100–101 & n.48. This,

too, was error.

For one thing, this functionalist approach is disfavored. As this Court explained in Giles v. California,

554 U.S. 353 (2008), when addressing the scope of the

Confrontation Clause, courts should not “extrapolate

from the words of the Sixth Amendment to the values

behind it, and then to enforce its guarantees only to

the extent they serve (in the courts’ views) those underlying values.” Id. at 375. “The Sixth Amendment

seeks fairness indeed—but seeks it through very specific means * * * that were the trial rights of Englishmen.” Id.; see also, e.g., Crawford, 541 U.S. at 43–50

(looking to “historical background,” including the common law and early state practices, to determine the

meaning of the Confrontation Clause); Blakely v.

Washington, 542 U.S. 296, 313 (2004) (emphasizing

that what matters is not “whether or to what degree

trial by jury impairs the efficiency or fairness of criminal justice,” but rather “the Framers’ paradigm for

criminal justice,” in holding that factors that increase

a defendant’s sentence must be proven to a jury beyond a reasonable doubt).

For another, as the Williams Court conceded, there

wasn’t enough relevant evidence to test the Court’s

hypothesis. The only “experiments” the Williams

Court cited to support six-member juries came from

the “civil” context, 399 U.S. at 101, which is meaningfully different from the criminal context. Criminal trials involve a different standard of proof, assess guilt

rather than mere liability, and may result in deprivations of life and liberty rather than merely money or

property. Moreover, these so-called experiments

“were not empirical studies.” Patrick E. Higginbotham, Lee H. Rosenthal & Steven S. Gensler, Better By the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 Judicature 47, 52 (2020). Instead, they were merely “conclusory statements * * *

supported at best by limited experience and anecdote.” Id. And those conclusory statements were belied by “well established elementary statistical theory” that was known at the time. Hans Zeisel, And

Then There Were None: The Diminution of the Federal

Jury, 38 U. Chi. L. Rev. 710, 715 n.32 (1971).

The dangers of this approach were immediately

borne out. Empirical research published shortly after

Williams undermined the literature relied on by the

Court. That research showed that “smaller juries are

less likely to foster effective group deliberation[s],” are

less likely to be accurate, are less likely to hang, and

are less likely to be “‘truly representative of the community.” Ballew v. Georgia, 435 U.S. 223, 232–237

(1978); see also, e.g., T. Ward Frampton, The Uneven

Bulwark: How (And Why) Criminal Jury Trial Rates

Vary By State, 100 Calif. L. Rev. 183, 218 (2012) (explaining that this body of research ”persuasively articulated many of the reasons why juries with less

than twelve jurors significantly disadvantage criminal defendants.”)

***

In sum, the Williams Court failed to “grappl[e] with

the historical meaning of the Sixth’s Amendment’s

jury trial right [or] this Court’s long-repeated statements that it demands [a jury of 12 members]” and

instead “subjected the Constitution’s jury trial right

to an incomplete functionalist analysis of its own creation.” Ramos, 590 U.S. at 106. Williams is therefore

“not just wrong”—it is “egregiously wrong.” Id. at 121

(Kavanaugh, J., concurring in part).

B. Williams’s Reasoning Has Been Further

Eroded By Subsequent Legal And Factual

Developments.

“Developments since” this Court decided Williams

have further “‘eroded’ the decision’s ‘underpinnings,”’

leaving “it an outlier.” Janus, 585 U.S. at 924.

1. This Court fatally undermined Williams’s

reasoning in subsequent cases.

The Court began to express doubts about the Williams decision shortly after its issuance. Just eight

years after Williams, this Court held in Ballew v.

Georgia, that the Sixth Amendment barred the use of

a five-person jury. 435 U.S. at 229. The Ballew Court

emphasized how empirical studies conducted since

Williams showed that smaller juries can “promote[]

inaccurate and possibly biased decisionmaking, …

cause[] untoward differences in verdicts, and … prevent[] juries from truly representing their communities.” Id. at 239; see also id. at 232–239. And the Court

“admit[ted]” that it “d[id] not pretend to discern a

clear line between six [jurors] and five,” effectively

concluding that the mode of constitutional analysis

and the “experiments” that the Williams Court had

relied on were undermined by the empirical evidence

the Ballew Court reviewed. Id. at 239; see also id. at

245–246 (Powell, J., concurring) (observing that “the

line between five- and six-member juries is difficult to

justify”). In the years that followed, this Court repeatedly noted—often with regret—that Williams had

“departed from the strictly historical requirements of

jury trial.” Burch v. Louisiana, 441 U.S. 130, 137

(1979).

