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.