Reply Brief — Rickey Johnson, aka Sealed Defendant 1, aka Neil Dawn Defarren, Petitioner v. United States

Supreme Court briefJan 28, 2026

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No. 25-5895

______________________________________________________________________________

In the

Supreme Court of the United States

_____________________________________________

Rickey Johnson,

Petitioner,

-vUnited States of America,

Respondent.

_____________________________________________

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

__________________________________________________________________

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________________________

Colleen P. Cassidy

Counsel of Record

Siobhan C. Atkins

Daniel Habib

Federal Defenders of New York, Inc.

Appeals Bureau

52 Duane Street, 10th Floor

New York, New York 10007

(212) 417-8742

Colleen_Cassidy@fd.org

Counsel for Petitioner

TABLE OF CONTENTS

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

INTRODUCTION .......................................................................................................... 1

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

This Petition Presents A Direct Circuit Conflict On An Important,

Outcome-Determinative Question: Whether Violation Of Petitioner’s

Right To A 12-Person Jury Is Structural Error. ................................................ 3

This Case Presents A Sharp And Undisputed Circuit Conflict On A

Question Of Consequence. ........................................................................... 3

This Case Presents The Perfect Vehicle For Resolution Of This

Conflict. ........................................................................................................ 8

The Government Is Wrong On The Merits ................................................. 8

II.

Williams Should be Overruled Now Because It Is Egregiously Wrong,

And Its Reach Has Expanded To Deny Defendants The Federal Right

To A Jury of 12. ............................................................................................. 13

TABLE OF AUTHORITIES

Page(s)

Cases

Apodaca v. Oregon,

406 U.S. 404 (1972) .................................................................................................. 15

Apprendi v. New Jersey,

530 U.S. 466 (2000) .................................................................................................. 13

Arizona v. Fulminante,

499 U.S. 279 (1991) .......................................................................................... 2, 9, 10

Commonwealth v. Cook,

6 Serg. & Rawle 577 (Pa. 1822) ............................................................................... 17

Cunningham v. Florida,

144 S. Ct. 1287 (2024) .............................................................................................. 13

Greer v. United States,

593 U.S. 503 (2021) .................................................................................................... 7

Khorrami v. Arizona,

143 S. Ct. 22 (2022) ............................................................................................ 13, 14

Kotteakos v. United States,

328 U.S. 750 (1946) .................................................................................................. 12

Neder v. United States,

527 U.S. 1 (1999) .................................................................................................... 5, 6

Parada v. United States,

2026 WL 79784 (U.S. Jan. 12, 2026) ................................................................... 2, 13

Patton v. United States,

281 U.S. 276 (1930) .................................................................................................. 16

People v. Olcott,

2 Johns, Cas, 301 (N.Y. Sup. Ct. 1801) ................................................................... 16

Perrin v. United States,

444 U.S. 37 (1979) ...................................................................................................... 5

Ramos v. Louisiana,

590 U.S. 83 (2020) .................................................................................... 2, 13, 15, 16

Rosemond v. United States,

572 U.S. 65 (2014) ...................................................................................................... 4

Sullivan v. Louisiana,

508 U.S. 275 (1993) .................................................................................................. 12

United States v. Araujo,

343 F.3d 273 (4th Cir. 2003) ...................................................................................... 5

United States v. Curbelo,

343 F.3d 273 (4th Cir. 2003) .................................................................................. 4, 6

United States v. Davila,

569 U.S. 597 (2013) .................................................................................................... 6

United States v. Essex,

734 F.2d 832 (D.C. Cir. 1984) ................................................................................ 4, 5

United States v. Ginyard,

444 F.3d 648 (D.C. Cir. 2006) ............................................................................ 4, 5, 8

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) ........................................................................................ 9, 10, 11

United States v. Guerrero-Peralta,

446 F.2d 876 (9th Cir. 1971) ...................................................................................... 5

United States v. Johnson,

574 U.S. 1069 (2015) ................................................................................................ 13

United States v. Marcus,

560 U.S. 258 (2010) .................................................................................................... 6

United States v. Patterson,

26 F.3d 1127 (D.C. Cir. 1994) ................................................................................ 4, 5

United States v. Reyes,

603 F.2d 69 (1979) ...................................................................................................... 5

United States v. Taylor,

498 F.2d 390 (6th Cir. 1974) ...................................................................................... 5

iii

United States v. Taylor,

596 U.S. 845 (2022) .................................................................................................... 4

