Amicus Curiae Brief — Hamed Kian, Petitioner v. Florida
Supreme Court briefAug 13, 2026
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No. 25-6623
In the Supreme Court of the United States
HAMED KIAN,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
On Writ of Certiorari to the Fourth District Court of
Appeal of Florida
BRIEF OF 38 CURRENT AND FORMER
PROSECUTORS, LAW ENFORCEMENT
OFFICERS, AND FORMER JUDGES;
FAIR AND JUST PROSECUTION; AND
LAW ENFORCEMENT ACTION
PARTNERSHIP AS AMICI CURIAE
SUPPORTING PETITIONER
Daniel Woofter
Counsel of Record
Kevin K. Russell
RUSSELL & WOOFTER LLC
1701 Pennsylvania
Avenue NW, Suite 200
Washington, DC 20006
(202) 240-8433
dw@russellwoofter.com
QUESTION PRESENTED
Whether Petitioner was deprived of his right,
under the Sixth and Fourteenth Amendments, to a
trial by a twelve-person jury when the defendant is
charged with a serious felony.
ii
TABLE OF CONTENTS
QUESTION PRESENTED...........................................i
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ......................................................... 2
ARGUMENT ............................................................... 4
I.
A serious criminal case historically required a
jury of twelve. ....................................................... 4
II. Twelve-person juries are more representative
and more accurate, and any fewer harms
communities of color most, as historically
intended. ............................................................... 9
III. Public trust in jury verdicts is the foundation
of law enforcement’s ability to safeguard the
public. .................................................................. 14
CONCLUSION .......................................................... 17
APPENDIX
LIST OF AMICI CURIAE ............................ App.1
iii
TABLE OF AUTHORITIES
Cases
Ballew v. Georgia,
435 U.S. 223 (1978) .................................. 3, 9, 10, 12
Cap. Traction Co. v. Hof,
174 U.S. 1 (1899) ......................................................5
Collins v. Youngblood,
497 U.S. 37 (1990) ....................................................2
Duncan v. Louisiana,
391 U.S. 145 (1968) ..................................................5
Flowers v. Mississippi,
588 U.S. 284 (2019) ................................................ 17
Gibson v. State,
16 Fla. 291 (1877) ...................................................13
Jackson v. Virginia,
443 U.S. 307 (1979) ................................................ 15
Khorrami v. Arizona,
143 S. Ct. 22 (2022) .............. 4, 5, 8, 9, 10, 13, 14, 16
Lockhart v. McCree,
476 U.S. 162 (1986) ................................................ 12
Maxwell v. Dow,
176 U.S. 581 (1900) ..................................................5
Offutt v. United States,
348 U.S. 11 (1954) ..................................................15
Patton v. United States,
281 U.S. 276 (1930) ..................................................5
Powers v. Ohio,
499 U.S. 400 (1991) ................................................ 17
iv
Ramos v. Louisiana,
590 U.S. 83 (2020) ........................ 2, 4, 6, 7, 8, 12, 13
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) ................................................ 15
Thompson v. Utah,
170 U.S. 343 (1898) .......................................... 2, 3, 5
Willey v. Harris Cnty. Dist. Att’y,
27 F.4th 1125 (5th Cir. 2022) ............................ 4, 14
Williams v. Florida,
399 U.S. 78 (1970) .................................. 2, 6, 7, 9, 12
Williams-Yulee v. Fla. Bar,
575 U.S. 433 (2015) ................................................ 15
Constitutional Provisions
S.C. Const. art. III, § 1 .............................................. 13
U.S. Const. amend. VI ......................................i, 2, 4, 8
U.S. Const. amend. VII ...............................................7
U.S. Const. amend. XIV .......................................... i, 5
Statutes
Ariz. Rev. Stat. Ann. § 21-102 (West 2026) ................8
1877 Fla. Laws 53, ch. 3010, § 1 ............................... 14
1877 Fla. Laws 54, ch. 3010, § 6 ............................... 13
Fla. Stat. Ann. § 913.10 (West 2026) ..........................8
Ind. Code Ann. § 35-37-1-1(b) (West 2026).................8
Ind. Code Ann. § 35-50-2-7 (West 2026) .....................8
1866 S.C. Acts 493, § 3 ..............................................13
v
Rules
Fed. R. Crim. P. 23(b)(1) ...........................................16
Other Authorities
12 Angry Men
(United Artists 1957) .............................................16
Shamena Anwar et al., The Impact of Jury
Race in Criminal Trials,
127 Q.J. Econ. 1017 (2012) ....................................12
Joshua Baldwin et al., The People’s Attorney?
