FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Suwannee County. David W.
Thomas, Public Defender, and Courtenay H. Miller, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Robert Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.
ROBERTS and JAY, JJ, CONCUR; MAKAR CONCURS with opinion.
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.
begin, it is obvious that Williams, which dismissed
the centuries-old common law practice of twelve-member
juries as a mere "historical
accident" 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. 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. 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
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
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. 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.
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 ...