More recently, the Court has moved from expressing

skepticism about the Williams Court’s reasoning to affirmatively disavowing that reasoning. Five years ago,

in Ramos, this Court overruled Apodaca, expressly rejecting its functional approach; its failure to reckon

with the “historical meaning of the Sixth Amendment”; and its reassessment of whether certain “‘accustomed prerequisites’” to the jury trial were “‘important enough’ to retain.” 590 U.S. at 97, 100, 106.

Nearly every error that the Ramos Court pointed to

in Apodaca can also be found in Williams. Indeed, the

Apodaca Court recognized that Williams “consider[ed]

a related issue” and used Williams as the blueprint for

its reasoning. Apodaca, 406 U.S. at 406–414; see also

Ramos, 590 U.S. at 152 (noting that Justice White authored both opinions and that “in Apodaca, he built on

the analysis in Williams”) (Alito, J., dissenting). The

Apodaca plurality cited Williams (1) to “cast[] considerable doubt on the easy assumption * * * that if a

given feature existed in a jury at common law in 1789,

it was necessarily preserved in the Constitution,”

(2) to conclude that “[o]ur inquiry must focus on the

function served by the jury in contemporary society,”

and (3) to hold that the only “essential feature of a

jury” is that it must “consist[] of a group of laymen

representative of a cross section of the community

who have the duty and the opportunity to deliberate[.]” 406 U.S. at 408–410 (quoting Williams, 399

U.S. at 92–93, 99–100).

Ramos repudiated precisely this reasoning as an improperly “muddy yardstick” for safeguarding “the

right to jury trial” that the “American people chose to

enshrine * * * in the Constitution.” 590 U.S. at 99. In

sum, the Ramos Court rejected the “same fundamental mode of analysis as that in Williams,” casting serious doubt on the continuing vitality of that decision.

Ramos, 590 U.S. at 157 (Alito, J., dissenting); see also,

e.g., Phillips v. State, 316 So. 3d 779, 788 (Fla. Dist.

Ct. App. 2021) (Makar, J., concurring) (“It seems a

small step from the demise of the reasoning in Apodaca and Johnson as announced in Ramos to conclude

that the reasoning in Williams, upon which both decisions relied, is also in jeopardy.”).

2. Empirical evidence shows that Williams’s

analysis is factually flawed.

Even “[b]efore the ink dried on the decision, scholars

began criticizing Williams for overreading the handful

of studies it cited to support its tepid assertion that 6member panels would ‘probably’ operate as well as 12member juries.” Khorrami, 143 S. Ct. at 26 (citing

Zeisel, supra, at 712–715). A year after Williams,

scholars asserted that “the six-member jury” has a

“tendency to be less representative and to produce

more varied damage verdicts,” and is also “likely to

yield fewer examples of . . . the hung jury.” Zeisel, supra, at 719. And, fewer hung juries “[are] but the combined result of less representative, more homogeneous

juries and of a reduced ability to resist the pressure

for unanimity.” Id. at 720.

And as the years have passed, “[a]n array of studies” have continued to “undermine[] the entire functionalist rationale on which Williams rested.”

Khorrami, 143 S. Ct. at 26. These studies have shown,

inter alia, that: (1) “[i]ncreasing the size of panels,

conclusively, increases the chance that the accused

will be found not guilty of the Government’s allegations,” Isaac Kennen, et al., The Impact of Panel Size

on the Reliability of Criminal Verdicts in a Military

Justice Context, 231 Mil. L. Rev. 301, 329 (2024);

(2) larger-sized juries also take more time to “reach a

decision . . . [which] may also reflect more substantive

deliberation: the sharing of more facts, more ideas,

and more challenges to the tentative conclusions of

others,” Michael J. Saks & Mollie Weighner Marti, A

Meta-Analysis of the Effects of Jury Size, 21 Law &

Hum. Behav. 451, 458 (1997); and (3) “a larger jury

may be more likely to render more accurate verdicts,”

Daniel E. Cummins, Does Jury Size Really Matter?

