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The Getsy Decision:

Jason Getsy was sentenced to death for his participation in a murder-for-hire. Getsy filed a federal habeas petition challenging his death sentence on various grounds, including the fact that John Santine, the man who hired Getsy, only received a life sentence. Though indicted jointly, Getsy and Santine were tried separately. The jury in Getsy's case found him guilty of the murder-for-hire capital specification, but the jury in Santine's case did not reach the same conclusion. This inconsistency in the two separate jury verdicts, Getsy argued, rendered his death sentence unconstitutonal. In August 2006, a divided panel of the Sixth Circuit agreed. Today, however, the entire court, sitting en banc, rejected Getsy's claim, 8-6. [The en banc court also rejected Getsy's other habeas claims, including allegations of judicial bias and ineffective assistance of counsel at sentencing.]

Judge Gilman, who dissented from the initial panel decision, wrote the majority opinion rejecting Getsy's claims. As Gilman summarized:

At oral argument, Getsy's counsel conceded that Getsy's death sentence was not arbitrary or disproportionate at the time that it was imposed. Instead, 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.

Getsy accurately asserts that the fractured majority holding in Furman has come to stand for the general principle that the arbitrary and disproportionate imposition of the death penalty violates the Eighth Amendment. . . . Proceeding from this abstract principle to the specific conclusion urged by Getsy—-that his sentence was unconstitutionally arbitrary or disproportionate in relation to that of Santine—-necessarily entails at least one of two additional premises: (1) that the Eighth Amendment requires comparative proportionality, or (2) that a rule of consistency applies regarding death-specification verdicts among separately tried coconspirators. These premises, however, have been disclaimed both by this court and by the Supreme Court.

Eighth Amendment proportionality, as defined by the Supreme Court, refers "to an abstract evaluation of the appropriateness of a sentence for a particular crime." Pulley v. Harris, . . . Proportionality as defined by the Supreme Court evaluates a particular defendant's culpability for his crime in relation to the punishment that he has received. . . . In each of these cases, the Supreme Court struck down a death sentence not because it was disproportionate in comparison to sentences received by other, similarly situated defendants, but because of what the Court deemed to be the inappropriateness of the sentence in relation to the particular characteristics of the crime and the criminal at issue. These cases are of no help to Getsy, a competent adult who personally and intentionally committed aggravated murder.

The majority maintains that Getsy cannot establish that his verdict violates clearly established precedent concerning capital sentences, and therefore Getsy cannot meet the standard for habeas relief under AEDPA. Whether Getsy's sentence should be deemed unconstitutionally disproportionate, or violates traditional notions of justice (as the dissent maintained) provide no basis for relief. As Gilman wrote:
This is not to say that the incongruous results from the separate trials of Getsy and Santine are not a matter of concern. We share that 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 hired to carry out the violent act on the other. Nevertheless, we are not empowered to answer this philosophical question by bypassing the limitations that both Congress and the Supreme Court have placed upon our power to grant relief under the circumstances of this case.

Perhaps some day the Supreme Court will hold that a comparison between the culpability of a hired killer and that of his instigator is constitutionally required, and that inconsistent verdicts arising from their separate trials are unconstitutional. But this is not the law of the land today, and was obviously not the "clearly established law" at the time that the Ohio Supreme Court affirmed Getsy's conviction and sentence in 1999. For this reason, as well as the others set forth above, we do not believe that the judgment of the Ohio Supreme Court on the issue of proportionality is contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court.

The primary dissent, written by Judge Merritt, argues that it is fundamentally arbitrary, and therefore unconstitutional, for courts to uphold a capital sentence when the underlying facts produced inconsistent, if not actually contradictory, jury verdicts.
The Ohio state prosecutor, the Ohio Supreme Court, and apparently our Court as well, all concede that the death penalty verdict against Jason Getsy based on a "murder for hire" scheme directly contradicts John Santine's not guilty verdict of the same crime. The crime is indivisible. "Murder for hire" is a conspiracy-type crime requiring a criminal agreement and a confederation between two or more people. Getsy, a teenage boy, was convicted of receiving "murder for hire" money from Santine, and Santine was acquitted of paying the "murder for hire" money to Getsy. Thus the two verdicts are inconsistent and irrational, and the verdict against Getsy should not be allowed to result in his execution.
Not only are the two verdicts inconsistent, the dissent maintains, but "the defendant with the lesser culpability received the harsher sentence -- the death penalty." An obvious rejoinder to this claim is that the juries disagreed, finding Getsy more cuplable than Santine, but the claim is not central to the dissent's argument. Merritt concludes:
we simply adhere to the clearly established, common sense principle of Enmund [v. Florida, 458 U.S. 782 (1982)] that, in a capital case with respect to the very same crime stemming from the very same facts, the Eighth Amendment does not permit the codefendant with less culpability to receive the death penalty when the codefendant with greater culpability receives a lesser sentence. The majority's view is in conflict with the holding of Enmund and allows the less culpable participant in the same criminal episode to receive the death penalty when the more culpable participant receives the lesser sentence.
Judge Martin also wrote a dissent, joined by Judge Merritt, restating his view that "the death penalty in this country is 'arbitrary, biased and so fundamentally flawed at its very core that it is beyond repair.'"