Examining Public Trust in the Prosecutor’s
Office,
J.L. & Cts. (2026) ...................................................15
4 William Blackstone,
Commentaries ............................................... 2, 4, 5, 8
Douglas L. Colbert, Challenging the
Challenge: Thirteenth Amendment as a
Prohibition Against the Racial Use of
Peremptory Challenges,
76 Cornell L. Rev. 1 (1990) ....................................14
Shari Seidman Diamond et al., Achieving
Diversity on the Jury: Jury Size and the
Peremptory Challenge,
6 J. Empirical Legal Stud. 425 (2009) ...................11
Resp. Br., Ramos v. Louisiana,
590 U.S. 83 (No. 18-5924) ........................................6
Michael J. Saks & Mollie Weighner Marti, A
Meta-Analysis of the Effects of Jury Size,
21 L. & Hum. Behav. 451 (1997) ...........................10
vi
Jerrell H. Shofner, Reconstruction and
Renewal, 1865–1877,
in The History of Florida 260 (Michael
Gannon ed., first paperback prtg. 2018) ...............13
Samuel R. Sommers & Phoebe C. Ellsworth,
How Much Do We Really Know About Race
and Juries? A Review of Social Science
Theory and Research,
78 Chi.-Kent L. Rev. 997 (2003) ............................11
Samuel R. Sommers, On Racial Diversity and
Group Decision Making: Identifying Multiple
Effects of Racial Composition on Jury
Deliberations,
90 J. Personality & Soc. Psych. 597 (2006) ...........11
Wanling Su & Rahul Goravara, What Is a
Jury?,
103 N.C. L. Rev. 969 (2025) .....................................7
Tom R. Tyler & Jeffrey Fagan, Legitimacy and
Cooperation: Why Do People Help the Police
Fight Crime in Their Communities?,
6 Ohio St. J. Crim. L. 231 (2008) ...........................16
Tom R. Tyler & Jonathan Jackson, Popular
Legitimacy and the Exercise of Legal
Authority: Motivating Compliance,
Cooperation and Engagement,
20 Psych., Pub. Pol’y, & L. 78 (2014) .....................16
2 Collected Works of James Wilson (Kermit L.
Hall & Mark David Hall eds., 2007)........................4
Hans Zeisel, . . . And Then There Were None:
The Diminution of the Federal Jury,
38 U. Chi. L. Rev. 710 (1971) ...................................9
INTEREST OF AMICI CURIAE1
Amici curiae are 38 current and former
prosecutors, law enforcement officers, and former
judges from jurisdictions across the country; Fair and
Just Prosecution, a project of the Tides Center; and
Law Enforcement Action Partnership. A complete list
of amici and their titles appears in the appendix at the
end of this brief.
Amici have spent their careers in law
enforcement and courtrooms helping to secure
convictions the public can trust. But their work is only
as legitimate as the process that produces it. The
twelve-person jury is the heart of that process. When
twelve members of the community hear the evidence,
deliberate, and unanimously pronounce judgment, the
verdict carries an authority no prosecutor or law
enforcement officer could marshal alone. That is
because the public is more likely to accept the outcome
when a representative jury drawn from the
community decides it.
For serious crimes, trial by twelve-person jury is
required by nearly every state. It is thus the
institution in which amici were trained and in which
many work to resolve such cases. Amici have a distinct
professional stake in whether a state may instead try
a person accused of a serious crime before a jury of six.
The answer matters to defendants, of course, who
depend on a fair trial, as well as communities that
must have faith that the system is treating all persons
1
No counsel for any party authored this brief in whole or in
part, and no person or entity other than amici curiae or their
counsel made a monetary contribution intended to fund the
brief’s preparation or submission.
2
equally under the law. But it also matters to the
prosecutors and law enforcement officers like amici,
who sometimes must pursue the justice system’s most
consequential judgments.
INTRODUCTION AND
SUMMARY OF ARGUMENT
I. Before the turn of the last century, this Court
declared that a defendant enjoys a “constitutional
right to demand that his liberty should not be taken
from him except by the joint action of the court and
the unanimous verdict of a jury of twelve persons.”
Thompson v. Utah, 170 U.S. 343, 351 (1898), overruled
on other grounds by Collins v. Youngblood, 497 U.S.
37 (1990); see Ramos v. Louisiana, 590 U.S. 83, 92
(2020). For the next seven decades, the Court repeated
that rule without qualification. See Williams v.
Florida, 399 U.S. 78, 117 (1970) (Marshall, J.,
dissenting in part). But in 1970, Williams v. Florida
declared the number twelve a “historical accident,”
“wholly without significance ‘except to mystics,’” and
permitted Florida to try serious crimes before juries of
six. Id. at 102 (citation omitted).