Maybe. Maybe Not., 60 Judges J. 26, 27 (2021).

“These empirical findings directly contradict the

[Williams] Court’s assumption that six-person juries

could adequately fulfill the essential function of promoting thorough group deliberation.” Su & Goravara,

supra, at 1019. To the contrary, “the research suggests that the traditional twelve-person jury size

evolved precisely because it creates optimal conditions for the kind of robust collective decision-making

that lies at the heart of the jury’s constitutional role.”

Id.

C. All Remaining Criteria Counsel In Favor

Of Overruling Williams.

As the foregoing illustrates, neither Williams’s result nor Williams’s reasoning is defensible, particularly given intervening developments in the law.

Other factors that this Court traditionally considers

in the stare decisis analysis also counsel in favor of

overruling Williams.

To start, “[t]he force of stare decisis is at its nadir in

cases” like this one, which “concern[] procedural rules

that implicate fundamental constitutional protections.” Alleyne v. United States, 570 U.S. 99, 116 n.5

(2013); see also, e.g., United States v. Dixon, 509 U.S.

688, 712 (1993) (noting a prior decision must be overruled and holding that the Fifth Amendment bars

prosecution of a defendant on criminal charges based

on conduct for which he was held in criminal contempt); Ring v. Arizona, 536 U.S. 584, 589 (2002)

(overruling a prior decision in relevant part and holding the Sixth Amendment requires that capital defendants receive “a jury determination of any fact on

which the legislature conditions an increase in their

maximum punishment”); Ramos, 590 U.S. at 113

(overruling a prior decision and holding that the Sixth

Amendment requires that convictions for serious offenses be issued by unanimous juries).

Williams’s (un)workability also weighs in favor of

overruling it. The Court has been unable to articulate

a reason why any particular number of jurors—below

12—is sufficient to carry out the jury’s function. See,

e.g., Burch, 441 U.S. at 137 (“[W]e do not pretend the

ability to discern a priori a bright line below which the

number of jurors participating in the trial or in the

verdict would not permit the jury to function in the

manner required by our prior cases.”); Baldwin, 399

U.S. at 122 (Harlan, J., concurring in part) (“For if 12

jurors are not essential, why are six? What if New

York, now * * * concludes that three jurors are adequate * * *? The Court’s elaboration of what is required provides no standard and vexes the meaning of

the right to a jury trial in federal courts, as well as

state courts, by uncertainty.”). Drawing the line at 12

honors traditional common-law principles. See Baldwin, 399 U.S. at 122 (Harlan, J., concurring in part)

(noting that if “the number ‘12’ is a historical accident”

it is “one that has recurred without interruption since

the 14th century”). Drawing the line anywhere else is

simply arbitrary. Compare, e.g., Janus, 585 U.S. at

921 (finding prior precedent unworkable where the

“line” it created “has proved to be impossible to draw

with precision”). Worse, it violates constitutional

rights.

Moreover, overruling Williams would not interfere

with any substantial—let alone, valid—reliance interests. See Ramos, 590 U.S. at 107–108. Williams’s rule

is not necessary to avoid retrials: Where, as here, a

juror becomes unable to attend deliberations, a variety of procedural solutions exist. Alternate jurors can

be summoned back to the courtroom, deliberations

can be postponed, or remote proceedings can be held.

See supra p. 13 & n.2. Moreover, even if the threat of

retrials in Williams’s absence were a concern, there

does not appear to be a single “case in which the onetime need to retry defendants has ever been sufficient

to inter a constitutional right forever.” Ramos, 590

U.S. at 111. The government has no legitimate interest in continuing to deprive individuals of their liberty

based on a decision that defies both the Constitution

and the common law. See United States v. Gaudin, 515

U.S. 506, 521 (1995). The overwhelming weight of the

stare decisis factors thus makes clear that Williams’s

days should be numbered.

II.

THIS CASE IS AN EXCELLENT

VEHICLE FOR RECONSIDERATION

OF WILLIAMS.

