IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT - l; INANDFOR MIAMI-DADE COUNTY, FLORIDA - . . - 1: STATE OF FLORIDA, - CASE No.? E01412853-5 Plainti--f. '7 V. . Defendant. . - ORDER ON MOTION 'To DECLARE FLORIDA STATUTE 921.141 UNCONSTITUTIONAL. Defendant Karon Gaiter is charged with one count of ?rst-degree murder. The prosecution has given notice of its intent to seek the death penalty. By virtue of recentstatutory Changes, a penalty-phase jury?s non-unanimous verdict of death is a suf?cient basis in law for the imposition I of the death penalty. Mr. Gaiter challenges these statutory changes, claiming that hecannot be put- to death upon a less-than-unanimous verdict. 7 Introduction It is a core' principle of American constitutional jurisprudence generally, and of Florida constitutional jurisprudence speci?cally, that, i?When called upon to decide matters of fundamental rights, state courts are bound under principles [of federalism] to give primacy to [the] state conStitution.? raylor v. State, 596 So,2d 957, 962 (Fla. 1992). If a Florida court, decide a question as a matter of Florida: constitutional law, it must do so; it must do so without relying upon federal law. The Florida court is not to look to federal constitutional law unless the question befOre is notlsusceptibleof resOIUtion by reference to Florida law. See, State. v. Owen, 696 So.2d I 715, 719(F1a; 1997); Soca v. State, 673 So,2d 24,26-27 (Fla. 1996);Allred v, State, 622s0'.2c1 934', 986-87 (Fla. 1993); People: v. State, 612 So.2d 555, 556 (Fla. 1992); State v. Jones, 849 So.2'd 43 8, 443 n. 1 (Fla. This expression of federalism is the mirror image of the principle that federal courts ?will not _ad'udicate a 7 system if the question has been resolved on the basis (if adequate independent state-law grounds, 7 7 7 rseegenre?lyAshwandarv:WA35297 et. seq. (1936) (Brandeis, conCurring). . I law. Ample and more than ample Florida urisprudence, constitutional and common?law, determine the outcome here.1 I - The law of Fldrida as to the reguirement of jm unanimi? Trial by jury, said Winston Churchill, is ?the supreme protection invented by the English people for "ordinary individuals against the state.? And he added: The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny- him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi: or Communist; A. W. Brian Simpson, In the HighestDegree Odious: Detention Without Trial in Wartime Britain 391 (Oxford Univ. Press 1992) (emphasis added)? :1 I therefore do not adjudicate, or'even consider, Mr. Gaiter?s claims made under the Sixth or Eighth Amendments to the United States Constitution. 7 2 A fascinating and scholarly disCussion of wartime detention in England, and) the, triumph of the right to trial by jury, appears in Lord Bingham of Cornhill, ?The Case of 7 Liversidge v. Anderson: The Rule of Law the Clash of Arms,? 43' The International Lawyer - "ray-7? This sense of reverence for trial by is one that Americans have shared sinee, and even before, the birth of cm republic. 'If we ask the source of this reverence if we askilawyers or - laymen, it matters not which 7? the answer be found in the requirement of jury We power of government to pOint and tocondemn is so great that it may reach even the innocent man. insist and all of them concur in his. guilt will we mark'him dewn as guilty. In this sense, the requirement crime and a free society?s need to protect itself ?'om injustice. It is a compromise that an unfree society need never make. Decisions consigned to the political branches of government are customarily made by majority rule. For such purposes, majority rule-is suf?cient. We do not ask that the decisions of the school board, or the city commission, or the state legislature, be, in any sense, perfect. We ask only that such decisions reflect the will of the many rather than the will of the few. But for the ulthate decisions made within the judicial branch of government guilty or not guilty, life or death majority rule is insufficient. We do ask, indeed we insist, that the, decisions of capital-juries be, in some sense, perfect; for they are, in some sense, ?nal. We ask, indeed we insist, that they re?ect the will of all rather than the will of the few or even of the many. Only when the jury agrees toits Verdict unanimously can we demand that society accept that verdict unanimously. However outrageous a crime, however controversial a case, as Floridians andAmericans