Judge Merritt's Puzzling Dissent in Getsy v. Mitchell:
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.