MA Appellate Practice And Procedure Bulletin November 2022

• Published date: 14 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Morrison Mahoney LLP
• Author: Mr Tory A. Weigand

Legal Ether and Our Children's Children

This week the U. S. Supreme Court turned down a case seeking to overturn the truly questionable 1970 decision in Williams v. Florida where it was held that the constitutional right to a jury trial does not require a jury of 12. Justices Kavanagh and Gorsuch would have taken the case for review with Justice Gorsuch issuing a compelling dissent succinctly dismantling the Williams holding:

"Williams was wrong the day it was decided, it remains wrong today, and it impairs the integrity of the American justice system and the liberties of those that come before our Nation's Courts."

The case, Khorrami v. Arizona, was a criminal case in which the defendant was convicted of serious crimes by an 8-member jury. The defendant challenged the conviction seeking reversal of the Williams holding and contending that the Sixth and Twelve Amendments to the U.S. Constitution guarantees a right to a jury of 12. The Arizona Supreme Court rejected the contention finding that it was bound by the decision in Williams. The failure of the High Court to take the case against the backdrop of Justices Gorsuch's vigorous dissent reflects the skirmish and tension between function and original meaning. Justices Gorsuch's dissent likewise reverberates as to Massachusetts' practice which has continued to suspend, via the Supreme Judicial Court's rulemaking and superintendency power, the right to juries of 12 in the Superior Court in civil cases. Indeed, Massachusetts in an advisory opinion (and over a dissent) issued shortly after the Williams decision interpreted the Declaration of Rights as not requiring juries of 12 otherwise adopting and following the reasoning in Williams. Opinion of the Justices, 360 Mass. 877 (1971). Both the status as an advisory opinion with limited precedential effect; the fundamental flaws in the Williams reasoning; and the continued and indefinite judicially imposed suspension of juries of 12 in civil cases in the Superior Court all resoundingly clammer for the need for reevaluation as a matter of state law.

Williams and Function

In 1970, Justice White writing for the majority in Williams held that a 12-person jury "is not a necessary ingredient of "trial by jury" set forth in the Constitution. He proclaimed that "while sometime in the 14^th century the size of the jury at common law came to be fixed generally at 12, that particular feature of the jury system appears to have been a historical accident, unrelated to the...