Miami Judge Argues Constitutional Right to 12-Person Jury in Major Order

November 11, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Judge Milton Hirsch denied a defendant’s motion for a twelve-person jury in an attempted murder trial, but not before making clear that he was only denying the motion because he was bound by a recent appellate court decision.

In Florida, the vast majority of criminal cases (felonies and misdemeanors) are heard by juries consisting of just six members. The only exception is when a defendant is charged with a capital offense. Salmon v. State, 387 So.3d 393 (Fla. 1st DCA 2024)

Though this is constitutionally permissible (according to the U.S. Supreme Court’s Williams v. Florida, 399 U.S. 78 (1970) ruling), this has been the subject of significant controversy.

As Florida is the only state in the union to consistently try even serious felony cases in front of six-person juries (Lessard v. State, 232 So. 3d 13 (Fla. 1st DCA 2017)), many have argued for this to change. In recent years, an increasing number of legal advocates and judges have claimed that Florida’s current jury laws are unconstitutional, despite Williams,

The primary arguments for 12-person juries (especially for serious felony cases), especially since Ramos v. Louisiana was decided in 2020, have been:

• Williams v. Florida, 399 U.S. 78 (1970) was wrongly decided, because it employed a “functionalist” (efficiency-based) approach rather than addressing whether history and tradition required twelve-person juries
• Common law (e.g. the writings of English jurist Sir William Blackstone) served as the basis for the Sixth Amendment jury trial right – and that common law called for jury verdicts to be a “unanimous suffrage of twelve” 
• The U.S. Supreme Court decided in Ramos v. Louisiana that jury verdicts must be unanimous under the Sixth Amendment, citing the same common law/history and tradition that supports the use of twelve-person juries
• Twelve-person juries retain information better, promote dissenting voices, and improve the quality of deliberations overall (Khorrami v. Arizona, 143 S. Ct. 22, 23-27 (2022) (Gorsuch, J., dissenting))
• The vast majority of jurisdictions routinely rely upon twelve-person juries for felony (and most misdemeanor) cases, and all states (and the federal government) require 12-person juries in capital cases (in which the crime is punishable by death)

For more on the arguments for and against the use of twelve-person juries at criminal trials in Florida, click here.

Following Ramos, many defendants began to file pretrial motions (or post-trial motions urging the reversal of a trial verdict) arguing that they had a right to a twelve-person jury – including in non-capital felony cases. This would be a departure from current Florida law, which (pursuant to Williams), still allows 6 jurors to be impaneled to hear almost every trial (except capital cases).

One such post-Ramos motion was filed by Ulyses West, a defendant in Florida’s 11th Judicial Circuit (Miami). Though West’s motion was denied, the South Florida judge who did not allow West’s non-capital case – Judge Milton Hirsch – excoriated the U.S. Supreme Court’s Williams v. Florida, 399 U.S. 78 (1970) in a noteworthy order. Let’s discuss it.

KEY CASE: STATE OF FLORIDA, Plaintiff, v. ULYSES WEST, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County (30 Fla. L. Weekly Supp. 607a)

In State v. West, the defendant (West) was charged with attempted second-degree murder. West filed a motion arguing he was constitutionally entitled to a 12-person jury, as he was facing up to life in prison if convicted.

Judge Hirsch denied the order, citing a recent decision by Florida’s 4th District Court of Appeal: Guzman v. State, 350 So.3d 72 (Fla 4th DCA 2022). Notably, Judge Hirsch wrote that he would have granted West’s motion if Guzman had not been decided before he penned his order:

“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. In Guzman, the Fourth District found that the issue of a 12-person jury was likely not properly before it… As a judge of a lower court, I must follow controlling appellate case law.”

