Amicus Curiae Brief — Hamed Kian, Petitioner v. Florida

No. 25-6623

In the

Supreme Court of the United States

HAMED KIAN,

Petitioner,

v.

FLORIDA,

Respondent.

On Writ of Certiorari to the District Court of

A ppeal of Florida, Fourth District

AMICUS BRIEF OF THE FLORIDA ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS AND THE

FLORIDA PUBLIC DEFENDER ASSOCIATION, INC.

IN SUPPORT OF PETITIONER

Daniel J. Tibbitt

Daniel J. Tibbitt, P.A.

1175 NE 125th Street,

Suite 404

North Miami, FL 33161

Cliff Wilson, Jr.

President

Florida Public Defender

A ssociation, Inc.

Public Defender

Third Judicial Circuit

of Florida

173 NE Hernando Ave.,

Suite 115

Lake City, FL 32055

Jackie Perczek

Counsel of Record

Black Srebnick

201 South Biscayne

Boulevard, Suite 1300

Miami, FL 33131

(305) 371-6421

jperczek@royblack.com

Co-Chair, Amicus Committee

Florida Association of

Criminal Defense Lawyers

121242

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 1

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

I.

F L OR I DA’ S S I X- P ER S ON J U RY

PROV ISION A ROSE A MID

DELIBER AT E EFFORTS TO

S U P P R E S S BL AC K VOIC E S I N

PUBLIC AFFAIRS . . . . . . . . . . . . . . . . . . . . . . . . 3

a.

1865-1866: The Black Codes . . . . . . . . . . . . . 4

b.

1868: Reconstruction and Florida’s

Jury Statute . . . . . . . . . . . . . . . . . . . . . . . . . . 6

c.

1875: The Power to Set the Number of

Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

d.

January 1877: The Government

Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

e.

February 17, 1877: Chapter 3010—

A Jury of 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ii

Table of Contents

Page

f.

1877: The Convict-Lease System . . . . . . . . 17

g.

June 1877: Gibson v. State, 16 Fla. 291

(1877) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

h.

After 1880: Excluding Black People

from the Jury by Other Means . . . . . . . . . . 19

i.

1885: The Redeemer Constitution . . . . . . . 21

j.

The Present . . . . . . . . . . . . . . . . . . . . . . . . . . 22

II. FLORIDA IS ALREADY EQUIPPED

TO RETURN TO 12-PERSON JURIES . . . . . 23

III. WILLIAMS v. FLORIDA IS WRONG

EVEN UNDER ITS OWN FUNCTIONALIST TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Apodaca v. Oregon,

406 U.S. 404 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Avery v. Georgia,

345 U.S. 559 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ballew v. Georgia,

435 U.S. 223 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Cassell v. Texas,

339 U.S. 282 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Cunningham v. Florida,

144 S. Ct. 1287 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . 30

Dickerson v. United States,

530 U.S. 428 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Florida Fertilizer & Mfg. Co. v. Boswell,

45 Fla. 301, 34 So. 241 (1903) . . . . . . . . . . . . . . . . 10, 14

Gibson v. State,

16 Fla. 291 (1877) . . . . . . . 8, 9, 10, 11, 14, 15, 16, 18, 19

Khorrami v. Arizona,

143 S. Ct. 22 (2022) . . . . . . . . . . . . . . . . . . . . . . 3, 14, 30

iv

Cited Authorities

Page

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

Bruen,

597 U.S. 1 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Ramos v. Louisiana,

590 U.S. 83 (2020) . . . . . . . . . . . . . . . . . . 2, 3, 20, 23, 27

Strauder v. West Virginia,

100 U.S. 303 (1880) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Williams v. Florida,

399 U.S. 78 (1970) . . . . . . . . 2, 23, 24, 26, 27, 28, 29, 30

Constitutional Provisions

Art. I, § 22, Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Fla. Const. of 1885, art. V, § 38 . . . . . . . . . . . . . . . . . . . . 22

Fla. Const. of 1865, art. XVI, § 3 . . . . . . . . . . . . . . . . 9, 20

Fla. Const. of 1868, Decl. of Rights, § 3 . . . . . . . . . . . . . . 7

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . 27, 29, 30

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statutes and Other Authorities

Ch. 1628, Laws of Fla. (1868) . . . . . . . . . . . . . . . . . . . . . . 9

v

Cited Authorities

Page

Ch. 2041, Laws of Fla. (1876) . . . . . . . . . . . . . . . . . . . . . 10

Ch. 2043, Laws of Fla. (1876) . . . . . . . . . . . . . . . . . . 11, 16

Ch. 2090, Laws of Fla. (1877) . . . . . . . . . . . . . . . . . . . . . 17

Ch. 3010, Fla. Stat. (1877) . . . . 2, 14, 15, 16, 18, 19, 20, 22

Ch. 3021, Laws of Fla. (1877) . . . . . . . . . . . . . . . . . . . . . 14

Ch. 3034, Laws of Fla. (1877) . . . . . . . . . . . . . . . . . . . . . 17

Ch. 3137, Laws of Fla. (1879) . . . . . . . . . . . . . . . . . . . . . . 17

Fla. R. Crim. P. 3.270 . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

Fla. R. Crim. P. 3.280 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

§ 913.10, Fla. Stat. (2026) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Utah Code Ann. § 78B-1-104(1)(b)-(c) . . . . . . . . . . . . . . . 24

Albert W. Alschuler & Andrew G. Deiss, A Brief

History of the Criminal Jury in the United

States, 61 U. Chi. L. Rev. 867 (1994) . . . . . . . . . . . . . 21

Alexander J. Bowen, “Made and Executed by the

White Race”: Florida’s Constitution of 1865

and “Black Codes,” 101 Fla. Hist. Q. No. 1

(2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 7, 8, 9, 10

vi

Cited Authorities

Page

G.W. Cable, The Silent South 124 (1885) . . . . . . . . . . . . 17

Douglas L. Colbert, Challenging the Challenge:

Thirteenth Amendment as a Prohibition against

the Racial Use of Peremptory Challenges, 76

Cornell L. Rev. 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Connor Donegan, The Making of Flor ida’s

“Criminal Class”: Race, Modernity, and the

Convict Leasing Program, 1877-1919, 97 Fla.