Williams broke from centuries of tradition. The
Court has since dismantled its premise. In Ramos, the
Court held that the Sixth Amendment means what it
meant when adopted, refusing to trade its “ancient
guarantee” for a modern cost-benefit analysis “aided
by no more than social statistics.” 590 U.S. at 100-01.
The Sixth Amendment required unanimous juries at
the time; it requires unanimity now. Ibid.
What Ramos did for unanimity, the Court should
now do for size. The two requirements arrived
together. See 4 William Blackstone, Commentaries
3
*343 (conviction required “the unanimous suffrage of
twelve of his equals and neighbours”); Thompson, 170
U.S. at 351 (conviction requires “joint action of the
court and the unanimous verdict of a jury of twelve
persons” (emphasis added)). And new historical
scholarship confirms that the Founding generation
regarded a panel of fewer than twelve not merely as a
smaller jury but as no jury at all.
II. Even judged by Williams’s obsolete
functionalism, the six-person jury has failed. Within a
decade of deciding Williams, this Court acknowledged
empirical data showing that smaller juries deliberate
less effectively, decide less accurately, and are less
likely to include even a single member of a minority
group. Ballew v. Georgia, 435 U.S. 223, 232-37 (1978)
(opinion of Blackmun, J.). A half-century of ensuing
research confirms those findings. Just like nonunanimity accomplished by design, shrinking the jury
erases the perspectives and participation of jurors of
color from the jury room.
That result was no historical accident. Jury-size
restrictions, including Florida’s Reconstruction-era
statute introducing the six-person jury, trace to the
slave courts of the Founding era and Jim Crow
enactments that followed the Civil War. There is no
good reason to preserve these vestiges of our nation’s
darkest chapter.
III. Law enforcement cannot persuade witnesses
to come forward, victims to report, and communities
to accept verdicts without public confidence in the
fairness and integrity of the system. “Little else
matters if a state cannot persuade its citizens that it
wields legitimate authority.” Willey v. Harris Cnty.
4
Dist. Att’y, 27 F.4th 1125, 1133 (5th Cir. 2022)
(citation omitted).
The twelve-person jury is what centuries of
practice have taught citizens to expect when the
government seeks to take a person’s liberty. It is the
rule of nearly every state. The public has reason to
discount a verdict that results in a serious-crime
conviction rendered by only six jurors.
Defendants bear the cost of the verdicts the
community does not trust. But so do prosecutors and
police. And everyone ultimately suffers as a result.
ARGUMENT
I.
A SERIOUS CRIMINAL CASE HISTORICALLY
REQUIRED A JURY OF TWELVE.
Start where Ramos began: What did “trial by an
impartial jury” mean to those who ratified the Sixth
Amendment? Ramos v. Louisiana, 590 U.S. 83, 89-92
(2020). The historical record is emphatic. See Petr. Br.
5-11, 18-23. By the time of the Sixth Amendment’s
adoption, the twelve-person criminal jury was “an
institution with a nearly four-hundred-year-old
tradition in England.” See Khorrami v. Arizona, 143
S. Ct. 22, 23 (2022) (Gorsuch, J., dissenting from the
denial of certiorari) (quotation marks omitted). Guilt
required “the unanimous suffrage of twelve of his
equals and neighbours.” 4 William Blackstone,
Commentaries *343 (emphasis added). James Wilson,
both a Framer and Justice of this Court, taught that
“the unanimous sentiment of the twelve jurors is of
indispensable necessity” to convict. 2 Collected Works
of James Wilson 985 (Kermit L. Hall & Mark David
Hall eds., 2007) (emphasis added).
5
For seventy years, this Court treated both
requirements as unassailable. On the size of the jury,
this Court “could not have been plainer.” Khorrami,
143 S. Ct. at 24 (Gorsuch, J., dissenting from the
denial of certiorari) (describing Thompson v. Utah,
170 U.S. 343 (1898)). The jury contemplated by the
Constitution is “a jury constituted, as it was at
common law, of twelve persons, neither more nor
less.” Thompson, 170 U.S. at 349 (citations omitted).
A year after Thompson, the Court described trial by
jury “in the primary and usual sense of the term” as
“a trial by a jury of 12.” Cap. Traction Co. v. Hof, 174
U.S. 1, 13 (1899). It professed “no doubt” on the point
the following year. Maxwell v. Dow, 176 U.S. 581, 586
(1900) (citing Thompson, 170 U.S. at 349). By 1930,
the matter was “not open to question”; the Court
warned that sanctioning even “the voluntary
reduction of a jury from twelve to eleven” on the
theory that doing so “is only a slight reduction, is not
to interpret [the Constitution], but to disregard it.”
