The Sixth Amendment requires, among many other things, that criminal trials be conducted before an “impartial jury.” In nearly every state, this jury consists of 12 members of the community where the alleged crime was committed. But in a handful of jurisdictions, states use fewer jurors to more easily secure convictions.
Under Florida law, trials for capital offenses are held before a 12-person jury. Defendants who face noncapital felony charges, however, are instead prosecuted before a six-person jury. One of those smaller juries convicted Kian on all five charges. He was sentenced to one year in prison and five years of probation.
In 2022, an Arizona man asked the Supreme Court to review his conviction of felony offenses by an eight-member jury on Sixth Amendment grounds. While the court declined to do so, Justices Neil Gorsuch and Brett Kavanaugh publicly indicated that they had voted to review his case. Gorsuch also wrote a solo dissent where he forcefully argued that the court should have taken up the case.
Florida’s deviation from this legal norm came as federal troops withdrew from the South, heralding the end of Reconstruction. Kian noted that the Florida legislature first enacted a six-member jury law in February 1877, one month after President Rutherford B. Hayes ordered the military’s withdrawal. “The jury-of-six thus first saw light at the birth of the Jim Crow era as former Confederates regained power in southern states and state prosecutors made a concerted effort to prevent blacks from serving as jurors,” Kian told the justices in his petition for review.
The Supreme Court is well aware of this general history. In 2020, the justices struck down another Jim Crow–era jury restriction in Ramos v. Louisiana. Two states, Louisiana and Oregon, allowed nonunanimous jury convictions for felony offenses. This allowed states to convict defendants even if one or two members of the jury voted to find them not guilty. (Though Oregon was not technically a Jim Crow state, it is well established by historians that the Ku Klux Klan played a key role in the restriction’s adoption in the 1930s.)
“When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses,” he wrote in his Ramos decision. “They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed. As judges, it is not our role to reassess whether the right to a unanimous jury is ‘important enough’ to retain.”
That 1970 case was Williams v. Florida, where the court upheld Florida’s six-man jury law as a constitutionally permissible change to the long-standing tradition of 12-member juries. “That mistake,” Gorsuch explained, “continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.”
Florida, for its part, had urged the justices to maintain the status quo. The state claimed in its brief that Kian had made “no serious attempt to show that overruling Williams is warranted under traditional principles of stare decisis.” Florida also warned that overruling Williams “would imperil thousands of criminal convictions in Florida and five other states that for more than 50 years have relied on its rule.” Though the state could not provide exact numbers on how many Floridians had been convicted by six-member juries since the 1970s, it noted that “roughly 5,000 criminal convictions are currently pending on direct appeal.”
It is always a fool’s errand to predict exactly how the Supreme Court will decide a case. One subtle sign of Kian’s confidence is that he and his lawyers declined to file a reply brief to Florida’s brief that urged the court not to take up the case, as if they had already said everything they needed to say. The stage is now set for the Supreme Court to further strengthen one of the great bulwarks of American liberty—in the few states, at least, that have gotten away with diminishing it for so long.
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