we will accede to an 7 outCome as to which it can be, said that the jury has spoken. We cannot accede, we will not accede, I I we have never acceded, to outcomes as to which no more can be said than that some jurors have spoken.? The common law" over'six hundred. years, the unanimous verdict has stood as a distinctive and de?ning 7 Democracy 179 (Harvard?Univ. Press 1994). At commOn law, trial by jury requireda unaniinous 1979) (1765) (verdict must be result of ?unanimous suffrage-of twelVe of [the defendant?s] equals criminal defendants were entitled to unanimous jury McRae v. Grand Rapids, LI DR Co. 53 561 (Mich. 1892)); Williams v. James, 552 A.2d 153, 156 (NJ. 1989) (referring to ?the historic common-law requirement of unanimity of jury verdicts?); Pitcher v. Lakes Amusement C0. 236 NW. 2d 333, 335 (Iowa 1975) (quoting Patton v. United States, 281 U.S. 276, I 288 (1930)); People v. Hall, 60 F.3d 728, 734 (Colo. App. 2002) (citing George v. People, 47 NE. 741, 743-44 (111. 1897)); People v. Sanabria, 42 Misc. 2d 464, 470 (N .Y. App. 1964). By operation of the ?common-law savings clause,? Fla. Stat. 2.01, every Floridian is entitled to rights secured by the common law unless those rights have been expressly abrogated by positive law. At no time in Florida history, prior to the enactment of the statute challenged here, has the common-law requirement. of a unanimous verdict ever been supplanted'by legislative or judicial enactment. ?Unanimity of verdicts has always been part of Florida? 5 common law.? Butler vi State, 1 842 So.2d 817, 8377 (Fla. 2003) (Pariente, J., concurring in part and dissenting in part) (citing Motion to call Circuit Judge to Bench, 8 Fla. 459, 482 (1859) (?The common law wisely requires the verdict of a petit jury to be unanimous?)). Expressions of the requirement of unanimity have always 3 appeared continue to appear throughoutFlorida criminal procedure. Rule 3440, Fla. R. Crim.? captioned, ?Rendition of Verdict-Receptionand Recording,? prOVides: When the Urors have agreed upon a verdict they shall be conducted into the courtroom by the of?cer having them in charge. The courtverdict. Ifthe-foreperson answers in the af?rmative, the judge shall 7 - call on, the foreperson to delivertheverdict'in writing to the clerk. The court may then examine the Verdict andc?orrect it as to matters of - . 77 we: 7 form withthe unanimousconsent?of therjurors. read the verdict to the jurors and, unless disagreement is expressed by I - one or more of them or the jury is polled, the verdict shall be entered of record, and the jurors discharged from the cause. No verdict may 1? 1 7 We us (Emphasis added.) To the same effect, see Fla. Std. Jury 3.10 (?Whatever verdict you render must be-unanirnous, that is, each juror must agree to the same verdict?); Fla. Std. Jury Instr. (Crim) 3.13 (?Your verdict ?nding the defendant either guilty or not guilty must be unanimous. The verdict must be the verdict of each juror, as well as of the jury as a The former provisions of Fla. Stat. 921 even befOre they were found unconstitutional in Hurst v. Florida, 136 S. Ct. 616 (2016), were no precedent for the use of less- 3 So strictly has'the requirement Of unanimity as to criminal verdict-s been treatedby the . law of Florida that a unanimous jury ?nding is also required in order to increase the authorized punishment for the uSe of a weapon or ?rearm during a . felony under 775.087(1) . Statutes governing several substantive crimes also raise the maximum potential sentence based on guilt-phase, unanimous jury ?ndings of aggravating . circumstances. See 794.011 (sexual (burglary); 810.08 (trespass); 812.13 (robbery). Butler v. State, 842 So.2.d 817, 838 (Fla. 2003) (Pariente, J., concurring part and .dissenting'in, than-unaninmus jury verdicts in Florida. A verdiCt is conclusive ?of the ultimate issue of fact. It is suf?cient to support an order of judgment and sentence. The ?advisory sentence by the jury? formerly called for by Fla. Stat. was conclusive of nothing. It Was insuf?cient to - . If unconstitutional. Hurst, 136 S.'Ct.i at 619 (The Sixth'Arnendment requires a jury,th a judge, to ?nd each factnecessary to impose a sentence of is not 7 r: '7 enoug It was not a verdict. It Was, in effect, a straw poll, and the jurors were told as much; they Emmeu?vas?beeause?i?wa?ne? Ewerstructed: decision. In. substance, the trial judge said to-the jury, ?I?m going to decide whether to sentence the defendant to death, but I?m willing to consider your vieWs on the matter.? What ensued could be called 4 in the language of the statute, was called ?advisory,? but it could not be called a verdict. Hurst, 136 S. Ct. at (?Florida does not require the jury to make the critical ?ndings necessary to impOSe the death penalty. Rather, Florida requires a judge to ?nd these facts lthough FIOrida incorporates an advisory jury verdict?). Consistent with the command of Hurst, 921 . 