Amicus Curiae Brief — Hamed Kian, Petitioner v. Florida

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 AMICUS CURIAE NAACP LEGAL

DEFENSE & EDUCATIONAL FUND, INC. AND

THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE IN SUPPORT OF PETITIONER

BRITTANY CARTER

JANAI NELSON

Counsel of Record

President and DirectorSAMUEL SPITAL

Counsel

NAACP Legal Defense and DANIEL HARAWA,

CHRISTOPHER KEMMITT

Educational Fund, Inc.

NAACP Legal Defense and

40 Rector Street, 5th Floor

Educational Fund, Inc.

NEW YORK, NY 10006

bcarter@naacpldf.org

700 14th St. NW, Suite 600

(212) 965-2200

(202) 682-1300

Counsel for Amicus Curiae

Additional Counsel on Signature Page

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................. iii

INTERESTS OF AMICUS CURIAE ................ 1

SUMMARY OF THE ARGUMENT .................. 5

ARGUMENT ..................................................... 11

I.

Ramos Requires this Court to

Confront the Racist History of

Florida’s Six-Person Jury Law. .............. 11

II.

Florida’s Six-Person Jury Law Was

Designed to Thwart Black Jury

Service and to Make it Easier to

Convict Black Defendants. ..................... 16

III.

Florida’s Six-Person Jury Law Still

Operates Today to Thwart Black Jury

Service and Leads to Higher

Conviction Rates for Black

Defendants. ............................................. 30

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

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Louisiana,

405 U.S. 625 (1972) ............................................. 2

Apodaca v. Oregon,

406 U.S. 404 (1972) (plurality opinion) 13, 14, 15

Ballew v. Georgia,

435 U.S. 223 (1978) ..................................... 32, 33

Brown v. Bd. of Educ. of Topeka,

347 U.S. 483 (1954) ............................................. 1

Castaneda v. Partida,

430 U.S. 482 (1977) ............................................. 8

Cooper v. Aaron,

358 U.S. 1 (1958) ................................................. 1

Cunningham v. Florida,

144 S. Ct. 1287 (2024) (Gorsuch, J.,

dissenting from denial of certiorari) .......... 15, 37

Edwards v. Vannoy,

593 U.S. 255 (2021) (Kagan, J.,

dissenting) ........................................................... 6

Ham v. South Carolina,

409 U.S. 524 (1973) ............................................. 1

iv

Hunter v. Underwood,

471 U.S. 222 (1985) ........................................... 36

Ramos v. Louisiana,

590 U.S. 83 (2020) 2, 5, 6, 9, 11-14, 16, 27, 29, 37

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) (Souter, J.,

dissenting) ........................................................... 7

Strauder v. West Virginia,

100 U.S. 303 (1879) ............................................. 5

Swain v. Alabama,

380 U.S. 202 (1965) ............................................. 2

Thompson v. Utah,

170 U.S. 343 (1898), overruled on other

grounds by Collins v. Youngblood, 497

U.S. 37 (1990) .................................................... 10

Trump v. Barbara,

143 S.Ct. 2438 (2026) (Jackson, J.,

concurring) ........................................................ 10

Williams v. Florida,

399 U.S. 78 (1970) ........................... 15, 31, 37, 38

Statutes

Ch. 2090, Laws of Fla. (1877) .................................. 8

Ch. 3010 § 1, Laws of Fla. (1877)............................. 8

Ch. 3010, § 6, Laws of Fla. (1877).......................... 27

v

Ch. 3034, Laws of Fla. (1877) .................................. 8

Fla. Const. of 1868, art. VI, § 12 ............................ 23

Fla. Const.of 1868 Art. XIV, § 1 ............................. 22

Fla. Const. of 1868, art. XIV, § 2 ........................... 25

Fla. Const. of 1868, art. XIV, § 4 ........................... 24

Fla. Const. Art. XIV, § 7 ......................................... 24

Other Authorities

Alisa. Smith & Michael J. Saks, The Case

for Overturning Williams v. Florida and

the Six-Person Jury, 60 FLA. L. REV. 441

(2008) ................................................................. 35

Allan Arbman and James McConnell, Trial

By Jury: The New Irrelevant Right 27

SMU LAW REVIEW 436 (1973) ........................... 26

DONALD G. NIEMAN, TO SET THE LAW IN

MOTION: THE FREEDMEN’S BUREAU AND

THE LEGAL RIGHTS OF BLACKS, 1865-1868

(1979) ................................................................. 20

DOUGLAS A. BLACKMON, SLAVERY BY

ANOTHER NAME: THE RE-ENSLAVEMENT

OF BLACK AMERICANS FROM THE CIVIL

WAR TO WORLD WAR II (2008) ....................... 8, 29

vi

Douglas L. Colbert, Challenging the

Challenge: Thirteenth Amendment as a

Prohibition Against the Racial Use of

Peremptory Challenges, 76 CORNELL L.