I am hardly an expert on death penalty jurisprudence, but I believe the majority reached the proper legal result. While the dissent's argument has a superficial appeal, I think it proves too much. Among other things, it would be a highly incongruous result were it possible to render a capital sentence unconstitutional years after the fact because of a subsequent jury verdict arising from the same set of facts reached an inconsistent result. Indeed, to accept this rule would be to accept the possibility that any capital sentence involving a multi-participant crime could be subsequently rendered unconstitutionally disproportionate.

I am also inclined to think that the majority's conclusion is a natural consequence of a system that both relies upon jury verdicts and allows capital punishment. The jury right is a guarantee to a jury of one's peers. It is not a guarantee of a "correct" or mechanically reproducible verdict. Not all juries can be expected to reach precisely the same verdicts. Two individuals who appear to have committed equally culpable acts may not receive the same sentence, and two different juries may reach different conclusions about whether such individuals have committed sufficiently heinous acts to justify a capital sentence. What matters is that the process that led to the verdicts was proper, and that the juries properly performed their function.

Where two different juries reach apparently inconsistent verdicts, it may be due to each jury's composition, the effectiveness of the prosecution, or one of many other factors that will vary from case to case and that are an inherent part of our justice system. If such variations are enough to render Getsy's sentence unconstitutional in this case, I see little principled basis for allowing the death penalty in any case. After all, there will always be apparent disparities in who receives a death sentence and who does not. Furthermore, there is no reason to conclude that getsy's verdict was incorrect, rather than Santine's. I have plenty of misgivings about capital punishment as it is practiced in the United States today, but if it is constitutional, it seems to me that it must also be the case that it is constitutional to maintain a system with a certain amount of "arbitrary" variability, as that is something our justice system inevitably produces. Again, this is hardly my area of expertise, so these judgments are tentative, and I will appreciate reading contrary views.

Related Posts (on one page):

  1. The Getsy Decision:
  2. En Banc Sixth Decides Getsy v. Mitchell :
Justin (mail):
All these ifs. You make a great argument against the death penalty, and then refuse to even consider actually seeing where that road goes.
7.26.2007 12:09am
Enoch:
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.

Shoot, we can fix that, give Santine death as well!
7.26.2007 12:15am
PatHMV (mail) (www):
Am I missing something? Capital juries are required to consider mitigating evidence which is inherently personal to the individual defendant. Perhaps one defendant was a life-long thug, while the other had lived an otherwise virtuous life. Or perhaps one had absolutely no excuse for his crime, while the other had a terrifying childhood. How is it inherently inconsistent for a jury charged with considering very individual factors that don't actually relate directly to the crime charged.
7.26.2007 12:25am
Jonathan H. Adler (mail) (www):
Justin --

In evaluating the Sixth Circuit's decision, one must accept the precedents and principles that bind an intermediate appellate court. Like it or not, Supreme Court precedent clearly establishes that capital punishment is constitutional.

PatHMV --

That's a good point, but mitigating evidence was not the source of the disparity in this case. Rather, prior to sentencing, the jury in one case found the capital specification of murder-for-hire, but the jury in the other did not.

JHA
7.26.2007 12:30am
PatHMV (mail) (www):
Ok, I posted that last before reading closely enough. I see that the basic argument is that one was convicted of being hired as a hit man, but the other one was acquitted of hiring him.

But as I look closer at the opinion, maybe I wasn't so off. I don't know the exact death penalty process in that state. The court says that Santine was convicted of aggravated murder but "acquitted of all the capital specifications charged." Is that at a stage where mitigation would be considered, or does it reflect a factual finding solely that the evidence does not support particular aggravating circumstances?

At any rate, as the opinion points out, it's foolish to adopt an "inconsistent results" doctrine for separate trials before different juries. Suppose, for example, that a crucial witness died between the two cases. That might well lead to a different result in the second one because it had different witnesses, not because the same facts presented a different result.
7.26.2007 12:38am
PatHMV (mail) (www):
Thanks, Jonathan... obviously I wrote my just previous post while you were posting your reply.
7.26.2007 12:39am
Justin (mail):
JHA,

That would be all okay if you intended to make a positive argument based on precedent, but, ya know, you didn't. In fact, you don't cite a single case. You are, in my view, needlessly (intentionally?) avoiding the greater normative question.

