Petition for Writ of Certiorari — James Randall Moehle, Petitioner v. Florida

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES RANDALL MOEHLE,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

On Petition for Writ of Certiorari

to the Florida First District Court of Appeal

PETITION FOR WRIT OF CERTIORARI

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

2022-1 Raymond Diehl Road

Tallahassee, Florida 32308

(850) 386-2345

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

COUNSEL FOR THE PETITIONER

i

A. QUESTION PRESENTED FOR REVIEW

Whether this Court should reevaluate its

decision in Williams v. Florida, 399 U.S. 78 (1970), and

hold that twelve-person juries are constitutionally

mandated in criminal felony cases – or at least in cases

that

involve

imprisonment.

a

potential

punishment

of

life

ii

B. PARTIES INVOLVED AND RELATED

CASES

1. Parties Involved

The parties involved are identified in the style of

the case.

2. Related Cases

a. State of Florida v. James Randall Moehle,

case no. 2021-CF-4832, Florida First Judicial Circuit

Court, Escambia County. Judgment entered on April

20, 2023.

b. James Randall Moehle v. State of Florida,

case no. 1D2023-1112, Florida First District Court of

Appeal. Opinion entered on February 3, 2025,

rehearing denied on March 12, 2025.

iii

C. TABLE OF CONTENTS AND TABLE OF

CITED AUTHORITIES

1.

TABLE OF CONTENTS

A.

QUESTION PRESENTED FOR REVIEW . . i

B.

PARTIES INVOLVED AND RELATED

CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

C.

1.

Parties Involved . . . . . . . . . . . . . . . . . . ii

2.

Related Cases . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS AND TABLE OF

AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iii

1.

Table of Contents . . . . . . . . . . . . . . . . iii

2.

Table of Cited Authorities . . . . . . . . . . v

D.

CITATION TO OPINION BELOW . . . . . . . . 1

E.

BASIS FOR JURISDICTION . . . . . . . . . . . . 1

F.

CONSTITUTIONAL PROVISION

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

G.

STATEMENT OF THE CASE . . . . . . . . . . . . 2

H.

REASON FOR GRANTING THE WRIT . . . . 4

The question presented is important . . . . . . . 4

iv

I.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 27

J.

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . A-1

1.

February 3, 2025, opinion of the

Florida First District Court of

Appeal . . . . . . . . . . . . . . . . . . . . . . . . A-3

2.

March 12, 2025, rehearing order of

the Florida First District Court of

Appeal . . . . . . . . . . . . . . . . . . . . . . . . A-5

3.

April 20, 2023, Judgment and

Sentence . . . . . . . . . . . . . . . . . . . . . . A-7

4.

Excerpt of Transcript of January

9, 2023, Trial, Pages 8-9 . . . . . . . . . A-22

v

2.

TABLE OF CITED AUTHORITIES

a.

Cases

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) . . . . . . . . . . . . . . . . . . . 20

