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Are Irreconcilable Jury Verdicts Unconstitutional?

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.

Donald Kahn (mail):
Ah, go on. Obviously the majority was set on rejecting the death penalty, and invented an ingenious reason for doing so.

Next case.
8.7.2006 12:04pm
Houston Lawyer:
So, if the jury had acquitted the guy doing the hiring, we'd have to let the shooter go as well to be consistent.
8.7.2006 12:09pm
anonassociate:
Let the 6th Circuit flame wars begin...Mark Pickrell to the white courtesy phone, please, Mark Pickrell to the white courtesy phone.
8.7.2006 12:25pm
Roger Sweeny (mail):
The majority must have taken up Houston Lawyer's point ("So, if the jury had acquitted the guy doing the hiring, we'd have to let the shooter go as well to be consistent."). What did they say?
8.7.2006 12:47pm
Erasmussimo:
This is certainly a fascinating case. I can certainly agree with the basic notion that the two punishments were for what was essentially the same crime, and that the notion of consistency requires similar outcomes. My pragmatic side says, "Ah, hell, death penalty cases are so damned expensive that we should just accept the life sentence and get on with other cases." And I don't think that any serious precedent is being set here, because the reasoning applies to two defendents being tried in two trials for the same crime. Nevertheless, I have some reservations. Why should not the fellow who got the life sentence get the death sentence? Of course, he's not the appellant, so that can't be done -- but in terms of justice, it is every bit as valid a conclusion.
8.7.2006 12:49pm
Columbienne:
I think Muller has it wrong to focus on whether the logical inconsistency means the juries erred. The focus here should be on fairness: despite the fact that both verdicts may have been reasonable, it's unfair to treat like cases differently.
8.7.2006 12:56pm
ThirdCircuitLawyer (mail):
Houston Lawyer, Roger,

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.
8.7.2006 12:57pm
ThirdCircuitLawyer (mail):
Columbienne,

Isn't that what you get when you have two juries address the same question?
8.7.2006 12:58pm
JO (mail):
Erasmussimo,

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.
8.7.2006 1:32pm
William Spieler (mail) (www):
How are these verdicts necessarily inconsistent? I don't see how a jury couldn't possibly find mitigating factors for the person who hired the killer, but not for the killer himself.
8.7.2006 1:35pm
Erasmussimo:
JO, good point. The law declares the two crimes equal, but yes, the jury enjoys its discretion. Your point would be especially meritorious if the murder were particularly cruel or heinous in nature. On the other hand, if the murder was not particularly cruel, then your point seems weaker to me.
8.7.2006 1:38pm
John (mail):
I agree with those who see no inconsistency here. The contract killer is more of a threat, for example, as his proclivities suggest he would easily do it again and again. Is the person who arranged for the killer as dangerous? Do we need to penalize that conduct as severely as we penalize the act of murder? I don't see why.
8.7.2006 1:51pm
Anthony A (mail):
JO's point would apply even if it were the same jury trying both defendants.

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.
8.7.2006 1:52pm
Nobody (mail):
Isn't it possible that the two sentences were not inconsistent? Perhaps, for example, the defendant who got life had certain mitigating circumstances that weren't available to the defendant who got death. Even if they had been tried by a single jury at the same time, it's possible these two wouldn't have gotten the same sentences.

(None of which is to indicate that either defendant should get the death penalty--which is an abiding stain on this nation's morality.)
8.7.2006 1:57pm
assembler (mail):
They do indeed address precisely the issue raised above (viz. acquit the hirer, convict the killer), because it, or something close to it, had happened. Getsy was tried first and convicted of murder-for-hire (which was the basis for the death penalty). The alleged hirer, Santine was subsequently tried and convicted of murder, but acquitted of murder-for-hire by hiring Getsy.

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.
8.7.2006 2:00pm
BT:

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?
8.7.2006 2:01pm
Martin Grant (mail):
>Is the person who arranged for the killer as dangerous?

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.
8.7.2006 2:01pm
Bryan DB:
When you read the decision, the results seem plainly inconsistent. Defendant 1 is found guilty of murder for hire, and sentenced to death. Defendant 2 is found not guilty of hiring for murder, and gets life in prison.
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.
8.7.2006 2:26pm
AppSocRes (mail):
A legally-trained friend once informed me that prosecutors of contract murderers inoked a general legal principle: The actual perpetrator of the crime (the one with blood on his hands) is more culpable and should be more severly punished that the initiator of the crime. I tended to believe this because in all prosecutions of contract murder that I've ever encountered the actual murderer did recieve a sentence that was equal to or more severe (but never less severe) than the person who contracted the murderer. Am I wrong about the principle and/or the practice? If not, hasn't the majority opinion in this case ignored precedent?
8.7.2006 2:40pm
Jeremy (mail):
Why is it assumed that the death jury got it wrong but the life jury got it right? Seems to me it's the other way around.

