Amicus Curiae Brief — Jose Joya Parada, Oscar Armando Sorto Romero, Milton Portillo Rodriguez, and Juan Carlos Sandoval Rodriguez, Petitioners v. United States

No. 25-166

In The

Supreme Court of the United States

___________

JOSE JOYA PARADA, OSCAR ARMANDO SORTO ROMERO,

MILTON PORTILLO RODRIGUEZ, AND JUAN CARLOS

SANDOVAL RODRIGUEZ,

Petitioners,

v.

UNITED STATES,

___________

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

___________

BRIEF OF AMICUS CURIAE FLORIDA

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF PETITIONERS

___________

JACKIE PERCZEK

BLACK SREBNICK

201 South Biscayne Blvd.

Suite 1300

Miami, FL 33131

BENJAMIN H. EISENBERG

Counsel of Record

Assistant Public Defender

OFFICE OF THE PUBLIC

DEFENDER

FIFTEENTH JUDICIAL

CIRCUIT OF FLORIDA

421 Third Street

West Palm Beach, FL

33401

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF CONTENTS.............................................. i

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

IDENTITY AND INTEREST OF AMICUS

CURIAE............................................................ 1

ARGUMENT ............................................................... 3

1.

The Court Should Overrule

Williams v. Florida Because Its

Reasoning

Is

Contrary

to

Historical Practice ................................. 3

2.

Florida’s

Six-Member

Jury

Provision Originates From the

Racist Jim Crow Era ............................. 6

3.

There Are Significant Negative

Consequences of Juries Comprised

of Less Than Twelve ............................ 12

4.

Stare Decisis Does Not Preclude

This Court From Reconsidering

Williams ............................................... 17

CONCLUSION ......................................................... 18

i

TABLE OF AUTHORITIES

Page

Cases

Albritton v. State,

360 So. 3d 1145 (Fla. 4th DCA 2023)..................... 18

Alleyne v. United States,

570 U.S. 99 (2013) .................................................. 17

Baldwin v. New York,

399 U.S. 117 (1970) .................................................. 5

Ballew v. Georgia,

435 U.S. 223 (1978) .......................................... 13, 14

Batson v. Kentucky,

476 U.S. 79 (1986) .................................................. 11

Blakely v. Washington,

542 U.S. 296 (2004) .................................................. 6

Cancemi v. New York,

18 N.Y. 128 (1858) .................................................... 4

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ................................................ 17

Duncan v. Louisiana,

391 U.S. 145 (1968) .............................................. 5, 6

Emerick v. Harris,

1 Binn. 416 (Pa. 1808) .............................................. 4

Erlinger v. United States,

602 U.S. 821 (2024) .................................................. 3

Florida Fertilizer & Mfg. Co. v. Boswell,

34 So. 241 (Fla. 1903) ............................................... 8

Foote v. Lawrence,

1 Stew. 483, 483 (Ala. 1828) ..................................... 4

Gibson v. State,

16 Fla. 291 (1877) ................................................. 6, 8

Helvering v. Hallock,

309 U.S. 106 (1940) ................................................ 17

ii

Khorrami v. Arizona,

143 S.Ct. 22 (2022) ............................... 4, 6, 7, 11, 15

Legislative Power to Change Law in Relation to

Juries, Op. Justices Supreme Judicial Court,

41 N.H. 550, 551 (1860) ............................................ 4

Maxwell v. Dow,

176 U.S. 581 (1900) .................................................. 5

New York State Rifle & Pistol Ass'n, Inc. v. Bruen,

597 U.S. 1 (2022) .............................................. 16, 17

Norris v. Alabama,

294 U.S. 587 (1935) ................................................ 11

Oregon v. Ice,

555 U.S. 160 (2009) .................................................. 3

Patton v. United States,

281 U.S. 276 (1930) .................................................. 5

PHH Corp. v. Consumer Fin. Prot. Bureau,

839 F.3d 1 (D.C. Cir. 2016) .............................. 14, 15

Ramos v. Louisiana,

590 U.S. 83 (2020) .......................... 3, 4, 6, 11, 12, 18

Solorio v. United States,

483 U.S. 435 (1987) ................................................ 17

Southern Union Co. v. United States,

567 U.S. 343 (2012) .................................................. 6

State v. Khorrami,

No. 1 CA-CR 20-0088, 2021 WL 3197499 (Ariz. Ct.