REV. 1 (1990) ..................................... 8, 21, 28, 29

ERIC FONER, RECONSTRUCTION: AMERICA'S

UNFINISHED REVOLUTION, 1863-1877

(1988) ............................................... 17, 22, 26, 30

ERIC FONER, THE SECOND FOUNDING: HOW

THE CIVIL WAR AND RECONSTRUCTION

REMADE THE CONSTITUTION (2019). .................. 26

Erika L. Wood, Florida: An Outlier in

Denying Voting Rights, BRENNAN CTR.

FOR JUSTICE ............................... 18, 19, 21, 24, 30

Expert Report by Prof. Jerrell H. Shofner,

Ph.D., Johnson v. Bush, No. 00-CV-3542,

2001 WL 34842925 (S.D. Fla. June 20,

2001). ................................................................. 22

The Florida Timeline, 1865 - Establishment

of Vagrancy Laws at the Constitutional

Convention ........................................................ 19

Jerrell H. Shofner, Custom, Law, and

History: The Enduring Influence of

Florida's “Black Code”, 55 FLA. HIST. Q.

277 (1976) .................................................... 18, 21

vii

JERRELL H. SHOFNER, NOR IS IT OVER YET:

FLORIDA IN THE ERA OF

RECONSTRUCTION, 1863-1877 (Univ.

Press of Fla. 1974)....................................... 19, 20

Jerrell H. Shofner, Reconstruction and

Renewal, 1865-1877, in The History of

Florida (Michael Gannon, ed., first

paperback edition 2018).................................... 30

Michael J. Saks & Mollie Weighner Marti,

A Meta-Analysis of the Effects of Jury

Size, 21 LAW & HUM. BEHAV. 451 (1997) .......... 33

Patrick E. Higginbotham, et al., Better by

the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 JUDICATURE 47

(2020) ................................................................. 33

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) ........... 36

Shamena Anwar, et al., The Impact of Jury

Race in Criminal Trials, 127 Q.J. ECON.

1017 (2012) .................................................. 34, 35

Shari Seidman Diamond, et al., Achieving

Diversity on the Jury: Jury Size and the

Peremptory Challenge, 6 J. EMPIRICAL

LEGAL STUD. 425 (2009) .................................... 33

1

INTERESTS OF AMICUS CURIAE1

The NAACP Legal Defense and Educational

Fund, Inc. (LDF) is the nation’s first and foremost civil

rights organization. Since its founding in 1940, LDF

has fought to secure equal justice under the law for all

Americans, and to break down barriers that prevent

Black Americans from realizing their basic civil and

human rights. LDF’s advocacy has included efforts to

enforce the Fourteenth Amendment’s promise of

equality, see, e.g., Cooper v. Aaron, 358 U.S. 1 (1958),

Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954),

and to overcome the persistent and pernicious influence of race in the criminal justice system by fighting

to eradicate discrimination that affects jury verdicts,

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus cu-

riae state that no counsel for a party authored this brief in whole

or in part and that no person other than amicus curiae, its members, or its counsel made a monetary contribution to the preparation or submission of this brief.

2

see, e.g., Ham v. South Carolina, 409 U.S. 524 (1973),

Alexander v. Louisiana, 405 U.S. 625 (1972), Swain v.

Alabama, 380 U.S. 202 (1965).

LDF submitted an amicus brief in Ramos v.

Louisiana, 590 U.S. 83 (2020), urging this Court to

hold that Louisiana’s non-unanimous jury rule was

unconstitutional under the Sixth Amendment’s jury

guarantee, which applies to all States through the

Fourteenth Amendment. Like the question presented

in Ramos, the question presented in this case—

whether six-person juries violate the Sixth Amendment’s jury guarantee—has major implications for the

rights of both Black jurors and Black defendants, who

are more likely to be deleteriously affected by six-person juries.

Founded in 1909, and with more than 2,200 local units across the country, the National Association

3

for the Advancement of Colored people (“NAACP”) is

the nation’s oldest and largest grassroots civil rights

organization. The NAACP’s mission is to achieve equity, political rights, and social inclusion by advancing

policies and practices that expand human and civil

rights, eliminate discrimination, and accelerate the

well-being, education, and economic security of Black

people and all persons of color.

