Petition for Writ of Certiorari — Floyd Madison, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

FLOYD MADISON, PETITIONER

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

DANIEL EISINGER

Public Defender

Paul Edward Petillo

Assistant Public Defender

Counsel of Record

Summer Hill

Assistant Public Defender

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, FL 33401

(561) 355–7600

ppetillo@pd15.state.fl.us

appeals@pd15.org

i

QUESTIONS PRESENTED

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

trial court erred in imposing an enhanced sentence under a statute

authorizing the enhancement based on nonjury fact-findings upon

proof by a preponderance of the evidence?

2. Whether Petitioner was derived of his right, under the Sixth

and Fourteenth Amendments, to a trial by a 12-person jury when the

defendant is charged with a serious felony?

ii

RELATED PROCEEDINGS

The proceeding listed below is directly related to the abovecaptioned case in this Court: Madison v. State, 2025 WL 716254 (Fla.

4th DCA March 6, 2025).

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............................................................. ii

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

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

OPINION BELOW ........................................................................... 8

JURISDICTION ............................................................................... 9

CONSTITUTIONAL AND STATUTORY PROVISIONS ........................ 9

STATEMENT OF THE CASE ......................................................... 15

REASONS FOR GRANTING THE PETITION ................................... 18

I. Florida’s Prison Releasee Reoffender and Violent Career

Criminal statutes are unconstitutional. ..................................... 18

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

case should be overruled. .......................................................... 21

CONCLUSION .............................................................................. 37

INDEX TO APPENDICES

A. District Court’s Decision .......................................................... 1a

B. Order Denying Rehearing ......................................................... 2a

C. Excerpts from Initial Brief ........................................................ 3a

iv

TABLE OF AUTHORITIES

Cases

Almendarez-Torres v. United States, 523 U.S. 224 (1998) .. 18, 19, 20

Apodaca v. Oregon, 406 U.S. 404 (1972) ....................................... 25

Ballew v. Georgia, 435 U.S. 223 (1978)................................... 27, 28

Blair v. State, 698 So. 2d 1210 (Fla. 1997) .................................... 16

Burch v. Louisiana, 441 U.S. 130 (1979) ....................................... 24

Duncan v. Louisiana, 391 U.S. 145 (1968) .................................... 23

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

2022) ......................................................................................... 16

Erlinger v. United States, 602 U.S. 821 (2024) ........................ 19, 20

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) ...... 30

Gibson v. State, 16 Fla. 291 (1877) ............................................... 31

Jackson v. State, 926 So. 2d 1262 (Fla. 2006) ................................ 9

Mallet v. State, 280 So. 3d 1091 (Fla. 2019) .................................... 9

Maxwell v. Dow, 176 U.S. 581 (1900) ........................................... 22

Patton v. United States, 281 U.S. 276 (1930) ................................. 23

Powers v. Ohio, 499 U.S. 400, 415 (1991) ..................................... 35

Ramos v. Louisiana, 590 U. S. 83 (2020)........................... 24, 25, 26

Thompson v. Utah, 170 U.S. 343 (1898) .................................. 21, 22

Trushin v. State, 425 So. 2d 1126 (Fla. 1982) ............................... 16

Wallace v. State, 722 So. 2d 913 (Fla. 2d DCA 1998) .................... 17

Westerheide v. State, 831 So. 2d 93 (Fla. 2002) ............................ 16

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

Statutes

§ 775.084, Fla. Stat. ............................................................... 10, 12

v

§ 913.10, Fla. Stat. ....................................................................... 14

Ch. 3010, § 6, Laws of Fla. (1877) ................................................ 31

Other Authorities

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

Peremptory Challenge, 6 J. of Empirical Legal Stud. 425 (Sept.