App. July 29, 2021) ................................................... 7

Strauder v. West Virginia,

100 U.S. 303 (1879) ................................................ 11

Thompson v. Utah,

170 U.S. 343 (1898) .............................................. 4, 5

United States v. Dixon,

509 U.S. 688 (1993) ................................................ 17

Vaughn v. Scade,

30 Mo. 600, 604 (1860) ............................................. 4

iii

Whitehurst v. Davis,

3 N.C. (2 Hayw.) 113 (1800) ..................................... 4

Williams v. Florida,

399 U.S. 78 (1970) .................................... 5, 6, 12, 13

Work v. State,

2 Ohio St. 296 (1853) ................................................ 4

Zylstra v. Corporation of Charleston,

1 S.C.L. (1 Bay) 382 (1794) ...................................... 4

Statutes

§ 913.10, Fla. Stat. ....................................................... 7

Ch. 2090, Laws of Fla. (1877) .................................... 10

Ch. 3010, Laws of Fla. (1877) ...................................... 8

Ch. 3034, Laws of Fla. (1877) .................................... 10

Ind. Code § 35-37-1-1(b)(1) ........................................ 14

Other Authorities

1 Edward Coke, The First Part of the Institutes of the

Lawes of England 155 (photo. reprint 1979) (1628) 3

ABA, Principles for Juries and Jury Trials, Principle

3 cmt........................................................................ 15

David B. Rottman & Shauna M. Strickland, State

Court Organization 2004, United States

Department of Justice, Bureau of Justice Statistics,

Table 42..................................................................... 7

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

Size and the Peremptory Challenge, 6 J. of

Empirical Legal Stud. 425 (Sept. 2009)........... 13, 15

Douglas A. Blackmon, SLAVERY BY ANOTHER NAME:

THE RE-ENSLAVEMENT OF BLACK PEOPLE IN

AMERICA FROM THE CIVIL WAR II (2008)................ 10

Douglas L. Colbert, Challenging the Challenge:

Thirteenth Amendment as a Prohibition against the

iv

Racial Use of Peremptory Challenges, 76 Corn. L.

Rev. 1 (1990) ............................................................. 8

First Two Women are Picked for Possible Jury Duty in

County, Citrus Cnty. Chron., Feb. 16, 1950 ........... 9

Higginbotham et al., Better by the Dozen: Bringing

Back the Twelve-Person Civil Jury, 104 Judicature

47 (Summer 2020) .................................................. 13

Jerrell H. Shofner, Reconstruction and Renewal,

1865-1877, in The History of Florida (Michael

Gannon, ed., first paperback edition 2018) . 8, 10, 11

John Gastil, Laura W. Black, E. Pierre Deess, Jay

Leighter, From Group Member to Democratic

Citizen: How Deliberating with Fellow Jurors

Reshapes Civic Attitudes, 34 Human

Communication Research 137 (2008) .................... 16

John Proffatt, Trial by Jury 112 n.4 (San Francisco,

Sumner Whitney & Co. 1877) .................................. 4

Matthew J. Mancini, ONE DIES, GET ANOTHER:

CONVICT LEASING IN THE AMERICAN SOUTH, 18661928 (1996) ............................................................. 10

Miller, Comment, Six of One Is Not A Dozen of the

Other, 146 U. Pa. L. Rev. 621 (1998) ....................... 4

Negro Juror, Sanford Herald, Oct. 4, 1948 ................. 9

One Negro on the Jury, DeLand Daily News, March 3,

1915 ........................................................................... 9

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) ....................... 10, 11

Richard S. Arnold, Trial by Jury: The Constitutional

Right to a Jury of Twelve in Civil Trials, 22 Hofstra

L. Rev. 1 (1993) ......................................................... 4

Rose et al., Jury Pool Underrepresentation in the

Modern Era, 15 J. Empirical Legal Stud. 2 (2018) 15

v

Saks & Marti, A Meta-Analysis of the Effects of Jury

Size, 21 Law & Hum. Behav. 451 (1997) ............... 14

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

Criminal Trials, 127 Q.J. Of Econ. 1017 (2012).... 15

That Federal Jury, Panama City Pilot, Nov. 27, 1924

................................................................................... 9