Alleyne v. United States, 570 U.S. 99 (2013) . . . 20-21

Apprendi v. New Jersey,

530 U.S. 466 (2000) . . . . . . . . . . . . 7, 15-17, 25

Apodaca v. Oregon, 406 U.S. 404 (1972) . . . . . . 18-19

Ballew v. Georgia, 435 U.S. 223 (1978) . . . . . . . . . . 24

Blakely v. Washington,

542 U.S. 296 (2004) . . . . . . . . . . . . . . 6-7, 16-17

Cancemi v. New York, 18 N.Y. 128 (1858) . . . . . . . 13

Crawford v. Washington, 541 U.S. 36 (2004) . . . . . 14

Cunningham v. Florida,

144 S. Ct. 1287 (2024) . . . . . . . . . . . . . . . 22-25

Duncan v. Louisiana, 391 U.S. 145 (1968) . . . . . 6, 16

Emerick v. Harris, 1 Binn. 416 (Pa. 1808) . . . . . . . 13

Foote v. Lawrence, 1 Stew. 483 (Ala. 1828) . . . . . . 12

Harris v. United States, 536 U.S. 545 (2002) . . . . . 21

vi

Helvering v. HaIIock, 309 U.S. 106 (1940) . . . . 19-20

Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) . . . . . . 2

Johnson v. Louisiana, 406 U.S. 356 (1972). . . . . . . 18

Jones v. United States, 526 U.S. 227 (1999) . . . . . . 25

Khorrami v. Arizona, 143 S. Ct. 22 (2022) . . . . 21-25

Legislative Power to Change Law in Relation to

Juries, Op. Justices Supreme Judicial

Court, 41 N.H. 550 (1860) . . . . . . . . . . . 12-13

Moehle v. State,

403 So. 3d 932 (Fla. 1st DCA 2025) . . . . . . . . 1

Ohio v. Roberts, 448 U.S. 56 (1980) . . . . . . . . . . . . . 15

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

Ramos v. Louisiana, 590 U.S. 83 (2020) . . . 17-19, 25

Solorio v. United States, 483 U.S. 435 (1987) . . . . . 20

Southern Union Co. v. United States,

132 S. Ct. 2344 (2012) . . . . . . . . . . . . . . . . . . 17

State v. West, 30 Fla. L. Weekly Supp. 607a

(Fla. 11th Cir. Dec. 2, 2022) . . . . . . . . . . . . . 19

Thompson v. Utah, 170 U.S. 343 (1898) . . . . . . . 9, 23

vii

United States v. Dixon, 509 U.S. 688 (1993) . . . . . 20

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) . . . . . . . . . . . . . . . . . . . . 15

Vaughn v. Scade, 30 Mo. 600 (1860) . . . . . . . . . . . 12

Whitehurst v. Davis,

3 N.C. (2 Hayw.) 113 (1800) . . . . . . . . . . . . . 13

Williams v. Florida,

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

Work v. State, 2 Ohio St. 296 (1853) . . . . . . . . . . . . 13

Zylstra v. Corporation of Charleston, 1 S.C.L.

(1 Bay) 382 (1794) . . . . . . . . . . . . . . . . . . . . . 13

b.

Statutes

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

c.

Other

Art. III, § 2, cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . 22-23

William Blackstone, Commentaries on the

Laws of England (1769) . . . . . . . . . . . . 6-7, 16

viii

Robert H. Miller, Comment, Six of One Is Not a

Dozen of the Other: A Re-Examination of

Williams v. Florida and the Size of State

Criminal Juries, 146 U. Pa. L. Rev. 621

(Jan. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 9-12

David B. Rottman & Shauna M. Strickland,

State Court Organization 2004, United

States Department of Justice, Bureau

of Justice Statistics, Table 42, available

at http://www.bjs.gov/content/pub/pdf/sco

04.pdf (last visited July 8, 2025). . . . . . . . . 4-5

Smith & Saks, The Case for Overturning

Williams v. Florida and the Six-Person

Jury, 60 Fla. L. Rev. 441 (2008) . . . . . . . 25-26

J. Story, Commentaries on the Constitution of

the United States (4th ed. 1873) . . . . . . . . . 16

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

U.S. Const. amend. VII . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . 6, 8, 18

H. Zeisel, . . . And Then There Were None:

The Diminution of the Federal Jury,

38 U. Chi. L. Rev. 710 (1971) . . . . . . . . . . . . 24

1

The Petitioner, JAMES RANDALL MOEHLE,

prays the Court to issue its writ of certiorari to review

the opinion of the Florida First District Court of Appeal

entered in this case on February 3, 2025 (A-3)1

(rehearing denied on March 12, 2025 (A-5)).

D. CITATION TO OPINION BELOW

Moehle v. State, 403 So. 3d 932 (Fla. 1st DCA

2025).

E. BASIS FOR JURISDICTION

The jurisdiction of the Court is invoked pursuant

to 28 U.S.C. § 1257 to review the final judgment of the

Florida First District Court of Appeal rendered on

References to the appendix to this petition will be

made by the designation “A” followed by the appropriate

page number.

1

2

February 3, 20252 (rehearing denied on March 12,

2025).

On May 16, 2025, this Court granted an

application for an extension of thirty days to file this

petition for writ of certiorari by July 10, 2025.

F.