Among the NAACP’s core objectives is eliminating longstanding racial inequities that impede Black

people and other persons of color from serving on juries, thereby undermining the fairness and integrity

of jury selection and, ultimately, jury verdicts. The

current discriminatory law permitting six-person juries in non-capital criminal matters exacerbates these

concerns by limiting the diversity and representativeness of juries. The NAACP has a strong interest in

4

ensuring that Black people and all persons of color

have unequivocal and unfettered access to jury service

and that all individuals are afforded the fair and impartial trial that the Constitution demands.

5

SUMMARY OF THE ARGUMENT

After the Civil War, Congress passed the Fourteenth Amendment and the Civil Rights Act of 1875

to protect the rights of newly freed Black Americans.

One of the most important rights protected by those

provisions was the right to serve on a jury. Not long

after, this Court confirmed the centrality of jury service to Black Americans’ citizenship. See Strauder v.

West Virginia, 100 U.S. 303, 308–09 (1879).

Before that right could be fully realized, however, recalcitrant southern states went to work crafting schemes to deny Black Americans this important

badge of citizenship. This Court confronted one such

scheme not long ago: Louisiana’s adoption of a nonunanimous jury provision. See Ramos v. Louisiana,

590 U.S. 83 (2020). As Ramos recounted: “[A]ware

that this Court would strike down any policy of overt

6

discrimination against African-American jurors as a

violation of the Fourteenth Amendment,” Louisiana

“sought to undermine African-American participation

on juries in another way. With a careful eye on racial

demographics, the convention delegates sculpted a ‘facially race-neutral’ rule permitting 10-to-2 verdicts in

order ‘to ensure that African-American juror service

would be meaningless.’” Id. at 88. And in doing so,

this Court “vindicated core principles of racial justice.”

Edwards v. Vannoy, 593 U.S. 255, 295 (2021) (Kagan,

J., dissenting).

Florida’s six-person jury law is of the same ilk

and should therefore suffer the same fate. Florida enacted its six-person jury provision in the wake of the

Compromise of 1877, “when the Republican Party

agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for

7

Southern acquiescence in the decision of the Electoral

Commission that awarded the disputed 1876 presidential election to Rutherford B. Hayes.” Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 120 (1996)

(Souter, J., dissenting). Passed a part of a package designed to undermine Black citizenship, the Florida

legislature would have understood that it would be

easier to secure all-white juries if the jury size were

smaller, much like the Louisiana legislature understood that non-unanimous juries made it easier to nullify Black jurors’ votes. This is especially true given

the other laws Florida enacted that session. During

the same legislative session, Florida reinstated a discretionary “integrity, fair character, sound judgment

and intelligence” test for jury service, a standard used

across the South to purge Black citizens from the

8

venire. 2And under the law, the list of potential jurors

was compiled by the board of county commissioners—

a “key man system,” which has been a tool often used

to discriminate against potential jurors of color. See

Castaneda v. Partida, 430 U.S. 482, 497 (1977). That

same session, Florida enacted convict-leasing statutes, by which thousands of Black people were forced

into a system of labor that was essentially “slavery by

another name.”3

In short, Florida’s six-person jury law was not

an isolated piece of legislation; it was “one pillar of a

comprehensive and brutal program of racist Jim Crow

2 Ch. 3010 § 1, Laws of Fla. (1877); see also 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) (explaining that such standards

were “used to eliminate almost every black citizen from the

southern trial venire”).

3 DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE REENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO

WORLD WAR II (2008); see Ch. 3034, Laws of Fla. (1877) (state

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

9

measures against African-Americans, especially in

voting and jury service.” Ramos, 590 U.S. at 126–27

(Kavanaugh, J., concurring in part).

Ramos teaches that this history of racism matters, especially when its racial effects still linger.

Studies show that a six-person jury is mathematically

far more likely than a 12-person one to include no

Black jurors. See infra pp. 32–33. And Florida’s own

trial data confirms that the racial makeup of a jury

makes a difference: The gap in conviction rates between Black and white defendants appears almost entirely in cases where no Black juror is included in the

panel and disappears once even a single Black juror

is. See infra pp. 33-34. In other words, Florida’s sixperson jury law is still having its intended, racial effect—it makes it easier to exclude Black people from

10

juries, which in turn makes it easier to convict Black

defendants (and acquit white defendants) of crime.

To ensure that Black Americans are equally allowed to exercise their right to serve on juries, and are

guaranteed the fair trial that the Constitution demands, this Court should hold that the Constitution

requires 12-person juries. This is how the right to a

jury was originally understood at the time of the

Founding. See Thompson v. Utah, 170 U.S. 343, 349–

50 (1898), overruled on other grounds by Collins v.