141 as presently amended calls, not for a straw poll, but for an actual verdict. Fla. Stat. The decision of the jury-is conclusive of . the ultimate issue. It is suf?cient, without more, to support a sentence. If ten jurors vote for death, the law requires no more in 'order for the defendant to be put to death. True, the presiding judge can determine not to impoSe the sentence called for by the verdict, id., but that is always the case. See, e. Fla. Crim. P. 3 .3 80(c) (judge may grant motion for judgment of acquittal after verdict), Fla. R. Crim. 3.580 (judge may grantinew trial after Verdict); Fla. R. Crim. P. 3.610 (judge may arrest judgment after verdict).. Neither-in the present nor in other context does the exercise of this . judicial power render the jury?s decision any less a verdict. Using the word ?Verdict? in its proper sense 4 the sense which it is now used in Fla; Stat. I 921.141 the criminal law of Florida has never, in any. instance, tolerated less than unanimous the common law. Here, however,the common law the constitutional law of Florida speak 7 The Florida constitutional law I a Criminal case that it is dif?cult to say where the common law as to this requirement ends and the constitutional law begins. Admittedly, there is relatively little decisional law that could be described as strictly and excluSively based in the state constitution and not at all in the state common law. But a ?principle of [constitutional] law is not unimportant because we never hear of it; indeed we may 7 say that the most eF?cient rules are those of which we hear least, they are so ef?cient that they are not broken.? F. Maitland, The Constitutional History of England pp. 481 -82 (Cambridge Univ. Press 1911). I I Article I 22 of the Florida Constitution guarantees the right to trial by jury. Those Florida courts that have construed it have without exception treated this constitutional guarantee as subsuming the right to a unanimous verdict. See, e. g, Bottoson v. Moore, 833 So.2d-693, 709-10 (Fla. .2002) (Shaw, ., concurring) (citing Jones v. State, 92 So.2d 261, 261 (Fla. 1956); Grant v. State, 14' So. 757, 758 (Fla. 1894); Patrick v. Young, is Fla. .50, 50- (Fla. 1881)). There is no_Florida constitutiOnal- jurisprudence that takes a contrary position. There is no Florida constitutional jurisprudence that even hints at a contrary poSitiOn. At law, the right'to- jury-also the right to a jury of 12. To depart ?om that requirement, it thought necessaryto amend the Florida CenstitutiOn, see Art. 22 It (providing for juries of six). By aparity of reasoning, it would be necessary to amend the state such amendment has ever been made or offered, Absent-such an amendment, both the constitutional and the common law of this state are clear: a jury verdict in a criminal case must be unanirnous.? It is true that our 19th-century forebears -- the framers of the Florida Constitution of 1838, 1881 5- never bothered to explain that the right to trial by jury to Which they referred meant, as a matter of simple tautology, the right to a unanimous verdict. It was precisely because it was tautologous that they felt no need to mention it; they would have thought it redundant to the point of silliness to have done so. For centuries, throughout the English-speaking world and certainly in America, trial by jury was universally and without exception understood to include and require a unanimous jury verdict. It was that centuries-old, universally-established right that 19th century Floridians ensconced in their constitutions andtheir urisprudence.pArt. 1 22 does not provide that,- "The'right of trial by jury shall be preserved to all and remain inviolate, and by the way, when We say the right to ?trial by jury, we incl tide the right to a unanimous jury verdict" for the same reason that Art. I 3 does. not provide that, "There shall be no law reSpecting the establishment of religion or prohibiting or penalizing the free-exercise thereof, and by the way, When we say ?religion ?we include going to church, cindpraying, and worshiping God." A 21 st-century Floridian seeking to argue that the right purported to be protected by Art I 1? 