Six-person jury challenge prompts defense lawyers to seek 12-member panels

Anticipating a sea change in Florida’s criminal justice system, defense attorneys are flooding the courts with motions requesting 12-member juries, and prosecutors are beginning to go along, “out of an abundance of caution.”

The tide began rising two months ago when the U.S. Supreme Court agreed to hear Kian v. Florida, a South Florida chiropractor’s challenge to the state’s use of six-person juries in noncapital cases.

“I would consider it ineffective to not file,” says veteran Miami attorney Jude Faccidomo, co-founder of Ratzan & Faccidomo.

Faccidomo chairs the Criminal Procedure Rules Committee and serves as chair-elect of the Criminal Law Section. While the Supreme Court case is pending, he recommends that defense attorneys file the request to preserve the argument for any potential appeal.

Earlier this summer, Florida Attorney General James Uthmeier urged justices not to accept Kian’s challenge, arguing that the Supreme Court got it right in 1970 when it upheld six-person juries in Williams v Florida.

Overturning Williams could upend thousands of criminal convictions, Uthmeier warned, noting that five other states — Arizona, Connecticut, Indiana, Massachusetts, and Utah — use a similar scheme.

Last year, the Fourth District Court of Appeal, without comment, rejected Hamed Kian’s appeal of his conviction for practicing without a license. Kian argued that the lack of a 12-person jury violated his Sixth Amendment right to a fair trial.

The 12-member jury concept originated with the Magna Carta in 1215, and it’s what the framers of the U.S. Constitution contemplated, Kian contends.

At least one Supreme Court justice, Neil Gorsuch, agrees. In a previous dissent, he called Williams “wrong the day it was decided.”

No experienced lawyer would predict with absolute certainty how the Supreme Court will rule, Faccidomo says. But he sees the stars aligning for Kian and the handful of supporters who filed amicus briefs.

“Justice Gorsuch doesn’t mince words,” Faccidomo said. “And when you have that coming from a member of the Supreme Court who sits with the supermajority, presumably the minority voices will join that, you’re looking at turning one justice, and the six-person jury scheme is no more.”

Most defense attorneys don’t expect their motions for a larger jury panel to be granted. A Miami-Dade judge denied Faccidomo’s request in a case that is being tried this week. Filing the motion was still worth the effort, Faccidomo says.

“Say my client is convicted, the judge denied my motion for a 12-person jury, and the Supreme Court overturns [the six-person jury system,] we’re trying this case again,” he said.

Most, but not all, Florida judges are denying the motions.

A 12-member Polk County jury late last month acquitted a defendant – a 19-year-old high school student at the time of his arrest – of five felony counts ranging from criminal mischief to aggravated assault with a deadly weapon.

Jalen Thompson, a partner with Lakeland-based Pearl & Thompson Attorneys at Law, requested a 12-member jury for his client anticipating that the Supreme Court would invalidate six-person juries.

“I thought it would be prudent to try to preserve the issue, if nothing else,” Thompson said.

The court granted the motion after the state agreed, but prosecutors did so only reluctantly, Thompson said. The state went along in part because the defendant faced a potential life sentence, Thompson says, adding that prosecutors were careful to defend Florida’s six-person jury scheme in their stipulation.

Having a 13-member jury – 12 jurors and an alternate – proved pivotal for the acquittal, Thompson said, but not entirely for the reasons put forward by supporters of larger juries.

When asked to identify the assailant, the state’s key witness mistakenly pointed to a juror who would not have been in the courtroom had the panel been limited to six members, Thompson said.

The defendant denied being at the scene of the incident.

“It gave a good leg up to my closing,” Thompson said.

After the acquittal, Thompson heard a judge expressing concern that empaneling 12-member juries for all criminal cases would be a logistical challenge.

Thompson disagrees.

“We picked this jury in about an hour and a half, that’s not an abnormal amount of time for voir dire,” he said. “Essentially, I think that it definitely led to a wider array of beliefs and understanding and questioning in the jury room, so I think it’s worthwhile.”

Thompson agrees with the argument that a decision by a 12-person jury carries more legitimacy with the community because the panel represents a greater cross-section of society. Larger panels also give more members of the community an opportunity to participate in the justice system, whether it’s to punish a criminal or acquit the innocent, Thompson says. “When there is an injustice in the community, you can be part of the making that right.”

On August 11, 10th Circuit Judge Brenda Ramirez granted a defense motion to seat a 12-member jury in the pending trial of a former Polk County sheriff’s deputy who faces drug trafficking, paraphernalia, and petit theft charges.

The suspect is accused of taking money from a motorist’s wallet following a traffic stop. Investigators claim they later found drugs and paraphernalia in the former deputy’s vehicle.

In his motion requesting a 12-member jury, defense attorney Jonah Dickstein echoed the textualist argument that Kian made in his Supreme Court challenge.

“The original meaning of the Sixth Amendment’s ‘trial by an impartial jury’ plainly meant a full twelve persons, at the Sixth Amendment’s adoption,” the motion states. It also refers to the Magna Carta.

“Blackstone traced the twelve-person jury right to the ancient feudal system of trial by ‘a tribunal composed of twelve good men and true,’ and he wrote that ‘it is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected in his property, his liberty or person, but by the unanimous consent of twelve of his neighbours and equals.’”

The state’s stipulation refers to the Supreme Court’s decision to review whether Williams was “correct,” and acknowledges that “one Supreme Court justice has stridently expressed the view” that it was not.

“Out of an abundance of caution, and in the interest of protecting victims from the possibility of a retrial, the State therefore has no objection in this case to trying the defendant with a 12-person jury,” the stipulation concludes.

Hillsborough Public Defender Lisa B. McLean began requesting 12-member juries soon after the Supreme Court agreed to review the Williams decision, says Felony Division Chief William Knight.

At first, the requests were limited to about 50 cases, ones that appeared most likely to be headed to trial, Knight says.

“But now it’s going to be implemented for all felony cases, just as we file our motions to participate in discovery,” he says. “It has become one of our standard ones.”

The division currently represents about 4,000 clients, Knight says.

Knight agrees with Faccidomo that the Supreme Court appears likely to invalidate Florida’s use of six-person juries.

“Frankly, given the U.S. Supreme Court’s recent history of decisions that are giving more power to juries to make more factual determinations in trials, in seems that there might be an implementation of a 12-person jury, because it falls in line with what many believe is what the Sixth Amendment intended when it was adopted.”

Opponents of Florida’s six-person jury system argue that it was adopted in the post-Civil War era to exclude Blacks and other minorities. Knight agrees.

“It is absolutely shameful,” he says. “And so, this gives the Supreme Court, I think, an opportunity to rectify the situation.”

Faccidomo isn’t overly concerned that overturning Williams could upend thousands of convictions. Justices are well aware of the burden it could place on the courts, he says.

“My guess would be that if the ruling comes down finding six-person juries unconstitutional, it will be prospective, and not retroactive to previous convictions, and they will go to great lengths to craft language to that affect.”

If the sponsors were convinced that a six-person jury is as capable of reaching a just decision as a larger panel, they wouldn’t have made an exception for capital cases, Faccidomo says.

“So, you’ve already acknowledged that it’s better to do it with 12, but we can get away with six,” he said. “And in the criminal justice system, the idea is not to do with what you can get away with, but to make sure that you have due process and a fair trial.”

 

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