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En Banc Sixth Decides Getsy v. Mitchell :

Today the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, overturned a prior panel decision in Getsy v. Mitchell that Jason Getsy's death sentence was unconstitutionally arbitrary under the Eighth Amendment because the jury verdict in his case could not be reconciled with the verdict of another jury in the trial of another defendant who was involved in the same crimes. the vote was 8-6, with the court dividing on fairly predictable ideological lines. I commented on the initial decision here. Orin and Eric Muller also had thoughts on the case.

As a matter of law, I am inclined to think that the majority reached the correct result, but I want to give it more thought after I've had time to digest the opinion. I hope to have more to say about this case later today.

In the interests of full disclosure, I should also note that one of my colleagues argued the case on Jason Getsy's behalf, and I participated in a moot court to help prepare him for argument.

Related Posts (on one page):

  1. The Getsy Decision:
  2. En Banc Sixth Decides Getsy v. Mitchell :
Dave N (mail):
As the en banc court noted:

Getsy contends that his sentence became
unconstitutional only later when a different jury sentenced Santine to life imprisonment for his role
in the same offenses. According to Getsy, Furman v. Georgia, 408 U.S. 238 (1972), Gregg v.
Georgia
, 428 U.S. 153 (1976), and their progeny establish a duty on the part of the Ohio Supreme
Court to "correct this arbitrary and capricious sentence." This argument, in our opinion, advocates
a novel constitutional rule that Supreme Court precedent simply does not support, let alone dictate.

The majority is quite persuasive that the panel decision itself was contrary to prior Supreme Court precedent on the subject--specifically Pulley v. Harris, 465 U.S. 37, 42-43 (1984).

I also thought that while it was a bit snarky, the majority also gets it right in addressing the main dissent by Judge Merritt:
The dissent's references to Aristotle, Sir Francis Bacon, Sir Edward Coke, and English cases
beginning in the year 1599 strike us as quite scholarly, even if only marginally relevant. Obviously
the controlling law is that of the United States Supreme Court, not the King's Bench. What the
dissent's historical exposition fails to cite is even a single instance in which the Supreme Court or
any federal court has ever reversed one defendant's sentence or conviction based on another
defendant's later acquittal by a separate jury. The dissent does not, because it cannot, explain how
such a supposedly well-established rule has remained hidden within this country's federal
jurisprudence for so long a time.

Reasonable minds can, and perhaps should, debate whether Getsy might be entitled to some sort of clemency because of the disparate sentences--but an appellate court in habeas corpus revierw is not the forum for that.

On a final, minor note, I hope that the Court corrects at least one fairly blatant spelling error in a cited case. The case is McCleskey v. Kemp not McKleskey v. Kemp (opinion p. 7).
7.25.2007 12:07pm
BandarBush (mail):
Law student here interested in appellate advocacy. After law school, you still moot people to prepare for oral argument? I thought attorneys wouldn't have the time to moot colleagues to prepare for oral argument. That's comforting to hear.
7.25.2007 12:07pm
Dave N (mail):
I am reposting both block quotes from the Sixth Circuit for ease of reading (a formatting error caused by "cutting and pasting" directly from the PDF decision into the VC--I corrected it by pasting first into Microsoft Word)

According to Getsy, Furman v. Georgia, 408 U.S. 238 (1972), Gregg v.Georgia, 428 U.S. 153 (1976), and their progeny establish a duty on the part of the Ohio Supreme Court to "correct this arbitrary and capricious sentence." This argument, in our opinion, advocatesa novel constitutional rule that Supreme Court precedent simply does not support, let alone dictate.


The dissent's references to Aristotle, Sir Francis Bacon, Sir Edward Coke, and English cases beginning in the year 1599 strike us as quite scholarly, even if only marginally relevant. Obviously the controlling law is that of the United States Supreme Court, not the King's Bench. What the dissent's historical exposition fails to cite is even a single instance in which the Supreme Court or any federal court has ever reversed one defendant's sentence or conviction based on another defendant's later acquittal by a separate jury. The dissent does not, because it cannot, explain how such a supposedly well-established rule has remained hidden within this country's federal jurisprudence for so long a time.
7.25.2007 12:17pm
Dave N (mail):
BandarBush,

Moot courts are invaluable. In my office, they are mandatory prior to oral arguments in all appellate courts. Personally, I enjoy playing Judge in moot courts. My theory is that I want the moot court to be so strenuous that the appellate advocate leaves the REAL oral argument thinking, "That wasn't as tough as I was expecting."
7.25.2007 12:20pm
Kenvee:
BandarBush,

We do moots for important arguments. (I'm in a prosecutor's office.) Not all of them, but if it's a particularly important issue or if it's in one of the high courts, we generally will. If it's an attorney's first argument we always do. It's a nice opportunity to prepare.
7.25.2007 12:21pm
Perry Dane:
Dave N writes:

I also thought that while it was a bit snarky, the majority also gets it right in addressing the main dissent by Judge Merritt:

The dissent's references to Aristotle, Sir Francis Bacon, Sir Edward Coke, and English cases beginning in the year 1599 strike us as quite scholarly, even if only marginally relevant. Obviously the controlling law is that of the United States Supreme Court, not the King's Bench. What the dissent's historical exposition fails to cite is even a single instance in which the Supreme Court or any federal court has ever reversed one defendant's sentence or conviction based on another defendant's later acquittal by a separate jury. The dissent does not, because it cannot, explain how such a supposedly well-established rule has remained hidden within this country's federal jurisprudence for so long a time.

Whatever the merits of the arguments (and on that the majority might well be right), this particular comment is more than just snarky -- it reveals a profoundly disturbing brand of positivist anti-intellectualism that has crept into some recent judicial writing. Would the great judges of the past, whether "liberal" or "conservative," have been this snide about an effort, convincing or not, to invoke the jurisprudential roots of our constitutional tradition in a discussion of a difficult question of current law?
7.25.2007 2:03pm
Eric Muller (www):
Orin, I've just spent a bit of time looking to see how it came to be that Getsy and Santine were tried separately. Do you know (or would your colleague)? I ask because if Getsy and Santine were indicted together and Getsy moved for (and was granted) a severance of his trial from Santine's, then I would be *deeply* unmoved (even more than I currently am) by Getsy's argument that he should benefit from the apparent inconsistency in the verdicts at the separate trials.
7.25.2007 2:09pm
Eric Muller (www):
Whoops, I wrote "Orin" but meant "Jonathan". Sorry 'bout that!
7.25.2007 2:09pm
L (mail):
To attempt an answer to Eric Muller's question: my recollection from reading the opinions the first time around -- either the panel opinion, the dissent, or the state court decision -- is that Santine (not Getsy) moved for a change of venue based on publicity. I'm sorry that I don't have a citation for that, and am happy to be proved wrong if someone else points to a contrary story.
7.25.2007 2:26pm
JWR (mail):
Regarding the majority's "snarky" comment on the use of Aristotle, Bacon, etc.:

Under AEDPA, the legal standard in this case is whether the Ohio Supreme Court's decision was contrary to clearly established U.S. Supreme Court precedent. Not whether the constitution, best interpreted, mandates a different result, and not whether the jurisprudential roots of our common law mandate (or even support) a different result.

Many folks do not like the AEDPA standard, but it's clearly the one that must be applied (unless one would like to argue that the standard itself is unconstitutional, something the dissent does not do).

Under that standard, the majority's statement that these sources are "only marginally relevant" is not a "profoundly disturbing brand of positivist anti-intellectualism." It is simply a correct statement of what the AEDPA standard of review renders relevant (clearly established precedent of the US Supreme Court) versus only marginally relevant (the general roots of American jurisprudence).

Direct your ire at Congress for enacting AEDPA, not the majority for following it.
7.25.2007 3:30pm
Perry Dane:
JWR writes:

Regarding the majority's "snarky" comment on the use of Aristotle, Bacon, etc.:

Under AEDPA, the legal standard in this case is whether the Ohio Supreme Court's decision was contrary to clearly established U.S. Supreme Court precedent. Not whether the constitution, best interpreted, mandates a different result, and not whether the jurisprudential roots of our common law mandate (or even support) a different result.

* * * [The] majority's statement that these sources are "only marginally relevant" is not a "profoundly disturbing brand of positivist anti-intellectualism." It is simply a correct statement of what the AEDPA standard of review renders relevant (clearly established precedent of the US Supreme Court) versus only marginally relevant (the general roots of American jurisprudence).



Point well taken, except that the dissent was clearly relying on Aristotle and the ancient principles of Anglo-American law, not to substitute for an analysis of clearly established US Supreme Court precedent, but to explain and contextualize what it viewed as clearly established US Supreme Court precedent. Again, I have no view on whether the majority or the dissent was right on the law. But, even under AEDPA, it seems to me that the inquiry into what is "clearly established precedent" requires more than a purely mechanical perusal of headnotes, and should be capable of being illuminated by looking at the legal traditions and principles in which particular cases are embedded.
7.25.2007 4:57pm
Jonathan H. Adler (mail) (www):
Eric --

According to the primary dissent "Getsy and Santine were indicted jointly but severed for trial." The dissent further says this has become a customary practice in capital cases because the bifurcation of capital of capital trials in to guilt phases and penalty phases induces trial courts to "grant a severance and try defendants separately rather than jointly."

JHA
7.25.2007 10:38pm