WASHINGTON, D.C. — The U.S. Supreme Court has refused to rein in the government’s power to indiscriminately pick and choose the laws by which it will abide, especially as it relates to the Sixth Amendment rights of the accused in criminal cases.

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. 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 and author of Battlefield America: The War on the American People. “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.”

Ramin Khorrami was convicted for fraudulent schemes and theft in Arizona state court after a jury trial, but the jury only consisted of eight members. 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. 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.” Justice Gorsuch’s dissent notes that “only 6 states, Arizona included, tolerate smaller panels [than twelve jurors]—and it is difficult to reconcile their outlying practices with the Constitution.” The dissent also points out that the Court had empirical data suggesting “smaller juries are less likely to foster effective group deliberation” which works to the detriment of the defendant, while “12-member juries deliberate longer, recall information better, and pay greater attention to dissenting voices.”

Stuart Banner of the UCLA School of Law Supreme Court Clinic helped to advance the arguments in the brief.

August 25, 2022 • Rutherford Institute Challenges Government Efforts To Undermine Sixth Amendment Rights, Unfairly Deny Protections to Citizens in Criminal Cases

Khorrami v. Arizona

• Amicus brief
• Justice Gorsuch’s dissent

Article posted with permission from John Whitehead