Despite the result, Judge Hirsch spilled copious ink discussing his staunch opposition to Williams v. Florida, 399 U.S. 78 (1970). Hirsch wrote:

“At the time of the drafting of the Constitution and the Bill of Rights, the definition of ‘jury’ included the number 12. That, as Justice Harlan points out, is undeniably what the Framers understood ‘trial by jury’ to mean. Where that number came from had long since ceased to be consequential. Suppose, as the Williams majority does, that the number 12 was, indeed, hit upon by historical accident. Penicillin was hit upon by accident, but we do not for that reason ask doctors to pretend that it does not exist, or that it does not matter.”

“Florida felony juries of six may be convenient. They may be efficient. But they are not constitutional. Of course the Sixth Amendment, like its Florida congener, could be amended, see U.S. Const. Art. V, to interpolate after the word ‘jury’ the phrase ‘which shall consist of not fewer than six’ — or four, or three, or two — ‘jurors.’ Until that very unlikely amendment is made, however, Florida’s use of six-person juries in serious criminal cases will remain unconstitutional.”

Judge Hirsch argued that because the U.S. Supreme Court’s Apodaca v. Oregon, 406 U.S. 404 (1972) decision (ruling that 5-person juries were unconstitutional, as they were too small) and Ramos v. Louisiana, 590 U.S. 140 (2020) (requiring unanimous jury verdicts) fundamentally rejected the “functionalist” (efficiency-based) logic of Williams, it could not stand:

“I recognize that Williams is still in the law books, and that I would ordinarily be bound to follow it until the Supreme Court formally recedes from it. But the functionalist analysis, the cost-benefit analysis, that the plurality employed in Apodaca and that the Court expressly and emphatically repudiated in Ramos is precisely the analysis employed in Williams. 

“The conclusion that Williams ‘was egregiously wrong from the start,’ … and would also be repudiated if it were to come before the Court now, is inescapable. The Court would employ original-intent analysis, and would inevitably conclude that the jury guaranteed by the Sixth Amendment is a jury of twelve.”

Judge Hirsch posited that there was no way that the current U.S. Supreme Court, given Ramos and its focus on “original intent,” would stand by Williams if asked to overturn it:

“Whether viewed in terms of the functionalism that it embraces or the originalism that it rejects, Williams has not survived the scholarship of the last half-century. I well recognize my obligation to follow the law as set forth by wiser judges on higher courts. But where, as here, the Supreme Court has made it clear and more than clear that it will return from a road erroneously taken, see Ramos v. Louisiana, supra, it is difficult for a judge of a lower court to feel obliged to follow that road in pursuit of further error. 

“Florida v. Williams is an emperor wearing no clothes. The United States Supreme Court will not continue pretending that the emperor is sumptuously attired. Must I continue to pretend?”

Judge Hirsch nevertheless had to deny West’s motion because Guzman v. State, 350 So.3d 72 (Fla 4th DCA 2022) was decided as Hirsch was authoring the order to grant West’s 12-person request. While acknowledging Guzman, Judge Hirsch chose to take one last swipe at Williams:

“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.”

In sum, Miami Judge Milton Hirsch’s order denying a defendant’s request for a twelve-person jury is a significant contribution to Florida’s legal discourse surrounding whether a constitutional right to a twelve-person jury exists.

Hirsch’s order has been praised by many advocates for twelve-person juries. Though he was ultimately bound to deny West’s request for a dozen jurors by Guzman v. State, 350 So.3d 72 (Fla 4th DCA 2022), Judge Hirsch passionately argued that Williams v. Florida, 399 U.S. 78 (1970) was wrongly decided – and that the current U.S. Supreme Court would agree.

Despite Judge Hirsch’s belief on this point, the U.S. Supreme Court since 2022 has denied two requests to reconsider Williams – one of which originated in Florida. Moreover, no state District Court of Appeal has filed an opinion conflicting with Guzman v. State, 350 So.3d 72 (Fla 4th DCA 2022). As a result, trial judges remain bound to order 6-person juries (in non-capital cases).

If someone is arrested and formally charged in Florida and concerned about jury selection in their case, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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