Hist. Q. 408 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

E. Carson Eckhard, If He Dies, It Is But a Small

Loss: Whiteness as Property and Convict

Leasing in Florida 1875–1925, 49 Ethnic & Racial

Stud. 2171 (2026) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Gilchrist, The Jails and Prisons of Florida, in

Proceedings of the Annual Congress of the

American Prison Association 243-44 (1911) . . . . . . . 18

Richard L. Hume, Membership of the Florida

Constitutional Convention of 1868, A Case

Study of Republican Factionalism in the

Reconstruction South, 51 Fla. Hist. Q. 1 (1972) . . . . 8

M. Sean Limon & Franklin Boster, The Impact of

Varying Argument Quality and Minority Size

on Influencing the Majority and Perceptions of

the Minority, 49 Comm. Q. 350 (2001) . . . . . . . . . . . 29

vii

Cited Authorities

Page

Robert H. Miller, Six of One is Not a Dozen of the

Other: A Reexamination of Williams v. Florida

and the Size of State Criminal Juries, 146 U. Pa.

L. Rev. 621 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Ashley Nellis and Celeste Barry, A Matter of

Life: The Scope and Impact of Life and Long

Term Imprisonment in the United States, The

Sentencing Project, (Jan. 8, 2025), https://www.

sentencingproject.org/reports/a-matter-of-lifethe-scope-and-impact-of-life-and-long-termimprisonment-in-the-united-states . . . . . . . . . . . . . . 24

Joe M. Richardson, Florida Black Codes, 47 Fla.

Hist. Q. 365 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6

Mary R. Rose et al., Jury Pool Underrepresentation

in the Modern Era, 15 J. Empirical Legal Stud.

378 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Jerrell H. Shofner, Nor Is It Over Yet: Florida

in the E ra of R econstruction , 1863-1877

(1974) . . . . . . . . . . . . . . . . . . . 4, 5, 6, 8, 11, 12, 13, 21, 22

A lisa Smith & Michael Saks, The Case for

Overturning Williams v. Florida and the SixPerson Jury: History, Law, and Empirical

Evidence, 60 Fla. L. Rev. 441 (2008) . . . . . . . . . . . . 28

viii

Cited Authorities

Page

Death Penalty Information Center, The Death

Penalty in 2025, https://files.deathpenaltyinfo.

org/documents/YER2025_FINAL2.pdf . . . . . . . . . . 25

The Death Penalty in 2022: Year End Report,

https://deathpenaltyinfo.org/research/analysis/

reports/year-end-reports/the-death-penalty-in2022-year-end-report . . . . . . . . . . . . . . . . . . . . . . . . . 25

The Death Penalty in 2023: Year End Report,

https://files.deathpenaltyinfo.org/documents/

reports/year-end/Year-End-Report-2023.pdf . . . . . 25

T he Deat h Pena lty i n 2 0 2 4 , https: //f i les.

deathpenaltyinfo.org/documents/DPI-2024-YearEnd-Report.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Edward Williamson, George F. Drew, Florida’s

Redemption Governor, 38 Fla. Hist. Q. 206

(1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 17

1

INTEREST OF AMICUS CURIAE

The Florida Association of Criminal Defense Lawyers

(FACDL) is a non-profit organization with a membership of

over 1,000 attorneys and 29 chapters throughout Florida.

FACDL’s members are criminal defense practitioners

committed to protecting the rights of individuals in the

criminal justice system.

The Florida Public Defender Association (FPDA)

is a nonprofit corporation whose members include 20

elected public defenders and nearly 2,000 employees of

public defender offices throughout Florida. FPDA assists

Florida’s elected public defenders in fulfilling their

constitutional duty to ensure equal justice for all.

The question presented in this case impacts jury

selection in nearly all felony jury trials in Florida. The

Court’s resolution of this issue will therefore have significant

and far-reaching consequences for criminal defendants and

the administration of justice throughout Florida.1

SUMMARY OF THE ARGUMENT

Florida’s jury of six members was enacted as former

Confederates regained power in southern states and their

1. No party or party’s counsel authored this brief in whole

or in part or made a monetary contribution intended to fund its

preparation or submission. Public Defender Daniel Eisinger and

Assistant Public Defenders Paul Petillo and Benjamin Eisenberg,

all of the Office of the Public Defender, Fifteenth Judicial Circuit

of Florida, are counsel for Petitioner and members of FPDA. Their

agency pays annual dues to FPDA, but neither they nor their

agency authored this brief in whole or in part or made a monetary

contribution intended to fund its preparation or submission.

2

legislatures set about excluding Black citizens from jury

service. In addition to reducing the size of juries from

12 to six, Chapter 3010 voided every jury list compiled

the month before, under the outgoing commissioners,

and directed the incoming commissioners to select new

potential jurors from persons of “approved integrity, fair

character, sound judgment and intelligence.” 2

In Ramos v. Louisiana, a majority of the Justices

recognized that the Louisiana non-unanimity rule arose

from efforts to silence Black voices and enforce white

supremacy. 3 Justice Kavanaugh, concurring in part,

described non-unanimity as “one pillar of a comprehensive

and brutal program of racist Jim Crow measures against

African-Americans, especially in voting and jury service.”4

Florida’s jury of six, now codified in § 913.10 of the Florida

Statutes, was built into the same program.

Restoring the jury of 12 asks little of Florida. The

same statute that caps noncapital juries at six requires

12 jurors in capital cases, and Florida has imposed more

new death sentences than any other State four years

running; its noncapital jury boxes already seat more than

six, because alternates sit through trial; and the state

constitution sets six jurors as a floor, not a ceiling.

It is time to overrule Williams v. Florida, 399 U.S.

78 (1970). Williams rested on a functionalist inquiry

this Court has since set aside, and it was wrong on that

inquiry’s own terms.

2. Ch. 3010, § 1, 2, Fla. Stat. (1877)

3. 590 U.S. 83, 87-88 (2020).

4. Id. at 126-27.

3

ARGUMENT

I.