CONSTITUTIONAL

INVOLVED

PROVISION

The Sixth Amendment to the United States

Constitution

provides

that

“[i]n

all

criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury . . . .”

G. STATEMENT OF THE CASE AND

STATEMENT OF THE FACTS

In 2021, the Petitioner was charged in Escambia

Because the state appellate court did not issue a

written opinion, the Petitioner was not entitled to seek

review in the Florida Supreme Court. See Jenkins v. State,

385 So. 2d 1356 (Fla. 1980).

2

3

County, Florida, with six counts of sexual battery by a

person in familial authority and one count of lewd or

lascivious molestation – offenses that involved a

potential punishment of life imprisonment.

The

alleged victims of the purported offenses were the

Petitioner’s daughters.

After he was charged, the Petitioner exercised

his constitutional right to a jury trial. Prior to trial,

defense counsel requested a twelve-person jury, but the

trial court denied the request. (A-23). As a result, the

Petitioner’s jury consisted of only six people.

The trial began on January 9, 2023, and

concluded on January 12, 2023.

At trial, the

Petitioner’s defense was that his daughter’s allegations

were false. At the conclusion of the trial, the sixperson jury returned a verdict of guilty as charged for

all counts.

4

The trial court later sentenced the Petitioner to

life imprisonment (the maximum sentence). (A-14).

On direct appeal, the Florida First District Court of

Appeal per curiam affirmed the Petitioner’s convictions

and sentence (and in doing so, the state appellate court

rejected the Petitioner’s argument that he was entitled

to a twelve-person jury). (A-3).

H. REASON FOR GRANTING THE WRIT

The question presented is important.

Florida is one of only a handful of states that

regularly use six jurors to decide the outcome of nonpetty criminal cases – and one of only two states that

allow juries of less than twelve persons to preside over

life felony cases. See David B. Rottman & Shauna M.

Strickland, State Court Organization 2004, United

States Department of Justice, Bureau of Justice

5

Statistics,

Table

42

at

233-36,

available

http://www.bjs.gov/content/pub/pdf/sco04.pdf

visited July 8, 2025).3

at

(last

This practice contravenes

literally centuries of common law, as well as

longstanding American precedent, requiring twelveperson

juries

in

non-petty

criminal

cases.

Nevertheless, in Williams v. Florida, 399 U.S. 78

(1970), a majority of this Court held that the Sixth

Amendment guarantee to trial by jury did not require

that the constitutionally mandated jury be composed of

twelve members.4

Indiana and Massachusetts allow some felony cases

to be tried by juries as small as six members but still

require twelve-person juries for more serious felonies. In

Utah, criminal juries are comprised of eight people for noncapital cases and twelve people for capital cases. In

Arizona, a twelve-person jury is required if the death

penalty or a sentence of thirty years or more are being

sought. In Connecticut, a twelve-person jury is required for

capital offenses or crimes with possible life sentences.

3

Justice Blackmun did not take part in the Williams

decision. Justice Marshall dissented. Although Justice

4

6

Subsequent developments over the last fifty-five

years in this Court’s Sixth and Fourteenth Amendment

jurisprudence dictate that this Court should reconsider

the result in Williams.

The result in Williams is

squarely

with

this

cases

reviewing

inconsistent

pronouncements

in

convictions

state

from

courts

Court’s

that

recent

criminal

the

Sixth

Amendment requires “that the ‘truth of every

accusation’ against a defendant ‘should afterwards be

confirmed by the unanimous suffrage of twelve of his

Harlan sided with the majority in holding that the “right”

to a twelve-person jury did not extend to state criminal

trials, he claimed this was because Duncan v. Louisiana,

391 U.S. 145 (1968), was wrongly decided. See Williams,

399 at 118 (Harlan, J., concurring in judgment). Justice

Harlan adamantly believed that the Sixth Amendment

guaranteed a right to a trial by a jury of twelve; he just did

not believe that the Sixth Amendment applied to the states

through incorporation. See id. at 117-18 (Harlan, J.,

concurring in judgment) (stating that the incorporation

doctrine did not fit well with our federal structure and that

Duncan was wrongly decided).

