CLERKS SAY 12-MEMBER JURIES COULD DOUBLE JURY MANAGEMENT COSTS

Invalidating Florida’s use of six-person juries to try non-capital cases would “place an enormous strain on an already heavily burdened court system,” the state’s court clerks are warning the U.S. Supreme Court.

Justices upheld six-person juries in a case known as Williams 56 years ago, and overturning it now would “essentially double” the cost of jury management, the Florida Court Clerks & Comptrollers wrote in an October 5 amicus brief.

“Overruling Williams would also require considerable renovations and addition to the physical infrastructure of courthouses and their premises in many Florida jurisdictions,” the brief states.

For example, Broward County has 60 courtrooms “built to accommodate only six-person juries,” Duval has 39, and Pinellas 24, the clerks argue.

That’s not to mention parking, the clerks say. Broward County would need an additional 200 to 300 spaces, Sarasota County would need 240 more, and Lee County 200 more, the clerks contend.

Over the objection of Florida Attorney General James Uthmeier, the U.S. Supreme Court on June 15 agreed to hear an appeal from West Palm Beach chiropractor Hamed Kian, who was convicted four years ago of practicing without a license.

Kian’s argument that the lack of a 12-member jury violated his constitutional right to a fair trial was rejected without comment by the Fourth District Court of Appeal last year.

Amicus briefs have been piling up at the U.S. Supreme Court ever since.

The FCCC’s brief echoes Uthmeier’s warning that overturning Williams would risk upending more than 5,000 criminal convictions by six-person juries that are currently pending appeal.

“Overruling Williams would force the use of public resources to conduct thousands of retrials on top of the trials already pending and might well result in the release of convicted criminals into the public,” Uthmeier wrote.

Uthmeier identified a handful of other states with similar jury schemes that could be impacted, but as many as 40 states use smaller juries in some criminal cases, the clerks argue.

“Misdemeanor cases may potentially constitute ‘serious crimes’ as the term has been defined by this Court,” the brief states. “Thus, ‘the reliance here is not only massive; it is concrete.’”

The current Florida Supreme Court Panel Guidelines require clerks to assemble panels of 14-22 prospective jurors for a six-person jury trial, the brief notes. For 12-person jury trials, the guidelines call for a 40-member panel, the clerks note.

The time needed for qualifying and impaneling juries would increase substantially with 12-member juries, the clerks argue.

“Jury deliberation time would be expected to increase with a twelve-member jury, as well as hung juries,” the brief states. “This means that the duration of criminal trials could increase, leading to a delay in court processing times and the scheduling of other trials.”

The Florida Association of Criminal Defense Lawyers and the Florida Public Defender Association side with Kian in their joint amicus brief. They urge the Supreme Court to reject a “functionalist” approach to justice.

“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,” the brief states.

But the clerks counter that the historical record shows that “costs and expenses, not discrimination,” dominated policy discussions of the day.

“In his annual message to the Legislature dated January 1, 1874, the Governor stated in that portion of the message pertaining to ‘Financial,’ that ‘[t]he largest and most unsatisfactory source of expense to the treasury of the State is for jurors and witnesses.’”

Florida defense attorneys have been flooding the courts with requests for 12-member juries since June, if only to preserve the issue for a potential appeal. They are encouraged by a recent dissent in which Supreme Court Justice Neil Gorsuch called Williams “wrong the day it was decided.”

Hillsborough Public Defender Lisa B. McLean began requesting 12-member juries soon after the Supreme Court agreed to review the Williams decision.

At first, the requests were limited to about 50 cases, ones that appeared most likely to be headed to trial, said Felony Division Chief William Knight.

“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.”

Criminal Procedure Rules Committee Chair Jude Faccidomo told the Bar News earlier this summer that he isn’t overly concerned that the U.S. Supreme Court would upend thousands of convictions. Justices are aware of the potential stakes, Faccidomo assured.

“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.”

 

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