FLORIDA’S SIX-PERSON JURY PROVISION

AROSE AMID DELIBERATE EFFORTS TO

SUPPRESS BLACK VOICES IN PUBLIC AFFAIRS

As Justice Gorsuch observed, “[d]uring the Jim

Crow era, some States restricted the size of juries and

abandoned the demand for a unanimous verdict as part

of a deliberate and systematic effort to suppress minority

voices in public affairs.”5 What follows is an account of how

Florida’s jury of six arose amid those efforts.

In its Brief in Opposition to certiorari, the State

argued that Petitioner made “no attempt to explain how a

rule establishing the size of juries without regard to race

could be a covert instrument of racism.”6 The State is right

that a statute fixing the number of jurors says nothing

about race. Neither did the registration act of 1877, the poll

tax of 1889, the literacy requirements, the vagrancy laws,

or some of the other “trappings of the Jim Crow era” that

were exerted upon Black Floridians in the decades after

the war.7 Some of these laws were drawn in race-neutral

terms precisely to keep their intentions covert. 8

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

dissenting from denial of certiorari) (citations omitted).

6. Br. in Opp. 17.

7. See Ramos, 590 U.S. at 87 (“the avowed purpose of [the

Louisiana constitutional convention of 1898] was to ‘establish the

supremacy of the white race,’ and the resulting document included

many of the trappings of the Jim Crow era: a poll tax, a combined

literacy and property ownership test, and a grandfather clause

that in practice exempted white residents from the most onerous

of these requirements”).

8. Id. at 88.

4

Amicus has not located a letter, journal entry, or floor

speech in which a Florida legislator said that reducing the

jury size to six was done to preserve white supremacy. No

such confession is necessary because the Legislature left

its purposes on the record everywhere else.

a.

1865-1866: The Black Codes.

The Black Codes were laws passed by Florida and other

Southern states in 1865 and 1866 after slavery was abolished.

They were designed to force freed Black people back into a

condition as close to slavery as the law would allow.9

Although the Confederacy surrendered in the Spring

of 1865, by autumn the men who had governed Florida

under it were writing the State’s constitution again and

by December they held the Legislature.10

In 1865, a constitutional convention assembled

in Tallahassee, Florida under President Johnson’s

restoration program. The convention appointed a

committee to recommend the laws that would govern the

freed Black people. The committee chair was Charles H.

DuPont, the chief justice of the Florida Supreme Court,

who held 126 enslaved people.11

9. Joe M. Richardson, Florida Black Codes, 47 Fla. Hist. Q.

365, 365 (1969).

10. Jerrell H. Shofner, Nor Is It O ver Yet: Florida in the

Era of Reconstruction, 1863-1877, at 42-44 (1974); Alexander

J. Bowen, “Made and Executed by the White Race”: Florida’s

Constitution of 1865 and “Black Codes,” 101 Fla. Hist. Q. No. 1

(2022); Richardson, supra note 9, at 373.

11. Bowen, supra note 10, at 15.

5

“A fter praising the institution of slavery,” the

committee “recommended legislation which would

‘preserve as many as possible’ of the ‘better’ features

of slavery.”12 The committee proposed building county

courts to try the minor offenses that a slave-master had

previously punished.13 The assembly created the courts,

and they did not punish alike: “[A]nyone who could not pay

a fine would be sold at public auction . . . This of course

was supposed to apply to Negroes.”14 Corporal punishment

was available for both races, but “the report advised

juries to continue charging white offenders with a fine or

imprisonment while punishing Black offenders with the

pillory or whipping for the same crime.”15

“To ensure Black Floridians labored for whites,

landowners advocated for vagrancy laws to remove

supposedly idle freedmen from the cities and relocate

them to plantations.”16 Justice DuPont’s report proposed

“an act to punish vagrants and vagabonds,” defined as

able-bodied persons with “no visible means of living”

or unemployed by “some labor to support himself or

herself.”17 The Florida Legislature passed the vagrancy

act unanimously in both houses.18

12. Richardson, supra note 9, at 373.

13. Shofner, supra note 10, at 54.

14. Richardson, supra note 9, at 374.

15. Bowen, supra note 10, at 16.

16. Id. at 9.

17. Id. at 16-17.

18. Id. at 18.

6

The Codes set punishment by race. Where a statute

prescribed a fine and imprisonment for a white offender,

it added 39 lashes or the pillory for a Black offender.19 A

Black person unable to pay a fine was sold at auction. Id.

Rape of a white woman was a capital offense, whereas no

punishment existed “for the rape of a Negro woman.” 20

The convention adopted the ordinances abolishing

slavery, and in the same sitting, “limited suffrage, political

office, and jury duty to white men.” 21

b.

1868: Reconstruction and Florida’s Jury

Statute.

Florida’s Black Codes produced the opposite of what

their authors intended. The 1865 constitution and the

Codes that followed “brought the very situation white

Floridians hoped to avoid: Reconstruction by a federal

government that sought suffrage for Black Floridians

and Republican control of state’s government.” 22 Though

President Johnson approved Florida’s new government, “it

was rejected by Congress and other federal authorities.”

Id.

The Freedmen’s Bureau, which Congress created

in 1865 to assist the formerly enslaved, reported that

Florida’s white juries were convicting and sentencing

Black defendants unjustly. “[I]n cases where African

19. Richardson, supra note 9, at 373-75.

20. Id. at 374.

21. Shofner, supra note 10, at 42-43.

22. Bowen, supra note 10, at 21.

7

Americans received unjust sentences by white jurors,

Assistant Commissioner Thomas W. Osborn applied

directly to Gov. David S. Walker for executive clemency.”23

Governor Walker provided no aid, so “the Bureau stepped

in and administered fair punishments when possible.” 24

In Washington, D.C., “the egregiousness of the state’s

‘Black Codes’ and refusal to disenfranchise a greater

portion of the ex-Confederate population met the ire

of Congress.” 25 Congress passed the Reconstruction

Acts of 1867, which “reestablished martial law until the

ex-Confederate states could draft new constitutions

that assured universal manhood suffrage and their

governments ratified the Fourteenth Amendment.” 26

Florida’s Constitution of 1868 was drafted under that

authority, “by a biracial delegation of Republicans,” and

it “codified universal male suffrage for all men of twentyone years and older.” 27 It recognized Black Floridians as