United States v. Yermian,

468 U.S. 63 (1984) ...................................................................................................... 4

Weaver v. Massachusetts,

582 U.S. 286 (2017) ...................................................................................... 2, 7, 9, 10

Williams v. Florida,

399 U.S. 78 (1970) .................................................................................... 2, 14, 15, 16

Rules

Fed. R. Crim. P. 23(b) ................................................................................................ 1, 7

Fed. R. Crim. P. 23, Advisory Committee Notes, 1944 Adoption and 1983

Amendments............................................................................................................. 17

Other Authorities

Hale, Matthew. Historia Placitorum Coronae: The History of the Pleas of the

Crown (1736) ............................................................................................................ 16

INTRODUCTION

In its brief in opposition, the government concedes the conflict among the

courts of appeal on whether a violation of the federal right to a twelve-person jury is

structural error or may somehow be considered harmless. Likewise, the government

does not dispute that this case presents an excellent vehicle for resolution of this

conflict. It wanly attempts to minimize the circuit split as “shallow,” but that

characterization is no reason to deny review. The Second Circuit’s decision here is

in direct and open conflict with the rule in five circuits. Were petitioner in any one

of those circuits, his conviction would have been vacated because the district court

violated his right to a 12-person jury under Fed. R. Crim. P. 23(b). The Second

Circuit has doubled down on its departure from the rule in other circuits, denying

rehearing en banc, and there is no likelihood that the conflict will work itself out.

Tellingly, the government mostly argues the merits: that the Second Circuit

was correct to hold that the error is not structural. But it fails to address the very

basis of the circuit conflict, which is whether a nonconstitutional error can be

structural. The government takes no position on that question, even though the

circuit majority’s belief that a nonconstitutional error could never be structural

drove its decision below. Instead, the government suggests, without actually

arguing, that the published, acknowledged disagreement on this point between the

Fourth and Second Circuits does not matter because of a view expressed in a nonprecedential opinion concurring in the denial of en banc review. Further, its merits

argument is superficial and quotes selectively from this court’s precedent, ignoring

that category of structural error that “def[ies] analysis by ‘harmless error’ methods”

because its effects “are simply too hard to measure,” Weaver v. Massachusetts, 582

U.S. 286, 296 (2017); Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991) – the kind

of structural error at issue here.

On the question whether this Court should finally overrule Williams v.

Florida, 399 U.S. 78 (1970), the government does not respond to Johnson’s petition

specifically, but points out only that the Court has previously denied certiorari on

this question. In place of a response, it submits its brief in opposition filed in the

most recent denial of certiorari on this question, Parada v. United States, 2026 WL

79784, a case that presented vehicle issues not present here. Parada involved a

dismissal for cause well into deliberations as allowed under Rule 23(b) and not a

blatant, undisputed violation of the Rule requiring a jury of 12. Much of the

government’s opposition in Parada is directed toward this factual context and has

no bearing on this case or petitioner’s arguments. Only some of its merits

arguments there that Williams should not be overruled are responsive to Johnson’s

petition.

As argued in our petition, Williams was wrong when decided and is

irreconcilable with Ramos v. Louisiana, 590 U.S. 83 (2020). Overruling it is just a

question of the right vehicle. This Court frequently grants certiorari on an issue

after previous denials, when presented with the appropriate vehicle. This case is the

perfect vehicle. If not for Williams, petitioner’s conviction would have been vacated

by the Second Circuit. And at a time when the validity of Williams is increasingly in

doubt, the Second Circuit’s decision here has elevated it as a reason to deny relief

even for a blatant violation of the federal right to a 12-person jury.

ARGUMENT

This Petition Presents A Direct Circuit Conflict On An Important,

Outcome-Determinative Question: Whether Violation Of Petitioner’s

Right To A 12-Person Jury Is Structural Error.

A. This Case Presents A Sharp And Undisputed Circuit Conflict On A

Question Of Consequence.

The government does not dispute the circuit conflict on the question whether

the unlawful deprivation of a defendant’s right to a jury of 12 under Rule 23(b)

requires a new trial or is subject to some kind of harmless error test. Nor could it.

The Second Circuit openly disagreed with the Fourth Circuit and acknowledged

that its ruling was also contrary to the Sixth, Seventh, Ninth, and D.C. Circuits.

The government suggests that this split is too “shallow” to bother with. Opp. 11, 15.