All you say is that you are okay with arbitrary, because if the death penalty is constitutional, and the death penalty is arbitrary, then arbitrary is okay. But that's not critical, or even interesting, reasoning.

Now, I have no particular problem with this decision apart from the fact that it continues a broken, immoral, and unconstitutional regime. But since I'm not a circuit Judge, that doesn't have to follow precedent that I'm not citing anyway, I can just go out and say that. I don't need to beat around the bush.
7.26.2007 12:46am
TerrencePhilip:

That's a good point, but mitigating evidence was not the source of the disparity in this case. Rather, prior to sentencing, the jury in one case found the capital specification of murder-for-hire, but the jury in the other did not.


Wow- so if the first jury found it proven as to defendant A, and the second jury didn't find it proven as to defendant B, defendant A gets the benefit of that according to the dissent? Incredible. What if the second defendant is acquitted altogether? Or if they are prosecuted by separate sovereigns (such as state/fed, or separate states)?

And why stop at capital cases- why not drag racing, public drunkenness, burglary, armed robbery, and the like?

It seems like some of these judges don't have much of a credible explanation other than "death is different, boo hoo hoo." I can almost hear the NPR commentators cooing over the dissent tomorrow morning.
7.26.2007 1:14am
PatHMV (mail) (www):
Henceforth, the number of unanimous jurors required for a capital punishment shall be determined by the number of codefendants charged in the murder. With 2 defendants, 24 jurors shall be required. With 3 defendants, 36 jurors, and so on.
7.26.2007 1:23am
Just a Nut (mail):
The funny thing is that the Constitution does not create an exception for precedent based repetiton of mistakes. Just because there is a missing precedent to correct or recognize an articulable wrong is not a reason to put a person to death. This is actually prima facie arbitrary. Failure to correct a plain inconsistency makes people suspicious of judicial process in general, and of death penalty in particular.

The problem here as in most jury cases is that, in part, juries are charged to arrive at a sentence in a manner that keeps their reasoning beyond review by pretending that either they do not reason, or that their reasoning is merely fact finding.

The crucial issue of why the juries arrived at their repective sentences is not even being debated. Despite the Simpson fiasco, the legal community has learned to roll its eyes instead of fixing the problem. Indeed, the question is why is a judge, administrative or otherwise, required to provide a reasoned explanation? There is no more of a Constitutional imperitive for generating the opinions we take apart with such glee. Yet juries only provide verdicts with nary a reason to base it on.

The proper method is to review the jury instructions as a matter of law and order a new trial if the instructions are not sufficient to create a record that can be reviewed on appeal. In this case, the weight given to the specific role of the person or to a piece of evidence needs to be remarked on by the jury to allow anyone to understand why the disparate verdicts resulted from the same facts. Indeed, as the facts stand now, there is prima facie evidence of less than beyond a reasonable doubt level of confidence in the fact finding. This is a different scenario than when a jury trial is not possible or if some evidence gets tampered with to make two or more trials dissimilar. Even in those cases, the lack of similarity can be remarked upon by the juries to allow as complete a review as possible. The alternative is a meaningless review that is little more than quibbling over procedure at the expense of substance.

This is not quite as difficult as it is made out to be. Indeed, once reviewability is accepted, it requires that the record be sufficiently complete to allow meaningful appeals. Else, the acceptance of a flawed record injects far more of presumed correctness into the process than what is necessary -- at the cost of the right to an appeal by the losing party.

I think new trials may be needed in quite a few cases to get the procedure down to ensure fairness. This will also allow one to pinpoint when there is inadequate assistance of counsel and when allegations of ineffective assistance of counsel make no sense.
7.26.2007 1:39am
OrinKerr:
Jonathan,

Yes, I think the majority was clearly correct. Different juries in different trials will see different evidence presented by different lawyers before different judges. As far as I can know, there has never been a constitutional requirement of the same results in different trials. If such a rule existed, it presumably would be unconstitutional to retry a defendant after a hung jury: How could it be constitutional to have two trials of the exact same case and reach inconsistent results?