political equals, admitted their testimony against white

citizens, and struck the racial bar from jury service. And

the jury it preserved was the common-law jury of 12. The

Declaration of Rights provided “that the right of trial by

jury shall remain inviolate forever.” 28 That guarantee, the

Florida Supreme Court later explained, “refers to a jury,

23. Bowen, supra note 10, at 21.

24. Id.

25. Id. at 21.

26. Id.

27. Id. at 22.

28. Fla. Const. of 1868, Decl. of Rights, § 3.

8

according to the common law, to be composed of twelve

persons.” 29

But the 1868 charter was not what its Radical framers

had wanted. Leaders of the white “native” faction seized

the assembly hall in the middle of the night and excluded

the Radical Republican delegates from the proceedings. 30

The two white factions then combined to structure a

constitution “designed to continue white dominance.” 31

Harrison Reed, who led the prevailing faction and

became the first Florida governor elected under the new

charter, wrote to Senator Yulee: “Under our Constitution

the Judiciary & State officers will be appointed & the

apportionment will prevent a negro legislature.” 32

Flor ida’s 18 6 8 constitution bore that out . It

“strengthened the executive branch . . . and ensured

white control of the Florida House of Representatives by

capping voting districts at four representatives, thereby

limiting the power of predominantly-Black districts.” 33

Its framers used “physical and economic pressure . . . to

dissuade Negroes from engaging in political activity.” 34

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

3 0. Richa rd L . Hu me, Membership of th e Fl o r i d a

Constitutional Convention of 1868, A Case Study of Republican

Factionalism in the Reconstruction South, 51 Fla. Hist. Q. 1, 5-6

(1972); Shofner, supra note 10, at 266.

31. Hume, supra note 30, at 15.

32. Id. at 15-16.

33. Bowen, supra note 10, at 22.

34. Shofner, supra note 10, at 343.

9

On August 1, 1868, Florida enacted its general jury

statute, Chapter 1628, which governed how jurors were

selected, drawn, and summoned. Section 3 directed the

county commissioners to compile a list of 300 persons from

the registered voters of the county, and to choose from the

list “such persons only as they know, or have good reasons

to believe, are of approved integrity, fair character, sound

judgment and intelligence.”35 Section 5 required the clerk

to draw a 36-person venire to serve in the petit jury. 36

Legislative power to set the qualifications for juror

service was not new. The 1865 constitution required jurors

to be white men “possessed of such qualifications as may

be prescribed by law.”37 Reconstruction removed the racial

requirement and left the power to prescribe qualifications

in place. In 1868, the Legislature exercised it, writing

the integrity and good character standard back into the

jury statute. The language chosen by the Legislature was

common for jury selection across the South, and it was

“used to eliminate almost every black citizen from the

southern trial venire.” 38

Under federal supervision, with Black men on the

voter rolls, Florida elected its first Black officeholders. 39

35. Gibson, 16 Fla. at 292; Ch. 1628, § 3, Laws of Fla. (1868).

36. Id.

37. Fla. Const. of 1865, art. XVI, § 3.

38. 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).

39. Bowen, supra note 10, at 22.

10

But prog ress was brief. A lthough Cong ressional

Reconstruction “overthrew the 1865 Constitution and the

‘Black Codes,’” the “remainder of the Reconstruction-era

subjected African Americans in Florida to oppression by

the state’s white inhabitants on the path to a return of

Democratic ‘white home rule’ in 1877.”40 When that return

came, the jury statute of 1868 was still on the books and

the character standard was still the test for who could

serve: “approved integrity, fair character, sound judgment

and intelligence,” qualities decided by a white official.

c.

1875: The Power to Set the Number of Jurors.

In 1875, the Florida Legislature proposed amendments

to the Florida Constitution of 1868. 41 One of those

amendments rewrote the Jury Clause to provide that

“[g]rand and petit jurors shall be taken from the

registered voters of the respective counties,” and that

“[t]he number of jurors for the trial of causes in any court

may be fixed by law.”42

The amendment did not fix the number of jurors; it

authorized the Legislature to do so. Until the Legislature

acted, the common-law rule of 12 jurors continued to

govern.43

40. Id.

41. Ch. 2041, Laws of Fla. (1875). The acts and resolutions of

the Florida general assembly, going back to 1845, are available at

https://edocs.dlis.state.fl.us/fldocs/leg/actsflorida/.

42. See Gibson, 16 Fla. at 300; Florida Fertilizer & Mfg. Co.

v. Boswell, 45 Fla. 301, 304, 34 So. 241, 241 (1903).

43. See Florida Fertilizer, 45 Fla. at 305, 34 So. at 242

(Florida Supreme Court confirming that where no statute fixes the

11

The same legislative sessions that amended the jury

clause also reduced the number of citizens summoned for

jury service. Chapter 2043, approved February 20, 1875,

cut the petit jury draw from 36 as required in 1868 to 24

in counties with more than 1,000 registered voters, and

12 in counties with fewer.44 Through the 1875 and 1876

legislative sessions, 12 jurors tried criminal cases in

Florida. These were the last years of Republican control of

the executive, and Black men remained on the voter rolls.45

d.

January 1877: The Government Changes.

The presidential election of November 1876 was

disputed in Florida, as it was in Louisiana and South

Carolina, and the governor’s race in Florida turned on the

same contested returns. After a fight in the canvassing

board and in the courts, Florida declared the Democrat,

George F. Drew, the winner.46

Reconstruction ended in Florida before it ended

nationally. The Army withdrew its troops from Tallahassee

on December 9, 1876, leaving a single infantry company,

which remained until January 18, 1877. 47 Governor

Drew was inaugurated on January 2, 1877, replacing

number of jurors, “the common law, fixing the number of jurors

in such cases,” controls).

44. Ch. 2043, § 1, Laws of Fla. (1875); Gibson, 16 Fla. at 293.

45. Shofner, supra note 10, at 333, 343.

46. Id. at 333.

47. Id.

12

the Republican governor Marcellus Stearns.48 President

Hayes did not remove the troops from Louisiana and

South Carolina until April 1877, and Professor Shofner is

explicit that this step, the one ordinarily identified with the

Compromise of 1877, “had nothing to do with Democratic

accession to power in Florida.”49 The Democrats already

held the offices, and the soldiers had already gone.