2009) ......................................................................................... 29

Douglas A. Blackmon, SLAVERY BY ANOTHER NAME: THE REENSLAVEMENT OF BLACK PEOPLE IN AMERICA FROM THE CIVIL WAR TO

WORLD WAR II (2008 ................................................................... 35

Douglas L. Colbert, Challenging the Challenge: Thirteenth

Amendment as a Prohibition against the Racial Use of Peremptory

Challenges, 76 Corn. L. Rev. 1 (1990) ........................................ 33

Higginbotham et al., Better by the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 Judicature 47 (Summer 2020) .......... 29, 30

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

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

edition 2018) ....................................................................... 31, 32

John Gastil & Phillip J. Weiser, Jury Service as an Invitation to

Citizenship: Assessing the Civic Values of Institutionalized

Deliberation, 34 Pol'y Stud. J. 605 (2006) .................................. 36

Matthew J. Mancini, ONE DIES, GET ANOTHER: CONVICT LEASING IN THE

AMERICAN SOUTH, 1866-1928 (1996)............................................ 35

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) ..................... 32

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

127 Q.J. Of Econ. 1017 (2012) .................................................. 28

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

Six-Person Jury, 60 Fla. L. Rev. 441 (2008) ................................ 29

United States Courts, Juror Experiences, available at

https://www.uscourts.gov/services-forms/jury-service/learnabout-jury-service/juror-experiences ......................................... 36

vi

William Blackstone, Commentaries on the Laws of England .......... 22

Constitutional Provisions

Fla. Const. art. I, § 22 .................................................................. 10

U.S. Const. amend VI. .................................................................. 18

U.S. Const. amend XIV. ................................................................ 18

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

U.S. Const. amend. XIV ............................................................ 9, 15

vii

IN THE SUPREME COURT OF THE UNITED STATES

_____________

N O.

FLOYD MADISON, PETITIONER,

V.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

Floyd Madison respectfully petitions for a writ of certiorari to

review the judgment of the Fourth District Court of Appeal of Florida

in this case.

OPINION BELOW

The decision of Florida’s Fourth District Court of Appeal has not

yet been published in Southern Reporter, but it is reported as

Madison v. State, 2025 WL 716254 (Fla. 4th DCA March 6, 2025). It

is reprinted in the appendix. 1a.

8

JURISDICTION

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

convictions and sentences on March 6, 2025. 1a. The court denied

Petitioner’s motion for rehearing and written opinion on July 24,

2025. 2a.

The Florida Supreme Court is “a court of limited jurisdiction,”

Mallet v. State, 280 So. 3d 1091, 1092 (Fla. 2019) (citation omitted),

Specifically, it has no jurisdiction to review district court of appeal

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

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

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

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment provides: “In all criminal prosecutions,

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

impartial jury . . .”

Section 1 of the Fourteenth Amendment of the United States

Constitution provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

9

protection of the laws.

Article I, section 22 of the Florida Constitution provides:

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

all and remain inviolate. The qualifications and the

number of jurors, not fewer than six, shall be fixed by

law.

Section 775.082(9)(a), Florida Statutes, provides in relevant

part:

(9)(a)1. “Prison releasee reoffender” means any defendant who

commits, or attempts to commit:

a. Treason;

b. Murder;

c. Manslaughter;

d. Sexual battery;

e. Carjacking;

f. Home-invasion robbery;

g. Robbery;

h. Arson;

i. Kidnapping;

j. Aggravated assault with a deadly weapon;

k. Aggravated battery;

l. Aggravated stalking;

m. Aircraft piracy;

n. Unlawful throwing, placing, or discharging of a destructive

device or bomb;

o. Any felony that involves the use or threat of physical force or

violence against an individual;

p. Armed burglary;

q. Burglary of a dwelling or burglary of an occupied structure; or

r. Any felony violation of s. 790.07, s. 800.04, s. 827.03,

s. 827.071, or s. 847.0135(5);

within 3 years after being released from a state correctional facility

operated by the Department of Corrections or a private vendor, a

10

county detention facility following incarceration for an offense for

which the sentence pronounced was a prison sentence, or a

correctional institution of another state, the District of Columbia, the

United States, any possession or territory of the United States, or any

foreign jurisdiction, following incarceration for an offense for which

the sentence is punishable by more than 1 year in this state.

2. “Prison releasee reoffender” also means any defendant who

commits or attempts to commit any offense listed in subsubparagraphs (a)1.a.-r. while the defendant was serving a prison

sentence or on escape status from a state correctional facility

operated by the Department of Corrections or a private vendor or

while the defendant was on escape status from a correctional

institution of another state, the District of Columbia, the United

States, any possession or territory of the United States, or any foreign

jurisdiction, following incarceration for an offense for which the

sentence is punishable by more than 1 year in this state.

