Last week the U.S. Court of Appeals for the Sixth Circuit issued another divided opinion in an death penalty case, Getsy v. Mitchell. Writing for the panel majority, Senior Judge Gilbert Merritt held that Jason Getsy’s death sentence was unconstitutionally arbitrary under the Eighth Amendment “because like crimes are not being punished alike in the very same case.” Explained Judge Merritt:
This is a contract murder case with irreconcilable jury verdicts leading one defendant to be sentenced to death and another — the defendant who initiated, contracted for, and paid for the murder — to be sentenced to life imprisonment.If a jury in one trial did not find the alleged murder-for-hire scheme was a sufficiently aggravating circumstance to justify executing John Santine, the panel reasoned, a second jury could not reasonably find that it was a sufficiently aggravating circumstance to justify executing Getsy.
sentencing Getsy to death, while the arguably more culpable Santine received a life sentence for the very same crime, violates the Eighth Amendment, as construed by the Supreme Court in Furman and Enmund, and its prohibition of arbitrary and disproportionate death sentences.Judge Karen Nelson Moore joined Judge Merritt’s decision. Judge Ronald Lee Gilman dissented.
In setting aside the death sentence imposed upon Jason Gesty for the murder of Ann Serafino, the majority today reaches beyond the arguments advanced by Getsy and announces a new rule of constitutional law. The majority holds that the Eighth Amendment and the common-law rule of consistency require us to invalidate Getsy’s death sentence because a different jury failed to find the murder-for-hire specification at the later trial of the man who enlisted Getsy as the hired killer. In other words, because John Santine did not receive the death penalty, neither can Getsy.Judge Gilman shared some of the concerns that motivated the majority opinion, but he rejected their reasoning as a matter of law.
Both the majority and the Ohio Supreme Court have expressed concern over the seemingly incongruous results from the separate trials of Getsy and Santine. I share their concern, recognizing at the same time that reasonable people can disagree over the relative moral turpitude of the instigator of an assassination on the one hand and the killer who he hired to carry out the violent act on the other. Nevertheless, I do not believe that I am empowered to answer this philosophical question by bypassing the limitations that both Congress and the Supreme Court have placed upon this court’s power to grant relief under the circumstances of this case.Eric Muller and Orin Kerr both think the panel majority got it wrong. As Muller explains:
While it is admittedly uncomfortable — especially in a death penalty case — to see two different juries reach inconsistent conclusions on similar evidence about the same episode, I don't believe that there's any reason to see legal error of any kind in the second jury's verdict. When a single jury reaches logically inconsistent verdicts in a single case, we can be certain from the verdict itself that the jury has somehow erred (in the sense, at least, of not following its instructions), and . . . the legal system ought to do something about inconsistent convictions in this setting (rather than just letting them stand, as the law now does). But when two juries reach logically inconsistent verdicts in separate trials, those verdicts supply no evidence that either jury has erred — let alone that the erring jury was "harsher" one.I also would concur with Orin’s assessment that this opinion is unlikely to be the last we hear of this case.
[Note: One of the attorneys for petitioner-appellant Jason Getsy is a colleague of mine at Case, but we have never discussed the particulars of this case – and he knows far more about death penalty litigation than I ever will.]
UPDATE: As some of my previous posts on divisions within the Sixth Circuit have prompted heated comment threads, I encourage all to keep their comments civil and substantive. I believe it is possible to analyze and debate the merits of the judges' respective positions without descending into vitriolic and ad hominem attacks on the judges or other commenters.
Related Posts (on one page):
- Getsy Rehearing:
- Sixth Circuit Habeas Happenings:
- Are Irreconcilable Jury Verdicts Unconstitutional?
- More Death Penalty Dissension on the Sixth Circuit:
- Alley's "Alleged" Assault:
- Sedley Alley's Last-Minute Stay:
Next case.
Tha majority didn't have to address that point because "death is different" under Furman. The usual rules don't apply in the death penalty context. Or so sayeth the court.
Isn't that what you get when you have two juries address the same question?
Why is this essentially the same crime? Why isn't is logical to believe that actual committed a homicidal act is worse that actually simply contracting for and plotting a homicide, but not actually taking part in it? I realize the law of conspiracy and accomplice liability holds each party equally liable, but can a jury not believe that actually committing the homicidal act is more heinous, and thus deserving of a stronger punishment? I think such culpability distinctions are properly made by juries, therefore I would have no problem with the very same jury coming to different conclusions about the death penalty in this case, much less different juries reaching different conclusions.
I could easily see a jury deciding that deliberately killing someone where there was no connection between the killer and the victim is more heinous a crime than killing someone where there was some sort of interaction before the murder which might have led to the murder.
Hopefully the Supreme Court will reverse.
(None of which is to indicate that either defendant should get the death penalty--which is an abiding stain on this nation's morality.)
