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.