Supreme Court justices. The majority instead decided to leave undisturbed a 1970 ruling by the court that called a trial by jury of 12 “a historically acciden- tal figure.” “Although accepted as common
law, the Framers did not explicitly intend to forever codify as a consti- tutional requirement a feature not essential to the Sixth Amendment’s purpose of interposing between the defendant and the prosecution the commonsense judgment of his peers,” so ruled the court. The lone dissent came from Jus-
tice Neil Gorsuch, appointed by former President Donald Trump, who called the 1970 precedent an “embarrassing mistake” and said the court should have used the Cunningham appeal as an opportunity to overturn it. He cited court decisions predating
the 1970 ruling that expressly affirmed 12-person juries as a constitutional mandate. One of the most compelling was the
1930 landmark Patton v. United States, in which SCOTUS sharply concluded that it was “not open to question” that a jury “should consist of 12.” Gorsuch ripped into his peers for abandoning its duties to right a wrong. In its opposition to codifying the
12-person jury system, the state argued that overturning the court’s 1970 ruling would flood courts across America with appeals of guilty verdicts delivered by smaller juries.
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Guilty verdicts are now only upheld if they are reached unanimously — even if it’s by only six jurors. The controversy remains a hot topic in the legal world.
In reaction to the argument, one commentator on the Law Profes- sors Blog Network wrote, “Anyone who thinks that a sentence of up to 12 months in jail isn’t worth having 12 jurors has never spent six months or 12 months in jail.” Hannaford-Agor wholly agrees with
Gorsuch, saying that the Supreme Court “got it wrong” when it didn’t overturn its 1970 ruling. She too finds it hard to explain away
since it has overturned other decisions involving juries, including its 2020 decision to overturn the 1972 ruling in Apodaca v. Oregon that allowed nonun- animous guilty verdicts in state murder cases.
Guilty verdicts are now only upheld
if they are reached unanimously — even if it’s by only six jurors. The controversy remains a hot topic
in the legal world. It has incited critical essays by law professors and even sitting appellant judges like Reagan appointee Patrick Higginbotham of the 5th Circuit Court of Appeals in Texas, who coauthored “Better by the Dozen” for the quarterly law journal Judicature. In a study published by Plaintiff
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Magazine, Carol Bauss, a national liti- gation consultant who has worked on thousands of trials across the U.S., iden- tified one major advantage to smaller juries, and that is, they are less likely to end in hung verdicts because there are fewer opportunities for dissent. But in her ultimate conclusion,
Bauss found that the traditional 12-per- son jury ultimately spends more time examining evidence and thus is likely to render more accurate verdicts. Petillo declined to discuss the
recently rejected SCOTUS petition, say- ing only to Newsmax that “like Justice Gorsuch, I hope the court revisits this issue soon.” In his opinion, Gorsuch also openly
advocated for advocates to pursue a remedy at the local level. “If there are not yet four votes on this
Court to take up the question whether Williams [v. Florida] should be over- ruled, I can only hope someday there will be. In the meantime, nothing pre- vents 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 pris- on without the unanimous assent of 12 of his peers,” he wrote.
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