Youngblood, 497 U.S. 37 (1990), (explaining that, “at

common law,” a jury was “of twelve persons, neither

more nor less”). And Florida’s law only deviated from

this understanding in an effort to undermine Black

Americans’ full citizenship after the Nation’s Second

Founding. See Trump v. Barbara, 143 S.Ct. 2438,

2468 (2026) (Jackson, J., concurring) (explaining that

11

the passage of the Reconstruction Amendments was a

“kind of ambitious transformation—nothing less than

the remaking of the soul of a Nation beset by rank,

entrenched race-based prejudice and inequity”). Having invalidated Louisiana’s nonunanimous jury law

with a similar discriminatory design, this Court

should strike down Florida’s six-person jury law as

well.

ARGUMENT

I.

Ramos Requires this Court to Confront

the Racist History of Florida’s Six-Person Jury Law.

In Ramos v. Louisiana, this Court had to decide

whether the Sixth Amendment, as incorporated

against the states by the Fourteenth Amendment, requires that guilty verdicts in state criminal trials be

unanimous for serious offenses. Ramos, 590 U.S. at

88. In holding that it does, Ramos based its decision

12

in part on the racist history of Louisiana’s and Oregon’s nonunanimous jury provisions—the only two

states that had them.

Justice Gorsuch, writing for the majority, explained that Louisiana’s nonunanimity rule dated to

a state constitutional convention in 1898, where a

committee chair said the purpose of the convention

was to “establish the supremacy of the white race.” Id.

at 87. After the U.S. Senate expressed concern that

Louisiana was “systemically excluding African-Americans from juries,” the state passed a “facially raceneutral” rule to thwart federal oversight that all but

ensured “African-American jury service would be

meaningless.” Id. at 88. The story of Oregon’s nonunanimous jury provision was just as odious. Oregon’s

nonunanimous jury law dated back to the 1930s and

the rise of the Ku Klux Klan in the state. Id. The law

13

was rooted in rank anti-Semitism, expressly designed

to “dilute ‘the influence of racial, ethnic, and religious

minorities on Oregon juries.’” Id. (citation omitted). In

the words of Ramos, the “racist origins” of both laws

“are clear.” Id. at 87, 106.

Previously, this Court had held that the Sixth

Amendment requires unanimity in federal jury trials

but not in state jury trials. See Apodaca v. Oregon, 406

U.S. 404, 406 (1972) (plurality opinion). But Apodaca

failed to grapple with the racist history of nonunanimity laws when reaching this conclusion.

Ramos overruled Apodaca and held that the

Sixth Amendment requires unanimity in state jury

trials too. See Ramos, 590 U.S. at 106. This Court

made clear why this history of racism is important as

a matter of constitutional analysis: “if the Sixth

Amendment calls on judges to assess the functional

14

benefits of jury rules, . . . how can that analysis proceed to ignore the very functions those rules were

adopted to serve?” Id. at 99 n.44. In other words, a jury

law’s constitutionality today cannot be assessed in isolation from the constitutionality of the purpose that

produced it. The majority also made clear that Apodaca’s failure to wrestle with the racist origins of nonunanimity laws undermined the quality of its reasoning and thus the deference that decision was due. See

id. at 106. Justice Kavanaugh emphasized this latter

point, explaining that a history of racism—and

whether previous precedent grappled with it—is relevant to stare decisis considerations. Id. at 128. (Kavanaugh, J., concurring). And in his view, “the origins

and effects of the non-unanimous jury rule strongly

support[ed] overruling Apodaca.” Id. at 126.

15

The year before Apodaca was decided, this

Court upheld Florida’s six-person jury law as constitutional. See Williams v. Florida, 399 U.S. 78 (1970).

It concluded that “the fact that the jury at common

law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury

system and wholly without significance ‘except to

mystics.’” Id. at 102 (citation omitted).

Williams should be overruled. As Justice Gorsuch has explained, that decision “turned its back on

the original meaning of the Constitution, centuries of

historical practice, and a battery of this Court’s precedents.” Cunningham v. Florida, 144 S. Ct. 1287,

1287–88 (2024) (Gorsuch, J., dissenting from denial of

certiorari) (citation modified).

However, the focus of this brief is what Williams did not discuss: the racial history and continued

16

racial effects of Florida’s six-person jury law. Under

Ramos, Williams’ failure to grapple with that history

undermines its stare decisis effect. See Ramos, 590

U.S. at 106. Moreover, Ramos teaches that this history is necessary to consider when determining the

constitutionality of a jury provision that deviates from

the common law understanding of the jury. Id. at 99

n.44. A review of this history underscores why this

Court must strike down Florida’s six-person jury law

as unconstitutional.

II.