22 does not include the requirement of a unanimous verdict must be prepared to rebut the unequivocal expression of the-common law,tthe_ received 05 A iwisdoim of 19th-century? Florida lawyers and judges, a handful of reported Florida opinion-s, and-a I, r? I century-and-a-half of shared understanding. And he must be prepared to do so without any I in ammunition at all, for he will ?nd no Florida cases, no Florida laW-review articles, and no Florida. . I'm: nm 1n1?1 um}. ALI-U uun. haunt an, Some werds adniit 'of no modi?cation._ A decedent cannot bemore' or less, dead. expectant mother cannot brewmore'or less pregnant; a cannot be?more or lessunan i?m? ous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, . Lu U1 3 U'i lilo-111; That the-requirement of jury unanimity was and is part of the common law of Florida; that. I the requirement of jury unanimity was and is part of the constitutional law of Florida; is not in doubt. Why this requirement should enjoy such a ?rmly-entrenched status in our jurisprudence Was explained by a distinguished former justice of the Florida Supreme Court: [U]nlike majority rule, ?[t]he unanimous verdict rule gives concrete expression to a different set of democratic aspirations keyed to deliberation rather than voting and to consensus rather than division.? Perhaps more important, a unanimous verdict provides symbolic importance. A unanimous jury verdict in a criminal trial ?af?Xes a stamp of legitimacy to the outcome of the criminal process.? The unanimity requirement also gives meaning to each juror?s vote, - thereby preventing a simple majority of the jury from ignoring any individual juror?s voice when imposing a death sentence against a fellow citizen. Put another way, courts that allow anon-unanimous - jury'to render a verdict invariany empower super?cial, narrow, and prejudiced arguments that appeal only to certain groups. Unaninious verdicts ensure that defendants are convicted on the merits and not merely on the whims Of a majority. Unanimousverdicts are'rnore likely to ful?ll the jury?s role as the - voice Of the community?s conScience. When'less'than a unanimous jury is allowed to speak for the commUnity, the likelihood increases: i i that the jury will misrepresent comr'nunity values. . . Perhaps most importantly, several scholars assert that unanimOUs juries tend to perform more thorough deliberations and therefore decisiOns by a majority. Empirical evidence suggests that majority'- rule juries vote too soon render verdicts Speci?cally, maj ority-rule jaries tend to adopt a verdict-driven deliberation style, i??WhiCh?jurorS'Vote early and discussions in? adVErsari-al? manner, rather than an in which jurors ?rst discuss the evidence as one group and vote later. Penalty Cases, 22 St. Thomas L. Rev. 4, 31-32 (Fall 2009) (footnotes and intemal citations omitted).- Justice cantero seems to identify two general categories of justi?cations for the unanimity requirement: those concerning the role and signi?cance of the jury, and of the verdict, in our i criminal-justice (and particularly our death-penalty) system; and those concerning the accuracy and integrity of the jury?s fact-?nding process. Those concerning the role and signi?cance of the jury and of the verdict The centrality of the lay jury a jury of the defendant?s peers to Anglo-American notions of criminal justice is the stuff of lore, legend, and literature. The jury is said to be the conscience of the community not 12' separate consciences, but one collective conscience. The verdict is the jury? pronouncement? not 12 separate pronouncements, but one collective pronouncement. Fla- Std. Jury Instr. (Crim) 3.13 (?The verdict must be the verdict of each juror, as well as of the jury as a whole?). Because the verdict is unanimous it subsumes all disparate views, resolves all disparate doubts. unanimous verdict 'bespeaks ?nality in a way that a mere majority verdict never can. A UnanimouS verdict commands respect and inspires cun?dence in a way that a mere_majority verdict 1:?:Hh A Q. . never will. One Hof the key functions 'of the criminal justice system is to legitimize, in the eyes of the cOmmunity, the state?s use (if its coercive powers. I The jury gives legitimacy to an accused?s imprisonment, even execution, because