I agree with my co-blogger Jonathan that the en banc Sixth Circuit was correct in reversing the panel decision in Getsy v. Mitchell. I realize that different people will disagree about the death penalty. But as a matter of binding law, I don’t see this case as even remotely close.
In my view, the key to the case is that different trials with different lawyers and different juries will often reach different results. The Constitution clearly allows a defendant to be retried and convicted after a first jury hangs; there is no rule that the result on the second trial has to be the same as the result in the first one. Similarly, the Constitution allows one defendant to a conspiracy to receive a death sentence in one trial while another defendant receives a life sentence in another trial. I was quite puzzled by the contrary arguments put forward in Judge Merritt’s dissent, and I thought I might blog a bit about them.
Judge Merritt’s main argument is that there is a common law English rule, adopted by the U.S. Supreme Court as a matter of Due Process in Morrison v. California, 291 U.S. 82 (1934), requiring consistent verdicts in conspiracy cases. If two individuals are tried together for conspiracy and the jury convicts one and acquits the other, the convicted defendant must be set free. Judge Merritt reasons that this same principle applies in cases with co-defendants tried separately, at least in death penalty cases, such that that Gentry can’t get the death penalty
I think there are a bunch of pretty serious problems with this argument. First, although this was the English common law rule, it turns out to be the minority rule in U.S jurisdictions today. As Eric Muller has explained, this rule is “now followed in only a few jurisdictions,” and “[t]o date, almost every federal court of appeals has either abandoned or severely criticized the rule.” The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771 (1998).
As Eric notes in his article, the one circuit that seems to still follow the rule happens to be the Sixth Circuit. But that shouldn’t matter given the standard of review in this case: Under AEDPA, the issue is whether the state court unreasonably applied clearly established Supreme Court precedent, not Sixth Circuit law or law that the Supreme Court might establish some day. Given that, I find it hard to see the relevance of the English common law rule.
Further, even the Sixth Circuit has recognized that this so-called “rule of consistency” does not apply to separate trials. Here’s what the Sixth Circuit said in United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986), an opinion joined by Judge Merritt himself:
[I]f coconspirators are tried separately, the acquittal of all other coconspirators does not mandate acquittal as to the remaining conspirator. United States v. Roark, 753 F.2d 991 (11th Cir. 1985). This result is necessary because different juries may hear different evidence; “[t]hat the evidence was insufficient to support a guilty verdict in the one case does not mean that conviction on different evidence in another case was improper.” Id. at 996. In other words, it is not necessarily inconsistent for two juries to reach differing results.
As best I can tell, Judge Merritt has two responses. First, he says that it would be really unfair to not apply the rule in capital cases with separate trials because it would take away a legal defense from capital defendants. Capital defendants are given the extra process of having separate sentencing trials; under the Sachs rule, they will never be able to assert the defense of inconsistent verdicts. According to Judge Merritt, placing defendants in a setting where they cannot assert the defense of inconsistent verdicts “guts” the protections of the rule. If I understand the dissent correctly, Judge Merritt’s answer is to expand the rule to make sure defendants can still make the claim even when they are tried in different trials.
Maybe I’m just missing something, but I find this rather strange. The Constitution gives defendants the right to be free from inconsistent verdicts. It doesn’t given them a right to assert a valid claim regardless of whether the facts support it.
Finally, Judge Merritt places tremendous emphasis on Morrison v. California, 291 U.S. 82 (1934). Judge Merritt asserts that Morrison clearly and unambiguously constitutionally mandated the English common law rule that verdicts in conspiracy cases must be consistent — whether the case involves multiple defendants or not. The constitutionalization of the English rule is so clear, Judge Merritt claims, that it amounts to clearly established U.S. Supreme Court law. But an review of Morrison shows that Morrison does not clearly establish such a rule (as you might guess from the fact that most jurisdictions have rejected it without imagining any constitutional problems). As best I can tell, the relevant passage of Morrison seems to be about the common law requirements of conspiracy rather than the Due Process clause.
The statute in Morrison was a racist 1927 California law that made it a crime to knowingly transfer land to a non-citizen who was not eligible for citizenship. Under the law of the day, foreigners were only eligible for citizenship if they were “free white persons” or “persons of African descent”; persons from Asia were categorically ineligible for U.S. citizenship. See 8 U.S.C. 359 (1927). So under the California law, a U.S. citizen and a Chinese or Japanese citizen transfered land from the former to the latter, they were both guilty of a conspiracy crime. Remarkably — and critically for an understanding of the case — the law rested the burden of proof that a person was a foreigner not eligible for citizenship on the defendants. So if a white person sold land to an Asian person, the defendants had to prove that the Asian person was born in the United States and was therefore a U.S. citizen.
In the Morrison case, Morrison and Doi were convicted of violating the statute when Morrison, a U.S. citizen, transfered his land to Doi, who was of Japanese descent. Doi put forward no evidence of his background or citizenship, and there was no evidence as to what Morrison knew or thought of Doi’s citizenship. Both were convicted of conspiracy on the ground that absent evidence, lack of eligibility for citizenship and knowledge of it were presumed. In an earlier opinion, the Court had held that the presumption was not unconstitutional (at least under the law of the day) as to Doi. In this decision, the Court held that there was a very different picture with respect to Morrison. Morrison couldn’t necessarily know Doi’s citizenship, and he was stuck with both the presumed fact that Doi was a non-citizen and imputed knowledge of the presumed fact. The Court held that this was so arbitrary and unfair that it violated the Due Process clause.
What does this have to do with inconsistent verdicts? In a short passage, Justice Cardozo concluded that Morrison’s acquittal for conspiracy meant that Doi had to be acquitted as well:
Doi was not a conspirator, however guilty his own state of mind, unless Morrison had shared in the guilty knowledge and design. Pettibone v. United States, supra; Gebardi v. United States, 287 U.S. 112, 123, 53 S.Ct. 35, 84 A.L.R. 370. The joinder was something to be proved, for it was of the essence of the crime. Without it there was a civil wrong, but not a criminal conspiracy, the only crime denounced. In re Akado, supra. The conviction failing as to the one defendant must fail as to the other. Turinetti v. United States, supra; Williams v. United States (C.C.A.) 282 F. 481, 484; Gebardi v. United States, supra.
Judge Merritt reads that passage as clearly establishing the English common law rule as a matter of Due Process. However, I think the passage is more naturally read in context as being about the elements of common law conspiracy as understood in the day. Morrison was decided in the pre-Erie era, when criminal law was understood as a common law subject rather than a statutory one. The cases Cardozo cites — Gebardi, Pettibone, and Turinetti — are all common law conspiracy cases involving challenges to the sufficiency of the evidence. None are even constitutional cases. At the time, there was no “federal conspiracy law” vs. “California conspiracy law.” There was just “conspiracy law,” which means that Doi never should have been convicted in a common law jurisdiction.
My sense is that Justice Cardozo’s application of that principle to Doi reflected 1930s views of common law conspiracy doctrine rather than the commands of the Due Process clause. At the very least, it’s very hard to read Morrison as clearly establishing the English rule as a matter of U.S. Constititional law.