Rules

Fla. R. Crim. P. 3.270 ............................................ 7, 14

Constitutional Provisions

Ariz. Const. art. 2, sec. 23.......................................... 14

Art. I, § 22, Fla. Const. ................................................ 7

Conn. Const. amend. art. IV...................................... 14

U.S. Const. Amend. VI................................................. 3

Utah Const. art. I, sec. 10.......................................... 14

vi

IDENTITY AND INTEREST OF

AMICUS CURIAE

The Florida Association of Criminal Defense

Lawyers (“FACDL”) is a non-profit organization with

a membership of over 1,000 attorneys and 29 chapters

throughout Florida. Each of FACDL’s members is a

criminal defense attorney committed to protecting the

rights of individuals in the criminal justice system.

The question presented in this case has important

implications for nearly all felony jury trials conducted

in Florida, and the issue affects numerous criminal

prosecutions. 1

0F

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This Court’s decision in Williams v. Florida, 399

U.S. 78 (1970), is impossible to square with the ruling

in Ramos v. Louisiana, 590 U.S. 83 (2020), that the

term “trial by an impartial jury” in the Sixth

Amendment encompasses what that term “meant at

the time of the Sixth Amendment’s adoption,” id. at 90.

What the term meant was a jury of twelve. As this

1 FACDL certifies that no counsel for any party authored this

brief in whole or in part, no party or its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief and that no person or entity other than

the amicus or its counsel made such a contribution. FACDL

certifies that it notified the parties via email of its intent to file

an amicus brief in support of this Court granting a writ of

certiorari within the 10-day notice described in Sup. Ct. R.

37.2(a).

1

Court stated 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[.]” 590 U.S. at 90. “A ‘verdict, taken from

eleven, was no verdict’ at all.” Id.

The reverberations from Williams’s egregiously

flawed analysis have detrimentally impacted criminal

defendants in Florida for decades. Florida remains one

of two states that regularly use six person juries to

decide the outcome of criminal cases where life

imprisonment is mandatory should the defendant be

found guilty. Justice Gorsuch observed that, “[d]uring

the Jim Crow era, some States restricted the size of

juries and abandoned the demand for a unanimous

verdict as part of a deliberate and systematic effort to

suppress minority voices in public affairs.” Khorrami

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

dissenting) (citations omitted). Florida’s jury of six

arose in that Jim Crow era context of a “deliberate and

systematic effort to suppress minority voices in public

affairs.” Id.

Even setting aside Williams’s now-disfavored

functionalist logic, its ruling suffered from another

significant flaw: it was based on research that was out

of date shortly after the opinion issued. Twelve-person

juries deliberate longer and share more facts, ideas,

and challenges to conclusions during higher-quality

deliberations. Furthermore, reducing jury size

inevitably has a drastic effect on the representation of

minority group members on the jury.

2

ARGUMENT

1. The Court Should Overrule Williams v.

Florida Because Its Reasoning Is Contrary

to Historical Practice

Although the Sixth Amendment guarantees

criminal defendants the right to a trial by “jury” when

charged with a serious offense, U.S. Const. Amend. VI,

“its text does not specify all that the right entails.”

Erlinger v. United States, 602 U.S. 821, 862 (2024)

(Kavanaugh, J., dissenting). Instead, defining the

contours of the term “trial, by an impartial jury”

requires looking to this Nation’s “historical practice,”

Oregon v. Ice, 555 U.S. 160, 164 (2009), and what it

“meant at the time” the Sixth Amendment was

adopted. Ramos v. Louisiana, 590 U.S. 83, 90 (2020).

What a “jury” meant to the Framers is clear—“a

mountain of evidence suggests that, both at the time

of the Amendment’s adoption and for most of our

Nation’s history, the right to a trial by jury for serious

criminal offenses meant a trial before 12 members of

the community.” 2 Khorrami v. Arizona, 143 S.Ct. 22,

1F

2 The number twelve appears to have been chosen for its religious

significance. See 1 Edward Coke, The First Part of the Institutes

of the Lawes of England 155 (photo. reprint 1979) (1628) (“And

that number of twelve is much respected in holy Writ, as [twelve]

apostles, [twelve] stones, [twelve] tribes, etc.”); John Proffatt,

3

23 (2022) (Gorsuch, J., dissenting). After the Sixth

Amendment was enacted, a bevy of state courts

likewise interpreted it to require a twelve-person jury.