ordinary persons like - I Ill II I . . con?dence in the administration of justice is fragile. ?It depends in 7 :part; on drawing the jury from the community atulargesothat all 7 groups have a potential say in how ustice is done; Itdepe'nds also on . jury'VerdiCtS?are just, accurate,and true} The strongest argument for retaining the unanimous verdict is that it is central to the legitimacy of jury verdicts. Jeffrey Abramson, We, The Jm: The Jm' System and the Ideal of Democracy 2027-03 (Harvard Univ. Press 1994).4 - It is true that the requirement of unanimity empowers a single balky juror to frustrate the efforts of his fellow?j urors and of the judge and lawyers tobring the trial to a, ?nal conclusion. But this is no criticism of the unanimity requirement. On the contrary; it is entirely? 4 See also id. at 200: [E]mpirical studies show[] that jurors returning nonunanimous verdicts felt far less certain of their conclusions than did their counterparts on unanimous verdict juries. [T]he ho-ldouts left the trial feeling that the majority did not even listen to them seriously. These research ?ndings suggest that the quality of jury deliberation is tied to the practiCe of unanimous verdicts . Moreover, because popular acceptance of the jury system ?islformulated, in part, by what former jurors say about it, jurors" satisfaction is not. without its importance. 'All studies to date verify that juror satisfaction sours under nonunanimous verdict conditions. To this extent, the unanimous verdict rule must be seen as a core" ingredient underwriting the jury?s ability to legitimate justice in the eyes of the community. - - - - - (Quotations . 7 re?ective of the proper role of the jurors, collectively andin'dividually. In the words of a great - English judge of the 19th century: If it be alleged that an obstinate juror may, in de?ance of the truth, and in disregard of his oath, suffer the guilty to escape, ?om- party or this is a smallprice to pay for the perfect security which a jury affords to all, men, even the humblest, against the that power and 'its minions might bring upon them. - Henry, Brougham, Works 127 (Adam Charles . A majority or super-maj ority rule discourages a careful sifting of the evidence and of the arguments of counsel. ?The dynamics of the jury process are such that often only one or two members express doubt as to views held by a majority at the outset of deliberations.? United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir. 1978). Where unanimity is required, the majority or super- majority must win over those who doubt or dissent. In the process those in the maj Ority must justify "and defend their own analysis, both to their fellow jurors and to themselves. rule which insists on unanimity furthers the deliberative process by requiring the minority View'to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process.? Lopez, 581 F.2d at 1341. Under a super-majority rule, arguments however forcible, however logical can be ignored entirely if ten members of the jury 7 simply prefer to ignore them. Under a unanimity rule, no verdict can be returned till those arguments I have beenlresolved and their proponents satis?ed with the resolution. Only hinted at in ustiCe Cantero?s remarks supra is uglier and more insidious feature of death-penalty verdicts reaChed by majority or super-maj ority. ?The non-unanimous jury rule permits I prosecutors to allow unconstitutional racial disparityto, back into selection It enables them to put just enough minority jurors on a-particular jury to avoid violations of the Supreme Court?s rule in Batson v. 476 US. 79 (1986), or its Florida congeners, e. g, Melbourne I, I defendant bya juror or. jurors who might? justi?ably or not be more 'skeptical of thei?state?s 7 - I: evidence and witnesses Or more willing to believe the defendant?s StOry;? Andrew Cohen, Will the Supreme CourtAddress Louisiana is Flawed Jury System? The Atlantic, April 23, 2014 p. The. ma] mam-awn? who would never attempt to circumvent the limitations of the State v. Neil, 457 So.2d 481- (Fla.' 1984)/State v. Slappy, 522 So.2d 18 (Fla. 1988)/Melb0urne v. State, 679 So.2d 759 (Fla. 1996) line of cases by, for example,p1acing two, but not more than two, A?ican?American jurors on an African-American defendant? sq jury, confident reliance upon the ten other jurors to return a verdict, of death is entirely true, and entirely beside the point. There is support for the