Eric Muller points out a quite puzzling Sixth Circuit capital case involving a murder for hire, Getsy v. Mitchell. I suspect that last week’s opinion in the case won’t be the last.
Basic run-down of the case: A allegedly hires B, C, and D to kill V. C and D plead guilty and get life. A and B are tried separately before different juries. B is convicted and is sentenced to death when the jury finds that he was part of the murder-for-hire scheme. The jury that hears A‘s case finds that A was involved in the murder, but isn’t sufficiently persuaded that A actually hired B. The jury therefore finds A guilty of murder, but not capital murder, and A is sentenced to life in prison. In an opinion by Judge Merritt joined by Judge Moore, the Sixth Circuit agreed with B‘s argument that it was unconstitutionally arbitrary for B to get the death penalty unless A got the death penalty, too. If I’m not mistaken, the thinking is that the jury that heard A‘s case violated B‘s constitutional rights by not sentencing A to death.** Because A wasn’t sentenced to death, B‘s death sentence is unconstitutional.
This seeems pretty clearly incorrect to me, at least based on the decisions of the U.S. Supreme Court and AEDPA’s standard of review, for essentially the reasons pointed out in Judge Gilman’s dissent. If I had to guess, I would guess that this case will be a strong candidate for a summary reversal by the Supreme Court — if it’s not revisted first by the Sixth Circuit en banc.
Hat tip: Eric Muller, who also has his own thoughts on the case.
**Some might say that this rationale underlies Furman, but I don’t think that’s right. In Furman, the Court concluded that the death penalty was imposed in such an unreliable and arbitrary way that it was unconstitutional absent procedural protections. Uneven results in a range of cases demonstrated the unreliability of Furman’s conviction. But here the Sixth Circuit isn’t saying that either or both of the two different juries were acting irrationally or arbitrarily, or that the relevant legal standard was too arbitrary. Rather, the court seems to be saying that the fact that the two different juries did not reach the same result – for whatever reason, whether rationally or not — makes the more severe sentence unconstitutional. This seems quite different from Furman.
Professor — I don’t think the underlying thinking is that A’s sentencing jury violated B’s rights, it is that the appellate court violated its duty to guard against arbitrariness in the state’s death role (a role noted in Gregg as substantially eliminating the risk of being sentenced to die by an “aberrant” jury).
[OK Comments: I don't think I understand this theory. Who violated the defendant's constitutional rights, and when were those rights violated?]
Two questions come to mind — (1) Where was it stated that there the jury was not convinced sufficiently that A hired B. Obviously, that type of direct finding by a jury would significantly impact the persuasiveness of the majority’s opinion (setting aside the new law-Teague/AEDPA issue). Indeed, the sections quoted from the Ohio Supreme Court opinion certainly imply that the appellate court on direct review thought that A’s role was plain.
(2) Does anyone know whether B had the opportunity to argue to the jury that A,C and D were all receiving less-than-death sentences? Or that the jury heard that another jury found that A’s role as hirer did not warrant a death sentence? The inability to introduce evidence of non-capital sentences on the same facts would logically lead to the arbitrary inconsistency found by the panel.
[OK Comments: "Logically" in what sense? I'm not sure I follow.]
Pingback: The Volokh Conspiracy
Orin, I don’t necessarily disagree with your assessment of Getsy, but I’m a little puzzled by your account of Furman.
You say that in Furman, “the Court concluded that the death penalty was imposed in such an unreliable and arbitrary way that it was unconstitutional absent procedural protections. Uneven results in a range of cases demonstrated the unreliability of Furman’s conviction.” But as you know, there really was no opinion of the Court in Furman — just a short paragraph announcing the Court’s judgment. Beyond that, each of the nine Justices filed a separate opinion. The five Justices comprising the majority relied on some rather different (and, in some instances, nearly mutually exclusive) reasons for finding Furman’s punishment unconstitutional.
So this leaves me a little uncertain about what you’re referring to when you say that “the Court” invalidated Furman’s sentence because “[u]neven results in a range of cases demonstrated the unreliability of Furman’s conviction.” Is this based on your reading of the opinion among the five concurrences that you find most persuasive? On your calculation of the narrowest ground uniting the opinions? On the Gregg Court’s later treatment of Furman? Each of those bases might or might not be legitimate, but it’s not my aim to contest them here. I’m just struggling to figure out what you’re talking about when you refer to the reasons behind the Furman decision.
[OK Comments: Trevor, you're quite right. I was really thinking of how the Gregg Court interpreted Furman.]
There are multiple grounds for reversal and/or remand in the opinion, including ex parte contacts between the judge & prosecutor. In light of the multiple issues I would be surprised to see a GVR here, however, I suspect a rehearing en banc is not out of the question.