Florida’s Six-Person Jury Law Was Designed to Thwart Black Jury Service

and to Make it Easier to Convict Black

Defendants.

Florida first permitted six-person juries for

non-capital criminal trials through Chapter 3010 of

the Laws of Florida (February 17, 1877). Enacted at

the close of Reconstruction as former Confederates regained power in the state legislature, the statute

17

codified a reduction from the traditional common law

12-person panel. This legislative enactment was reflective of the state’s long pattern of defiance against

federal protection of formerly enslaved people.

From the moment the Civil War ended, Florida’s search for legal means of limiting Black participation in governing and deliberative bodies began. 4

As new legislatures were assembling across the South

in the aftermath of emancipation, Florida explicitly

limited the right to vote to “free white males” and enacted “Black Codes,” a series of laws designed to restrict the activities of freed Black people, through its

1865 Constitution and subsequent 1866 legislative

statutes. 5 This process was an early indication of

See ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED

REVOLUTION, 1863–1877 200–207 (1988).

5 Erika L. Wood, Florida: An Outlier in Denying Voting Rights 4,

BRENNAN CTR. FOR JUSTICE, https://www.brennancenter.org/ourwork/research-reports/florida-outlier-denying-voting-rights

(2016).

4

18

Florida’s preference for placing consequential determinations in the hands of small, racially exclusive

groups.

Black Codes were the means by which Florida

updated its comprehensive antebellum slave code to

conform to postbellum society. At the 1865 constitutional convention, a three-member special committee

“bemoaned the loss of that highly efficient institution

which had existed on the plantations for the punishment of those ‘minor offenses to which Negroes are addicted.’”6 In other words, the abolition of slavery also

necessitated an updated system of “justice” to ensure

that Black Codes were effectively applied. “[T]he committee recognized that the circuit courts [justices of

the peace] were too limited in capacity to handle the

6 Jerrell H. Shofner, Custom, Law, and History: The Enduring

Influence of Florida’s “Black Code”, 55 FLA. HIST. Q. 277, 282

(1976) (emphasis added)

19

increased volume of minor offenses” and “recommended as the solution the establishment of a criminal court in each county.”7 As a result, the assembly

passed a law that established county criminal courts

for the administration of the new regime of increased

penalties and prosecution.8

This new punishment system reserved decisional power for white people through limitations on

jury service and composition. 9 Florida was the only

southern state whose Codes specifically provided that

only white males could serve as jurors; 10 a Black

7 JERRELL H. SHOFNER, NOR IS IT OVER YET: FLORIDA IN THE ERA

OF RECONSTRUCTION, 1863-1877 54 (Univ. Press of Fla. 1974);

see The Florida Timeline, 1865 – Establishment of Vagrancy

Laws at the Constitutional Convention, https://www.floridatimeline.org/timeline/1865-establishment-of-vagrancy-laws-at-theconstitutional-convention/ (last visited Aug. 12, 2026).

8 See SHOFNER, NOR IS IT OVER YET, supra note 7 at 54; Wood,

supra note 5 at 4.

9 See SHOFNER, NOR IS IT OVER, supra note 7 at 42.

10 See

DONALD G. NIEMAN, TO SET THE LAW IN MOTION: THE

FREEDMEN’S BUREAU AND THE LEGAL RIGHTS OF BLACKS, 18651868, 89–90 (1979).

20

person’s sworn deposition could not be admitted evidence;11 and Black people could only testify in criminal cases involving members of their own race. 12

Thus, juries were designed to implement a discriminatory statutory regime and guarantee biased outcomes.

Narrow deliberative bodies reflected the narrow civil rights afforded in society at large. As targeted offenses like “strolling and wandering,” known

today as vagrancy and loitering, were specifically created to punish minor infractions or no infractions at

all, racially exclusive juries were given the authority

to prescribe discretionary punishments—such as deciding to penalize a crime punishable by fine and imprisonment with whipping or standing in the pillory

11 See id. at 99-100

12 See Shofner, Nor Is It Over supra note 7 at 54

21

instead—specifically for Black individuals convicted

of crimes.13 Meanwhile, white violence during this period went virtually unpunished.14

In response, Congress passed the Reconstruction Act of 1867 requiring Florida to formally ratify

the Fourteenth Amendment, which granted citizenship and equal protection under the law to all people

born in the United States. 15 Nevertheless, recalcitrant state legislators maneuvered to ensure that the

promise was never realized. During the Florida constitutional convention in 1868, Florida delegates

“adopted ingenious methods of making Reconstruction palatable to white voters and minimizing […] ‘the

danger of negro suffrage.’”16 The end result was the

13 See Shofner, Custom, Law, and History, supra note 6 at 283.

14 See Colbert, Challenging the Challenge, supra note 2 at 127–

28.