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.
8.7.2006 2:46pm
Colin (mail):
For those several commenters asking if the verdicts can't be read as consistent, the opinion notes that the inconsistency is with the charged facts, not the seriousness of the different offenses. Bryan DB pointed this out, but this might clarify the facts:

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.
8.7.2006 2:47pm
Thorley Winston (mail) (www):
When you read the decision, the results seem plainly inconsistent. Defendant 1 is found guilty of murder for hire, and sentenced to death. Defendant 2 is found not guilty of hiring for murder, and gets life in prison.


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.


More so. The contract killer is just a tool. The person who hires them is the 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.
8.7.2006 2:50pm
DaveN (mail):
As a capital litigator in the Ninth Circuit, I am distressed that the inanity of the Ninth is infecting the Sixth.

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.
8.7.2006 2:51pm
Columbienne:
Columbienne wrote: I think Muller has it wrong to focus on whether the logical inconsistency means the juries erred.

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.
8.7.2006 3:44pm
jgshapiro (mail):
Martin:

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?
8.7.2006 3:59pm
David M. Nieporent (www):
Thus, shutting down this "tool" is more important than deterring an ordinary murderer.
Isn't the real point here that reasonable people can disagree on this point? And as such, the majority's opinion, which seems to be premised in part on the assumption that the wrong party got the death penalty, is flawed in this respect as well.

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.
8.7.2006 4:42pm
Duffy Pratt (mail):

Why is it assumed that the death jury got it wrong but the life jury got it right? Seems to me it's the other way around.


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.
8.7.2006 5:04pm
JO (mail):
Assembler,

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?
8.7.2006 5:14pm
assembler (mail):
JO, that's a fair point. I suppose it is clearly established that arbitrary sentencing in death penalty cases is unconstitutional. The majority I suppose would say that it is "clear" that imposing inconsistent sentences arising out of the very same facts in circumstances where the severer sentence falls on the less culpable person is arbitrary. So a clearly established standard (non-arbitrariness) was clearly violated. That's the argument anyway, though I'd have my doubts about it, but then in a system based on precedent what is clear and what is not clear is often pretty fuzzy!

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?
8.7.2006 6:03pm
Malvolio:
Suppose X is chasing Y down the street, intending, for whatever reason, to kill him. Y rounds a corner and sees notorious thug Z loitering under a streetlight. "Z!" exclaims Y. "X is about to come around that corner. If you kill him, I'll give you $1000." Z quickly agrees and when X arrives, Z shoots him dead.

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.
8.7.2006 7:43pm
karl (mail):
Far from being cert bait this case is fairly bullet proof when it comes to cert. or GVR, especially from a relatively new Court where no one knows how it would come out. The chief reasons for no GVR &/or cert being granted:

(A) Despite what several commentators have stated here, the majority only has to be right on one of the three alternative theories of relief (consistency, comparative proportionality and Furman). In light of a series of concurrence &dissents on cert denials on the consistency arguments in the past decade, especially out of Texas, neither side, the reformers (Stevens, Souter, Ginsburg, Breyer) and the retentionists (now just Scalia &Thomas &perhaps, but just perhaps, the Chief) can be guaranteed a win here and would be unlikely to risk losing.

(B) The relief is also accompanied by a remand on a ground that the trial judge engaged in inappropriate contacts. Which ever faction granted cert would also, presumably believe they have the votes here too which is not guaranteed.

(C) Finally the AEDPA. Arguably this is a case about standards for adjudication under the AEDPA and nothing else. Currently the AEDPA means what ever the majority of the panel or SCOTUS hearing a given case wants it to mean. It is a horribly written piece of legislation that has not been consistently applied by any Court, even the those who have brutally misapplied it, like the Fourth &the Fifth.

(D) Due to the politics on the Sixth Circuit this case may well be heading for rehearing. The reformer wing of the Sixth Circuit is outnumbered by the combination of recent Bush appointees and the fairly vicious "kill'em all wing" of that Court.


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.
8.7.2006 10:57pm
Lucan:
I think Karl above makes some needed points that should be seriously considered. Plus, whether or not you agree with Judge Merritt's views (as expressed in this case or elsewhere), he's undeniably a hardworking and truly brilliant jurist who knows AEDPA inside and out.
8.8.2006 2:30am
Mark P. (mail):
I've been out of the office for a few days, and I come back to find some juvenile baiting by "anonassociate." I'll pass. Too bad you don't even link to your email.

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
8.8.2006 12:08pm