7

equals and neighbours.’” Blakely v. Washington, 542

U.S. 296, 301 (2004) (emphasis added) (quoting

William Blackstone, Commentaries on the Laws of

England 343 (1769)); accord Apprendi v. New Jersey,

530 U.S. 466, 477 (2000). In light of the minimal force

of stare decisis in this context and great importance of

the constitutional right at stake, this Court should

grant certiorari and reconsider whether a defendant

charged with a criminal felony offense is entitled to a

jury of twelve peers.

1. The Court’s holding in Williams.

In Williams, Justice White, writing for the

majority, held “that the 12-man panel is not a

necessary ingredient of ‘trial by jury,’ and that [the]

refusal to impanel more than the six members provided

for by Florida law did not violate [Williams’] Sixth

Amendment rights as applied to the States through the

8

Fourteenth [Amendment].” Williams, 399 U.S. at 86.

In determining that the Constitution did not require a

jury of twelve, Justice White characterized the

common-law number of twelve jurors as a “historical

accident,” id. at 89, and not “the prevailing grundzahl.”

Id. at 87 n.19. Justice White acknowledged that the

word “jury” may have imported to the Framers or the

First Congress an “usual expectation” of twelve

members, but Justice White found no historical

indication of an “explicit decision” to equate the use of

the word “jury” in the constitution to the common-law

characteristics of the jury. Id. at 98-99. As a result, a

majority of the Court concluded that the Sixth

Amendment itself could not be interpreted as requiring

twelve-person juries.

Justice Marshall dissented in Williams, stating:

. . . I adhere to the decision of the Court

9

in Thompson v. Utah, 170 U.S. 343, 349

[(1898),] that the jury guaranteed by the

Sixth Amendment consists ‘of twelve

persons, neither more nor less.’ As I see

it, the Court has not made out a

convincing case that the Sixth

Amendment should be read differently

than it was in Thompson even if the

matter were now before us de novo –

much less that an unbroken line of

precedent going back over 70 years

should be overruled. The arguments

made by Mr. Justice Harlan in Part IB of

his opinion persuade me that Thompson

was right when decided and still states

sound doctrine. I am equally convinced

that the requirement of 12 should be

applied to the States.

Williams, 399 U.S. at 116 (Marshall, J., dissenting).

2. The origins of the twelve-person jury

and the Framers’ intent for the American

criminal jury.

In his article “Six of One Is Not a Dozen of the

Other: A Re-Examination of Williams v. Florida and

the Size of State Criminal Juries,” Robert H. Miller

explains that “[s]cholars have traced the origins [of the

10

twelve-person jury] to sources as diverse as ancient

Greece, the Roman Conquest, the Biblical importance

of the number twelve, ancient reliance on court

astrologers, the Anglo-Saxon era in England, the

Norman Conquest, the Assize of Clarendon, and the

Magna Carta.” Robert H. Miller, Comment, Six of One

Is Not a Dozen of the Other: A Re-Examination of

Williams v. Florida and the Size of State Criminal

Juries, 146 U. Pa. L. Rev. 621, 632 (Jan. 1998)

(footnotes omitted). Mr. Miller adds:

[T]he general infrastructure of the

criminal jury as a twelve-member body

rendering unanimous verdicts was

clearly established by the time of Edward

III in 1377. This infrastructure remained

largely unchanged for the next six

hundred years, until the Williams Court

declared the entire nine-hundred-year

evolutionary process of the twelve-person

jury a “historical accident.”

Miller, supra, at 638-39 (footnotes omitted).

11

In Williams, the majority concluded that “[w]hile

‘the intent of the Framers’ is often an elusive quarry,

the relevant constitutional history casts considerable

doubt on the easy assumption in our past decisions

that if a given feature existed in a jury at common law

in 1789, then it was necessarily preserved in the

Constitution.” Williams, 399 U.S. at 92. In his article,

Mr. Miller concludes that a closer examination reveals

considerable evidence that the Framers understood a

jury to mean a body of twelve:

At the time the Constitution was

drafted, the twelve-person unanimous

criminal jury was an institution with a

nearly four-hundred-year-old tradition in

England.