See Miller, Comment, Six of One Is Not A Dozen of the

Other, 146 U. Pa. L. Rev. 621, 643 n.133 (1998)

(collecting cases from the late 1700s to the 1860s). 3

From the time of the Magna Carta to the

Constitution’s adoption, the concept of a trial by jury

meant the unanimous verdict of twelve. Ramos, 140

S.Ct. at 1396 (citing 4 W. Blackstone, Commentaries

on the Laws of England 343 (1769)); see also Thompson

v. Utah, 170 U.S. 343, 350 (1898) (“[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.”);

Richard S. Arnold, Trial by Jury: The Constitutional

Right to a Jury of Twelve in Civil Trials, 22 Hofstra L.

Rev. 1, 21 (1993) (“[I]n the days of the Framers . . . they

all concurred that juries meant twelve.”).

2F

Trial by Jury 112 n.4 (San Francisco, Sumner Whitney & Co.

1877) (“[T]his number is no less esteemed by our own law than by

holy writ. If the twelve apostles on their twelve thrones must try

us in our eternal state, good reason hath the law to appoint the

number twelve to try us in our temporal.”).

3 See, e.g., Foote v. Lawrence, 1 Stew. 483, 483 (Ala. 1828); Vaughn

v. Scade, 30 Mo. 600, 604 (1860); Legislative Power to Change Law

in Relation to Juries, Op. Justices Supreme Judicial Court, 41

N.H. 550, 551 (1860); Cancemi v. New York, 18 N.Y. 128, 138

(1858); Whitehurst v. Davis, 3 N.C. (2 Hayw.) 113, 113 (1800);

Work v. State, 2 Ohio St. 296, 304 (1853); Emerick v. Harris, 1

Binn. 416, 426 (Pa. 1808); Zylstra v. Corporation of Charleston, 1

S.C.L. (1 Bay) 382, 395-96 (1794).

4

For more than seventy years, this Court

recognized the basic principle that the Sixth

Amendment requires a twelve-person jury in criminal

cases. See Thompson, 170 U.S. at 349-60; Maxwell v.

Dow, 176 U.S. 581, 586 (1900) (explaining 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”);

Patton v. United States, 281 U.S. 276, 288 (1930)

(reiterating 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”); Duncan v. Louisiana, 391 U.S. 145, 151-152

(1968) (remarking that “by the time our Constitution

was written, jury trial in criminal cases had been in

existence for several centuries and carried impressive

credentials traced by many to Magna Carta,” such as

the necessary inclusion of twelve members).

In 1970, however, this Court in Williams v.

Florida, 399 U.S. 78 (1970), overruled this line of

precedent in a decision that Justice Harlan described

as “stripping off the livery of history from the jury

trial” and ignoring both “the intent of the Framers”

and the Court’s long held understanding that

constitutional “provisions are framed in the language

of the English common law [] and . . . read in the light

of its history.” Baldwin v. New York, 399 U.S. 117, 122123 (1970) (citation omitted) (Harlan, J., concurring in

the result in Williams).

Williams came to that conclusion not because of

historical practice but in spite of it. Williams rejected

a test governed by “purely historical considerations” in

favor of a functionalist approach, all while

5

acknowledging that the historical record is clear that

“the size of the jury at common law [was] fixed

generally at 12.” Williams, 399 U.S. at 89, 99; accord

Khorrami, 143 S.Ct. at 23-24 (Gorsuch, J., dissenting)

(summarizing history).

This Court’s Williams decision is impossible to

square with the more recent ruling in Ramos, that the

term “trial by an impartial jury” in the Sixth

Amendment encompasses what that term “meant at

the Sixth Amendment’s adoption,” 140 S. Ct. at 1395.

Had Williams applied the Ramos test, it could not have

reached the same result. See, e.g., Blakely v.

Washington, 542 U.S. 296, 301 (2004) (holding that the

Sixth Amendment requires “that the ‘truth of every

accusation’ against a defendant ‘should afterwards be

confirmed by the unanimous suffrage of twelve of his

equals and neighbors.’” (emphasis added)); Southern

Union Co. v. United States, 567 U.S. 343, 356 (2012).