Patton v. United States, 281 U.S. 276, 288, 292 (1930).
Even as late as 1968, the Court was still quoting
Blackstone’s “twelve of his equals and neighbours” as
a jury right the Fourteenth Amendment incorporated
as governing the states. Duncan v. Louisiana, 391
U.S. 145, 151-52 (1968). Generations of prosecutors
met that standard and secured convictions that stood
sturdier for it.
When Williams approved Florida’s six-person
jury for all serious, non-capital criminal cases, it
defied “centuries of precedent.” Khorrami, 143 S. Ct.
at 23 (Gorsuch, J., dissenting from the denial of
certiorari). The Court offered three rationales. None
survives the Court’s recent decision in Ramos.
6
First, Williams conceded that “a jury at common
law in 1789” consisted of twelve members, but read
the Senate’s deletion of Madison’s draft language
guaranteeing the jury’s “accustomed requisites” as
freeing the states from the number. 399 U.S. at 92-97.
Petitioner explains why Ramos forecloses that
inference. Petr. Br. 29-30. In short, “rather than
dwelling on text left on the cutting room floor, we are
much better served by interpreting the language
Congress retained and the States ratified.” Ramos,
590 U.S. at 98.
Second, Williams dismissed Thompson, Maxwell,
Patton, and their kin as “dictum.” 399 U.S. at 91-92.
But Ramos rejected the same gambit when Louisiana
insisted these venerable precedents were “dicta all the
way down,” as the Court put it. 590 U.S. at 96-97; see
Resp. Br. 40-41, Ramos, 590 U.S. 83 (No. 18-5924).
Even Louisiana’s own brief read them as jury-size
holdings. In attempting to prove up that this Court
had never squarely held unanimity constitutionally
required, Louisiana described Thompson as a case
that “addressed whether federal law required a jury
in the territory of Utah to consist of twelve members,”
and Maxwell and Patton as “likewise cases addressing
whether the Constitution requires a jury to consist of
twelve members.” Resp. Br. 40, Ramos, supra.
Third, Williams wagered that six jurors would
“probably” deliberate and represent the community as
well as twelve, while conceding that “few
experiments” supported the claim. See 399 U.S. at
100-01. Petitioner explains why Ramos forbids the
tradeoff. Petr. Br. 26-27. Courts are “entrusted to
preserve and protect that liberty, not balance it away
aided by no more than social statistics.” Ramos, 590
7
U.S. at 100 (footnote omitted); see also infra Part II
(the gamble has also been lost on its own terms).
The Founding-era record makes the same point
from its darkest corner. Williams supposed that “little
thought was actually given” to jury size at the
Founding, and that twelve was an “accidental feature
of the jury.” 399 U.S. at 90, 99. A comprehensive
archival study of Founding-era practice proves the
opposite. See Wanling Su & Rahul Goravara, What Is
a Jury?, 103 N.C. L. Rev. 969, 975 (2025) (examining
the Seventh Amendment’s civil jury guarantee,
ratified alongside the Sixth in 1791). Eighteenthcentury Americans had a name for a panel of fewer
than twelve, because they maintained such panels for
enslaved people alone. Ibid. While Carolina’s charter,
adopted in 1669, had provided that “every jury shall
consist to twelve men,” id. at 984 & n.80 (cleaned up),
the Carolinas’ “slave courts” impaneled as few as
three (SC) or four (NC) freeholders to try enslaved
defendants in proceedings that contemporaries
described as “non-jury” trials, id. at 983, 987, 988-89.
Impaneling fewer than twelve was understood as “an
insult so stingy” it was reserved for those denied civil
and constitutional rights altogether, “a deliberate
choice to institutionalize second-class justice.” Id.
at 984. When North Carolina reformed its law in
1793, it extended “the opportunity to request trial by
twelve jurors” to enslaved defendants and “free
persons of color,” but limited the twelve to “owners of
slaves.” Id. at 988-89 & n.122.
Ratifying-convention records, Founding-era state
practice, and early treatises converge on one
conclusion: “a constitutional jury in 1791 required
twelve jurors.” Id. at 1029. Put another way, the
8
Founding generation regarded twelve as the line
between a jury and something less.
Williams is left with nothing to stand on. The
Sixth Amendment’s “trial by an impartial jury”
carries the common-law content of unanimity, and a
state may not eliminate that common-law
requirement because a later court deems it
functionally dispensable. Ramos, 590 U.S. at 90-93,
100-01. The same holds for the common-law
requirement that a jury be made up of twelve citizens.
Both rules appear in the same sentence of Blackstone.