notion that the 19th- century adoption in Louisiana of non-unanimous jury verdicts a sharp and stunning break common law was undertaken expressly to foster or facilitate these sorts of facinorous practices. I The Atlantic article cited supra quotes Tulane University Professor-Emeritus of History Lawrence Powell for that very proposition} And Professor Abramson nOtes: The requirement of unanimity is indiSpensable to? sending the right one to jurors about what we expect of them. It surely contributes to an understanding among jurors that their function is to persuade, not to outvote, one another. When jurors behave in this way, they contribute knowledge to the ongoing discussion. And the jury 5 At present, however, even Louisiana requires a unanimous death-penalty verdict. See LA Code Pro 905.6 sentence of death shall be imposed only upon a unanimous ,13; distinctively achieves collective Wisdom through deliberation, rather - than collapsing into a body where jurors behave as if their function were torepresent the preconceptions and interests of their own kind. Jeffrey Abramson, We, The 'Ju_ry: The Ju_ry System and the Ideal of Democracy 195-96 (Harvard TTn:n 100M .I. 1/1111 It is in memory yet green that peremptory challenges could be, and were, usedin Florida trials 'to eliminate potential jurors on the basis ofraCe, In reliance onthe Art. I guarantee in the Florida Constitution of the right of an accused person to trial before an impartial eliminate such shameful practices. It Would be ironic if the Art. I 22 promise of trial by jury were to be so interpreted as to undermine and hObble the justice done by the now-prevailing interpretation of Art. I 16(a). No; it would be worse, much worse, than merely ironic. Ifthe important-reforms- made in the law of jury. selection are not to be reduced to empty promises and tokenism, Florida courts must be of the crucial role played by jury unanimity in assuring fair and impartial jury deliberations and decisions. - i The argument is made that many of the very worst criminals, those criminals well deserving of the death penalty, were sentenced to death on jury vetes of no more than ten to two; and that, had been required, these malefactors would have received less punishment than they Surely deserved. The short answer to this argument is that it bears not at all upon the constitutional question posed by the?motion at bar: if a statutory procedure is unconstitutional, it is not rendered constitutional. by its consequences. But even on its oWn terms, this argument is no better surmise The juries that returned ten-to-two (or nine-to-three, or eight-to-four) verdicts in the cases I upon which this argument is'based were expressly instructed that they need not return unanimous Verdicts, and that any event the ?nal-decision Hans toIp?nalty was in the hands of the judge. Whether those same juries, had they been instructed that their verdicts must be true verdicts and not merely recommendations 4 had they, ?inother words, been instructed that their verdicts must be unanimous Nani ., Viv?nomore 'thana matter of speculation. Althotrgh the foregoing rationales for the unanimity requirement are all very telling, perhaps ?therequirement "iS?simp?ly? one o?m?mm'wm??ic as to call?for no rationale. See, American Publishing Co. v. Fisher, 166 US. 464, 468 (1897) (?Now unanimity was one of the peculiar and essential features of trial by jury atthe common law. No authorities are needed to sustain this proposition?). mathematicians do not demonstrate axioms, neither do - judges or lawyers always deem it necessary to prove propositions, the truth of which is universally admitted.? Chief Justice John Marshall, A Friend of the Constitution No. 11, Alexandria Gazette, July 1, 1819, in John Marshall?s Defense of McCulloch v. Maryland 162 (G. Gunther ed. 1969); I I A number of courts have concluded that the unanimity rule, the presumption of innocence, and the reasonable doubt principle are ?as [three] vials of [one] sacred blood/Or [three] fair branches springing ?om one root.? William Shakespeare, RichardII Act I, 2. See, e. Rice v. Maryland, 532 A.2d 1357, 1366 n. '5 (Md. Ct. App. 1987) (citing Scarborough v. United States, 522 A.2d 869, 8727 1987)). See also United States v. Gipson, 553 F.2d 453, 457 n. 7 (5th. Cir. 1977) I (unanimity rule ?helps effectuate the reasonable- doubt standard?). ?The'rule that the jury of twelve I must be-Hunanimous. in order to return a verdict helps to ensure that the case is proved beyond reasonable doubt}? Glanville Williams, The'Proo?f. of Guilt: A Study. of the Bug lish- Criminal Trial- I I 3 p. 248 (Stevensdc Shasta-1955); I i 7 These three axioms of our law the rule, the presumption of innocence, and the? 