The national electoral commission would not settle the

presidential contest until early March. 50

Governor Drew was a lumberman and a former Whig,

chosen as the Democratic candidate “because of his appeal

to the Whig-Unionist elements and the Negroes.”51 He told

the Legislature it was the State’s responsibility to educate

Black Floridians so that a man “might vote intelligently

and make a good citizen,” and asked the Legislature to

“bury the passions of the past because all within the state

were one people, with one hope and one destiny.”52

In fiscal and economic matters, the new government

largely continued its predecessors’ policies. 53 “The only

major policy shift between the Democratic administrations

after 1876 and their Republican predecessors was in civil

48. Id.

49. Id. at 333, 341.

50. Id. at 338-39.

51. Id.

52 . Edward Williamson, George F. Drew, Flor ida’s

Redemption Governor, 38 Fla. Hist. Q. 206, 208 (1959).

53. Shofner, supra note 10, at 343-44.

13

rights.”54 On that question, the Democratic party was of

one mind: “[n]early all Conservative-Democrats agreed

on opposition to Negro suffrage and equality.”55 And it

now held the means to act. With the governorship came

control “of both state and local governments, including

the election machinery,” and, “freed from the scrutiny

of federal agencies,” the Democrats “destroyed the

Republican party and relegated Negroes to a status much

like their former situation.”56 Professor Shofner describes

the method that followed:

Cautiously but with increasing confidence, the

Democrats incorporated white supremacy into

statute and constitutional law. 57

That work began with the voter rolls. A bill reaching

the senate on February 16, 1877, called for a re-registration

of every voter in Florida, offered as a measure to eliminate

multiple voting.58 Black legislators “predicted in the senate

that this bill would prevent all illiterate persons from

voting.”59 Robert Meacham, one of the more prominent

Black officeholders in Reconstruction Florida, “called

the proposed change unjust, unfair and unlawful.” 60

54. Id. at 344.

55. Id.

56. Id. at 343.

57. Id. at 344.

58. Williamson, supra note 52, at 210.

59. Id.

60. Id.

14

Nevertheless, “the Democratic majority rushed the bill

through both houses and before the end of the month,

[Governor] Drew signed it.”61

The registration bill reached more than the list of

voters. Under the 1875 jury amendment, “[g]rand and

petit jurors shall be taken from the registered voters of

the respective counties.”62 Therefore, a man who did not

appear on the voter rolls under the new bill would not

appear on the list from which the jury pool was drawn.

The Legislature enacted Chapter 3010 the next day,

February 17, 1877.

e.

February 17, 1877: Chapter 3010—A Jury of 6.

In Khorrami, Justice Gorsuch observed that Arizona’s

1972 six-member jury law may have been a cost-savings

measure rather than a racially motivated one.63 Florida’s

record does not permit a similar reading.

Florida had held the power to reduce jury size since

1875; two years passed without any change to the commonlaw jury of 12. Then, on February 17, 1877, only six weeks

after the change of government and one day after the

re-registration bill reached the senate, the Legislature

enacted Chapter 3010.64 The national electoral commission

61. Id.; Ch. 3021, Laws of Fla. (1877).

62. Gibson, 16 Fla. at 300; Florida Fertilizer, 45 Fla. at 304,

34 So. at 241.

63. 143 S. Ct. at 27 (Gorsuch, J., dissenting) (citations

omitted).

64. Gibson, 16 Fla. at 294.

15

would not settle the presidential contest for another two

weeks.

Chapter 3010 cut the trial jury in half. Section 6

provided that “twelve men shall constitute a jury to try

all capital cases, and six men shall constitute a jury to try

all other offences prosecuted by indictment, presentment,

or information, and to try all civil causes within the

jurisdiction of the circuit courts of this State.”65

It did not stop at that number. The same act declared

that “selections of jurors made during January, 1877, are

hereby declared to be null and void.”66 Those lists had been

compiled by the outgoing county commissioners. Section

1 directed the incoming commissioners to make fresh

selections,67 choosing “such persons only as they know,

or have good reason to believe, are of approved integrity,

fair character, sound judgment and intelligence.”68 The

standard was not new. What was new was that every jury

list in Florida would be compiled again, by officials of a

government that had taken office six weeks earlier, under

a test that required them to record nothing and permitted

no review. A jury of six, drawn from a list of their choosing.

Chapter 3010 added a further filter. Section 7 provided

that “when the nature of any case, civil or criminal,

requires that a knowledge of reading, writing, and

65. Gibson, 16 Fla. at 297-98; Ch. 3010, § 6, Laws of Fla.

(1877).

66. Gibson, 16 Fla. at 294; Ch. 3010, § 2.

67. Ch. 3010, § 1.

68. Id.

16

arithmetic, or either, is necessary to enable a juror to

understand the evidence . . . it shall be a cause of challenge

if he does not possess such qualification, to be determined

by the judge presiding at the trial.”69 The registration bill

that had passed was expected to keep illiterate men off

the voter rolls; this provision reached those who remained.

Chapter 3010 cannot be understood as a cost-savings

measure. The act reduced the petit jury draw but

enlarged the grand jury draw, which previously was 12

to 15 persons. Now, section 3 directed the clerk to draw

“not less than fifteen, nor more than eighteen, persons to

serve as grand jurors,” and, for the petit jury, “in counties

containing less than one thousand registered voters, the

names of twelve persons . . . and in counties having over

one thousand registered voters, the names of eighteen

persons.” 70 Section 5 provided that “every grand jury

shall consist of not less than fifteen persons.” 71 Thus, the

grand jury, which returns indictments, grew; the petit

jury, which returns verdicts, shrank.

A Legislature attempting to reduce costs on jurors

does not summon more of them for one body while cutting

the other.

69. Gibson, 16 Fla. at 295-96; Ch. 3010, § 7.

70. Gibson, 16 Fla. at 294-95; compare Ch. 2043, § 1 with

Ch. 3010, § 3.

71. Ch. 3010, § 5.

17

f.

1877: The Convict-Lease System.