3. If the state attorney determines that a defendant is a prison

releasee reoffender as defined in subparagraph 1., the state attorney

may seek to have the court sentence the defendant as a prison

releasee reoffender. Upon proof from the state attorney that

establishes by a preponderance of the evidence that a defendant is a

prison releasee reoffender as defined in this section, such defendant

is not eligible for sentencing under the sentencing guidelines and

must be sentenced as follows:

a. For a felony punishable by life, by a term of imprisonment for

life;

b. For a felony of the first degree, by a term of imprisonment of 30

years;

c. For a felony of the second degree, by a term of imprisonment of

15 years; and

d. For a felony of the third degree, by a term of imprisonment of 5

years.

11

Section 775.084, Florida Statutes, provides in relevant part:

(d) “Violent career criminal” means a defendant for whom the

court must impose imprisonment pursuant to paragraph (4)(d), if it

finds that:

1. The defendant has previously been convicted as an adult three

or more times for an offense in this state or other qualified offense

that is:

a. Any forcible felony, as described in s. 776.08;

b. Aggravated stalking, as described in s. 784.048(3) and (4);

c. Aggravated child abuse, as described in s. 827.03(2)(a);

d. Aggravated abuse of an elderly person or disabled adult, as

described in s. 825.102(2);

e. Lewd or lascivious battery, lewd or lascivious molestation, lewd

or lascivious conduct, or lewd or lascivious exhibition, as described

in s. 800.04 or s. 847.0135(5);

f. Escape, as described in s. 944.40; or

g. A felony violation of chapter 790 involving the use or possession

of a firearm.

2. The defendant has been incarcerated in a state prison or a

federal prison.

3. The primary felony offense for which the defendant is to be

sentenced is a felony enumerated in subparagraph 1. and was

committed on or after October 1, 1995, and:

a. While the defendant was serving a prison sentence or other

sentence, or court-ordered or lawfully imposed supervision that is

imposed as a result of a prior conviction for an enumerated felony; or

b. Within 5 years after the conviction of the last prior enumerated

felony, or within 5 years after the defendant’s release from a prison

sentence, probation, community control, control release, conditional

release, parole, or court-ordered or lawfully imposed supervision or

other sentence that is imposed as a result of a prior conviction for an

enumerated felony, whichever is later.

...

(c) In a separate proceeding, the court shall determine whether the

defendant is a violent career criminal with respect to a primary

12

offense committed on or after October 1, 1995. The procedure shall

be as follows:

1. Written notice shall be served on the defendant and the

defendant’s attorney a sufficient time prior to the entry of a plea or

prior to the imposition of sentence in order to allow the preparation

of a submission on behalf of the defendant.

2. All evidence presented shall be presented in open court with full

rights of confrontation, cross-examination, and representation by

counsel.

3. Each of the findings required as the basis for such sentence

shall be found to exist by a preponderance of the evidence and shall

be appealable only as provided in paragraph (d).

4. For the purpose of identification, the court shall fingerprint the

defendant pursuant to s. 921.241.

...

(d) The court, in conformity with the procedure established in

paragraph (3)(c), shall sentence the violent career criminal as

follows:

1. In the case of a life felony or a felony of the first degree, for

life.

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

not exceeding 40, with a mandatory minimum term of 30 years’

imprisonment.

3. In the case of a felony of the third degree, for a term of years

not exceeding 15, with a mandatory minimum term of 10 years’

imprisonment.

(e) If the court finds, pursuant to paragraph (3)(a) or paragraph

(3)(c), that it is not necessary for the protection of the public to

sentence a defendant who meets the criteria for sentencing as a

habitual felony offender, a habitual violent felony offender, or a

violent career criminal, with respect to an offense committed on or

after October 1, 1995, sentence shall be imposed without regard to

this section.

13

Section 913.10, Florida Statutes, provides:

Number of jurors.—Twelve persons shall constitute a jury

to try all capital cases, and six persons shall constitute a

jury to try all other criminal cases.