'requirement cf proof beyond reasonable doubt are joined, not only in their origin and their development, but also in their purpose. They re?ect Ithecom'rnon lawis admirable epistemological . modesty a recognitionthat a justice system designed and operated by imperfect i 7 I beingscan never be better than iniperfect, and thatwe ought to actwith restraint and discretion when we act upon the imperfect conclusions of that system. We will take no loridian?s liberty upon a. I take no Floridian?s-lifeupon- a less-than-unanimous verdict. The life taken today can never be I - restored. Perhaps nothing in all four volumes of Blackstone?s oft-cited Commentaries is as- well-- remembered as the so-called ?Blackstone ratio?: ?[F]or the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.? William Blackstone, 4 COmmentaries on the Laws 'of England 352 (Univ. of Chicago Press 1979) (1765). This principle is routinely traced to Genesis 18:20-32, in which God proposes to destroy the people of Sodom and Gomorrah for their wickedness, but concedes that if as few as tenrighteous men are found in the cities, He will spare 6 A Floridian charged with the offense of building a bon?re, Fla. Stat. 823.02 a second-degree misdemeanor punishable by not more than 60 days in?the county jail, Fla. Stat. cannot be convicted except upon the unanimous verdict of a jury of his peers. Floridian charged with ?unlawful possession of a ?fth wheel,? Fla. Stat. 812.0147; or with. ?dispos[ing] of the carcass of any domestic animal by dumping such carcass on any public road or in any place where such carcass__can be devoured by beast Or bird,? Fla. Stat. or with ?abandon[ing] 0r discard[ing] any icebOx, refrigerator clothes washer [or] clothes dryer,? Fla. Stat; 823.09 all second-degree misdemeanors, all punishable by not more than 60 days inthe county jail cannot be Convicted except upon the unanimous verdict of a jury of his peers. . - the cities for the sake of the-ten. Thus the antecedents of the interlaced principles of jurOr, unanimity, - the presumption innocence, and proof beybnd reasonable ,doubtare ancient and honorable. TheSe hallowed and inseparable principles are preached with ease and practiced with '7 culr .- 7 righteous vengeance. But our commitment torthe principle that no' Floridian shall be Sentenced to - 7% a the maximumpenalty providedby law unless his guilt is made manifest beyond reasonable doubt" to a unanimous jury of his peers is not to be measured in cases involving charges of dumping a dead *e?sEefbabatr-idon-ing?ag used washing machine, Fla. Stat. 823 .09. It is to be measured in caSes involving the most horrible of crimes. It is to be measured cases that most ekae our rage and our desire for vengeance. I am well aware that, subject to constitutional limitations always subject to constitutional limitations theulegislature is free to enact its will as law. Iam well aware, too, that, stripped of all historical and cOnceptual context, the notion that the assent of ten jurors rather than twelve should be suf?cient to support a verdict and sentence seems inoffensive. Arithmetically the difference between twelve and ten is slight; so, forthat matter, is the difference between twelve and nine, or twelve and eight.? But the question before-me is not a question of arithmetic. It is a question of constitutional law. Itis a. question of justice. . Alone. inha wilderness, the prophet Elijah stood on a_ barren hilltop. [A]nd a great and strong wind rent'the mountains, and broke in pieces the rocks before the Lord; but the Lord was not in the wind. And after the wind an earthquake; but the Lord was not in the earthquake. And after the earthquake a ?re; but the Lord was not in the ?re. And after the ?re, a still small Voice. i 7- IKixig's 19:11-12. 7 For us as loridians and Americans for each and: all of us the voice of the jurors each and all of the jurors? is'the still small voice of justice. i "Defendant?s motionrtor declare Florida Statute 921.141_unconstifutional_ is reSpectfully 7 GRANTED. so ORDERED in chambers in Miami, Miami-Dade County, Florida, this 9th? day of May, ?a A . I CIRCUIT COURT JUDGE Copies to: I i All counsel of record