There is nothing shallow about the conflict. Indeed, that claim typically implies

some uncertainty about the longevity of the split and the possibility that further

percolation will dissipate the conflict. That is not the case here.

Until the Second Circuit’s decision in this case, all circuits to have considered

the remedy for a denial of the right to 12 jurors under the Rule 23(b) had held that

such an error required automatic reversal, without regard to harmless error or

prejudice. The Second Circuit alone has now decided, despite all of that agreement,

to require harmless error review. When the full Circuit was asked to rehear this

question en banc, it refused, over the dissent of five judges. Pet.App.65a. The

Second Circuit is determined, contrary to all the other circuits, to apply a different

rule that denies a remedy to defendants deprived of their right to a twelve-person

jury. Certainly, nothing about the lopsidedness of the split argues against review. If

anything, it calls out for this Court’s review, to achieve uniformity in the law where

one circuit insists on applying a different standard, to the detriment of defendants

in one geographical region. This Court has granted certiorari in many such cases.

E.g., United States v. Taylor, 596 U.S. 845, 850 (2022) (granting certiorari to resolve

a conflict between the Fourth Circuit and three other circuits); Rosemond v. United

States, 572 U.S. 65, 69 & n.3 (2014) (granting certiorari to resolve a conflict between

the Tenth Circuit and three other circuits); United States v. Yermian, 468 U.S. 63,

67 (1984) (granting certiorari to resolve a conflict between the Ninth Circuit and

three other circuits).

The government nevertheless asserts that none of the circuits other than the

Fourth Circuit “undertakes a structural-error analysis,” suggesting that the split is

really between the Second and Fourth Circuits. Opp. 15. First, this is incorrect.

United States v. Essex, 734 F.2d 832 (D.C. Cir. 1984), the first decision in the D.C.

Circuit, engaged in essentially the same analysis as United States v. Curbelo, 343

F.3d 273, 281, 285 (4th Cir. 2003) and the panel dissent below, holding that no

prejudice need be shown because “in cases involving secret jury deliberations it is

virtually impossible for a defendant to demonstrate actual prejudice.” Id. at 845.

Subsequent decisions in the D.C. Circuit followed Essex. United States v. Patterson,

26 F.3d 1127, 1129 (D.C. Cir. 1994); United States v. Ginyard, 444 F.3d 648, 653-54

(D.C. Cir. 2006). Nor does it matter whether every circuit engaged in the same level

of analysis. Each of these circuits squarely holds that dismissal of the 12th juror in

violation of Rule 23(b) is structural error or requires reversal without regard to

harmless error. Ginyard, 444 F.3d at 655; United States v. Araujo, 62 F.3d 930 (7th

Cir. 1995); Patterson, 26 F.3d 1127 (D.C. Cir. 1994); Essex, 734 F.2d 832; United

States v. Taylor, 498 F.2d 390, 392 (6th Cir. 1974); United States v. GuerreroPeralta, 446 F.2d 876, 877 (9th Cir. 1971). The D.C. Circuit has affirmed the rule at

least three times, Ginyard, 444 F.3d at 655, Patterson, 26 F.3d 1127, Essex, 734

F.2d 832, and the Ninth Circuit has twice. Guerrero-Peralta, 446 F.2d 877; United

States v. Reyes, 603 F.2d 69, 72 (1979). There is nothing shallow about the circuits’

commitment to this rule. What is important is that petitioner’s conviction would

have been reversed, not affirmed, in any one of these circuits.1

That three of the four circuits other than the Fourth Circuit issued their

decisions before Neder v. United States, 527 U.S. 1, 7 (1999), is likewise of no

moment and does not affect the depth of the conflict. Opp. 15-16.2 Neder did nothing

to change the analysis as to whether the violation of the right to a 12-member jury

under Rule 23(b) requires reversal or is subject to harmless error review. Neder did

not hold that only constitutional error can be structural error. It held only that not

1 In any event, even if the conflict were between only the Second and Fourth Circuits, this would not

be a reason to deny review. See, e.g. Perrin v. United States, 444 U.S. 37, 38 & n.1 (1979) (granting

certiorari to resolve a conflict between two Circuits on the interpretation of the Travel Act).

2 Two of the D.C. Circuit’s opinions, Patterson, 26 F.2d at 1129 and Essex, 734 F.2d at 845, were

issued before Neder but the Circuit reaffirmed its structural error rule in Ginyard, 444 F.3d at 65455, well after Neder.

every constitutional error is a structural error, a very different concept. Id. No

wonder the Fourth Circuit in Curbelo rejected the argument that Neder changed

the analysis. 343 F.3d at 280 n.6.