14

STATEMENT OF THE CASE

Petitioner, Floyd Madison, was charged in Florida’s Seventeenth

Judicial Circuit with (1) the first-degree felony offense of attempted

murder and (2) the second-degree felony offense of aggravated battery

with a deadly weapon. R 40-41. A six-person jury convicted and the

trial court sentenced Appellant to (1) Life and (2) 30 years,

respectively. (R1. 293-8).

While his direct appeal was pending in the Fourth District Court

of Appeal, Petitioner moved to correct his sentence under Florida

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

Reoffender and Violent Career Criminal statutes are unconstitutional

in violation of the Jury and Due Process Clauses of the state and

federal constitutions. The trial court denied the motion for that

specific issue.

Petitioner then filed his brief in the appellate court. Among other

issues, he argued that: His prison releasee reoffender (PRR) and

violent career criminal (VCC) sentences violate the Sixth and

Fourteenth Amendments, and the court could not rewrite the

unconstitutional statute. a3–a16. And he was denied his right to a

twelve-member jury under the Sixth Amendment. a17–a26.

15

Conceding that — unlike the Prison Releasee Reoffender and

Violent Career Criminal issue preserved in a 3.800(b)(2) motion —

the twelve-member jury issues had not been raised in the trial court,

he contended that they were subject to review under Florida’s

fundamental error doctrine. Under that doctrine, a defendant may for

the first time on appeal challenge a facially unconstitutional statute,

Westerheide v. State, 831 So. 2d 93, 105 (Fla. 2002), Trushin v. State,

425 So. 2d 1126, 1129 (Fla. 1982), and Edenfield v. State, 48 Fla. L.

Weekly D1113, n.1 (Fla. 1st DCA May 31, 2022) (holding that

defendant could raise facial challenge to felon-in-possession statute

for first time on appeal, but denying claim on the merits), and also

may contend on the first time on appeal that he or she was tried by

less than the number of jurors required by the jury unless he or she

personally waived that right. Compare Blair v. State, 698 So. 2d 1210,

1217 (Fla. 1997) (finding defendant’s agreement to verdict by fivemember jury valid when made in a colloquy with the court “including

a personal on-the-record waiver sufficient to pass muster under the

federal and state constitutions,” and his decision was made “toward

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

assess the prosecution's case against him. He affirmatively chose to

16

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

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

1998) (reversing on grounds of fundamental error where defendant

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

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

The district court of appeal affirmed the conviction and sentence

without a written opinion. 1a. Subsequently, it denied Petitioner’s

motion for rehearing and written opinion. 2a.

17

REASONS FOR GRANTING THE PETITION

I. FLORIDA’S PRISON RELEASEE REOFFENDER AND

VIOLENT

CAREER

CRIMINAL

STATUTES

ARE

UNCONSTITUTIONAL.

Florida’s Prison Releasee Reoffender and Violent Career

Criminal statutes provide for enhanced punishments when the judge,

at a nonjury proceeding, determines, by a preponderance of the

evidence, a variety of facts regarding the defendant’s prior criminal

record

including

the

date

of

the

defendant’s

release

from

incarceration. § 775.082(9)(a), 775.084 Fla. Stat. The PRR statute

requires the defendant to serve the maximum sentence day-for-day,

no gain time. Mr. Madison is currently serving Count 1) Life (PRR)

and Count 2) 30 years (VCC).

This statutory procedure and Petitioner’s resulting sentence are

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

Const. amend. VI, XIV.

Despite the general rule forbidding a sentence enhancement

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

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

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

conviction authorizing the enhancement.

18

The Court recently cast doubt on the correctness and viability

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

(2024):

Almost immediately …, the decision came under scrutiny.

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

described Almendarez-Torres as “at best an exceptional

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

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

“uniform course of decision during the entire history of

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

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

... exception to the Sixth Amendment rule in criminal

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

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

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

In separate opinions, a number of Justices have criticized

Almendarez-Torres further yet, and Justice THOMAS,

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

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

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

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

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

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

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

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

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

Souter and Ginsburg, JJ., dissenting).