It was brought over and

immediately integrated, unchanged, into

pre-Revolutionary War America. Thus,

“it seems clear that to most of the

delegates to the Constitutional

Convention in 1787, trial by jury in

criminal cases meant trial by a body of

twelve persons all of whom agreed to the

verdict.” . . . [G]iven what is known

12

about the vigorous debate between the

Federalists and the Anti-Federalists over

civil jury-trial requirements under the

Seventh Amendment, the absence of any

recorded discussions about criminal juries

before, during, or after the Convention

strongly suggests that the

long-established, highly functional

common-law tradition of the

twelve-person criminal jury was never

challenged by the delegates.

The strongest evidence that the

Framers tacitly accepted the

twelve-person criminal jury is found in

the flurry of state-court decisions

interpreting the “jury” requirement

immediately after the Constitutional

Convention. Curiously, the Court found

nothing compelling in this significant

body of contemporaneous judicial opinion,

and even disregarded its own numerous

prior opinions on the subject.

Miller, supra, at 643-44.5 The Petitioner suggests that

In support of his argument, Mr. Miller cited the

following state court decisions: Foote v. Lawrence, 1 Stew.

483, 483 (Ala. 1828) (“The term jury is well understood to be

twelve men . . . .”); Vaughn v. Scade, 30 Mo. 600, 604 (1860)

(“The term ‘trial by jury’ was well known and understood at

the common law, and in that sense it was adopted in our

bill of rights.”); Legislative Power to Change Law in

Relation to Juries, Op. Justices Supreme Judicial Court, 41

5

13

it is appropriate for the Court to grant certiorari and

reconsider whether the Framers’ intended the

Constitution to require a jury of twelve persons in all

criminal felony cases – or at least in life felony cases.

N.H. 550, 551 (1860) (“A jury for the trial of a cause was a

body of twelve men . . . who . . . must return their

unanimous verdict . . . .”); Cancemi v. New York, 18 N.Y.

128, 138 (1858) (“It would be a highly dangerous innovation,

in reference to criminal cases, upon the ancient and

invaluable institution of trial by jury, and the constitution

and laws establishing and securing that mode of trial, for

the court to allow any number short of a full panel of twelve

jurors . . . .”); Whitehurst v. Davis, 3 N.C. (2 Hayw.) 113,

113 (1800) (interpreting the state constitutional

requirement of “trial by jury” to mean that “any innovation

amounting in the least degree to a departure from the

ancient mode, may cause a departure in other instances,

and in the end, endanger or pervert this excellent

institution from its usual course”); Work v. State, 2 Ohio St.

296, 304 (1853) (“The number must be twelve, they must be

impartially selected, and must unanimously concur . . . .”);

Emerick v. Harris, 1 Binn. 416, 426 (Pa. 1808) (interpreting

Pennsylvania’s constitutional provision that “trial by jury

shall be as heretofore,” by referring to William Penn’s

charter of 1682, stating that “all trials shall be of 12 men”);

Zylstra v. Corporation of Charleston, 1 S.C.L. (1 Bay) 382,

395-96 (1794) (noting that the structure of the jury, as

contemplated at the time of the adoption of the South

Carolina Constitution, included twelve members).

14

3. This Court’s recent Sixth Amendment

jurisprudence.

The majority in Williams focused on the

“function” of the jury:

The relevant inquiry, as we see it, must

be the function that the particular

feature performs and its relation to the

purposes of the jury trial. Measured by

this standard, the 12-man requirement

cannot be regarded as an indispensable

component of the Sixth Amendment.

Williams, 399 U.S. at 99-100. The Court proceeded to

examine the functions of the jury and the ability of a

specific number of jurors to accomplish those functions.

However, this Court recently has made clear that the

Sixth Amendment derives its meaning not from some

abstract functional analysis but rather from the

original understanding of the guarantees contained

therein.

In Crawford v. Washington, 541 U.S. 36

(2004),

the

Court

abandoned

the

functional,

15

reliability-based conception of the Confrontation

Clause embodied in Ohio v. Roberts, 448 U.S. 56

(1980), in favor of the common-law conception of the

right known to the Framers.