2. Florida’s Six-Member Jury Provision

Originates From the Racist Jim Crow Era

The reverberations from Williams’s egregiously

flowed analysis have detrimentally impacted criminal

defendants in Florida for decades because the Sixth

Amendment applies equally to state juries through the

doctrine of incorporation. See Duncan, 391 U.S. at 14850. Until Williams, the Florida Supreme Court

acknowledged—consistent with Ramos—that the

“right to trial by jury” means “a jury, according to the

common law, to be composed of twelve persons.”

Gibson v. State, 16 Fla. 291, 300 (1877).

Florida remains an outlier in that it is one of

only two states that regularly use six person juries to

decide the outcome of criminal cases, including those

where life imprisonment is mandatory should the

6

defendant be found guilty—the other being

Connecticut. 4 See David B. Rottman & Shauna M.

Strickland, State Court Organization 2004, United

States Department of Justice, Bureau of Justice

Statistics, Table 42 at 233-36, available at

http://www.bjs.gov/content/pub/pdf/sco04.pdf

(last

visited October 8, 2025).

Justice Gorsuch has observed that, “[d]uring the

Jim Crow era, some States restricted the size of juries

and abandoned the demand for a unanimous verdict as

part of a deliberate and systematic effort to suppress

minority voices in public affairs.” Khorrami, 143 S.Ct.

at 27 (Gorsuch, J., dissenting) (citations omitted). He

noted, however, that Arizona’s law was likely

motivated by costs not race. Id. But Florida’s jury of

six did arise in that Jim Crow era context of a

“deliberate and systematic effort to suppress minority

voices in public affairs.” Id.

In 1875, the Jury Clause of the 1868 Florida

Constitution was amended to provide that the number

3F

4 Although Indiana and Massachusetts allow some felony cases to

be tried by juries as small as six members, these States require

twelve-person juries for more serious felonies. In Utah, criminal

juries are comprised of eight people for non-capital cases and

twelve people for capital cases. In Arizona, criminal defendants

are guaranteed “a twelve-person jury in cases when the sentence

authorized by law is death or imprisonment for thirty years or

more. . . . Otherwise, a criminal defendant may be tried with an

eight-person jury.” State v. Khorrami, No. 1 CA-CR 20-0088, 2021

WL 3197499, at *8 (Ariz. Ct. App. July 29, 2021) (citations

omitted). Florida juries are smaller (six versus eight), and those

smaller juries are mandated in every case except capital cases.

Art. I, § 22, Fla. Const.; § 913.10, Fla. Stat.; Fla. R. Crim. P. 3.270.

7

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 Florida

Legislature enacted a provision specifying a jury of six

in Chapter 3010, section 6. 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-of-six provision on February 17, 1877.

Gibson, 16 Fla. 294. This was less than a month after

the last federal troops were withdrawn from Florida in

January 1877. See Jerrell H. Shofner, Reconstruction

and Renewal, 1865-1877, in The History of Florida 273

(Michael Gannon, ed., first paperback edition 2018).

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 prosecutors made a concerted

effort to prevent African Americans from being jurors.

When the Florida Legislature reduced the size

of juries from twelve to six in 1877, it also reestablished the “integrity, fair character, sound

judgment and intelligence” test for jury service. Ch.

3010, Laws of Fla. (1877). This discretionary standard

was “used to eliminate almost every black citizen from

the southern trial venire.” Douglas L. Colbert,

Challenging the Challenge: Thirteenth Amendment as

a Prohibition against the Racial Use of Peremptory

Challenges, 76 Corn. L. Rev. 1, 89-90 (1990).

So rare was it for an African American to serve

on a jury that it was worthy of a news article, even well

into the twentieth century:

• “It is strange that the presence of a negro on the

jury should not have attracted sufficient

8

•

•

•

attention to have caused an inquiry into his

eligibility as a jury man.” That Federal Jury,

Panama City Pilot, Nov. 27, 1924, at 1.

“A negro juror was picked today to try Felix

Combs, a negro roustabout, for raping a

Clearwater woman. Selection of Henry Davis of

Tarpon Springs marked one of the few times a

negro has been selected for jury duty.” Negro

Juror, Sanford Herald, Oct. 4, 1948, at 1.

“The names of several Negroes were included in

the 1950 jury list. Last fall, the county’s first

Negro juror served when Calvin Smith was

named on the venire which heard a cattle

rustling case in Circuit Court.” First Two

Women are Picked for Possible Jury Duty in

County, Citrus Cnty. Chron., Feb. 16, 1950, at

1

One Negro on the Jury, DeLand Daily News,

March 3, 1915, at 3.