This formed one basis for the decision of the majority, who regarded those two verdicts as inconsistent. There would have been no inconsistency if Getsy had been convicted merely of murder; but he was specifically convicted of murder for hire. Since that is a crime that requires a hirer as well as a hiree, the acquittal of the only alleged hirer was in the court's view inconsistent with the conviction of the alleged hiree.
My own sense is that the majority is on pretty sticky ground on this: they have to reach back to some pretty old precedents to construct some theory that the common law will not countenance inconsistent verdicts in crimes which require at least two participants even when there are separate trials.
The more interesting question is whether the majority is right on its broader holding, which does not seem to me to turn on inconsistency in that narrow sense, but on a theory that if people are sentenced differently for the same acts that indicates arbitrariness. To make that theory good, the majority relies on Enmund v Florida 458 US 782 (1982). Effectively they turn it on its head: if it is wrong to treat plainly different cases in the same way, then it is also wrong to treat plainly comparable cases differently. What stands in their way on this is Pulley v Harris 465 US 37 (1984), but the majority reads that case as preventing attempts to compare systematically (e.g., between what seem to be categories of defendant in comparable types of case), and not as preventing one from making a comparison when the cases are not just comparable but are the very same case.
I am no expert at all (it's years since I did any criminal law) but as in essence a layman I find this line of argument much more plausible. It does not, I think, depend on "inconsistency" in any technical sense (it does not depend on saying that either verdict is unreasonable), but rather on a basic intuition that it is the very essence of arbitrariness to treat two essentially and plainly identical cases differently for no other reason than the random chance of how the jury happens to look at those cases. Even allowing for sentencing to be "discretionary", a modicum of consistency might still be required.
I don't find the minority opinion very convincing against that argument, which I find intuitively attractive. It never really addresses the distinction the majority make between Pulley and this case (retreating behind the ambiguous language that one does not compare sentences for the 'same crime' which could mean 'same statutory offence' or 'very same set of facts', a substantial difference). Cases such as McCleskey 481 US 281 (1987), which is clearly concerned with statistical comparisons, do not seem to take the matter much further. The essential core of what the majority is saying--that it is arbitrary to treat what is obviously a less serious case more severely--really seems quite plausible.
As to whether there was plain inconsistency here, I don't think there can be much doubt about that on the evidence. It was simply implausible to suppose that the jury had regarded Santine as enjoying any mitigating factor compared to Getsy. That's really the majority's point. It is not like carrying out a difficult comparison between incomparable cases. On any possible view, the cases here were comparable, because they came out of the very same facts. Maybe Santine was lucky; if so, it would be arbitary not to allow Getsy to enjoy some of that same luck.
Perhaps one can test it this way. Suppose that sentencing of Getsy had been postponed until after Santine's trial, and the Getsy jury had been told 'Santine is not going to be sentenced to death'. Would any jury in those circumstances have thought it right that Getsy should be executed? I doubt it.
Erasmussimo:
On the other hand, if the murder was not particularly cruel, then your point seems weaker to me.
As far as I can tell, she is equally dead. Does the law distiguish between such things?
More so. Contract killers don't exist without people to contract them.
>Do we need to penalize that conduct as severely as we penalize the act of murder?
More so. The contract killer is just a tool. The person who hires them is the murder.
How can defendant 1 be guilty of committing murder for hire, and get the death penalty, if no one is guilty of hiring him?
Granted you can argue that defendant 1 should get the death penalty for the murder, but that's not the actual basis on which he was sentenced to death. Defendant 1 being sentenced to death after being hired to do something is clearly inconsistent with the fact that, officially, no one hired him to do it.
If that's the analysis, then the verdict should stand, because the Court has no power to enhance a jury verdict for life imprisonment to death. The guy sentenced to death didn't get too harsh of a sentence, the guy sentenced to life got too light of a sentence.
Person X (a specific, named individual) was charged with hiring Person Y (ditto, and the defendant here) to commit the murder. Y's indictment, in turn, specifically alleged that he was hired by X. But X was acquitted of having hired Y, creating an irreconcileabe inconsistency when Y was convicted on an indictment specifically alleging his employment by X.
I might misremember the opinion, and apologize if I have the facts wrong. But if that's correct, then it seems that the prosecution could have avoided this mess by indicting Y for having been hired by a John Doe rather than Person X in particular. State rules may prohibit that, though, I don't know.
How is that inconsistent? Being guilty of a murder for hire doesn’t require that the other charged party be the party who was guilty of hiring you to commit the murder nor does it require that someone even be convicted of hiring you to commit murder.
Perhaps, however I don’t think it was unreasonable for a jury to conclude that the contract killer is more likely to kill someone else than his employer is to hire another contract killer.
The problem, as the dissent recognizes, is that for federal habeas corpus relief to be granted, the state court decision must be contrary to, or imvolve an unreasonable application of, clearly establshed federal law, as determined by the Supreme Court of the United States. 28 U.S.C. 2254(d)(1). I found the majority's logic that this case reaches this law's high standard to be unpersuasive.
