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Lessard v. State

Florida Court of Appeals, First District

December 13, 2017

TROY LESSARD, Appellant,


         An appeal from the Circuit Court for Suwannee County. David W. Fina, Judge.

          Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.

          PER CURIAM.


          ROBERTS and JAY, JJ, CONCUR; MAKAR CONCURS with opinion.

          MAKAR, J. concurring.

         I concur in affirming Troy Roland Lessard's convictions on counts of capital sexual battery and lewd or lascivious molestation, for which he received life sentences, but write to address his claim-raised for the first time on appeal-that the decision in Williams v. Florida, 399 U.S. 78 (1970), which upheld Florida's use of six-member juries in all non-death penalty criminal cases, was wrongly decided and should be reconsidered to afford him a retrial before a twelve-member jury. Florida is the only state that requires six-member juries in life-felony cases, such as this one, and the empirical studies continue to discredit the Williams decision, but the relief Lessard seeks is a jurisprudential dark horse.

         To begin, it is obvious that Williams, which dismissed the centuries-old common law practice of twelve-member juries[1] as a mere "historical accident"[2] and replaced it with an ad hoc "functional" approach, was based on dubious anecdotal assertions and demonstrably incorrect statistical and sociological principles that have plagued this body of jurisprudence ever since.[3] Williams held that a six-member jury in a state court criminal proceeding was functionally the same and thereby an adequate constitutional proxy for the time-worn traditional twelve-member jury.[4] But its reasoning foundered on glaring misinterpretations of social science research and inept methodologies, so much so that one prominent commentator said that the "quality of social science scholarship displayed [in the Court's decisions on jury size] would not win a passing grade in a high school psychology class."[5]

         Soon thereafter, the Court again rejected historical norms in assessing the issue of jury unanimity in state court criminal proceedings. Much like its analysis in Williams, the Court concluded that jury unanimity is not required under the Sixth Amendment-at least when juries are ten or larger-because it "does not materially contribute to the exercise of [jurors'] commonsense judgment." Apodaca v. Oregon, 406 U.S. 404, 410 (1972). Applying a "functional" approach again, a plurality "perceive[d] no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one" such that "the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served, " whether unanimity is required or not. Id. at 410-11. The various opinions, concurring and dissenting, reflected no consensus on a coherent analytical approach. In a companion case, Johnson v. Louisiana, 406 U.S. 356, 364 (1972), the Court addressed a tiered jury system where "less serious crimes [are] tried by five jurors with unanimous verdicts, more serious crimes [ ] required the assent of nine of 12 jurors, and for the most serious crimes a unanimous verdict of 12 jurors is stipulated." In upholding a 9-3 verdict, the Court concluded that the differential jury system served a rational interest, the state legislature "obviously intend[ing] to vary the difficulty of proving guilt with the gravity of the offense and the severity of the punishment." Id. at 365.

         Its jury size/unanimity jurisprudence in a muddle, the Supreme Court tried to temper the fallout from Williams by invalidating a five-member jury in Ballew v. Georgia, 435 U.S. 223 (1978), but even greater confusion ensued. Two justices (Blackmun and Stevens) posited that juries of less than six members substantially threatened the constitutional guarantee of the jury trial right, notwithstanding the cost-saving and time-saving arguments that Georgia advanced. Their analysis reflected that most of the major premises underlying the functional approach in Williams were inaccurate, but rather than overturn that decision, they side-stepped it.[6] Justice White asserted that the requirement that a jury be a fair cross-section of the community would be violated with juries of less than six members. And three justices (Chief Justice Burger and Justices Powell and Rehnquist) agreed that a conviction for serious offenses by juries of five members "involves grave questions of fairness" and that "the line between five- and six- member juries is difficult to justify, but a line has to be drawn somewhere if the substance of jury trial is to be preserved." Id. at 245-46. Finally, three justices (Brennan, Stewart, and Marshall) concurred only in the holding that "the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons." Id. at 246. Though unified in striking down the Georgia law, no coherent framework emerged (again). And the Court, by acknowledging Williams's faulty foundation, allowed doubt in the legitimacy of its functional approach to continue.

         Indeed, the next year, in Burch v. Louisiana, 441 U.S. 130 (1979), the Court again noted the less-than-satisfactory nature of its functional approach, this time considering whether a conviction for a non-petty state offense by a non-unanimous six-person jury was constitutional. In overturning the conviction, the Court stated:

As in Ballew, we do not pretend the ability to discern a priori a bright line below which the number of jurors participating in the trial or in the verdict would not permit the jury to function in the manner required by our prior cases. But having already departed from the strictly historical requirements of jury trial, it is inevitable that ...

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