Especially given the AEDPA issues, I'm pretty confident this would have been a 9-0 summary reversal by the Supreme Court if the en banc Sixth Circuit hadn't overturned the panel decision.
7.26.2007 4:11am
zooba:
I think the problem with the dissent's view is that it assumes that the jury is actually finding a fact in deciding whether a person was death penalty eligible. That is incorrect in the context of a criminal case, as they are only finding that the prosecution did not prove it beyond a reasonable doubt. That the prosecution did not do as well as a job in a second case does not mean that the first case's verdict was unconstitutional (unless possibly the difference was intentional and intentionally discriminatory). Second, it's a well acknowledged fact, in both civil and criminal law, that there are sets of evidence where reasonable juries could differ. That's an inherent part of the jury system, and it's hard to argue it's unconstitutional when the right to a jury is a constitutional right.
7.26.2007 4:20am
TruePath (mail) (www):
The argument for revoking his death penalty (would apply even if it wasn't death) is simply that in the face of uncertainty the accused gets the benefit of the doubt. Obviously the optimal policy would be for each case to be heard many times by many different juries and impose the sentence supported by some statistical super-majority of the juries. Of course practical concerns mean this isn't feasible so each person gets one jury trial but in the rare instance this sort of thing happens on it's own why wouldn't we want to use the best evidence we have about his guilt beyond a reasonable doubt?

Even if this isn't a constitutional requirement it might be the correct way for a judge to deal with an eventuality unanticipated by the law until the legislature corrects it.

However, I think there is a good argument that the constitution requires this. After all the constitution does not allow an demonstrably innocent man to be put to death even if he was convicted in a fair trial. So why not evidence that shows his jury verdict may have been an anomaly or inappropriately influenced by irrelevant factors?

I mean doesn't the sort of substantive justice the constitution seems to guarantee us require that all the evidence of a man's guilt or innocence be considered before he is executed? Yet it would be an absurd legal fiction to suppose that this later trial doesn't raise our probability of an error by the first jury.
7.26.2007 6:30am
TruePath (mail) (www):
zooba:

How is finding that someone is 'guilty beyond a reasonable doubt' not a fact? I admit that maybe there is some technical legal sense here I'm not familiar with if so I'm not sure that technical sense is relevant here.

Now of course if the prosecution lost some of the evidence in between the two cases or the prosecution could otherwise show that the second jury had less (rather than more) information to go on I think that would be a good justification for keeping the sentence in place.
7.26.2007 6:34am
martinned (mail) (www):
L.S.,

Why not decide that, by trying them separately, the prosecutors/the courts willingly and knowingly took the risk of this outcome, and that the arbitrariness lies in that? I.e. require a single trial in such circumstances.
7.26.2007 7:58am
David M. Nieporent (www):
Just because there is a missing precedent to correct or recognize an articulable wrong is not a reason to put a person to death.
True. The fact that the person attempted to murder someone for hire, and murdered a witness in the course of that attempt, is the reason to put that person to death.

Let's not forget the little fact about what Getsy actually did while Justin tries to distract us by invoking the super double secret I-don't-like-capital-punishment clause of the Constitution. It's a lovely catch-22 that the anti-death penalty crowd tries to create: it must be imposed on a case-by-case basis; any automatic death penalty is unconstitutional. But it can't be imposed on a case-by-case basis, because then it's "arbitrary."

TruePath:
How is finding that someone is 'guilty beyond a reasonable doubt' not a fact?
I think Zooba's point is the opposite: finding that someone is not guilty b.a.r.d. is not a fact. It's legal innocence, but it's not factual innoence; it's not the same thing as saying "He didn't do it." (That's why, e.g., there's no inconsistency between the verdicts in the civil and criminal OJ cases. The first jury didn't find that OJ didn't kill; they merely didn't find it proven b.a.r.d.)
7.26.2007 8:28am
Justin (mail):
David,

You can be as sneering and obnoxious as you want. It's not a super secret that I think the death penalty is unconstitutional.

FWIW, if I was a circuit judge in this case, I would have concurred, noting that I think this is good evidence that the Supreme Court needs to rethink the very constitutionality of the death penalty.
7.26.2007 11:01am
Dave N (mail):
The majority clearly got it right--and death penalty foes like Justin should be glad that the en banc court corrected an error the Supreme Court would have corrected by a 9-0 vote--with another published opinion on the constitutionality of the death penalty. After Kansas v. Marsh I am sure Justice Scalia would take the opportunity to again criticize the arguments of those opposed to capital punishment.

I appreciate Justin's intellectual honesty--that were he a judge he would concur but express his reservations about the death penalty. That is is certainly more than what the original panel or the six dissenting judges did in this case.

Finally, as I said on the other thread on this topic, 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.
7.26.2007 12:39pm
David M. Nieporent (www):
You can be as sneering and obnoxious as you want. It's not a super secret that I think the death penalty is unconstitutional.
No; you make that obvious. What's super secret is the 9 3/4th Amendment you rely upon for that bizarre legal conclusion.
7.26.2007 3:59pm