Both run through the same line of this Court’s
precedents. No principled reading freezes one while
leaving the other to legislative experimentation.
Williams “was wrong the day it was decided, it
remains wrong today, and it impairs both the
integrity of the American criminal justice system and
the liberties of those who come before our Nation’s
courts.” Khorrami, 143 S. Ct. at 23 (Gorsuch, J.,
dissenting from the denial of certiorari).
No surprise, then, that nearly every state already
requires twelve-person juries in serious criminal
cases. See ibid. (Gorsuch, J., dissenting from the
denial of certiorari). Even the few outliers only
tolerate smaller juries for some cases. See, e.g., Ariz.
Rev. Stat. Ann. § 21-102 (West 2026) (twelve-person
juries if a case involves a death sentence or carries a
term of thirty years or more); Fla. Stat. Ann. § 913.10
(West 2026) (twelve jurors for capital cases); Ind. Code
Ann. §§ 35-37-1-1(b), 35-50-2-7 (West 2026) (twelve
jurors for most felony cases while permitting fewer
jurors for only the least serious felonies).
9
II. TWELVE-PERSON
JURIES
ARE
MORE
REPRESENTATIVE AND MORE ACCURATE, AND
ANY FEWER HARMS COMMUNITIES OF COLOR
MOST, AS HISTORICALLY INTENDED.
Even if the Constitution’s meaning turned on the
six-person jury’s performance, Williams would still be
indefensible. The wager at its heart has been lost.
Williams predicted that a jury of six would be as
reliable and provide just as fair a “possibility for
obtaining a representative cross-section of the
community” as a jury of twelve. 399 U.S. at 100. But
before the ink was dry, scholars showed that Williams
had overread the handful of studies behind its tepid
prediction that six would “probably” perform as well
as twelve. See Hans Zeisel, . . . And Then There Were
None: The Diminution of the Federal Jury, 38 U. Chi.
L. Rev. 710, 712-15 (1971); Khorrami, 143 S. Ct. at 26
(Gorsuch, J., dissenting from the denial of certiorari).
Within eight years, the data caught up with the
Court. In Ballew v. Georgia, the Court refused to
extend Williams after canvassing empirical studies
showing that “progressively smaller juries are less
likely to foster effective group deliberation,” which
leads to lower quality verdicts. 435 U.S. 223, 231-34
(1978) (opinion of Blackmun, J.). Memory of the
evidence suffers and fewer perspectives are brought to
bear, raising “doubts about the accuracy of the results
achieved by smaller and smaller panels.” Id. at 234.
Worse, as juries become smaller, “the detriment [falls
on] one side, the defense.” Id. at 236.
The question is not whether a doubting juror
exists, but whether his doubt survives deliberation.
Group research shows that a juror in the minority
10
adheres to his position far more often when at least
one other juror shares it. See Ballew, 435 U.S. at 236
& n.25. If 10% of the community doubts the evidence
of guilt, 34% of twelve-member panels could be
expected to include two jurors who question the
strength of the evidence, whereas only 11% of sixmember panels would. Id. at 236 (footnote omitted).
And although the Court did “not pretend to discern a
clear line between six members and five,” the data
nonetheless “raise[d] substantial doubt about the
reliability and appropriate representation of panels
smaller than six.” Id. at 239. The Court in Ballew thus
refused to extend Williams to five-member panels,
and in so doing undermined the entire functional
rationale on which Williams rested. See Khorrami,
143 S. Ct. at 26 (Gorsuch, J., dissenting from the
denial of certiorari).
The half-century of research since Ballew only
confirms and expands the troubling data the Court
confronted in the wake of Williams. A meta-analysis
synthesizing the accumulated studies confirmed that
twelve-member juries deliberate longer, recall the
evidence more accurately, and give greater attention
to dissenting voices. See, e.g., Michael J. Saks & Mollie
Weighner Marti, A Meta-Analysis of the Effects of Jury
Size, 21 L. & Hum. Behav. 451, 455-66 (1997) (finding
that larger juries hang more often, consistent with
minority-view jurors having “attitudinal allies, and
therefore be[ing] better able to resist pressure to
conform”). In amici’s experience, these are critical
virtues. Deliberation length, collective memory, and
attention to dissent are the difference between a
verdict that reflects the evidence and one that reflects
the loudest voice in a small room. They are the
11
qualities that promote confidence in the outcome of a
trial and let prosecutors and law enforcement stand
behind a conviction years later, when it is tested on
appeal or collateral review. See infra p.15.
The representational failure is starker still, as
field research on actual juries confirms. In one study,
“28.1 percent of the six-member juries lacked even one
black juror,” while “only 2.1 percent of the 12-member
juries were entirely without black representation.”