9

To top it off, the Legislature in that same

session established convict leasing. Ch. 3034, Laws of

Fla. (1877) (state prisoners); Ch. 2090, Laws of Fla.

(1877) (county prisoners). “By 1900, the South’s

judicial system had been wholly reconfigured to make

one of its primary purposes the coercion of African

Americans to comply with the social customs and labor

demands of whites.” Douglas A. Blackmon, SLAVERY

BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK

PEOPLE IN AMERICA FROM THE CIVIL WAR II 7-8 (2008);

Matthew J. Mancini, ONE DIES, GET ANOTHER:

CONVICT LEASING IN THE AMERICAN SOUTH, 1866-1928

(1996) (noting the steady growth of Southern prison

populations after the establishment of convict leasing:

“Florida, with 125 prisoner in 1881, had 1,071 by

1904.”).

On its face, the 1868 Florida 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 Florida constitution was

the product of a remarkable series of events including

a coup in which leaders of the white southern (or

native) faction took possession of the assembly hall in

the middle of the night, excluding Radical Republican

delegates from the proceedings. See Richard L. Hume,

Membership of the Florida Constitutional Convention

of 1868: A Case Study of Republican Factionalism in

the Reconstruction South, 51 Fla. Hist. Q. 1, 5-6 (1972);

Shofner at 266. A reconciliation was effected as the

“outside” whites “united with the majority of the body’s

native whites to frame a constitution designed to

continue white dominance.” Hume at 15.

The purpose of the resulting constitution was

10

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 black citizens 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.

In Ramos, Justice Gorsuch noted that the

Louisiana non-unanimity rule arose from Jim Crow

era efforts to enforce white supremacy. 140 S.Ct. at

1394; see also id. at 1417 (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,

unfortunately, Florida has not been alone in its racist

efforts to curtail minorities from serving on juries as

some States “restricted the size of juries . . . to suppress

minority voices in public affairs,” Khorrami, 143 S.Ct.

at 27 (Gorsuch, J., dissenting).

This Court should intervene, as it has done

before, to prevent further abuse. See, e.g., Strauder v.

West Virginia, 100 U.S. 303 (1879) (intervening after

West Virginia moved to prohibit black citizens from

jury service); Norris v. Alabama, 294 U.S. 587 (1935)

(reversing the conviction of a black defendant where

evidence showed that no black member of the

community had been selected for jury service in living

memory); Batson v. Kentucky, 476 U.S. 79 (1986)

(prohibiting the prosecution from racially-motivated

use of peremptory challenges to ensure conviction of

black defendants).

11

3. There

Are

Significant

Negative

Consequences of Juries Comprised of Less

Than Twelve

Although recognizing that the Framers “may

well” have had “the usual expectation” in drafting the

Sixth Amendment “that the jury would consist of 12”

members, the Williams Court focused on the “function”

that the jury plays in the Constitution, concluding that

the “essential feature” of a jury is that 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.” 399 U.S. at 99-101. According to the

Williams Court, both “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.

Ramos rejected the same kind of “cost-benefit

analysis” the Court undertook in Williams, observing

that it is not the Court’s role 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. Ultimately, Ramos explained,

the question is whether “at the time of the Sixth

Amendment’s adoption, the right to trial by jury

included” the particular feature at issue. Id. at 90.

But even setting aside Williams’s nowdisfavored functionalist logic, its ruling suffered from

another significant flaw: it was based on research that

was out of date shortly after the opinion issued.

Specifically, Williams “f[ou]nd little reason to think”

that the goals of the jury guarantee—including, among

others, “to provide a fair possibility for obtaining a

representative[] cross-section of the community”—“are

12

in any meaningful sense less likely to be achieved

when the jury numbers six, than when it numbers 12.”

Id. at 100. The Court 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.

In the time since Williams, that determination

has proven incorrect. Indeed, the Court acknowledged

as much just eight years later in Ballew v. 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, the

Ballew Court observed that empirical studies

conducted in the handful of intervening years

highlighted several problems with Williams’

assumptions. Moreover, Ballew “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.