In United States v.

Gonzalez-Lopez, 548 U.S. 140 (2006), the Court

rejected an approach to the right to counsel that would

have “abstract[ed] from the right to its purposes” and

left it to this Court whether to give effect “to the

details.” Id. at 145 (quotation omitted). And, in a line

of cases beginning with Apprendi v. New Jersey, 530

U.S. 466 (2000), this Court rejected a functional

approach to the right to jury trial in favor of the

“practice” of trial by jury as it existed “at common law”:

As we have, unanimously, explained . . .

the historical foundation for our

recognition of these principles extends

down centuries into the common law.

“[T]o guard against a spirit of oppression

and tyranny on the part of rulers,” and

“as the great bulwark of [our] civil and

16

political liberties,” 2 J. Story,

Commentaries on the Constitution of the

United States 540-541 (4th ed. 1873),

trial by jury has been understood to

require that “the truth of every

accusation, whether preferred in the

shape of indictment, information, or

appeal, should afterwards be confirmed

by the unanimous suffrage of twelve of

[the defendant’s] equals and neighbours

. . . ” 4 W. Blackstone, Commentaries on

the Laws of England 343 (1769). See also

Duncan v. Louisiana, 391 U.S. 145,

151-154 (1968).

Id. at 477 (emphasis added). In Blakely v. Washington,

542 U.S. 296 (2004), in applying Apprendi and

clarifying the definition of the “statutory maximum”

for any offense, the Court repeated its reference to the

“suffrage of twelve,” id. at 301, and then re-emphasized

the critical nature of trial by jury:

Our commitment to Apprendi in this

context reflects not just respect for

longstanding precedent, but the need to

give intelligible content to the right of

jury trial.

That right is no mere

procedural formality, but a fundamental

17

reservation of power in our constitutional

structure. Just as suffrage ensures the

people’s ultimate control in the legislative

and executive branches, jury trial is

meant to ensure their control in the

judiciary. Apprendi carries out this

design by ensuring that the judge’s

authority to sentence derives wholly from

the jury’s verdict.

Without that

restriction, the jury would not exercise

the control that the Framers intended.

Id. at 305-06 (citations omitted). See also Southern

Union Co. v. United States, 567 U.S. 343, 356 (2012)

(“[T]he truth of every accusation against a defendant

should afterwards be confirmed by the unanimous

suffrage of twelve of his equals and neighbours.”)

(citations omitted). The Court in Blakely ultimately

focused on “the Framers’ paradigm for criminal

justice.”

Id. at 313.

This shift in constitutional

methodology calls the holding in Williams into

question.

Finally, five years ago, the Court decided Ramos

18

v. Louisiana, 590 U.S. 83 (2020), which now requires

unanimous jury verdicts in all felony cases. Prior to

Ramos, Louisiana and Oregon allowed a defendant to

be convicted by ten-two non-unanimous verdicts.

Writing for the majority, Justice Gorsuch stated that

the Sixth Amendment right to jury trial, as

incorporated against the States by way of the

Fourteenth Amendment, requires a unanimous verdict

to convict a defendant of a serious offense, thereby

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

and Johnson v. Louisiana, 406 U.S. 356 (1972). In

Ramos, the Court explained that the question is

whether “at the time of the Sixth Amendment’s

adoption, the right to trial by jury included” the

particular feature at issue. Ramos, 590 U.S. at 100.

As the history summarized above establishes, there

can

be

no

serious

doubt

that

the

common

19

understanding

of

the

jury

trial

during

the

Revolutionary War era was that twelve jurors were

required – “a verdict, taken from eleven, was no verdict

at all.” Id. at 90 (quotation marks omitted). As later

explained by a Florida state court judge, “in Ramos v.

Louisiana, the Court explained why Apodaca was

wrong; and, by unavoidable implication, why Williams

must be wrong.” State v. West, 30 Fla. L. Weekly Supp.

607a (Fla. 11th Cir. Dec. 2, 2022).

The Petitioner submits that the Court should

grant certiorari and reexamine the holding in Williams

in light of this Court’s recent Sixth Amendment

jurisprudence.

