News & Notes

 1. Judge Milton Hirsch wrote this incredible order about the right to a 12-person jury in state court.  Worth a read.  From the conclusion:

Had this order been filed six weeks earlier, it would have ended here. I would have concluded that Florida v. Williams is no longer the law, and that Defendant is entitled to a jury of 12. In the interim, however, an appellate court of this state has concluded the contrary. Ramos v. Louisiana was decided two years ago. While the vaunted Miami criminal defense bar, public and private, temporized and dawdled, a lawyer in St. Lucie County, Florida, appears to have raised the issue at bar. In the ordinary course, the matter then wound its way to the Fourth District Court of Appeal which, less than six weeks ago, decided Guzman v. State, ___ So. 3d ___ (Fla. 4th DCA Oct. 26, 2022).In Guzman, the Fourth District found that the issue of a 12-person jury was likely not properly before it, Guzman, ___So. 3d at ___; but that if it was, the Supreme Court in Ramos “ha[d] not revisited its express holding in Williams,” Guzman at ___, and the Supreme Court “does not normally overturn . . . earlier authority sub silentio.” Id . (quoting Shalala v. Illinois Council on Long Term Care, 529 U.S. 1, 18 (2000)). Noting how terse is the Guzman majority’s discussion of this issue, Defendant asks me to pass over it as meredictum. It is terse. But it is notdictum.11By operation of Florida’s well-settled “ Pardo rule,” see Pardo v. State, 596 So. 2d 665,666 (Fla. 1992), I am, in the absence of a binding decision from the Third District, bound by a decision from the Fourth District. As a judge of a lower court, I must follow controlling appellate case law. But judges of lower courts “may state their reasons for advocating change” while they follow controlling appellate case law. Hoffman v. Jones, 280 So. 2d 431, 434 (Fla.1973). I have done so. See supra at 7-11; see also Guzman, ___ So. 3d at ___ (Gross, J., concurring) (“The Ramos majority . . . contains references to the common law requirement of a12-person jury and suggests that the Sixth Amendment affords a right to the essential elements of a trial by jury as understood and applied at common law”).We will be ignoring, not effectuating, the intent of the Supreme Court, not to say the intent of our Constitution’s Framers, by trying this defendant before a jury of fewer than 12 good men and women and true. We will be ignoring a constitutional right. But like every lower-court judge I must obey the decisions of higher courts, “agreeing with some, disagreeing with some, following all, because our bondage to the law is the price of our freedom.” Johnson v. Johnson, 284 So. 2d 231, 231 (Fla. 2d DCA 1973).Guzman has considered Ramos and found Williams still to be the law. I sincerely hope and confidently believe that the Third District will find otherwise. Until it does, however, Defendant’s motion for a 12-person jury must be respectfully denied.

2. USA Today did a nice piece about how prosecutors federal judges are messing up bail and detaining too many folks.  Check it out here.