Post-Ballew research has further undermined

Williams. Current empirical evidence indicates

“reducing jury size inevitably has a drastic effect on

the representation of minority group members on the

jury.” Diamond et al., Achieving Diversity on the Jury:

Jury Size and the Peremptory Challenge, 6 J. of

Empirical Legal Stud. 425, 427 (Sept. 2009); see also

Higginbotham et al., Better by the Dozen: Bringing

Back the Twelve-Person Civil Jury, 104 Judicature 47,

52 (Summer 2020). Because “the 12-member jury

produces significantly greater heterogeneity than does

the six-member jury,” Diamond et al., Achieving

Diversity on the Jury, supra, at 449, it increases “the

opportunity for meaningful and appropriate

representation” and helps ensure that juries

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“represent adequately a cross-section of the

community.” Ballew, 435 U.S. at 237.

Twelve-person juries deliberate longer and

share more facts, ideas, and challenges to conclusions

during higher-quality deliberations. E.g., Saks &

Marti, A Meta-Analysis of the Effects of Jury Size, 21

Law & Hum. Behav. 451, 458-459 (1997) (considering

17 studies); see generally ABA, Principles for Juries

and Jury Trials, Principle 3 cmt., at 17-21 (2005)

(collecting studies and endorsing 12-member-jury

rule). Even States like Florida that permit juries less

than twelve tacitly acknowledge these benefits by

requiring 12-person juries on capital cases. See Ariz.

Const. art. 2, sec. 23; Conn. Const. amend. art. IV; Fla.

R. Crim. P. 3.270; Ind. Code § 35-37-1-1(b)(1); Utah

Const. art. I, sec. 10.

Then-Judge Kavanaugh recognized this

principle in analogous circumstances when he

explained why the decisions that multimember

commissions reach are better than the decisions that

single-director agencies make. Among other things,

Judge Kavanaugh observed that “multiple voices and

perspectives make it more likely that the costs and

downsides of proposed decisions will be more fully

ventilated;” and “multi-member structure—and its

inherent

requirement

for

compromise

and

consensus—will tend to lead to decisions that are not

as extreme, idiosyncratic, or otherwise off the rails,”

because “[a] multi-member independent agency can

only go as far as the middle vote is willing to go.” PHH

Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 2728 (D.C. Cir. 2016), reh’g en banc granted, order

vacated (Feb. 16, 2017), on reh’g en banc, 881 F.3d 75

(D.C. Cir. 2018). Judge Kavanaugh grounded these

benefits of multimember commissions in a “consistent

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historical practice” that “reflects the deep values of the

Constitution,” including the “the bedrock principle

that dividing power among multiple entities and

persons helps protect individual liberty.” Id. at 28.

On the other hand, empaneling a smaller jury

decreases the probability that members of minority

groups (be they racial, religious, political, or socioeconomic) will serve. See, e.g., Rose et al., Jury Pool

Underrepresentation in the Modern Era, 15 J.

Empirical Legal Stud. 2 (2018); see also 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”).

Furthermore, Williams has had negative realworld consequences, as a “drop in jury size” poses a

threat to the “representativeness” of the jury and the

“reliability” of the verdict. ABA, Principles for Juries

and Jury Trials, Principle 3 cmt., at 19-20; see also

supra p. 8. “[T]hat smaller panels tend to skew jury

composition and impair the right to a fair trial … is a

sad truth borne out by hard experience.” Khorrami,

143 S.Ct. at 27 (Gorsuch, J., dissenting). For example,

looking at civil cases in Illinois, one study has shown

that jury size, rather than the peremptory challenge

process, had a substantial effect on minority jury

representation. Diamond et al., Achieving Diversity on

the Jury, supra at 425.

A twelve-person jury will sweep in a broader

cross-section of the community than a six-member

body. The available evidence establishes that the

twelve-member-jury requirement at least increases

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the odds that jurors will embody the cross-section of

humanity in the venire—an outcome Williams

wrongly dismissed as “unrealistic,” 399 U.S. at 102.

More jurors not only equates to a better

deliberative process and a higher probability of a

diverse jury but also jurors afterwards make better

citizens. Research supports “that jury service can

promote civil engagement.” John Gastil, Laura W.

Black, E. Pierre Deess, Jay Leighter, From Group

Member to Democratic Citizen: How Deliberating with

Fellow Jurors Reshapes Civic Attitudes, 34 Human

Communication Research 137 (2008). And studies

have “bolster[ed] the claim of deliberative democratic

theorists that the experience of consequential face-toface talk can make private individuals into public

citizens by reinforcing their confidence in fellow

citizens and public institutions.” Id.