The government also asserts that Curbelo was decided before this Court’s

decisions in Marcus, Davila, and Greer, Opp.15, suggesting – again without really

arguing – that Curbelo’s outcome might have been different. Neither Marcus,

Davila, nor Greer have any bearing on the structural error question presented in

Curbelo and this case.

United States v. Marcus, 560 U.S. 258, 264 (2010), held that an instructional

error – failing to inform the jury that a conviction could not rest on conduct before

the date of the statute’s enactment – was not structural because it was not “any

more difficult to assess the likely consequences of that failure than with numerous

other kinds of instructional errors” held non-structural, like the erroneous

instruction on an element of the offense in Neder. Marcus specifically distinguished

structural errors – like the error here – that “affect the ‘framework within which the

trial proceeds, . . . such that it is often ‘difficult’ to ‘assess the effect of the error.’” Id.

at 263. United States v. Davila, 569 U.S. 597, 610, 612 (2013) held that harmless

error applied to a Rule 11 violation because, in response to judicial holdings that

such violations required automatic reversal, that Rule had been amended to

explicitly require harmless error review. Rule 23(b) contains no such provision and

it has not been amended to add one, despite half a century of circuit cases holding

automatic reversal is required for its violation. Davila does not, as the government

suggests, Opp.14, say anything to the effect that federal rule violations in general

are not structural.

Nor would Greer v. United States, 593 U.S. 503 (2021), have affected the

analysis in Curbelo or any of the other circuit decisions requiring automatic

reversal for a Rule 23(b) violation. In Greer, the defendant sought to avoid plain

error review by contending that an error in his plea proceeding was structural error.

Id. at 512–13. This Court held that the error – the omission of one element of the

offense in the plea allocution – was subject to harmless error in the same way that

the omission of one element in jury instructions at trial was, citing Neder. Id. Greer

did not address the type of structural error presented here, where “the effects of the

error are simply too hard to measure.” Weaver, 582 U.S. at 295–96.

Finally, the government quibbles with irrelevant factual differences between

this case and some of the other circuit decisions requiring automatic reversal for

Rule 23(b) violations. Opp. 16-17. It notes that in four of those decisions, the circuit

ruled that the district court failed to establish “just cause” for the dismissal of the

12th juror, and points out that petitioner does not seek review before this Court of

the district court’s findings of good cause to dismiss the last two jurors.3 This has no

bearing on the question whether the undisputed, blatant violation of Rule 23(b) in

Petitioner did challenge on appeal the district court’s “good cause” determinations with respect to

the last two jurors dismissed, in addition to the court’s conclusion that it could proceed with 11

jurors over his objection. The Second Circuit upheld the good cause determinations but held that the

court violated the Rule in dismissing the 12th juror without consent. There was no reason to raise the

“good cause” issue here because the Second Circuit held that Rule 23(b) was violated, and the only

question relates to the remedy.

this case is structural error or subject to harmless error review. On that question,

the analysis is the same regardless of how the Rule is violated – the effect of losing

the 12th juror cannot be measured.4

B. This Case Presents The Perfect Vehicle For Resolution Of This Conflict.

The government does not dispute that this case presents the perfect vehicle

to resolve this conflict. The question whether the Rule 23(b) violation was structural

or subject to harmless-error review was squarely presented and ruled on below.

That issue was outcome-determinative. Had the Second Circuit followed the other

circuits and ruled that it was structural error, petitioner’s conviction would have

been vacated.

C. The Government Is Wrong On The Merits

The government contends that a blatant violation of Rule 23(b) is not

structural error because it is not “exceptional” and does not render the trial

“fundamentally unfair.” Opp. 13-14. Its merits argument is vague and superficial,

selectively quoting passages of this Court’s opinions on the exceptional nature of

structural error while avoiding the specific issues in this case. First, it fails to

address the panel majority’s reasoning here: that nonconstitutional error cannot be

structural error. The government does not grapple with or even take a position on

that question. Opp.17. Nor does it address the reasoning of Curbelo and the dissent

And any concern expressed in the case law about dissenting jurors “opting out at will” (Opp.16) was

directed toward the inquiry into whether good cause was shown, not to whether the error was

structural. See Ginyard, 444 F.3d at 654.

below: that this error is structural because there is simply no way to measure the

harm of the loss of the twelfth juror. Like the majority opinion below, the

government ignores this Court’s precedent affirming that an error affecting the

framework of the trial rather the evidence at trial – such that its effects are too

difficult to measure – is one category of structural error. Finally, the government’s

failure to engage the specific questions here avoids confronting the bizarre outcome

of the panel’s reasoning. With stunning disdain for the role of the jury, two

appellate judges simply reviewed the evidence, satisfied themselves that petitioner

had the legal intent for the crime and was guilty, and assumed that any 12th juror

would have found the same – despite the disagreement of the third panel member

and a partial acquittal by the remaining 11 jurors.