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

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

the years since that decision, this Court has expressly

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

permitting judges to find only “the fact of a prior

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

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

19

Sixth Amendment, than determine what crime, with what

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

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

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

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

understood, Almendarez-Torres does nothing to save the

sentence in this case. To determine whether Mr.

Erlinger’s prior convictions triggered ACCA’s enhanced

penalties, the district court had to do more than identify

his previous convictions and the legal elements required

to sustain them. It had to find that those offenses

occurred on at least three separate occasions. And, in

doing so, the court did more than Almendarez-Torres

allows.

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

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

Almendarez-Torres

overboard.

There

is

no

reason

to

allow

governments to continue to impose enhanced sentences based on

unconstitutional procedures such as Florida’s Prison Releasee

Reofffender and Violent Career Criminal laws.

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

come, the Florida law and procedure are plainly unconstitutional

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

went beyond finding the simple fact that Petitioner had been

convicted of certain crimes. It made the additional fact findings

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

20

he was released from prison.

Florida’s Prison Releasee Reoffender and Violent Career

Criminal laws are unconstitutional. Since those laws provide the

basis for Petitioner’s sentences, those sentences cannot stand.

Accordingly, the sentences should be reversed and remanded to

the lower court for resentencing without use of the invalid statute.

II. THE REASONING OF WILLIAMS v. FLORIDA HAS

BEEN REJECTED, AND THE CASE SHOULD BE

OVERRULED.

In Thompson v. Utah, 170 U.S. 343 (1898), the Court

considered “whether the jury referred to in the original constitution

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

common law, of twelve persons, neither more nor less,” and

concluded that “[t]his question must be answered in the

affirmative.” Id. at 349. It noted that since the time of Magna Carta,

the word “jury” had been understood to mean a body of twelve. Id.

at 349–50. Because that understanding had been accepted since

1215, the Court reasoned, “[i]t must” have been “that the word

‘jury’ ” in the Sixth Amendment was “placed in the constitution of

the United States with reference to [that] meaning affixed to [it].”

Id. at 350.

21

In addition to the citations as to this point in Thompson, one

may note that Blackstone indicated that the right to a jury of twelve

is even older, and more firmly established, than the unqualified

right to counsel in criminal cases. 4 William Blackstone,

Commentaries on the Laws of England, ch. 27 (“Of Trial and

Conviction”). Blackstone traced the right back to the ancient feudal

system of trial by “a tribunal composed of twelve good men and

true,” and wrote that “it is the most transcendent privilege which

any subject can be enjoy or wish for, that he cannot be affected in

his property, his liberty or his person, but by the unanimous

consent of twelve of his neighbours and equals.” 3 Blackstone, ch.

23 (“Of the Trial by Jury”).

After Thompson, the Court continued to cite the basic principle

that the Sixth Amendment requires a twelve-person jury in criminal

cases for another seventy years. In 1900, the Court explained that

“there [could] be no doubt” “[t]hat a jury composed, as at common

law, of twelve jurors was intended by the Sixth Amendment to the

Federal Constitution.” Maxwell v. Dow, 176 U.S. 581, 586 (1900).

Thirty years later, this Court reiterated that it was “not open to

question” that “the phrase ‘trial by jury’ ” in the Constitution

22

incorporated juries’ “essential elements” as “they were recognized in

this country and England,” including the requirement that they

“consist of twelve men, neither more nor less.” Patton v. United

States, 281 U.S. 276, 288 (1930). And as recently as 1968, the

Court remarked that “by the time our Constitution was written, jury

trial in criminal cases had been in existence for several centuries

and carried impressive credentials traced by many to Magna Carta,”

such as the necessary inclusion of twelve members. Duncan v.

Louisiana, 391 U.S. 145, 151–152 (1968).

In Williams v. Florida, 399 U.S. 78 (1970), however, the Court

retreated from this line of precedent, holding that trial by a jury of

six does not violate the Sixth Amendment.