Finally, this Court has instructed that a law

that is facially constitutional may nevertheless be

unconstitutional as applied because it has been put to

an “abusive end.” For example, in the Second

Amendment case of New York State Rifle & Pistol

Ass'n, Inc. v. Bruen, this Court wrote in a footnote that

nothing in the decision “should be interpreted to

suggest the unconstitutionality of . . . ‘shall-issue’

licensing regimes, under which ‘a general desire for

self-defense is sufficient to obtain a [permit].” 597 U.S.

1, 39 n. 9 (2022). This Court stated that shall-issue

licensing regimes pass constitutional muster given

that these regimes only seek to ensure that those

carrying firearms are responsible law-abiding citizens.

However, this Court also stated that “[b]ecause any

permitting scheme can be put toward abusive ends, we

do not rule out constitutional challenges to shall-issue

regimes where, for example, lengthy wait times in

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processing license applications or exorbitant fees deny

ordinary citizens their right to public carry.” Id.

As applied to Florida’s six-person jury provision,

even if such law is facially constitutional, the law’s

racist Jim Crow era origins, taken in conjunction with

its significant negative consequences, creates

oppressive results such that it is being employed

unconstitutionally to fulfill an “abusive end.”

4. Stare Decisis Does Not Preclude This

Court From Reconsidering Williams

This Court has not hesitated to overturn precedent

when the circumstances dictate doing so. See, e.g.,

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

(2022). “[S]tare decisis is at its nadir” in cases

“concerning [criminal] procedur[e] rules that implicate

fundamental constitutional protection.” Alleyne v.

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

Furthermore, stare decisis has minimal force when the

decision “involves collision with prior doctrine more

embracing in its scope, intrinsically sounder, and

verified by experience.” Helvering v. Hallock, 309 U.S.

106, 119 (1940).

There are numerous examples where this Court

has concluded that it is appropriate to reinstate a prior

doctrine. See e.g., United States v. Dixon, 509 U.S. 688,

704 (1993) (overruling recent decision that “lack[ed]

constitutional roots” and was “wholly inconsistent

with earlier Supreme Court precedent”); Solorio v.

United States, 483 U.S. 435, 439-41 (1987) (overruling

decision that had broken from an earlier line of

decisions “from 1866 to 1960”). Therefore, FACDL

submits that the doctrine of stare decisis should not

stand in the way of this Court’s reconsidering Williams

in light of this Court’s recent approach to the Sixth

17

Amendment.

That overruling Williams would require a slice of

cases to be retried in a half-dozen States is the “usual”

consequence of adopting a “new rule[] of criminal

procedure.” Ramos, 590 U.S. at 108. This Court

vacated “nearly 800 decisions” following Booker v.

United States and “[s]imilar consequences likely

followed” other landmark rulings. Id. Here, nearly 50

million Americans are currently being denied their

right to a twelve-person jury in nearly all

circumstances. “[T]he competing interests” of a

handful of States cannot outweigh “the reliance the

American people place in their constitutionally

protected liberties.” Id. at 111 (plurality op.).

Finally, one Florida appellate court has already

held that by failing to raise a twelve-person jury

argument in the trial court, the defendant failed to

preserve his argument for appeal and was precluded

from relief. Albritton v. State, 360 So. 3d 1145, 1147

(Fla. 4th DCA 2023). While FACDL does not endorse

the Florida court’s decisional outcome, its ruling

demonstrates that the floodgates would not be swung

open because relief may be limited to the share of

defendants who preserved the issue in the trial court

and raised the argument in a pending direct appeal.

CONCLUSION

The petition for a writ of certiorari should be

granted.

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Respectfully submitted,

JACKIE PERCZEK

BLACK SREBNICK

201 South Biscayne Blvd.

Suite 1300

Miami, FL 33131

BENJAMIN H. EISENBERG

Counsel of Record

Assistant Public Defender

OFFICE OF THE PUBLIC

DEFENDER

FIFTEENTH JUDICIAL

CIRCUIT OF FLORIDA

421 Third Street

West Palm Beach, FL

33401

Counsel for Amicus Curiae

October 8, 2025

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