I agree with Professor Volokh and see certiorari in Getsy's future.
Third Circuit Lawyer wrote: Isn't that what you get when you have two juries address the same question?
Columbienne writes: Do you mean to say that whenever two juries address the same question there's always some disparity in the answer? I guess that's true, so unfairness would have to be defined by the degree of difference between the verdicts. In this case, it couldn't be clearer.
A contract killer makes his living by killing people. Therefre he is more culpable than his employer, who probably just killed once. Moreover, if the contract killer did not exist, would the employer have been willing/able to go through with the murder? Involving a contract killer is more expensive and more dangerous (from the standpoint of getting caught - since you have a person who can testify against you).
I suspect (though I have no studies to prove this) that people who hire contract killers to do their dirty work would probably not kill in their absence. They lack the guts, the means or the opportunity to do it themselves. Thus, shutting down this "tool" is more important than deterring an ordinary murderer.
I see no inconsistency in these verdicts. And that is without knowing if the employer had any mitigating factors in his favor. Compare: what *possible* factors could mitigate the guilt of a paid assassin?
I found the majority's opinion to be unpersuasive both procedurally and substantively. Procedurally, the AEDPA precludes this opinion; as the dissent notes, although they mention a lot of cases, they point to none that actually held what they hold today. It's not enough to combine a bunch of propositions together to cobble together a chain of logic which could lead to this rule; they have to show that it is "clearly established." (And like the dissent, I found citations to Aristotle to be almost comical.)
And substantively, I think they're simply wrong in treating these as "inconsistent." A jury acquittal is not the same thing as a finding of factual innocence, as they appear to treat it.
Suppose what is going on is similar to collateral estoppel. The state is the same party to both cases, so if it loses on issue A in the first case, the defendant in the second case may be able to take advantage of that decision.
The state doesn't get the same advantage: it is litigating against two different parties. Just because it wins against the second guy doesn't mean it can take advantage on that issue with respect to the first guy.
I haven't read the case, so I don't know if I am anywhere near the mark. But the same thing happens in civil cases all the time. Welcome to the adverserial system.
You're correct that there's more inconsistency than I first thought because the two juries reached inconsistent verdicts on the issue of murder for hire, which is probably an aggravating factor (at least it is in NY). But how do you deal with the habeas standard of review problem? While the majority's argument from Pulley may be "quite plausible" as you put it, can you honestly say it was based on "clearly established" Supreme Court precedent?
Incidentally, while the debate in general about who is "more culpable"--the hirer or the hire--is interesting (though surely incapable of abstract resolution), I don't think it's pertinent here. If you read the facts, it's very hard to think that S (who instigated the killing) was any less culpable that G, one of three who carried it out, and the only one to be sentenced to death. At any rate that is not the basis of the juries' decisions: the second jury didn't think S as hirer was less culpable--they thought there was NO hirer (since there surely was none other than S). They must have regarded S as an instigator of the killing in some other way, and presumably they though G had not been hired at all!
Reading between the lines, much the most likely position is that S hired G to do the killing, and the only alternative explanation is that S threatened G to get him to do the killing. In that sense it may well be that the verdict in G's case was "right" and that in S's case was wrong. But I think that even if this is so an argument can still be made that one should feel a bit queasy about G, on the facts the less culpable of those involved, being the only person to be executed. No single rational person would have arrived at that result, and I suppose there is then a fair argument that a rational system should not do so: it is unfair. And since one can't make it fair by executing S, the only way to restore a balanced rationality is not to execute G.
The counter-argument is that one just has to put up with anomalies in a jury system. That's a fair point, up to a point. But the jury is not an end in itself, and there comes a point where its results are simply too incongruous to be easily accepted, and where that involves the death penalty it may be right to intervene. I realise that's a slightly weak defense of the decision, and I'm not saying it's technically correct; but it doesn't look wild. As I say, suppose the G jury had sentenced only after being told that S would not be executed: would they have decided to execute?
Z never knew that X was intending to kill Y and so is clearly (at least to me) guilty of murder for hire. Y on the other hand has a plausible self-defense claim and might actually go free.
My point (and that of many other people here) is that for different parties in a conspiracy to get different sentences is not inherently inconsistent and to make that claim in the face of jury verdicts to the contrary seems like judicial over-reach.
Due to all these problems cert is unlikely. If there is going to be any change to this grant of relief it will be en banc, and, due to the current poltical dynamics of the Sixth it is likely to happen.
If you really want me to rise to the bait, sign your name -- better yet, write something interesting. (Although I must admit that I'd love to know what I wrote that got under your skin. I must have really hit a nerve.) Now get back to your document production.
On the substance of Getsy, I'm betting on en banc review.
Mark Pickrell