This case presents the ideal vehicle for the Court to

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

decide whether the Sixth Amendment requires a

twelve-member jury in federal felony prosecutions. In

particular, five features distinguish this petition from

prior petitions urging the Court to overrule Williams

and eliminate vehicle problems that may have precluded review in those cases.

First, Petitioners have preserved their Sixth

Amendment objection. Petitioners asked the District

Court to either wait until the juror recovered before

resuming deliberations or replace the juror with an alternate. See Parada, No. 22-04262 (4th Cir.), Doc. 87

at JA1504–05. Petitioners’ counsel also argued that a

12-person jury is a constitutional requirement, citing

“the historical standard of 12-person juries,” referring

to recent “scholarship,” and suggesting that “the Supreme Court got it wrong in 1970.” Id. at 1521. Petitioners also pressed this argument on appeal. See Pet.

App. 18a. Compare Phillips v. Florida, No. 21-6059

(petition asking the Court to overrule Williams) with

Phillips, 316 So. 3d at 786–787 (underlying decision

noting that the petition had failed to preserve the

“constitutional issue”).

Second, Petitioners’ convictions for serious offenses

place them squarely within the scope of the Sixth

Amendment’s protection. Compare, e.g., Ramin

Khorrami, Petitioner, v. State of Arizona, Respondent,

2022 WL 3371181, at *6 (brief in opposition to petition

asking the Court to overrule Williams, arguing that

petitioners’ “minimal punishment” of “two years’ supervised probation and a mere two-month jail term”

meant that his crime of conviction was not a “serious

offense” within the meaning of the Sixth Amendment’s jury trial right) with Pet. App. 16a (noting that

the District Court here sentenced three of the Petitioners to life imprisonment and the fourth to 50

years’ imprisonment).

Third, this case comes to the Court on direct appeal

from a final judgment of Petitioners’ convictions. The

procedural posture of this case ensures that the Court

will be able to reach the question presented. C.f., e.g.,

Carey v. Musladin, 549 U.S. 70, 81 (2006) (Kennedy,

J., concurring) (explaining that a rule should be “established in this Court before it can be grounds for relief” on collateral review).

Fourth, this case originated in the federal system,

meaning that the Court need not address incorporation doctrines or state procedural barriers. Compare,

e.g., Ramin Khorrami, Petitioner v. State of Arizona,

Respondent, 2022 WL 3371181, at *28–30 (brief in opposition to petition asking the Court to overrule Williams, discussing various theories of incorporation under the Fourteenth Amendment); Natoya Cunningham, Petitioner v. State of Florida, Respondent, No.

23-5171, at 4 (brief in opposition to petition asking the

Court to overrule Williams, arguing that petitioner

“failed to exhaust” her state court remedies).

Fifth, Rule 23(b)(3)’s focus on 11-person juries—just

one juror shy of the 12 persons required at common

law—eliminates the line drawing problems that the

Court has previously grappled with regarding jury

size under the functionalist analysis because this case

clearly presents the question of whether 12-member

juries are required. Compare e.g., Williams, 399 U.S.

at 101–103 (permitting 6-person criminal juries) with,

e.g., Ballew, 435 U.S. at 232–239 (prohibiting 5-person criminal juries, but expressing doubts about the

difference between 5-person and 6-person juries). This

petition would allow the Court to test Blackstone’s position—endorsed in Ramos—that a “verdict, taken

from eleven,” is “no verdict at all.” Ramos, 590 U.S. at

90 (quoting 4 William Blackstone, Commentaries

*343). The issue here is not what size jury would be

constitutionally sufficient, but simply whether 12 is

required.

III.

THE QUESTION PRESENTED

IMPORTANT AND RECURRING.

1. State and federal courts alike have expressed confusion regarding the continuing vitality of Williams

following Ramos. See, e.g., Guzman v. State, 350 So.

3d 72, 78 (Fla. Dist. Ct. App. 2022) (Gross, J., concurring) (“At a minimum, Ramos—which relied on the

original meaning of the Sixth Amendment rather than

an analysis of the jury’s role in contemporary society—suggests that Williams was wrongly decided.”);

Phillips, 316 So. 3d at 788 (“It seems a small step from

the demise of the reasoning in Apodaca and Johnson

as announced in Ramos to conclude that the reasoning

in Williams, upon which both decisions relied, is also

in jeopardy.”); Wofford v. Woods, 969 F.3d 685, 707

n.27 (6th Cir. 2020) (“Williams may no longer be completely sound after Ramos.”).