The gist of the government’s argument is that structural error is

“exceptional” and includes only those errors rendering the trial “fundamentally

unfair,” quoting heavily from Greer. Opp.13-14. It contends that the Rule 23(b)

error is neither. Ibid. This argument ignores this Court’s precedent holding that

structural error includes those affecting the framework of the trial, the effects of

which are too difficult to measure. E.g., Weaver, 137 S. Ct. at 1908; United States v.

Gonzalez-Lopez, 548 U.S. 140, 150 (2006); Fulminante, 499 U.S. at 310.

First, Weaver expressly rejected the argument that structural error must

affect the fundamental fairness of the trial, a point it called “critical”: “An error can

count as structural even if the error does not lead to fundamental unfairness in

every case.” Weaver, 137 S. Ct. at 1908. The fundamental fairness rationale,

Weaver explained, is only one of “three broad rationales” for holding an error

structural. Another, separate rationale is that “the effects of the error are simply too

hard to measure.” 137 S. Ct. at 1908. An example of this type of structural error is

the denial of the right to counsel of choice, where it is “impossible to know what

different choices the rejected counsel would have made” and “to quantify the

impact” of those choices. Gonzalez-Lopez, 548 U.S. at 150. See also Fulminante, 499

U.S. at 307-08 (non-structural trial error is that which “occurred during the

presentation of the case to the jury, and which may therefore be quantitatively

assessed in the context of the other evidence presented.”). This was the rationale for

concluding this error was structural in both Curbelo and the dissent below, but the

government does not cite Weaver once in its brief.

The government likewise declines to address the circuit majority’s rationale

for rejecting structural error: its conclusion that only constitutional errors can be

structural. It instead asserts, as if it matters, that a majority of active judges

endorsed the view, in opinions concurring and dissenting from denial of en banc

review, that the question whether nonconstitutional error can be structural is

“open” in the Second Circuit. Opp. 17. Those views were expressed in

nonprecedential opinions concerning the denial of review and have no legal

consequence. What matters is the precedential opinion of the Second Circuit, clearly

holding that this error cannot be structural because it is not constitutional error

under Williams. Pet.App.15a (“Because the right to twelve rather than eleven jurors

that Rule 23(b) provides does not implicate the Constitution—at its bedrock or

otherwise—we review a violation of that rule for harmless error.” Pet.App16a (“We

agree with the dissenting opinion [in Curbelo] that the Supreme Court and the

appellate courts ‘have repeatedly made clear that structural errors necessarily must

affect a defendant’s constitutional rights.’”)5

The government’s refusal to address the specific grounds for the conflict

allows it to avoid confronting the bizarre logic of the Second Circuit’s holding. The

impact of the loss of the 12th juror cannot be measured: there is no way to assess

how that juror would have judged the question of petitioner’s intent, how he would

have interacted with the other jurors, and how persuasive he would have been –

and “then to quantify the impact” of those imponderables. Gonzalez-Lopez, 548 U.S.

at 150. Indeed, a fundamental premise of the jury system is that the jury is a black

box and its deliberations cannot be subjected to judicial scrutiny. Like assessing the

harm of deprivation of counsel of choice, harmless error analysis here could only

have been “a speculative inquiry into what might have occurred in an alternate

universe.” Id. Ignoring this rationale for structural error led the majority below to

apply an inapt and incorrect replica of harmless error review: it simply reviewed the

evidence itself, decided that it proved petitioner’s intent, and concluded that any

12th juror would therefore have found the same. Pet.App.19-20a. This exercise did

not consider the impact of the missing juror at all but only considered the majority’s

5 Judge Menashi, the author of the panel majority opinion, emphatically rejected the attempt to

“spin” that opinion as leaving this question “open” and repeated no fewer than eight times that the

Circuit “held that a structural error must involve the violation of a constitutional right.”