4. The doctrine of stare decisis does not

prevent the Court from reconsidering the

holding in Williams.

Stare decisis has minimal force when the

decision at issue “involves collision with prior doctrine

20

more embracing in its scope, intrinsically sounder, and

verified by experience.” Helvering v. HaIIock, 309 U.S.

106, 119 (1940). “Remaining true to an ‘intrinsically

sounder’ doctrine established in prior cases better

serves the values of stare decisis than would following

a more recently decided case inconsistent with the

decisions that came before it.” Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 231 (1995). There are

numerous examples where this Court has concluded

that it is appropriate to reinstate a prior doctrine. See,

e.g., United States v. Dixon, 509 U.S. 688, 704 (1993)

(overruling recent decision that “lack[ed] constitutional

roots” and was “wholly inconsistent with earlier

Supreme Court precedent”); Solorio v. United States,

483 U.S. 435, 439-41 (1987) (overruling decision that

had broken from an earlier line of decisions from 1866

to 1960”). See also Alleyne v. United States, 570 U.S.

21

99, 107 (2013) (“Alleyne contends that Harris [v.

United States, 536 U.S. 545 (2002),] was wrongly

decided and that it cannot be reconciled with our

reasoning in Apprendi. We agree.”). Therefore, the

Petitioner submits that the doctrine of stare decisis

should not stand in the way of this Court reconsidering

the result in Williams in light of this Court’s recent

approach to the Sixth Amendment.

5. Justice Gorsuch’s recent requests for

the Court to reconsider Williams.

Three years ago, Justice Gorsuch opined in a

dissent from the denial of certiorari in Khorrami v.

Arizona, 143 S. Ct. 22, 23-27 (2022) (Gorsuch, J.,

dissenting), that a criminal defendant is entitled to a

twelve-person jury before he may be constitutionally

convicted under the Sixth Amendment.

Notably,

Justice Gorsuch asserted that the Court’s decision in

22

Williams was wrongly decided. See id. at 27 (Gorsuch,

J., dissenting).

And last year, Justice Gorsuch again dissented

from the denial of certiorari in Cunningham v. Florida,

144 S. Ct. 1287 (2024) – a Florida case involving felony

offenses that carried a maximum of only fifteen years’

imprisonment.6 In his opinion, Justice Gorsuch again

stated that the Court should grant certiorari review in

order to reconsider Williams:

“For almost all of this Nation’s

history and centuries before that, the

right to trial by jury for serious criminal

offenses meant the right to a trial before

12 members of the community.”

Khorrami v. Arizona, 598 U. S. –, –, 143

S. Ct. 22, 27 (2022) (GORSUCH, J.,

dissenting from denial of certiorari).

Acutely concerned with individuals and

their liberty, the framers of our

Constitution sought to preserve this right

for future generations. See id., at –, 143

Ms. Cunningham was ultimately sentenced to eight

years’ imprisonment.

6

23

S. Ct., at 23-24; Art. III, § 2, cl. 3; Amdt.

6. Yet today, a small number of States

refuse to honor its promise. Consider this

case: A Florida court sent Natoya

Cunningham to prison for eight years on

the say of just six people.

Florida does what the Constitution

forbids because of us. In Williams v.

Florida, this Court in 1970 issued a

revolutionary decision approving for the

first time the use of 6-member panels in

criminal cases. 399 U.S. 78 (1970). In

doing so, the Court turned its back on the

original meaning of the Constitution,

centuries of historical practice, and a

“battery of this Court’s precedents.”

Khorrami, 598 U. S., at –, 143 S. Ct., at

25. Before Williams, this Court had said

it was “not open to question” that a jury

“should consist of twelve.” Patton v.

United States, 281 U.S. 276, 288 (1930).

We had understood “the jury referred to

in the original Constitution and in the

Sixth Amendment is a jury constituted,

as it was at common law, of twelve

persons.” Thompson v. Utah, 170 U.S.

343, 349 (1898). Really, given the history

of the jury-trial right before Williams, it

was nearly “unthinkable to suggest that

the Sixth Amendment’s right to a trial by

jury is satisfied” by any lesser number.