[OK Comments: Karl, why would the multiple issues keep the court from reversing? While it may be right that the Sixth Circuit will come up with other grounds for stopping the execution in a future decision, I would think that the issue is pretty cleanly presented at this stage. Also, my sense is that the court would reverse, not GVR.]
Two points. In response to David’s question (2), check the Ohio Supreme Court’s decision, 702 N.E.2d 866, 892 (1998). The Court explains there that the attorney of C (or D) testified during the penalty phase at Getsy’s trial and informed the jury that “his client had been charged with the same crimes as Getsy but had been allowed to plead guilty in a plea bargain that allowed him to be eligible for parole in thirty-six and a half years.” The cited page also indicates that the hirer (“A”) was tried after Getsy, meaning that the jury could not have known of the verdict in that separate trial.
Second, Karl’s post, and Prof. Kerr’s response, give reason to believe that en banc review is the better vehicle for resolving the case. The Sixth Circuit left various challenges to the death sentence undecided (page 18 of the opinion), and the Supreme Court almost never addresses issues that the lower court has not passed on. So, the only way that the case could be resolved in one fell swoop is during an en banc review. Whether that will happen, of course, remains to be seen.
[OK Comments: LT, the Supreme Court wouldn't have to address the issues that the lower court has not passed on. Rather, the court would reverse and remand for further proceedings, as it usually does in such cases.]
I agree with the assessments of everyone who considers it an all-but forgone conclusion that this opinion and judgment will be withdrawn en banc or reversed in some fashion by the Supremes. When I initially read the first 2 pages of the opinion in this case, my face actually contorted as I considered the “parade of horribles” if the same or analogous logic were applied to other Felony Murder or Pinkerton Doctrine-flavored cases. The panel majority’s decision suggests that there is some basis for constraining the sentencing discretion of the jury and court beyond that provided for. Of course, the Ohio legislature has already constrained the discretion in light of Furman and Gregg and the like, and the Court is thus saying that this is somehow not enough in this case. As OK points out, what this basis is eludes us somewhat. If it truly is the sentence of the other related offender with which the defendant’s sentence is “arbitrarily” inconsistent, Judge Merritt probably does favor the rationale of Furman suggested by Gregg; thereby, he must, however, ignore the “individualized determination” line of authority that has developed in the past 25 years. After all, the court is not saying the defendant’s conduct does not make him death-eligible on some individualized basis; it is saying he’s not eligible in this case–regardless of what he did or who he is–because of the verdict in another case involving an entirely different individual.
[Edited by OK]
Following up on the questions to my first post — I don’t think the Getsy majority opinion can fairly be read to say that A’s jury violated B’s rights as implied in the post. Rather, the 8A right in question was the right to have the appellate court properly review the sentence for arbitrariness or disproportionality, esp. in light of the less-than-death verdict for the hirer. As the Getsy majority points out, Supreme Court cases after Gregg make it clear that a state does not have to undertake a systematic review (in the way that some states actually do, such as New Jersey) of all murder cases, but the underlying 8A right set forth in Gregg to this type of appellate review by a court of statewide jurisdiction still exists as far as I know.
[OK Comments: David, to ask again, who violated the defendant's rights, and when were they violated? Is your view that it is cruel and unusual punishment for an appellate court to affirm a conviction if it finds no error from thetrial?]
As for “logically”, I merely meant that a sentencing jury otherwise unaware of the fact that all other culpable parties did not receive the death sentence logically would not have all the facts in weighing the mitigating and aggravating factors (especially as Ohio explicitly permits introduction of evidence in mitigation of any factor “relevant to the issue of whether the offender should be sentenced to death.”) In other words, the fact that B’s jury did not have access to all the evidence relevant to the sentence determination logically could explain why that jury returned a sentence for B disproportionate to that received by A.
[OK Comments: But when does the jury ever hear this sort of evidence? I don't think I have ever heard off such a case.]
LT — thanks for the cite to what was given to the jury and what was not. And I note that it cites to Parker v. Dugger for the proposition that co-defendant sentences are mitigating factors that can be offered to the jury, so presumably such verdicts are offered in mitigation from time to time.
Professor — I guess I was not being clear, but my understanding of the Getsy majority is that the state appellate court violated B’s 8A rights when it issued its decision in 1998 affirming the death sentence by holding that B’s death sentence was not disproportionate despite A, C and D all receiving sentences of less than death.
And, yes it is my view that under current caselaw, it would violate the 8A (as set forth in Furman, Gregg, etc.) for an appellate court to affirm a death sentence despite the lack of any error at trial _if_ the sentence was disproportionate. Obviously, I haven’t reviewed the facts closely enough to evalutate whether it would be disproportionate, but absent some unusual or powerful mitigating factor proffered by A in this case I can certainly understand the argument that B’s death sentence is so disproportionate to A’s that it violates the 8A. (As I mentioned in my initial post, this sets aside any of the AEDPA/Teague issues that may exist in the Getsy case itself.)