Williams recognized that the Framers “may well” have had “the

usual expectation” in drafting the Sixth Amendment “that the jury

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

concluded that such “purely historical considerations” were not

dispositive. Id. at 99. Rather, it focused on the “function” that the

jury plays in the Constitution, concluding that the “essential

feature” of a jury is it leaves justice to the “commonsense judgment

of a group of laymen” and thus allows “guilt or innocence” to be

23

determined via “community participation and [with] shared

responsibility.” Id. at 100–01. It wrote that “currently available

evidence [and] theory” suggested that function could just as easily

be performed with six jurors as with twelve. Id. at 101–102 & n.48;

cf. Burch v. Louisiana, 441 U.S. 130, 137 (1979) (acknowledging

that Williams and its progeny “departed from the strictly historical

requirements of jury trial”).

Petitioner submits that Williams is contrary to the history and

precedents discussed above, and cannot be squared with the

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

the Sixth Amendment’s “trial by an impartial jury” requirement

encompasses what the term “meant at the Sixth Amendment’s

adoption,” id. at 90. That term meant trial by a jury of twelve whose

verdict must be unanimous. As the Court noted in Ramos,

Blackstone recognized that under the common law, “no person

could be found guilty of a serious crime unless ‘the truth of every

accusation . . . should . . . be confirmed by the unanimous suffrage

of twelve of his equals and neighbors[.]” Ibid. (emphasis added). “A

‘verdict, taken from eleven, was no verdict’ at all.” Ibid.

Ramos held that the Sixth Amendment requires a unanimous

24

verdict to convict a person of a serious offense. In reaching that

conclusion, it overturned Apodaca v. Oregon, 406 U.S. 404 (1972), a

decision that it faulted for “subject[ing] the ancient guarantee of a

unanimous jury verdict to its own functionalist assessment.” 509

U.S. at 100.

The reasoning of Ramos undermines the reasoning on which

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

analysis” undertaken in Williams, observing that it is not for the

Court to “distinguish between the historic features of common law

jury trials that (we think) serve ‘important enough functions to

migrate silently into the Sixth Amendment and those that don’t.’”

590 U.S. at 98. The Court wrote that the Sixth Amendment right to

a jury trial must be restored to its original meaning, which included

the right to jury unanimity:

Our real objection here isn’t that the Apodaca plurality’s

cost-benefit analysis was too skimpy. The deeper problem

is that the plurality subjected the ancient guarantee of a

unanimous jury verdict to its own functionalist

assessment in the first place. And Louisiana asks us to

repeat the error today, just replacing Apodaca’s

functionalist assessment with our own updated version.

All this overlooks the fact that, at the time of the Sixth

Amendment’s adoption, the right to trial by jury included

a right to a unanimous verdict. When the American

people chose to enshrine that right in the Constitution,

25

they weren’t suggesting fruitful topics for future costbenefit analyses. They were seeking to ensure that their

children’s children would enjoy the same hard-won

liberty they enjoyed. As judges, it is not our role to

reassess whether the right to a unanimous jury is

“important enough” to retain. With humility, we must

accept that this right may serve purposes evading our

current notice. We are entrusted to preserve and protect

that liberty, not balance it away aided by no more than

social statistics.

Ramos, 590 U.S. at 100 (emphasis in original; footnote omitted).

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

twelve: When the People enshrined the jury trial right in the

Constitution, they did not attach a rider that future judges could

adapt it based on latter-day social science views.

Further, even if one were to accept the functionalist logic of

Williams — that the Sixth Amendment is subject to reinterpretation

on the basis of social science — it invites, nay demands, that it be

periodically revisted to determine whether the social science holds

up. And here we encounter a serious problem: it was based on

research that was out of date shortly after the opinion issued.

Williams “f[ou]nd little reason to think” that the goals of the

jury guarantee, which included providing “a fair possibility for

obtaining a representative[] cross-section of the community,” were

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“in any meaningful sense less likely to be achieved when the jury

numbers six, than when it numbers 12.” Id. 399 U.S. at 100. It

theorized that “in practice the difference between the 12-man and

the six-man jury in terms of the cross-section of the community

represented seems likely to be negligible.” Id. at 102.

Since Williams, that determination has proven incorrect. This

Court acknowledged as much just eight years later in Ballew v.