Williams, 399 U.S., at 122 (Harlan, J.,

concurring in result).

24

Yet

Williams

made

the

unthinkable a reality. In doing so, it

substituted bad social science for careful

attention to the Constitution’s original

meaning. Pointing to academic studies,

Williams tepidly predicted that 6-member

panels would “probably” deliberate just

as carefully as 12-member juries. 399

U.S., at 100-102. But almost before the

ink could dry on the Court’s opinion, the

social science studies on which it relied

came under scrutiny. See, e.g., H. Zeisel,

. . . And Then There Were None: The

Diminution of the Federal Jury, 38 U.

Chi. L. Rev. 710, 713-715 (1971). Soon,

the Court was forced to acknowledge

“empirical data” suggesting that, in fact,

“smaller juries are less likely to foster

effective group deliberation” and may not

produce as reliable or accurate decisions

as larger ones. Ballew v. Georgia, 435

U.S. 223, 232-235 (1978) (plurality

opinion). All in all, Williams was an

embarrassing mistake – “wrong the day it

was decided.” Khorrami, 598 U. S., at –,

143 S. Ct., at 23.

Respectfully, we should have

granted review in Ms. Cunningham’s case

to reconsider Williams. In the years since

that decision, our cases have insisted,

repeatedly, that the right to trial by jury

should mean no less today, and afford no

fewer protections for individual liberty,

25

than it did at the Nation’s founding. See,

e.g., Apprendi v. New Jersey, 530 U.S. 466

(2000); Ramos v. Louisiana, 590 U.S. 83

(2020). Repeatedly, too, our cases have

warned of the dangers posed by the

gradual “‘erosion’” of the jury trial right.

Apprendi, 530 U.S., at 483 (quoting Jones

v. United States, 526 U.S. 227, 248

(1999)). Yet when called upon today to

address our own role in eroding that

right, we decline to do so. Worse still, in

the last two years we have now twice

turned away thoughtful petitions asking

us to correct our mistake in Williams.

See Khorrami, 598 U. S., at –, 143 S. Ct.,

at 27.

If there are not yet four votes on

this Court to take up the question

whether Williams should be overruled, I

can only hope someday there will be. . . .

Id. at 1287-1288 (Gorsuch, J., dissenting).7

The

As argued in the certiorari petition in Cunningham,

other important considerations also weigh in favor of the

twelve-member jury. See Cunningham Pet. for Cert. at pgs.

8-9. Studies indicate that twelve-member juries deliberate

longer, recall evidence better, and rely less on irrelevant

factors during deliberation. See Smith & Saks, The Case for

Overturning Williams v. Florida and the Six-Person Jury,

60 Fla. L. Rev. 441, 465 (2008). Minority views are also

more likely to be thoroughly expressed in a larger jury, as

“having a large minority helps make the minority subgroup

7

26

Petitioner prays that there are now four votes on the

Court to take up the question of whether Williams

should be overruled – and because the Petitioner was

tried for life felonies by a jury of only six persons, the

Petitioner’s case is the right case to take up this

question.

6. The question of whether defendants can

be convicted of criminal felony offenses and/or

life felonies by a jury of less than twelve persons

is extremely important and ripe for

consideration.

Defendants such as the Petitioner continue to be

tried in Florida for serious/life felony offenses by juries

comprised of six persons. In the instant case, the

Petitioner was charged with offenses that carried a

possible punishment of life imprisonment (which is the

sentence that the trial court ultimately imposed in this

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

minority members having allies is greater on a

twelve-person jury.” Id. at 466.

27

case). Other than a sentence of death, this is the most

severe sentence that exists in American jurisprudence

– and yet the Petitioner’s fate was decided by only six

jurors. The Court should grant the petition in this case

in order to restore uniformity in this country by

bringing Florida in line with the overwhelming

majority of states that require a jury of twelve

members in criminal felony cases and/or cases

involving life felonies.

I. CONCLUSION

The Petitioner requests the Court to grant the

petition for writ of certiorari.

Respectfully Submitted,

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

COUNSEL FOR THE PETITIONER