MA Appellate Practice And Procedure Bulletin November 2022

Legal Ether and Our Children’s Children

This week the U. S. Supreme Court turned down a case seeking to overturn the truly questionable 1970 decision in Williams v. Florida where it was held that the constitutional right to a jury trial does not require a jury of 12. Justices Kavanagh and Gorsuch would have taken the case for review with Justice Gorsuch issuing a compelling dissent succinctly dismantling the Williams holding:

The case, Khorrami v. Arizona, was a criminal case in which the defendant was convicted of serious crimes by an 8-member jury. The defendant challenged the conviction seeking reversal of the Williams holding and contending that the Sixth and Twelve Amendments to the U.S. Constitution guarantees a right to a jury of 12. The Arizona Supreme Court rejected the contention finding that it was bound by the decision in Williams. The failure of the High Court to take the case against the backdrop of Justices Gorsuch’s vigorous dissent reflects the skirmish and tension between function and original meaning. Justices Gorsuch’s dissent likewise reverberates as to Massachusetts’ practice which has continued to suspend, via the Supreme Judicial Court’s rulemaking and superintendency power, the right to juries of 12 in the Superior Court in civil cases. Indeed, Massachusetts in an advisory opinion (and over a dissent) issued shortly after the Williams decision interpreted the Declaration of Rights as not requiring juries of 12 otherwise adopting and following the reasoning in Williams. Opinion of the Justices, 360 Mass. 877 (1971). Both the status as an advisory opinion with limited precedential effect; the fundamental flaws in the Williams reasoning; and the continued and indefinite judicially imposed suspension of juries of 12 in civil cases in the Superior Court all resoundingly clammer for the need for reevaluation as a matter of state law.

Williams and Function

In 1970, Justice White writing for the majority in Williams held that a 12-person jury “is not a necessary ingredient of “trial by jury” set forth in the Constitution. He proclaimed that “while sometime in the 14^th century the size of the jury at common law came to be fixed generally at 12, that particular feature of the jury system appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place.'” Williams v. Florida, 399 U.S. 78, 89-90 (1970). The Court looked to the drafting history of the Sixth Amendment, emphasizing that an earlier draft’s “provisions that would have explicitly tied the ‘jury’ concept to the ‘accustomed requisites’ of the time were eliminated.” Id. at 96–97. Reasoning that there was “no indication in ‘the intent of the Framers’ of an explicit decision to equate the constitutional and common-law characteristics of the jury,” the Court turned to “other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution.” Id. at 99. “The relevant inquiry,” the Court observed, “must be the function that the particular feature performs and its relation to the purposes of the jury trial.” Id. at 99–100. “Measured by this standard,” the Court said, “the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment,” because “neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members.” Id. at 100–02.

Ramos, Snippets and Originalism

The rationale in Williams has not only failed to withstand the test of time but, as Justice Gorsuch states, was “wrong the day it was decided.” Indeed, the Williams decision has been sitting in “legal ether” ripe for reconsideration and correction with it noted that the three casualties of Williams are “history, the American constitutional tradition, and empirical evidence.” Sperlich, And Then There Were Six; Guzman v. State, 2022 WL 144888085 (Fla. App. 2022). The most recent impetus was the decision of the Supreme Court in Ramos v. Louisiana rendered only two years ago which reversed a 1972 decision which had held that that the Sixth Amendment permits non-unanimous verdicts in state criminal trials, even though the Sixth Amendment requires unanimous verdicts in federal criminal trials. Applying the Williams functional inquiry, it had been previously held that “the function by the jury in contemporary society” rendered unanimity insufficient to meet “constitutional stature.” In reversing that holding in 2020, the Supreme Court elevated originalism over function holding that the Sixth Amendment right to a 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. The Court held that the original meaning of the term “trial by an impartial jury” unmistakably required a unanimous verdict:

