On April 30, 2014, Constitutional Accountability Center filed an amicus curiae brief in the Supreme Court in support of the Petition for a Writ of Certiorari in Irving v. Florida.

In 2010, the state of Florida charged Brian Irving with capital sexual battery. After Mr. Irving’s first trial ended in a mistrial, he was tried again and found guilty by a six-person jury and sentenced to life in prison. Although the Florida appeals court affirmed the conviction, because that court did not issue a written opinion, Mr. Irving was not entitled to seek review by the Florida Supreme Court. Mr. Irving filed a Petition for a Writ of Certiorari, asking the U.S. Supreme Court to hear his case.

In our brief, we urged the Supreme Court to grant certiorari and to hold what the Constitution’s Framing history makes clear and what the Supreme Court has repeatedly recognized in dicta: that a jury today, just like a jury at the time of the Framing, must be composed of twelve people. Our brief explained that the Framers, looking to English common law, attached great importance to the jury right. And, just as the Framers’ understanding of the importance of the jury was shaped by English common law, so too was their understanding of what a jury should look like. As we demonstrated in our brief, a defining attribute of the jury as it existed at common law was that it consisted of twelve people; accordingly, the Founders believed that a twelve-person jury was implicit in the fundamental right to trial by jury in criminal cases. In Williams v. Florida, the Supreme Court in 1970 rejected the relevance of this history and held, based on a functional analysis, that the Sixth Amendment does not require twelve-member juries. Our brief demonstrated how the Williams Court’s dismissal of the Framing-era history was inconsistent with the Court’s more recent Sixth Amendment cases.

On May 27, 2014, the Court declined to hear Irving.