The same Legislature that created the six-person jury

abolished the state prison and, in its place, implemented

the convict-lease system under which prisoners were

leased to private enterprises for their labor.72 The lease

system rested on the notion that “the possession of a

convict’s person is an opportunity for the State to make

money,” and the “amount to be made is whatever can be

wrung from him.” 73

Accounts of the first lease describe sadistic guards,

inadequate food, absent medical care, and a malaria

epidemic that killed half the leased men.74 As the convict

population increased, “Florida gained national notoriety

for the brutality of its penal system.” 75 A reporter in The

Chicago Inter Ocean wrote that the “majority of prisoners

72. See generally, Connor Donegan, The Making of Florida’s

“Criminal Class”: Race, Modernity, and the Convict Leasing

Program, 1877-1919, 97 Fla. Hist. Q. 408 (2019); Ch. 3034, Laws

of Fla. (1877). Chapter 2090, enacted the same year, authorized

counties to put county jail inmates to work on roads and other

public works rather than to lease them. Ch. 2090, Laws of Fla.

(1877). Leasing county prisoners to private parties was not

authorized until 1879. Ch. 3137, Laws of Fla. (1879).

73. E. Carson Eckhard, If He Dies, It Is But a Small Loss:

Whiteness as Property and Convict Leasing in Florida 1875–1925,

49 Ethnic & Racial Stud. 2171, 2174 (2026), quoting G.W. Cable,

The Silent South 124 (1885).

74. Williamson, supra note 52, at 211.

75. Eckhard, supra note 73, at 2172.

18

are colored and illiterate . . . many of them young,” and

called convict leasing “worse than slavery.” 76

E. B. Bailey, the son of a Civil War general and

enslaver, entered the Florida Senate in 1889 and within

a year held the lease on every prisoner in the State,

around 400 inmates.77 His bid promised the Legislature

“1000 bales (of cotton) from 400 acres of new land” and

sought the labor of “300 Negroes” at “$20 per head.” 78

By 1909, Florida incarcerated more than 1,750 people,

most of whom were Black.79 At the 1911 American Prison

Association Congress, Florida Governor A.W. Gilchrist

told the delegates that “fully 80 per cent of our convicts

are negroes.”80

g.

June 1877: Gibson v. State, 16 Fla. 291 (1877).

The Florida Supreme Court upheld the six-person

jury in June 1877, four months after Chapter 3010 was

enacted and five months after the change of government.

Gibson remains the decision on which Florida’s sixmember jury rests.

76. Eckhard, supra note 73, at 2172 (quoting Southern Prison

Horrors, Chicago Inter Ocean, Feb. 15, 1890, at 12).

77. Eckhard, supra note 73, at 2179.

78. Id. (quoting Bailey, Bid for State Convicts (Sept. 16, 1889),

Florida State Archives).

79. Id.

80. Id. at 2177 (citing Gilchrist, The Jails and Prisons of

Florida, in Proceedings of the Annual Congress of the American

Prison Association 243-44 (1911)).

19

Thomas Gibson was convicted of larceny in March

1877, weeks after Chapter 3010 took effect. He argued that

“the section providing that a trial may be had by a jury of

six persons is not constitutional.”81 The Court affirmed. It

began with the common law: “The provision in the bill of

rights that ‘the right of trial by jury shall remain inviolate

forever,’ taken by itself, refers to a jury, according to the

common law, to be composed of twelve persons.”82

What displaced that meaning was the amendment

of 1875. Because the amendment “is a part of the same

Constitution that secures the right of trial by jury,” it

“qualifies and controls, without destroying or infringing,

the right of trial by a jury.”83 The Court observed that “six

persons are made sufficient in many of the States under

similar constitutional provisions or under statutes, and

these regulations have been sustained by the courts.”84 It

held that “a jury composed of six persons is a constitutional

jury.”85

h.

After 1880: Excluding Black People from the

Jury by Other Means.

Three years after Florida Chapter 3010 became law,

this Court declared unconstitutional a West Virginia

81. Gibson, 16 Fla. at 300.

82. Id. at 300.

83. Id.

84. Id.

85. Id.

20

statute barring Black men from jury service. 86 Florida’s

1865 Constitution contained the same kind of provision:

“[t]he Jurors of this State shall be white men, possessed

of such qualifications as may be prescribed by law.”87 That

provision never took effect, and after Strauder Florida

could never return to it.

But Strauder left an opening. A State, the Court

said, “may prescribe the qualifications of its jurors, and

in so doing make discriminations,” and may confine jury

service “to males, to freeholders, to citizens, to persons

within certain ages, or to persons having educational

qualifications.” 88 As this Court explained in Ramos,

legislatures understood that overt discrimination against

Black jurors would be struck down, so legislators adopted

rules that were “facially race-neutral” but designed “to

ensure that African-American juror service would be

meaningless.”89

Florida already had such a rule. Chapter 3010

required the county commissioners to compile the jury

list from persons “of approved integrity, fair character,

sound judgment and intelligence.” 90 Nothing required a

commissioner to record why a name was left off.

86. Strauder v. West Virginia, 100 U.S. 303, 308-09 (1880).

87. Fla. Const. of 1865, art. XVI, § 3.

88. Strauder, 100 U.S. at 310.

89. Ramos, 590 U.S. at 88.

90. Ch. 3010, § 1.

21

Reconstruction had ended by the time Strauder

was decided. 91 Strauder recognized the right of Black

Americans to serve on juries, “yet that right remained

unenforced for most of a century.” 92 Even into the midtwentieth century, this Court “was required to declare

unconstitutional such flagrantly discriminatory devices

as the color-coding by race of tickets placed in the box

for jury selection and selection from among the friends

and acquaintances of white jury commissioners.” 93 Of the

period from the end of Reconstruction (1877) to the New

Deal (1933), it has been said that

the systematic exclusion of black men from

Southern juries was about as plain as any legal

discrimination could be, short of proclamation

in state statutes or confession by state officials.94

Florida’s six-member jury was enacted amid that

systematic exclusion of Black men.

i.

1885: The Redeemer Constitution.

By the mid-1880s the Democrats “felt secure enough

to call a convention to replace the 1868 constitution.” 95

91. Albert W. Alschuler & Andrew G. Deiss, A Brief History

of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867,

893 (1994).