Georgia, 435 U.S. 223 (1978), when it concluded that the Sixth

Amendment barred the use of a five-person jury. Although Ballew

did not overturn Williams, it observed that empirical studies

conducted in the intervening years highlighted several problems

with its assumptions. For example, Ballew noted that more recent

research showed that (1) “smaller juries are less likely to foster

effective group deliberation,” id. at 233, (2) smaller juries may be

less accurate and cause “increasing inconsistency” in verdict

results, id. at 234, (3) the chance for hung juries decreases with

smaller juries, disproportionally harming the defendant, id. at 236;

and (4) decreasing jury sizes “foretell[] problems … for the

representation of minority groups in the community,” undermining

a jury’s likelihood of being “truly representative of the community,”

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id. at 236–37. Moreover, the Ballew Court “admit[ted]” that it “d[id]

not pretend to discern a clear line between six members and five,”

effectively acknowledging that the studies it relied on also cast

doubt on the effectiveness of the six-member jury. Id. at 239; see

also id. at 245–46 (Powell, J.) (agreeing that five-member juries are

unconstitutional, while acknowledging that “the line between fiveand six-member juries is difficult to justify”).

Post-Ballew research has further undermined Williams. As

already noted, Williams itself identified the “function” of the Sixth

Amendment as leaving justice to the “commonsense judgment of a

group of laymen” and thus allowing “guilt or innocence” to be

determined via “community participation and [with] shared

responsibility.” 399 U.S. at 100–01. That function is thwarted by

reducing the number of jurors to six. Smaller juries are perforce

less representative of the community, and they are less consistent

than larger juries. See, e.g., Shamena Anwar, et al., The Impact of

Jury Race In Criminal Trials, 127 Q.J. Of Econ. 1017, 1049 (2012)

(finding that “increasing the number of jurors on the seated jury

would substantially reduce the variability of the trial outcomes,

increase black representation in the jury pool and on seated juries,

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and make trial outcomes more equal for white and black

defendants”); Diamond et al., Achieving Diversity on the Jury: Jury

Size and the Peremptory Challenge, 6 J. of Empirical Legal Stud.

425, 427 (Sept. 2009) (“reducing jury size inevitably has a drastic

effect on the representation of minority group members on the

jury”); Higginbotham et al., Better by the Dozen: Bringing Back the

Twelve-Person Civil Jury, 104 Judicature 47, 52 (Summer 2020)

(“Larger juries are also more inclusive and more representative of

the community. … In reality, cutting the size of the jury

dramatically increases the chance of excluding minorities.”).

Other important considerations also weigh in favor of the

twelve-member jury. Twelve-member juries deliberate longer, recall

evidence better, and rely less on irrelevant factors during

deliberation. See Smith & Saks, The Case for Overturning Williams

v. Florida and the Six-Person Jury, 60 Fla. L. Rev. 441, 465 (2008).

Minority views are also more likely to be thoroughly expressed

in a larger jury, as “having a large minority helps make the minority

subgroup more influential,” and, unsurprisingly, “the chance of

minority members having allies is greater on a twelve-person jury.”

Smith & Saks, 60 Fla. L. Rev. at 466. Finally, larger juries deliver

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more predictable results. In the civil context, for example, “[s]ixperson juries are four times more likely to return extremely high or

low damage awards compared to the average.” Higginbotham et al.,

104 Judicature at 52.

Importantly, the history of Florida’s rule can be traced to the

Jim Crow era. Justice Gorsuch has observed that “[d]uring the Jim

Crow era, some States restricted the size of juries and abandoned

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

systematic effort to suppress minority voices in public affairs.”

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

dissenting from denial of certiorari) (citations omitted). He noted,

however, that Arizona’s law was likely motivated by costs not race.

Id. But Florida’s jury of six did arise in that Jim Crow era of a

“deliberate and systematic effort to suppress minority voices in

public affairs.” Id. The historical background is as follows:

In 1875, the Jury Clause of the 1868 constitution was

amended to provide that the number of jurors “for the trial of

causes in any court may be fixed by law.” See Florida Fertilizer &

Mfg. Co. v. Boswell, 34 So. 241, 241 (Fla. 1903). The common law

rule of a jury of twelve was still kept in Florida while federal troops

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remained in the state. There was no provision for a jury of less than

twelve until the Legislature enacted a provision specifying a jury of

six in Chapter 3010, section 6, Laws of Florida (1877). See Gibson v.