Pet.App.74a,75a,76a,77a,78a, 79a (twice), 80a.

view of the evidence. In effect, two judges interposed themselves as the 12th juror

and decided the case – exactly what harmless error review does not allow. Sullivan

v. Louisiana, 508 U.S. 275, 279 (1993) (the inquiry on harmless error review “is not

whether” a guilty verdict “would surely have been rendered”); Kotteakos v. United

States, 328 U.S. 750, 764-65 (1946) (the inquiry is not whether the jurors were right

or “whether there was enough to support the verdict” but “is rather even so,

whether the error itself had substantial influence.”).

It is worth noting that juries of an even smaller size – again in contravention

of Rule 23(b) – could and would be affirmed under the Second Circuit’s logic. The

circuit majority and the government note that the Rule allows juries of 11 persons

under limited circumstances, and suggest incorrectly that the difference between 11

and 12 jurors is immaterial. Pet.App.16-17a, 21a, Opp.14. But the Second Circuit’s

holding did not turn on that fact, and its holding is not limited to 11 jurors. Rather,

the majority concluded that any violation of Rule 23(b) is subject to harmless-error

analysis because only constitutional errors can be structural, and Williams holds

that any jury size between 6 and 12 does not violate the Constitution. Pet.App.16a.

So a federal court’s decision to proceed with fewer than 11 jurors – say 10 or even 9

– in blatant violation of the Rule would be subject to the same harmless-error

analysis, and would be affirmed so long as the circuit court considered the evidence

strong enough.

The Court should grant certiorari to stop the Second Circuit’s erosion of the

federal right to a 12-member jury. Even if there are not yet four votes to overrule

Williams as a constitutional matter, the Second Circuit’s incorrect structural error

theory essentially bars relief for the denial of this important federal right. And the

case offers a unique opportunity to address the significance of the federal right to a

12-person jury in a non-constitutional context.

II.

Williams Should be Overruled Now Because It Is Egregiously Wrong, And

Its Reach Has Expanded To Deny Defendants The Federal Right To A

Jury of 12.

The government’s only response to petitioner’s argument that Williams

should be overruled is to say that this Court has denied certiorari on this issue

before, most recently in Parada v. United States, 2026 WL 79784 (U.S. Jan. 12,

2026), and to recycle its brief in opposition to Parada’s petition. Opp. 17-18. Yes,

this Court has denied certiorari on this question before, as it has on countless issues

before ultimately granting review. See, e.g., Ramos, 590 U.S. 83, Br. in Opp. to

Cert, 2018 WL 7635901 at *3 (U.S. Nov. 8, 2018); United States v. Johnson, 574

U.S. 1069 (2015); Apprendi v. New Jersey, 530 U.S. 466 (2000). Parada’s petition

had vehicle issues: the government contended that it was unclear whether

overruling Williams would change the outcome in that case. Parada Opp. 16-17. The

government does not dispute that overruling Williams would change the outcome of

petitioner’s case.

What is more, two previous denials of certiorari resulted in dissents, which

the government does not acknowledge. See Cunningham v. Florida, 144 S. Ct. 1287

(2024) (Gorsuch, J., dissenting from the denial of certiorari), Khorrami v. Arizona,

143 S. Ct. 22, 23 (2022) (Gorsuch, J., dissenting from the denial of certiorari); see

also id.at 22 (noting Justice Kavanaugh’s vote to grant the petition). Further, those

two petitions challenged state juries of less than 12, not the use of Williams to deny

the federal right to a 12-member jury.

On the merits, the government’s argument is not responsive to petitioner’s

merits argument. It states that “contrary to petitioner’s contention (Pet. 24-30), the

Court’s analysis in Williams extensively address the common law history of the

Sixth Amendment’s jury trial right.” Opp.18. The government refers for elaboration

to its Parada brief in opposition, ibid., where it argued that Williams addressed the

common law tradition requiring a jury of 12. It contended that this refuted Parada’s

claim that “Williams failed to grapple with the historical meaning of the Sixth

Amendment’s jury trial right” and with this Court’s “long-repeated statements” that

it demands a jury of 12. Parada Opp. 8-9.

