Last week the U.S. Court of Appeals for the Sixth Circuit issued another divided opinion in an death penalty case, Getsy v. Mitchell. Writing for the panel majority, Senior Judge Gilbert Merritt held that Jason Getsy's death sentence was unconstitutionally arbitrary under the Eighth Amendment "because like crimes are not being punished alike in the very same case." Explained Judge Merritt:

This is a contract murder case with irreconcilable jury verdicts leading one defendant to be sentenced to death and another — the defendant who initiated, contracted for, and paid for the murder — to be sentenced to life imprisonment.

If a jury in one trial did not find the alleged murder-for-hire scheme was a sufficiently aggravating circumstance to justify executing John Santine, the panel reasoned, a second jury could not reasonably find that it was a sufficiently aggravating circumstance to justify executing Getsy.

sentencing Getsy to death, while the arguably more culpable Santine received a life sentence for the very same crime, violates the Eighth Amendment, as construed by the Supreme Court in Furman and Enmund, and its prohibition of arbitrary and disproportionate death sentences.

Judge Karen Nelson Moore joined Judge Merritt's decision. Judge Ronald Lee Gilman dissented.

In setting aside the death sentence imposed upon Jason Gesty for the murder of Ann Serafino, the majority today reaches beyond the arguments advanced by Getsy and announces a new rule of constitutional law. The majority holds that the Eighth Amendment and the common-law rule of consistency require us to invalidate Getsy's death sentence because a different jury failed to find the murder-for-hire specification at the later trial of the man who enlisted Getsy as the hired killer. In other words, because John Santine did not receive the death penalty, neither can Getsy.

Judge Gilman shared some of the concerns that motivated the majority opinion, but he rejected their reasoning as a matter of law.

Both the majority and the Ohio Supreme Court have expressed concern over the seemingly incongruous results from the separate trials of Getsy and Santine. I share their 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 who he hired to carry out the violent act on the other. Nevertheless, I do not believe that I am empowered to answer this philosophical question by bypassing the limitations that both Congress and the Supreme Court have placed upon this court's power to grant relief under the circumstances of this case.

Eric Muller and Orin Kerr both think the panel majority got it wrong. As Muller explains:

While it is admittedly uncomfortable — especially in a death penalty case — to see two different juries reach inconsistent conclusions on similar evidence about the same episode, I don't believe that there's any reason to see legal error of any kind in the second jury's verdict. When a single jury reaches logically inconsistent verdicts in a single case, we can be certain from the verdict itself that the jury has somehow erred (in the sense, at least, of not following its instructions), and . . . the legal system ought to do something about inconsistent convictions in this setting (rather than just letting them stand, as the law now does). But when two juries reach logically inconsistent verdicts in separate trials, those verdicts supply no evidence that either jury has erred — let alone that the erring jury was "harsher" one.

I also would concur with Orin's assessment that this opinion is unlikely to be the last we hear of this case.

[Note: One of the attorneys for petitioner-appellant Jason Getsy is a colleague of mine at Case, but we have never discussed the particulars of this case -- and he knows far more about death penalty litigation than I ever will.]

UPDATE: As some of my previous posts on divisions within the Sixth Circuit have prompted heated comment threads, I encourage all to keep their comments civil and substantive. I believe it is possible to analyze and debate the merits of the judges' respective positions without descending into vitriolic and ad hominem attacks on the judges or other commenters.