State, 16 Fla. 291, 297–98 (1877); Florida Fertilizer, 34 So. at 241.

The Florida Legislature enacted chapter 3010 with the jury-ofsix provision on February 17, 1877. Gibson, 16 Fla. 294. This was

less than a month after the last federal troops were withdrawn from

Florida in January 1877. See Jerrell H. Shofner, Reconstruction and

Renewal, 1865–1877, in The History of Florida 273 (Michael

Gannon, ed., first paperback edition 2018) (“there were [no federal

troops] in Florida after 23 January 1877”).

The jury-of-six thus first saw light at the birth of the Jim Crow

era as former Confederates regained power in southern states and

state prosecutors made a concerted effort to prevent blacks from

serving on jurors.

On its face the 1868 constitution extended the franchise to

black men. But the historical context shows that that it was part of

the overall resistance to Reconstruction efforts to protect the rights

of black citizens. The constitution was the product of a remarkable

series of events including a coup in which leaders of the white

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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 spelled out by

Harrison Reed, a leader of the prevailing faction and the first

governor elected under the 1868 constitution, who wrote to Senator

Yulee that the new constitution was constructed to bar blacks from

legislative office: “Under our Constitution the Judiciary & State

officers will be appointed & the apportionment will prevent a negro

legislature.” Hume, 15–16. See also Shofner 266.

Smaller juries and non-unanimous verdicts were part of a Jim

Crow era effort “to suppress minority voices in public affairs.”

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

dissenting from denial of certiorari); see also Ramos, 590 U.S. at

32

126–27 (Kavanaugh, J., concurring) (non-unanimity was enacted

“as one pillar of a comprehensive and brutal program of racist Jim

Crow measures against African-Americans, especially in voting and

jury service.”). The history of Florida’s jury of six arises from the

same historical context.

And when the Florida Legislature reduced the size of juries

from twelve to six in 1877, it also re-established 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, and this was so well into the twentieth century:

“It is strange that the presence of a negro on the jury should

not have attracted sufficient attention to have caused an inquiry

into his eligibility as a jury man.” That Federal Jury, Panama City

Pilot, Nov. 27, 1924, at 1.

33

“At one point it looked as though the first negro juror in

Monroe County was to be selected.” Child Molesting Trial Jury

Chosen, Key West Citizen, Dec. 11, 1952, at 1, 3.

“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

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One Negro on the Jury, DeLand Daily News, March 3, 1915, at 3.

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). See Douglas A.

Blackmon, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK

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

(“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.”); 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.”).

This sad history casts into relief another negative consequence

of smaller juries: it denies a great number of citizens the “duty,

honor, and privilege of jury service.” Powers v. Ohio, 499 U.S. 400,

415 (1991). Many consider jury service an “amazing and powerful

opportunity and experience—one that will strengthen your sense of

humanity and your own responsibility.” United States Courts, Juror

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Experiences. 1 Jury service, like civic deliberation in general, “not

0F

only resolves conflicts in a way that yields improved policy

outcomes, it also transforms the participants in the deliberation in

important ways—altering how they think of themselves and their

fellow citizens.” John Gastil & Phillip J. Weiser, Jury Service as an

Invitation to Citizenship: Assessing the Civic Values of

Institutionalized Deliberation, 34 Pol’y Stud. J. 605, 606 (2006).

Jury service is a “means of affording every citizen the chance to step

into the state’s shoes, to see the inner workings of the justice

system, and to feel first-hand the power of self-government. In other

words, the jury is a sacred, institutionalized opportunity for citizens

to experience the transformative power of public deliberation.” Id. at

619.

In view of the foregoing, this Court should grant the petition,

recede from Williams, restore the ancient right to a jury of twelve

and reverse Petitioner’s conviction.

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

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

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DANIEL EISINGER

Public Defender

Paul Edward Petillo

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, FL 33401

(561) 355–7600

ppetillo@pd15.state.fl.us

appeals@pd15.org

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