92. Id. at 894.

93. Id. at 895 (citing Avery v. Georgia, 345 U.S. 559 (1953);

Cassell v. Texas, 339 U.S. 282 (1950)).

94. Id.

95. Shofner, supra note 10, at 344.

22

The charter that convention produced governed Florida

until 1968.

The charter set the minimum number of trial jurors:

“[t]he number of jurors for the trial of causes in any court

may be fixed by law, but shall not be less than six in any

case.” 96

It authorized a poll tax as a condition of voting; by

1890 most Black Floridians had stopped voting.97

It also reached the officials who compiled the jury

lists. Most offices were made elective, but the State

“assured” white control of the Black-majority counties “by

continuing the appointment of county commissioners by

the governor.”98 Those were the same officers that Chapter

3010 charged with compiling the jury lists.99

j.

The Present.

Florida replaced the 1885 charter in 1968, and

the “not fewer than six” floor carried over unchanged.

Today, Article I, Section 22 of the Florida Constitution

provides that “[t]he qualifications and the number of

jurors, not fewer than six, shall be fixed by law.” Florida

Rule of Criminal Procedure 3.270 and section 913.10 of

the Florida Statutes both provide: “Twelve persons shall

96. Art. V, § 38, Fla. Const. (1885).

97. Shofner, supra note 10, at 344.

98. Id.

99. Ch. 3010, § 1.

23

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

shall constitute a jury to try all other criminal cases.”

***

Florida’s six-person jury was enacted in February

1877 by the first Legislature to sit after Redemption, while

that Legislature was moving a bill to require every voter

in the State to register anew, and in the same session in

which it authorized the leasing of the State’s prisoners.

Amicus respectfully submits that the historical record

shows the six-person jury was born of deliberate efforts

to suppress Black voices in public affairs, including jury

service, and urges the Court to restore the right to a jury

of 12.

II. FLORIDA IS ALREADY EQUIPPED TO RETURN

TO 12-PERSON JURIES

Florida contends that overruling Williams would

have “sweeping consequences” because it would force

“thousands of retrials.”100 It claims no other reliance

interests.101 But—as in Ramos—the State “can cite no

case in which the one-time need to retry defendants

has ever been sufficient to inter a constitutional right

forever.”102

100. Br. in Opp. 18.

101. See id.

102. Ramos, 590 U.S. at 111.

24

Trying serious criminal offenses by mini-jury has not

“become part of our national culture,” either.103 Only seven

States impanel criminal juries of fewer than 12. Florida—

which leads the nation in the number of prisoners serving

life without parole104 —is one of just two states that

use mini-juries to try offenses that are punishable by

life.105

Florida already has the administrative capacity to

use 12-person juries for serious offenses. Throughout the

Williams era, Florida has continued to impanel 12-person

juries in cases where the ultimate punishment may be

given. The same statute that limits juries to six people

in noncapital cases requires a jury of 12 people in capital

cases.106 Florida seats 12-person juries every day it tries

a capital case—and it has tried more of them, producing

more new death sentences, than any other state four years

103. Cf. Dickerson v. United States, 530 U.S. 428, 443 (2000)

(refusing to overrule precedent requiring police to issue Miranda

warnings because “the warnings have become part of our national

culture.”).

104. A census of state prisons in 2024 found that “[t]he

number of people serving LWOP is highest in Florida (10,915),

California (5,111), Pennsylvania (5,059), Louisiana (3,900), and

Michigan (3,551); these five states combined account for half the

people serving LWOP nationwide.” Ashley Nellis and Celeste

Barry, A Matter of Life: The Scope and Impact of Life and Long

Term Imprisonment in the United States, T he S entencing

P roject, (Jan. 8, 2025), https://www.sentencingproject.org/

reports/a-matter-of-life-the-scope-and-impact-of-life-and-longterm-imprisonment-in-the-united-states.

105. The other state is Utah. See Utah Code Ann. § 78B-1104(1)(b)-(c).

106. See § 913.10, Fla. Stat. (2026); Fla. R. Crim. P. 3.270.

25

running.107 A jury box that holds 12 in a capital case can

hold 12 in any other case.

Florida may respond that some courthouses use a

designated courtroom for death penalty trials, and that the

courtrooms where most noncapital offenses are tried are

not as large. But even though Florida limits deliberation to

six jurors in noncapital cases, Florida’s jury boxes routinely

seat more than six jurors during noncapital trials. This

is because Florida routinely seats “alternate jurors” who

listen to opening statements, witness testimony, closing

arguments, and jury instructions alongside the panel

of six “principal jurors.”108If a principal juror becomes

unable to serve midtrial, an alternate juror replaces

that juror; but in most cases, the alternate jurors are

simply discharged when the six principal jurors retire to

deliberate.109 Restoring 12-person juries will not require

Florida to rebuild its courthouses.

Restoring 12-person juries will not create conflict

with Florida’s constitution, either. By providing that “[t]he

107. In annual 50-state surveys, Florida imposed the most

new death sentences in 2025, 2024, 2023, and 2022. See Death

Penalty Information Center, The Death Penalty in 2025, https://

files.deathpenaltyinfo.org/documents/YER2025_FINAL2.pdf;

The Death Penalty in 2024, https://files.deathpenaltyinfo.org/

documents/DPI-2024-Year-End-Report.pdf; The Death Penalty

in 2023: Year End Report, https://files.deathpenaltyinfo.org/

documents/reports/year-end/Year-End-Report-2023.pdf; The

Death Penalty in 2022: Year End Report, https://deathpenaltyinfo.

org/research/analysis/reports/year-end-reports/the-deathpenalty-in-2022-year-end-report.

108. See Fla. R. Crim. P. 3.280.

109. See id.

26

qualifications and the number of jurors, not fewer than six,

shall be fixed by law,”110 the state constitution merely sets

a floor for the minimum number of jurors—not a ceiling.

Florida is ready to resume seating 12 jurors to try

serious offenses. It has simply been excused from doing

so since the Jim Crow era.