15 See Wood, supra note 5 at 4

16 FONER, RECONSTRUCTION, supra note 4 at 323.

22

1868 Florida Constitution, which achieved readmission into the Union for the state, while assuring the

continued political, economic, and social control of the

former Confederates through “extensive parliamentary maneuvering.”17

Article XIV, Section 1 of the Florida Constitution granted the right of suffrage to “[e]very male person of the age of twenty-one years and upwards, of

whatever race, color, nationality, or previous condition.” 18 And Section 12 stated that jurors must be

taken from the registered voters of their respective

counties.19

While these provisions made it seem that jury

service was openly available to all Floridians as the

17 Expert Report by Prof. Jerrell H. Shofner, Ph.D., Johnson v.

Bush, No. 00-CV-3542, 2001 WL 34842925, at 16 in original (S.D.

Fla. June 20, 2001).

18 Fla. Const. of 1868, art. XIV, § 1.

19 see Fla. Const. of 1868, art. VI, § 12.

23

Federal Constitution requires, the surrounding provisions simultaneously suppressed Black participation

through a combination of numerical arrangements

and restrictive qualifications.

The drafters of the Florida Constitution took

pains to make sure that the electorate and jury pool

remained white. Article XIV, Section 7 of the Florida

Constitution mandated that the legislature “enact

laws requiring educational qualifications for electors”

but prevented these new qualifications from applying

to “any elector who may have registered or voted in

any election previous.”20 This provision assured that

the educational requirements excluding people from

voting and serving on juries would not apply to white

voters. 21 Further circumscribing the pool of jurors,

20 Fla. Const. of 1868, art. XIV, § 7.

21 See Wood, supra note 5 at 5.

24

Article XIV, Section 4 directed the legislature to “enact the necessary laws to exclude from every office of

honor, power, trust, or profit, civil or military, within

the State, and from the right of suffrage, all persons

convicted of bribery, perjury, larceny, or of infamous

crime”—these were the exact species of crimes the legislature had utilized and expanded through Black

Codes. 22 According to Florida historian Jerrell

Shofner, “[f]elony disenfranchisement was a way of reducing the effect of the despised black suffrage that

[Florida] Conservatives knew they had no alternative

but to accept. Larceny, which included the new category added by the 1865 legislature, was added to the

earlier lists of crimes” through which disfranchisement could be achieved.23 Finally, Article XIV, Section

22 Fla. Const. of 1868, art. XIV, § 4; see Wood, supra note 5 at 5.

23 Shofner Expert Report, supra note 17 at 17.

25

2, imposed a lifetime voting ban for people with felony

convictions.24

Restricting access to the franchise in these

ways necessarily translated into restricting the eligible finders of fact available for participation in the judicial system given that, under the Florida Constitution, the ability to vote was directly tied to the ability

to serve on a jury. It worked, exemplified by the fact

that during Congressional hearings conducted in 1870

regarding widespread Ku Klux Klan activity, a Florida sheriff testified that, “If a white man kills a colored

man in any of the counties of this State . . . you cannot

convict him.”25

In March 1875, the federal government attempted to enforce the constitutional requirement of

24 Fla. Const. of 1868, art. XIV, § 2.

25 Foner, Reconstruction, supra note 4 at 435.

26

racial equality once more. The Civil Rights Act of 1875

was enacted, prohibiting the exclusion of citizens from

jury service based on race.26 Just two months later, eligible Florida voters ratified and adopted a Jury

Clause Amendment to Florida’s Constitution, stripping the requirement for traditional 12-person juries

and granting the state legislature the power to dictate

the number of jurors. 27 This amendment paved the

way for the Legislature’s 1877 enactment of Chapter

3010, allowing juries of only six persons in non-capital

criminal cases.28 Chapter 3010 also re-established a

discretionary “integrity, fair character, sound judgment and intelligence” test for jury service. Id.

26 See ERIC FONER, THE SECOND FOUNDING: HOW THE CIVIL WAR

AND RECONSTRUCTION REMADE THE CONSTITUTION 141–142

(2019).

27 See Allan Arbman and James McConnell, Trial By Jury: The

New Irrelevant Right 27 SMU LAW REVIEW 436, 438 (1973).

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

27

The reduced size of the jury plus the discretionary qualification standard were “facially race-neutral

rule[s]” designed to the ensure the right to serve on a

jury and the right to a fair and impartial jury “would

be meaningless” for Black Floridians. Ramos, 590 U.S.

at 88 (internal quotation mark omitted). The math

was simple: Smaller juries plus discretionary standards made it easier to obtain all-white juries, which in

turn made it easier to convict Black defendants.

