12 jurors are too many? Supremes rewrite constitutional amendment

(Image by Maria from Pixabay)
(Image by Maria from Pixabay)

A public-interest law team is warning that the U.S. Supreme Court has gone into dangerous territory – now denying defendants in criminal cases their constitutional right to a 12-person jury trial.

The comments come from the Rutherford Institute, which had filed a brief in the case Khorrami v. Arizona.

In that case, the state had determined that courts could essentially avoid the requirement found in the 6th Amendment for 12-person juries and give defendants a jury of only eight members.

“In refusing to hear an appeal in Khorrami v. Arizona, the Supreme Court let stand a lower court ruling that undermines the longstanding right to have a trial by an impartial jury of twelve fellow citizens,” the institute reported. “In his dissent over the denial of the appeal, Justice Neil Gorsuch agreed with the arguments advanced by The Rutherford Institute and the ACLU in their amicus brief, and warned that allowing juries of less than twelve people for serious criminal charges ‘continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.'”

“We now live in a society in which a person can be accused of any number of crimes without knowing what exactly he has done. He might be apprehended in the middle of the night by a roving band of SWAT police. He might find himself on a no-fly list, unable to travel for reasons undisclosed. He might have his phones or internet tapped based upon a secret order handed down by a secret court, with no recourse to discover why he was targeted,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute.

“The Sixth Amendment serves as an antidote to the abuses of the American police state: ensuring that when people are accused of a crime, they know what they’re being charged with and are given the opportunity to have a fair, speedy and public trial, an impartial jury, the right to a lawyer, and the chance to confront and question their accusers.”

The Khorrami case involved defendant Ramin Khorrami, who was convicted by eight jurors over fraudulent schemes and theft.

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“An Arizona law allows for criminal defendants to be tried by an eight-person jury, and only requires a twelve-person jury on charges which carry a punishment of death or imprisonment of 30 years or more. The Arizona Court of Appeals affirmed the convictions and declined to reconsider the constitutionality of eight-person juries in Arizona,” the institute documented.

“Although the U.S. Supreme Court subsequently refused to hear Khorrami’s appeal, two of the justices—Gorsuch and Kavanaugh—dissented, agreeing with The Rutherford Institute’s argument and acknowledging ‘a mountain of evidence suggests that, both at the time of the Amendment’s adoption and for most of our Nation’s history, the right to a trial by jury for serious criminal offenses meant a trial before 12 members of the community—nothing less.'”

The dissent explained, “While scholars may debate the precise moment when the common-law jury came to fixed at 12 members, this much is certain: By the time of the Sixth Amendment’s adoption, the 12-person criminal jury was ‘an institution with a nearly four-hundred-year-old tradition in England.'”

Even Blackstone wrote, “No person could be found guilty of a serious crime unless ‘the truth of every accusation [was] confirmed by the unanimous suffrage of twelve of his equals and neighbors.”

In 1898, the Supreme Court itself even ruled that, “The jury referred to in the original Constitution and in the Sixth Amendment is a jury constituted, as it was at common law, of twelve persons, neither more nor less.”

A decision differing in that conclusion, Williams, from 1970, was, in fact, “an anomaly the day it issued,” the dissent said. “The decision upheld a Florida law permitting the use of 6-member juries in cases involving serious criminal accusations. In doing so, the decision contravened the Sixth Amendment’s original meaning and hundreds of years of precedent in both common-law courts and this one.”

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