Shari Seidman Diamond et al., Achieving Diversity on
the Jury: Jury Size and the Peremptory Challenge, 6
J. Empirical Legal Stud. 425, 442 (2009) (footnote
omitted).
Jury diversity also improves the deliberation
itself. White jurors are more likely to convict a Black
defendant when on an all-white jury. Samuel R.
Sommers & Phoebe C. Ellsworth, How Much Do We
Really Know About Race and Juries? A Review of
Social Science Theory and Research, 78 Chi.-Kent L.
Rev. 997, 1028-29 (2003). And the benefit of mixed
juries is not confined to any one class of defendants.
Racially diverse juries generally deliberate longer,
discuss more of the evidence, make fewer factual
errors, and prove better equipped to identify problems
like racial profiling and stereotyping. Samuel R.
Sommers, On Racial Diversity and Group Decision
Making: Identifying Multiple Effects of Racial
Composition on Jury Deliberations, 90 J. Personality
& Soc. Psych. 597, 601, 604-08 (2006) (controlled
experiment comparing deliberations of racially
homogeneous and racially mixed mock juries, which
deliberated on the same videotaped trial). In fact, the
significant gap in conviction rates between Black and
white defendants that appears when no Black
12
members are in the jury pool “is eliminated” when the
pool includes even one. Shamena Anwar et al., The
Impact of Jury Race in Criminal Trials, 127 Q.J. Econ.
1017, 1019-20, 1034-35 (2012).
Ramos condemned non-unanimity in part
because it let majorities erase the votes of jurors of
color. See 590 U.S. at 87-88. A rule halving the jury’s
size achieves the same erasure without striking a
single juror. To be sure, this Court guarantees a
representative pool, not a representative panel.
Lockhart v. McCree, 476 U.S. 162, 173-74 (1986). But
that limitation is only tolerable because the jury’s
number supplies “a fair possibility for obtaining a
representative cross-section of the community.”
Williams, 399 U.S. at 100. Cut the number and the
venire may perfectly mirror the community, yet the
sampling erases what the pool was built to preserve.
That distinction between selection and size is the
Court’s own. Lockhart singled out Ballew as the one
decision
suggesting
that
the
cross-section
requirement might reach beyond “the context of jury
panels or venires,” and set it apart because Ballew
“did not involve jury selection at all, but rather the
size of the petit jury.” Lockhart, 476 U.S. at 173-74
n.14 (emphases omitted). And whether or not any
single trial would support an equal-protection claim,
“the question of representation does constitute one
factor of several” bearing on the constitutional
adequacy of a smaller jury. Ballew, 435 U.S. at 242.
None of this should surprise. As petitioner
describes, Petr. Br. 11-12, jury shrinkage in this
country has a disgraceful lineage. As previewed
above, in the Founding era, panels of fewer than
13
twelve were the signature of the slave courts—secondclass process for those denied the Constitution’s
protection. See supra pp. 7-8. In 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 from the denial of
certiorari). Louisiana’s 1898 Constitution permitted
five-member juries alongside the poll tax, the literacy
test, and the grandfather clause. Ibid.; see Ramos, 590
U.S. at 87-88. South Carolina’s post-war laws
provided for eight-member juries in the district courts
given jurisdiction over “all criminal cases wherein the
accused is a person of color.” Khorrami, 143 S. Ct. at
27 (Gorsuch, J., dissenting from the denial of
certiorari) (quoting S.C. Const. art. III, § 1 and 1866
S.C. Acts 493, § 3). And Florida’s own six-person jury
descends from chapter 3010 of the Laws of 1877—
enacted weeks after the last federal troops withdrew
from the State—and sustained that same year against
a direct challenge to trial by “a jury of six.” See Gibson
v. State, 16 Fla. 291, 298-300 (1877); Jerrell H.
Shofner, Reconstruction and Renewal, 1865–1877, in
The History of Florida 260, 273 (Michael Gannon ed.,
first paperback prtg. 2018).
That the Florida Legislature preserved twelve
jurors for capital cases while cutting every other jury
to six provides Florida no cover. See Gibson, 16 Fla. at
297-98 (“twelve men shall constitute a jury to try all
capital cases, and six men shall constitute a jury to try
all other offences” (quoting 1877 Fla. Laws 54, ch.
3010, § 6)). The carve-out proves the Florida
Legislature knew exactly what the common-law jury
14
was and how to preserve it. It chose to deviate for the
mine-run of serious felonies in the same session that
restored a discretionary “integrity, fair character,
sound judgment and intelligence” jury-qualification
standard “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 Cornell L. Rev. 1, 89-90 (1990); 1877
Fla. Laws 53, ch. 3010, § 1; accord Petr. Br. 12.