The laws were incredibly effective at serving

their racist purpose. A survey conducted during the

first decade of the twentieth century targeting counties where Black people constituted one-half or more

of the population reported that, in three of the five

counties surveyed, clerks answered that Black people

had not served on juries for “many years” because it

was “a thing of the past” during “the days of

28

Carpetbag Rule.” 29 In the other two counties, the

clerks answered that a “large number” served on federal juries, although “it is very rare” in the state

courts because “there are but few Negroes, about one

per cent,” who have the “approved integrity, fair character, sound judgment and intelligence” to serve as

state jurors.30 Thus, because there were so few Black

people deemed qualified to serve under Florida jury’s

law, reducing the available number of seats made it

easier to ensure that no Black person served on a

jury.31

Lest there was any doubt that the 1877 Florida’s legislature was searching for ways to “establish

29 See Colbert, Challenging the Challenge, supra note 2 at 77

n.389.

30 See id.

31 See id. at 77 (“The link between voter and juror eligibility, com-

bined with administration of discretionary juror selection statutes, virtually eliminated black citizens’ participation in the administration of justice.”).

29

the supremacy of the white race,” Ramos, 590 U.S. at

87 (internal quotation marks omitted), during the

same legislative session that Chapter 3010 was enacted, Florida enacted convict-leasing statutes.32 Under these statutes, African Americans were “aggressively arrested and imprisoned under expanded criminal codes,” and “leased out to work on private plantations and factories throughout the state with proceeds

being paid back to the state.”33

This suite of laws was passed less than one

month after the last federal troops were withdrawn

from Florida in January 1877.34 The removal of federal troops ended a fourteen-year Reconstruction policy to secure federal protection of Black citizens’

32 Blackmon, Slavery by Another Name, supra note 3 at 53–54.

33 See Wood, supra note 5 at 6.

34 See

Jerrell H. Shofner, Reconstruction and Renewal, 18651877, in The History of Florida 273 (Michael Gannon, ed., first

paperback edition 2018).

30

fundamental rights and marked the beginning of Redemption, where Southern states systematically dismantled Black Americans’ nascent political power. 35

Tampering with the jury system was but one piece of

this project. By restricting access to jury service and

reducing the size of juries, Florida made it easier to

prosecute and convict Black people during the Jim

Crow era and beyond.

III.

Florida’s Six-Person Jury Law Still Operates Today to Thwart Black Jury Service and Leads to Higher Conviction

Rates for Black Defendants.

Given the historical backdrop of Florida’s sixperson jury law, it is clear that it was designed to

thwart Black jury service and to make it easier to convict Black defendants. And the law works to do just

that. Contemporary studies confirm that reducing

jury size is a surefire way to reduce Black jury

35 Foner, Reconstruction, supra note 4 at 575–82.

31

participation, which in turns leads to higher conviction rates of Black defendants. When the Williams

Court upheld Florida’s six-person law, it ignored not

only its racist history but also its lasting racially discriminatory effect.

As this Court recognized in Ballew v. Georgia,

“the opportunity for meaningful and appropriate representation . . . decrease[s] with the size of the panels.”

435 U.S. 223, 237 (1978). Even a modest reduction in

jury size “foretells problems . . . for the representation

of minority groups in the community.” Id. at 236–37.

Ballew cited contemporary social-science research to

illustrate its point: where a minority group constitutes just 10% of the community, a randomly selected

six-member jury will include no minority member

more than half the time. Id. at 236 n.26 (citing Richard

O.

Lempert,

Uncovering

“Nondiscernible”

32

Differences: Empirical Research and the Jury-Size

Cases, 73 MICH. L. REV. 643, 669, 673 (1975)).

Since then, leading jury scholars have repeatedly explained that reducing jury size “inevitably has

a drastic effect on the representation of minority

group members on the jury.”36 Indeed, one “meta-analytical review of all relevant empirical studies conducted to determine what effect, if any, results from

reducing the size of juries from the traditional 12 people down to six” confirmed what this Court said in

Ballew, finding that “[s]maller juries are more likely

to contain no members of minority groups.”37 In other

36 Shari

Seidman Diamond, et al., Achieving Diversity on the

Jury: Jury Size and the Peremptory Challenge, 6 J. EMPIRICAL

LEGAL STUD. 425, 427 (2009).

37 Michael J. Saks & Mollie Weighner Marti, A Meta-Analysis of

the Effects of Jury Size, 21 LAW & HUM. BEHAV. 451, 452, 465

(1997) (emphasis added).