But this petitioner never made that argument, not at Pet. 24-30 and not

anywhere. To the contrary, Johnson argued in his petition that “Williams

recognized the long common law history of the 12-member jury and ‘that sometime

in the 14th century the size of the jury at common law came to be fixed generally at

12,’” but “Williams just didn’t think this was important.” Pet. 26-27 (quoting

Williams, 399 U.S. at 87-89). Because Williams found no satisfying reason for the

number 12, it disregarded this feature as a “historical accident.” Pet. 27, (quoting

Williams, 399 U.S. at 89-90). And Johnson argued in his petition that “Williams

likewise acknowledged this Court’s longstanding precedent reaffirming the Sixth

Amendment right to a jury of 12 [citing Thompson and Patton] but dismissed the

reasoning of these cases as relying ‘solely on the fact that the common-law jury

consisted of 12.’” Pet. 27.

Put simply, then, petitioner’s argument is not that Williams ignored the

common law history and the public meaning of the jury trial right – Williams

acknowledged that this included the right to a jury of 12 – but that it disregarded

that history and public meaning in place of the Court’s own view that the numerical

requirement served no important “function.” Williams, 399 U.S. at 99. Indeed,

Williams posed “the relevant inquiry” as “the function that the particular performs

and its relation to the purposes of the jury trial.” Id. This functionalist reasoning

was rejected in Ramos, 590 U.S. 83, which held that the only relevant inquiry is

what “the right to a jury trial meant” at the time of the Sixth Amendment’s

adoption. Id. at 90.

The government utterly fails to grapple with the reasoning of Ramos, which

virtually mandates overruling Williams. Instead, its Parada brief in opposition

mostly rehashes Williams’ reasoning, Parada Opp. 8-12, which Ramos rejected. The

government attempts to sidestep the actual holding of Ramos by suggesting that

Ramos overruled Apodaca v. Oregon, 406 U.S. 404 (1972) because it was thinly

reasoned, whereas Williams fully articulated its reasoning. Parada Opp.15-16. It is

true that Apodaca had little reasoning of its own and that Ramos criticized Apodaca

for that. Ramos, 590 U.S. at 106. But Ramos did not stop there, as the government

would have it. Parada Opp. 15-16. Apodaca had adopted the rationale of Williams,

see Ramos, 590 U.S. at 157 (Alito, J. dissenting), and the state of Louisiana in

Ramos fully presented the Williams arguments on which Apodaca rested. Ramos at

97-100. Ramos explicitly rejected those arguments, both that the drafting history of

the Amendment deleted unanimity and that jury unanimity did not serve an

“important enough” function. Id. On the flimsiness of Apodaca’s reasoning, Ramos

said: “Our real objection isn’t that [Apodaca’s] cost benefit was too skimpy. The

deeper problem is that the plurality subjected the ancient guarantee of a

unanimous jury verdict to its own functionalist approach in the first place.” Id. at

100. It is the public meaning of the jury right at the time of adoption that the

founders “chose to enshrine” and which this Court is “entrusted to preserve.” Id.

That this public meaning included the right to 12 jurors is so well-established

– as even Williams acknowledged – that it can’t really be disputed. The government

takes a small stab at it, though, with a quibble about a passage from Matthew

Hale’s Historia Placitorum Coronae: The History of the Pleas of the Crown (1736).

Parada Opp.10. It contends that despite Hale’s statement that a jury of 12 must be

sworn, his later passage stating that “the Justices at common law may upon just

cause remove a juror after he is sworn” suggested that the jury could proceed with

11 jurors. Parada Opp.10. But the government admits that Hale did not say that

the trial could continue after a juror removal for cause and, until Williams, the

result of a removal for cause was a mistrial. See, e.g., Patton v. United States, 281

U.S. 276, 286 (1930) (even in the case of dismissal for “illness,” “the absence of one

juror would result in a mistrial); People v. Olcott, 2 Johns, Cas, 301, 306 (N.Y. Sup.

Ct. 1801) (in such cases the court should “discharge the jury, and remand the

prisoner for another trial”); Commonwealth v. Cook, 6 Serg. & Rawle 577, 585 (Pa.

1822). And before Williams, Rule 23(b) required a mistrial if the jury were reduced

below 12 for any reason, absent the consent of the parties to proceed with 11 jurors

after a removal for cause. Fed. R. Crim. P. 23, Advisory Committee Notes, 1944

Adoption and the 1983 Amendments. That judges could always remove a juror for

good cause says nothing about whether the reduced jury can deliver a verdict.

None of the government’s merits arguments provide a reason for denying

certiorari.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

By:

January 28, 2026

/s/ Colleen P. Cassidy