2. Worse, skepticism regarding Williams may already be “distort[ing]” other strains of jurisprudence.

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215,

287 & n.65 (2022).

For example, courts have debated whether a court’s

error in accepting a verdict from fewer than 11 jurors

should be considered a structural—or merely harmless—error. Compare, e.g., United States v. Johnson,

117 F.4th 28, 43 (2d Cir. 2024) (panel “declin[ing] to

recognize a new type of structural error” because the

“there are not yet four votes on [the Supreme] Court

to take up the question whether Williams should be

overruled,” and the lower court “remain[s] bound to

follow that precedent”) (internal quotation marks and

citation omitted) with, e.g., id. at 59 (Chin, J., dissenting) (urging the court to recognize the error as structural even though “Williams suggests that the absolute right to a jury of twelve is no longer viewed as a

substantial right by the Supreme Court”) (internal

quotation marks and alteration omitted).

Courts have likewise debated whether a criminal defense “attorney render[s] inadequate counsel” in

“choosing to proceed with an eleven-member jury.”

Sweeney v. Graham, No. 22-6513, 2025 WL 800452, at

*14 (4th Cir. Mar. 13, 2025). Citing and relying on

Justice Gorsuch’s dissent from the denial of certiorari

in Khorrami, some judges have suggested that “proceeding with an eleven-person jury in any murder

case * * * is questionable” and “[n]o objectively reasonable lawyer would allow his client to waive his right

to a twelve-person jury.” Id. at *16. Others disagree.

See id. at *32–33 (Quattlebaum, J., dissenting).

These debates would be conclusively resolved by a

decision in this case granting certiorari and overruling Williams. Without further review here, the uncertain status of Williams as a precedent will continue to

confound lower courts.

3. Indeed, federal courts routinely face questions regarding proceeding with fewer than 12 jurors that implicate Williams’s continuing vitality. See, e.g., United

States v. Armstead, 116 F.4th 519, 524–525 (D.C. Cir.

2024); United States v. Islam, 102 F.4th 143, 150 (3d

Cir. 2024); Wofford v. Woods, 969 F.3d 685, 701–705

(6th Cir. 2020); United States v. Ramos, 801 F. App’x

216, 221 (5th Cir. 2020); United States v. Garske, 939

F.3d 321, 336 (1st Cir. 2019).

The time has come for this Court to intervene to resolve this important and recurring issue. “It is this

Court’s prerogative alone to overrule one of its precedents.” Bosse v. Oklahoma, 580 U.S. 1, 2 (2016)

(Thomas, J., concurring) (collecting cases). Any future, lower court confronted with the question presented will take the same approach as the Fourth Circuit did here and refuse to reject the Williams rule.

This Court alone can correct the “strange turn,” Ramos, 590 U.S. at 93, taken by the Williams Court fifty

years ago.

CONCLUSION

The Court should grant certiorari, overrule Williams, invalidate Rule 23(b)(3), and reverse the judgment below.

Respectfully submitted,

ANDREW DESIMONE

JENNIFER C. LEISTEN

JACLYN L. TARLTON

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

150 Fayetteville Street

Suite 450

Raleigh, NC 27601

JO-ANN TAMILA SAGAR

Counsel of Record

AMANDA NECOLE ALLEN

TIANYU JOHN DONG

HOGAN LOVELLS US LLP

555 Thirteenth Street, NW

Washington, DC 20004

(202) 637-5600

jo-ann.sagar@hoganlovells.com

JEREMY A. THOMPSON

KIMBERLY H. ALBRO

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

1901 Assembly Street

Suite 200

Columbia, SC 29201

STUART A. BERMAN

LAUREN M. MCLARNEY

ROSENBERG MARTIN

GREENBERG, LLP

25 South Charles Street

21st Floor

Baltimore, MD 21202

LERCH, EARLY & BREWER,

CHARTERED

7600 Wisconsin Avenue

Suite 700

Bethesda, MD 20814

Counsel for Petitioners

AUGUST 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.