Amici do not contend that every state that shrank
its jury acted from racial bias. Some, no doubt, sought
only economy. See Khorrami, 143 S. Ct. at 27
(Gorsuch, J., dissenting from the denial of certiorari).
But whatever the motive, the exclusionary effect is
the same, “sad truth borne out by hard experience.”
Ibid.
III. PUBLIC TRUST IN JURY VERDICTS IS THE
FOUNDATION OF LAW ENFORCEMENT’S ABILITY
TO SAFEGUARD THE PUBLIC.
Amici write finally to explain, from the
prosecutor’s side of the courtroom, why this case
matters to the everyday administration of criminal
justice. “A state has no higher interest” than the
fairness and legitimacy of its government, for “[l]ittle
else matters if a state cannot persuade its citizens
that it wields legitimate authority.” Willey v. Harris
Cnty. Dist. Att’y, 27 F.4th 1125, 1133 (5th Cir. 2022)
(footnote and citation omitted). The “people sensed
from experience and observation that, especially in
the administration of criminal justice, the means used
to achieve justice must have the support derived from
public acceptance of both the process and its results.”
15
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
571 (1980) (plurality opinion). “To work effectively, it
is important that society’s criminal process ‘satisfy the
appearance of justice.’” Id. at 571-72 (quoting Offutt v.
United States, 348 U.S. 11, 14 (1954)). The entire legal
system “depends in large measure on the public’s
willingness to respect and follow its decisions.” See
Williams-Yulee v. Fla. Bar, 575 U.S. 433, 445-46
(2015) (so holding as to the judiciary).
When a state cuts the jury in half, thereby
producing a body that deliberates less, remembers
less, and errs more, supra Part II, it locks in—behind
near-absolute deference—a verdict the public cannot
trust. On appeal, a verdict generally stands so long as
any rational juror could have found the elements
beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979). That deference protects the
jury’s province: resolving conflicts in testimony,
weighing the evidence, and drawing inferences. But
deference of that magnitude presupposes that twelve
members of the community deliberated to a
unanimous judgment.
Recent empirical work further confirms that
public trust in prosecutors is inseparable from public
trust in the courts. “When the courts are seen as fair
and effective, prosecutors inherit credibility.” Joshua
Baldwin et al., The People’s Attorney? Examining
Public Trust in the Prosecutor’s Office, J.L. & Cts., at
1, 13 (2026), https://doi.org/10.1017/jlc.2026.10027.
When people view prosecutors, police, courts, and the
law as legitimate, they more readily report crimes,
cooperate as witnesses, and accept police and judicial
system authority. See Tom R. Tyler & Jeffrey Fagan,
Legitimacy and Cooperation: Why Do People Help the
16
Police Fight Crime in Their Communities?, 6 Ohio St.
J. Crim. L. 231, 263 (2008); Tom R. Tyler & Jonathan
Jackson, Popular Legitimacy and the Exercise of Legal
Authority: Motivating Compliance, Cooperation and
Engagement, 20 Psych., Pub. Pol’y, & L. 78, 78-79
(2014). When that trust erodes, the opposite is true,
and the consequences are practical and immediate.
The community will no longer view law enforcement
and the courts as the means to seek justice. Witnesses
stop cooperating. Victims stop reporting. Everyone
becomes less safe as a result.
The jury is the institution that generates the
trust on which all of this depends, and the twelveperson jury is the one the public knows. For
generations, virtually every American lawyer’s
education and experience has assumed that a serious
criminal case means twelve jurors in the box. That is
because the federal courts and nearly every state have
long guaranteed twelve-person juries for serious
criminal cases. See Khorrami, 143 S. Ct. at 23
(Gorsuch, J., dissenting from the denial of certiorari);
Fed. R. Crim. P. 23(b)(1). American film and television
invariably put twelve jurors in the box. See, e.g., 12
Angry Men (United Artists 1957) (in which a lone
dissenter’s persistence forces the other eleven jurors
to confront the evidence again). When ordinary
citizens picture a jury deciding someone’s fate, they
picture twelve. It is embedded in the culture.
Accordingly, when six jurors in an outlier state convict
someone of a serious felony, the verdict comes from a
body the national community does not fully recognize.
Defendants suffer the most, of course. As
discussed, they receive less deliberation, less
accuracy, and less hope of a jury of peers than
17
constitutionally promised. But they do not suffer
alone. On top of the law enforcement and community
harms described above, a six-person jury shuts
citizens out of one of the most important ways in
which they govern. Jury service is a “duty, honor, and
privilege.” Powers v. Ohio, 499 U.S. 400, 415 (1991).
