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Are Florida's six-member juries constitutional?

Ever see the movie 12 Angry Men?

In Florida, a more accurate title most of the time would be Six Slightly Irritated Folks.

Florida, like most states, routinely uses juries of only six members. The exception is for first-degree murder, which gets a 12-member jury.

But to Alisa Smith, a University of Tampa criminologist who also works as a public defender, six of one is definitely not as good as a dozen of the other.

Smith argues that Florida's jury system is unconstitutional. This Friday, she'll get a long-shot chance at having the U.S. Supreme Court take up her claim.

"That Florida has only six-person juries in felony prosecutions," Smith says, "and one of the highest rates of wrongful conviction, is important."

This has come up before.

In fact, the landmark 1970 Supreme Court case that approved smaller juries in the first place comes from Florida. The court called the tradition of 12-member juries just a "historical accident."

But then in 1978, the court struck down the use of five-member juries in Georgia.

Got that?

Six is hunky-dory.

Five — nope, that's unconstitutional.

Even the Supreme Court knew that it was splitting hairs, saying: "We readily admit that we do not pretend to discern a clear line between six members and five."

I asked Smith why the court should reconsider its 1970 ruling. She said there is plenty of modern research showing that a six-member jury is fundamentally different — less deliberative, more subject to peer pressure, less diverse.

"Twelve jurors deliberate longer," she said. "They have better recall. There are six more sets of ears listening. If you're in the minority, you're more likely to have another person who agrees with you."

I asked: Well, even if 12 is better than six, so what? If 18 were even better, should that be our standard? Is there a "constitutional right" to have a 12-member jury?

Smith said the problem is the way that Florida uses both.

Those accused of one capital crime, first-degree murder, get 12 jurors, even though a lot of them end up getting life in prison instead of death.

Yet those accused of other crimes carrying an equally severe sentence of life in prison only get six jurors. In many states they would get 12.

"You can get life pretty readily in the state of Florida," Smith said, so those cases deserve 12 jurors too.

(By the way, the case Smith is appealing never got much press. It involves a Hillsborough man convicted of molesting his daughter years before. The case hinged especially on which testimony the jury believed.)

As I said, Smith's petition to the Supreme Court is a long shot. In fact, this is the third time Smith has tried in recent years. One of those times she at least got a nibble when the court asked the state to file an answer.

Attorney General Bill McCollum's office sent me the legal brief it put together last year. The state argues that the 1970 case is the established law of the land; that the 1978 Georgia case left Florida's situation unchanged; and that Smith's speculations hardly rise to the standard for the Supreme Court to take up the case.

I wouldn't throw out Supreme Court precedent every time somebody produces a new study. I doubt the court will take her case Friday. But, you know, it's an interesting question, and I'm glad there is an Alisa Smith in the world to raise it.

Are Florida's six-member juries constitutional? 01/07/09 [Last modified: Friday, January 9, 2009 10:26am]
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