III. WILLIAMS v. FLORIDA IS WRONG EVEN

UNDER ITS OWN FUNCTIONALIST TERMS

Williams invoked functionalist reasoning to deny

a constitutional right to a 12-person jury.111 The Court

reasoned that “[t]he relevant inquiry, as we see it, must

be the function that the particular feature [of the jury

trial system] performs and its relation to the purposes of

a jury trial.”112 To the Williams Court, the purpose of a

jury trial is preventing government oppression by placing

between the accuser and the accused “[t]he commonsense

judgment of a group of laymen, and in the community

participation and shared responsibility” that results.113

The Williams Court cited social science experiments that

it said “indicate that there is no discernible difference

between the results reached by the two different-sized

juries” and “neither currently available evidence nor

theory suggests” a 12-person jury is more advantageous

to the accused than a six-person jury.114

110. Art. I, § 22, Fla. Const. (emphasis added).

111. 399 U.S. 78 (1970).

112. Id. at 99-100.

113. Id.

114. Id. at 101-02.

27

In the 56 years since Williams was decided, the

Court has turned away from the functionalist reasoning

underpinning it. In interpreting the Constitution, the

Court looks at what the document says and what the

framers meant—not the practices that contemporary

psychologists or sociologists would recommend to fulfill

the Sixth Amendment’s function.

In Ramos,115 the Court rejected the “functionalist”

approach of Apodaca v. Oregon116 as to the jury trial right,

calling it a “muddy yardstick” produced via a “breezy

cost-benefit analysis” as to which different social science

studies produce different findings, and finding that “[t]he

deeper problem is that the plurality [in Apodaca] subjected

the ancient guarantee of a unanimous jury verdict to its

own functionalist assessment in the first place.” And more

recently, in New York State Rifle & Pistol Ass’n, Inc. v.

Bruen, this Court rejected means-end or cost-benefit

analysis of constitutional rights.117 “A constitutional

guarantee subject to future judges’ assessments of

its usefulness is no constitutional guarantee at all.

Constitutional rights are enshrined with the scope they

were understood to have when the people adopted them,

whether or not future legislatures or (yes) even future

judges think that scope too broad.”118

115. 590 U.S. at 98-100.

116. 406 U.S. 404 (1972).

117. 597 U.S. 1, 20-26 (2022).

118. Id. at 23 (citing District of Columbia v. Heller, 554 U.S.

570, 634 (2008)).

28

Williams’s holding that the Constitution allows sixperson juries has not stood the test of time. Williams

assumed that juries of six and juries of 12 function

identically. Current social science shows they do not.119

In Ballew v. Georgia, decided less than a decade after

Williams, this Court held that criminal juries of fewer

than six are unconstitutional and tempered its reliance

on the research it cited in Williams.120 Reviewing the

research available at the time, the Court explained that

“[s]tudies, most of which have been made since Williams

was decided in 1970, lead us to conclude that the purpose

and functioning of the jury in a criminal trial is seriously

impaired, and to a constitutional degree, by a reduction in

size to below six members.”121 The decades since Ballew

have produced even stronger empirical evidence that

12-person juries are more accurate, more deliberative,

and more likely to reflect a representative cross-section

of the community than six-person juries.

119. In fact, this was true when Williams was decided. None

of the “experiments” cited in Williams provide scientific proof

that six- and 12-person juries are functionally equivalent. Alisa

Smith & Michael Saks, The Case for Overturning Williams v.

Florida and the Six-Person Jury: History, Law, and Empirical

Evidence, 60 Fla. L. Rev. 441, 455-56 (2008); Robert H. Miller, Six

of One is Not a Dozen of the Other: A Reexamination of Williams

v. Florida and the Size of State Criminal Juries, 146 U. Pa. L. Rev.

621, 650-57 (1998).

120. 435 U.S. 223, 232-36 (1978) (opinion of Blackmun, J.,

joined by Stevens, J.).

121. Id. at 239.

29

This research matters not because the Court should

continue to apply Williams’s functionalist approach, but

because Williams was wrong even on its own terms.

Without reiterating the research that Petitioner

already discusses in his brief, additional post-Williams

studies have confirmed that there is a qualitative difference

between 12-person juries and the six-person juries that

Florida has been using. Larger juries give jurors who

hold a minority view a greater opportunity to influence

the verdict, largely because it is difficult to maintain a

minority viewpoint without allies.122 A 12-person jury

provides a greater chance that there will be more than one

juror with a minority viewpoint, and therefore that the

minority viewpoint will be able to influence the majority

and ultimately the verdict.123

Moreover, studies have shown that jury size also

influences representativeness.124 Smaller juries mean

fewer opportunities for racial, religious, political, or

socioeconomic minorities to serve.125

Ultimately, though, this Court does not “need a

barrage of statistical studies” to conclude that the Sixth

122. M. Sean Limon & Franklin Boster, The Impact of

Varying Argument Quality and Minority Size on Influencing

the Majority and Perceptions of the Minority, 49 Comm. Q. 350,

359-60 (2001).

123. Id.

124. See Mary R. Rose et al., Jury Pool Underrepresentation

in the Modern Era, 15 J. Empirical Legal Stud. 378 (2018).

125. See id.

30

Amendment requires 12-person juries.126 “Williams made

the unthinkable a reality. In doing so, it substituted bad

social science for careful attention to the Constitution’s

original meaning.”127 Williams does not stand the test of time

regarding either its empirical-research claims or its broader

conclusion that juries comprised of six versus 12 members

are functionally, let alone constitutionally, equivalent.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

Daniel J. Tibbitt

Daniel J. Tibbitt, P.A.

1175 NE 125th Street,

Suite 404

North Miami, FL 33161

Jackie Perczek

Counsel of Record

Black Srebnick

201 South Biscayne

Boulevard, Suite 1300

Miami, FL 33131

(305) 371-6421

jperczek@royblack.com

Cliff Wilson, Jr.

President

Florida Public Defender

A ssociation, Inc.

Co-Chair, Amicus Committee

Public Defender

Florida Association of

Third Judicial Circuit

Criminal Defense Lawyers

of Florida

173 NE Hernando Ave.,

Suite 115

Lake City, FL 32055

126. Khorrami, 143 S. Ct. at 27 (Gorsuch, J., dissenting from

denial of certiorari).

127. Cunningham v. Florida, 144 S. Ct. 1287, 1288 (2024)

(Gorsuch, J., dissenting from denial of certiorari).