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.