“Other than voting, serving on a jury is the most
substantial opportunity that most citizens have to
participate in the democratic process.” Flowers v.
Mississippi, 588 U.S. 284, 293 (2019) (citing Powers,
499 U.S. at 407). A jury of twelve doubles that
opportunity. And the broader community can better
trust a verdict rendered by twelve of its own, drawn
from its full breadth, deliberating to a considered
judgment.
CONCLUSION
The judgment should be reversed.
Respectfully submitted,
Daniel Woofter
Counsel of Record
Kevin K. Russell
RUSSELL & WOOFTER LLC
1701 Pennsylvania
Avenue NW, Suite 200
Washington, DC 20006
(202) 240-8433
dw@russellwoofter.com
August 13, 2026
APPENDIX
App.1
LIST OF AMICI CURIAE
Fair and Just Prosecution,
a Project of the Tides Center
Law Enforcement Action Partnership
Diana Becton
District Attorney, Contra Costa County,
California;
Former Judge, Contra Costa County Superior
Court, California
Buta Biberaj
Former Commonwealth’s Attorney, Loudoun
County, Virginia
Chesa Boudin
Former District Attorney, City and County of
San Francisco, California
Bobbe J. Bridge
Former Justice, Washington Supreme Court
John Choi
County Attorney, Ramsey County (St. Paul),
Minnesota
Kara Davis
District Attorney, Wasco County, Oregon
Parisa Dehghani-Tafti
Commonwealth’s Attorney, Arlington County
and the City of Falls Church, Virginia
Aramis Donell
Former State Attorney, Ninth Judicial Circuit
(Orange & Osceola Counties), Florida
App.2
Mark Dupree
District Attorney, Wyandotte County (Kansas
City), Kansas
Ramin Fatehi
Commonwealth’s Attorney, City of Norfolk,
Virginia
Jay Fisher
Former Assistant Attorney General, State of
Colorado
Neill Franklin (Ret.)
Former Executive Director, Law Enforcement
Action Partnership;
Former Lieutenant Colonel, Commander of
Education and Training Lieutenant, Baltimore
Police Department;
Former Major, Maryland State Police
Leonard Frieling
Former Judge, City of Lafayette Municipal Court
(Denver), Colorado
Royal Furgeson (Ret.)
Former Judge, U.S. District Court, Western
District of Texas
Gil Garcetti
Former District Attorney, Los Angeles County,
California
Stan Garnett
Former District Attorney, 20th Judicial District
(Boulder), Colorado
Sarah F. George
State’s Attorney, Chittenden County
(Burlington), Vermont
App.3
Nancy Gertner
Former Senior Judge, U.S. District Court,
District of Massachusetts
Diane Goldstein (Ret.)
Former Lieutenant, Redondo Beach Police
Department, Redondo Beach, California
Jim Hingeley
Commonwealth’s Attorney, Albemarle County,
Virginia
Joseph Iniguez
Former Chief Deputy District Attorney, Los
Angeles County, California
Michael Jackson
Former District Attorney, 4th Judicial Circuit,
Alabama
Lawrence S. Krasner
District Attorney, Philadelphia, Pennsylvania
Brian Leininger
Former Assistant District Attorney, 29th
Judicial District (Kansas City), Kansas
Mary Helen Maynard (Ret.)
Former County Justice Court Judge, Santa Cruz
County (Nogales), Arizona;
Former County Superior Court Judge, Santa
Cruz County (Nogales), Arizona
Gordon McAllister (Ret.)
Former District Court Judge, Tulsa, Oklahoma
Beth McCann
Former District Attorney, 2nd Judicial District
(Denver), Colorado
App.4
Charmaine McGuffey
Sheriff, Hamilton County, Ohio
Amy Padden
District Attorney, 18th Judicial District,
Colorado
Peggy Quince
Former Chief Justice, Florida Supreme Court;
Former Judge, Second District Court of Appeal,
Florida
Karl Racine
Former Attorney General, District of Columbia
Ira Reiner
Former District Attorney, Los Angeles County,
California;
Former City Attorney, Los Angeles, California
Eric Rinehart
State’s Attorney, Lake County, Illinois
Jeff Rosen
District Attorney, Santa Clara County,
California
Carol Siemon
Former Prosecuting Attorney, Ingham County
(Lansing), Michigan
Eric Sparr
District Attorney, Winnebago County, Wisconsin
Matthew Van Houten
District Attorney, Tompkins County, New York
Allison Watson
Former Assistant District Attorney, 13th
Judicial District (Knoxville), Tennessee
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.