The High Court in Ramos did not cite or discuss Williams or otherwise mention or address jury size. Yet in addressing the issue of unanimity the opinion contains references to the common law requirement of a 12-person jury and suggests that the Sixth Amendment affords a right to the essential elements of a trial by jury as understood and applied at common law. In no mistaken terms, the High Court in Ramos rejected use of any “breezy cost-benefit analysis” finding that subjecting the ancient guarantee of a unanimous jury verdict to a functionalist assessment was flawed as it “overlooks the fact that, at the time of the Sixth Amendment’s adoption, the right to trial by jury included a right to a unanimous verdict.” The Ramos Court likewise found fault with any reliance on what was deemed a “snippet of ambiguous drafting history.” “So rather than dwelling on text left on the cutting room floor, we are much better served by interpreting the language Congress retained and the States ratified.” Id. at 1400.

Elusive Quarry and Integrity

To be sure, it cannot be said that Ramos overruled Williams yet it also cannot be ignored that Ramos’ originalist approach eviscerates the functional inquiry utilized in Williams. The Court in Ramos relied on the original meaning of the Sixth Amendment rather than an analysis of the jury’s role in contemporary society and likewise refused to sanctify the “snippet of ambiguous drafting history.”

When the Ramos logic is applied to jury size, Williams is dead on arrival. Reliance on original meaning of the Sixth Amendment as opposed to a functional approach examining a jury’s role in contemporary society makes apparent that Williams was fundamentally flawed. As Justice Gorsuch stated in his recent certiorari dissent, it is an abuse of judicial power to subject the ancient guarantee of a 12-person jury to any functional assessment. The jury of 12—regardless of any debate about exact origins—was firmly imbedded in the English common law at the time of the constitution: “From the moment it was adopted, the Sixth Amendment was widely understood to protect this ancient right.” The numerous state court decisions following the adoption of the constitutional amendment; long standing treatises as well as the Supreme Court’s own early precedent and holdings all confirmed this understanding. The words “trial by jury” were placed in the constitution with the meaning affixed to them at the time and a jury was so understood to be 12 persons “no more and no less.” As Justice Gorsuch states: “the decision [Williams] contravenes the Sixth Amendment’s original meaning and hundreds of years of precedent in both common law courts and this one.”

To be sure, the Williams court did look to the terms but dismissed the source as “elusive quarry” relying on the decision to drop “accustomed requisites” from Madison’s original draft. But this “snippet” of drafting history could easily be construed to be consistent with “a trial by jury” meaning 12 persons and otherwise is woefully insufficient to overtake the imbedded history and meaning of a jury and its size at the time of adoption. Moreover, Williams’ dismissal of the High Court’s repeated decisions stating that trial by jury means a 12-person jury as dicta grossly “undersells history.” Indeed, that precedent stated without equivocation that there was “no doubt” and that it was not “open to question” that the jury right meant and intended a 12-person jury.

Perhaps most compelling is the flaw in relying on a functional modern day cost benefit analysis. As Justice Gorsuch noted and as emphatically stated in Ramos:

The final dagger was the unequivocal fallacy behind the Williams Court’s wholly unsupportable statement that 6 member juries would “probably” operate as well as 12. The myriad of studies since Williams have made clear that smaller juries do not operate the same as 12 person juries particularly as to deliberation time; ability to recall information; inclusion of minorities; and attention to dissenting voices. According to Justice Gorsuch: “the reality of smaller panels tend to skew jury composition and impair the right to a fair trial is no new insight. It is sad truth borne out by hard experience.”

The ultimate outcome of the jury of 12 under the federal constitution remains in “legal ether” until the Supreme Court puts the issue to rest. A reexamination of the original meaning and history together with a fuller view and experience with social science research should return the text to its ancient meaning. As it stands, Williams was a “mistake” that “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.” Massachusetts needs to take notice and re-evaluate its own constitutional tradition and text as the judicial indefinite and continued suspension of civil jury trials before 12-persons in the Superior Court and under the auspices of “superintendency” impairs and wounds the integrity of the state judicial system.