33

words, decreased minority participation is a structural property of smaller juries.38

Data also show that because smaller juries decrease Black participation, they produce racial disparities in conviction rates. In a landmark study of 785

non-capital felony trials tried before six- and sevenperson juries in two Florida counties between 2000

and 2010, researchers found that “[w]here the jury

pool included no Black members, Black defendants

were convicted of at least one charge 81% of the time,

compared to 66% of white defendants.39 Where even

one Black person appeared among the pool of

38 See Patrick E. Higginbotham, et al., Better by the Dozen: Bring-

ing Back the Twelve-Person Civil Jury, 104 JUDICATURE 47, 52

(2020), https://judicature.duke.edu/articles/better-by-the-dozenbringing-back-the-twelve-person-civil-jury/ (explaining that

larger juries are “more inclusive and more representative of the

community,” while “cutting the size of the jury dramatically increases the chance of excluding minorities”).

39 See Shamena Anwar, et al., The Impact of Jury Race in Criminal Trials, 127 Q.J. ECON. 1017, 1019, 1027–28 (2012).

34

prospective jurors, that gap collapsed almost entirely:

conviction rates were 71% for Black defendants and

73% for white defendants. 40 Because representation

in the jury pool is correlated to representation on the

seated jury, 41 the study modeled the effect of jury size

and concluded that increasing the number of seated

jurors “would substantially reduce the variability of .

. . trial outcomes . . . and make trial outcomes more

equal for white and black defendants.”42

These results are perhaps not surprising given

the research showing that the size and racial composition of a jury affect the quality of its deliberations.

Studies demonstrate that smaller juries deliberate

less thoroughly, recall trial evidence less completely,

and are more susceptible to the dominance of a single

40 Id at 1019–20.

41 Id. at 1030,

42 Id. at 1049.

35

viewpoint.43 Moreover, the mere presence of minority

jurors matters to deliberations, as studies also show

that “White jurors processed the trial information

more systematically when they expected to deliberate

with a heterogeneous group” and were less likely to be

predisposed to believing Black defendants were

guilty. 44 Thus, Florida’s six-person jury system adversely affects the quality of jury deliberations twice

over, frustrating the wisdom that comes with the common law 12-person jury.

That six-person juries both systematically underrepresent Black citizens and harm Black defendants is not an unintended byproduct of Florida’s law.

43 See Alisa. Smith & Michael J. Saks, The Case for Overturning

Williams v. Florida and the Six-Person Jury, 60 FLA. L. REV. 441,

466 (2008).

44 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, 607

(2006),

https://www.apa.org/pubs/journals/releases/psp904597.pdf.

36

It is the predictable and intended consequence of a law

enacted in resistance to Reconstruction. Cf. Hunter v.

Underwood, 471 U.S. 222, 229-233 (1985) (holding

that a post-Reconstruction law passed as “part of a

movement that swept the post-Reconstruction South

to disenfranchise” Black people that “continues to this

day to have that effect” violates the Fourteenth

Amendment”). Those are the “functions” Florida’s sixperson jury law was “adopted to serve,” and Florida’s

law still serves those same functions today. Ramos,

590 U.S. at 99 n.44.

Williams failed to grapple with both the racial

history of Florida’s six-person jury law and its lasting

racial effects. This Court now has the opportunity to

“correct [its] mistake in Williams.” Cunningham, 144

S. Ct. at 1288 (Gorsuch, J., dissenting). Given that

Florida’s six-person law is antithetical to the common

37

law understanding of the jury embodied by the Sixth

Amendment, and undermines Black jury service in

derogation of the Fourteenth Amendment, this Court

should overrule Williams and hold that Florida’s sixperson jury law is unconstitutional.

CONCLUSION

LDF and the NAACP respectfully urge this

Court to hold that the Sixth and Fourteenth Amendments require a trial by a 12-person jury when a defendant is charged with a serious felony.

Respectfully Submitted,

BRITTANY CARTER

JANAI NELSON

Counsel of Record

President and DirectorSAMUEL SPITAL

Counsel

NAACP Legal Defense and DANIEL HARAWA,

CHRISTOPHER KEMMITT

Educational Fund, Inc.

NAACP Legal Defense and

40 Rector Street, 5th Floor

Educational Fund, Inc.

NEW YORK, NY 10006

bcarter@naacpldf.org

700 14th St. NW, Suite 600

(212) 965-2200

(202) 682-1300

KRISTEN M. CLARKE

QUIANA-JOY N. OCHIAGHA

38

National Association for the

Advancement of Colored

People

4805 Mt. Hope Drive

Baltimore, MD 20215

(410) 580-5777

August 13, 2026