Challenges to 6-Member Juries Rejected

TALLAHASSEE — The U.S. Supreme Court on Tuesday rejected constitutional challenges to Florida’s use of six-member juries in most felony trials, with Florida one of only a handful of states not requiring 12-member juries in criminal cases.

The Supreme Court, as is common, did not explain its reasons for declining to take up 13 cases about the issue. But Justice Neil Gorsuch wrote a dissenting opinion that said the court should reconsider a 1970 ruling in a Florida case, saying the constitutional right to trial by a jury is not met by six-member juries.

Gorsuch also wrote that “nothing prevents the people of Florida and other affected states from revising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers.”

“If we (justices) will not presently shoulder the burden of correcting our own mistake, they have the power to do so,” Gorsuch wrote. “For, no less than this (Supreme) Court, the American people serve as guardians of our enduring Constitution.”

Gorsuch wrote the dissent in a challenge filed by attorneys for Natoya Cunningham, who was sentenced to eight years in prison in 2022 after being convicted by a six-member Martin County jury on charges of aggravated battery and retaliation against a witness or informant, both second-degree felonies.

Cunningham’s attorneys went to the U.S. Supreme Court after the state’s 4th District Court of Appeal rejected the challenge to use of the six-member jury.

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Florida uses six-member juries except in capital cases, where 12-member juries are required. The state’s use of six-member juries dates to 1877, according to documents filed at the Supreme Court.

Attorney General Ashley Moody’s office said in an October 2023 brief that Arizona, Connecticut, Indiana, Massachusetts and Utah also use juries of fewer than 12 people in criminal cases.

Moody’s office argued that the Supreme Court ruled correctly in the 1970 case, known as Williams v. Florida, that six-member juries could be used. Also, the brief pointed to potential far-reaching effects for courts if the 1970 decision were overturned.

“Florida is the third most populous state in the country and tries all noncapital crimes before six-person juries,” the brief said. “Currently, roughly 5,000 criminal convictions are pending on direct appeal in Florida. 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.”

The Cunningham case focused on the use of six-member juries in felony cases, not cases involving misdemeanor charges. In a petition filed last year, her attorneys wrote that Florida began using six-member juries as the Reconstruction era ended and Jim Crow laws began.

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“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 on jurors,” the petition said.

A brief filed in October by Cunningham’s attorneys, including former U.S. Solicitor General Seth Waxman, cited studies and said 12-member juries “deliberate longer and share more facts, ideas, and challenges to conclusions during higher-quality deliberations.” It also said empaneling a “smaller jury also decreases the probability that members of minority groups (be they racial, religious, political, or socio-economic) will serve.”

But Moody’s office disputed that Florida’s use of six-member juries was approved to suppress minority participation.

“Beyond noting that the rule dates from Reconstruction … petitioner cites no evidence suggesting that is so, and makes no attempt to explain how a rule establishing the size of juries without regard to race could be a covert instrument of racism,” the brief said.

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