Getsy v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0273p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant, -

JASON GETSY,

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No. 03-3200

v.

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BETTY MITCHELL, Warden, -

Respondent-Appellee. -

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 01-00380—Dan A. Polster, District Judge.

Argued: December 6, 2005

Decided and Filed: August 2, 2006

Before: MERRITT, MOORE, and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: Michael J. Benza, Cleveland, Ohio, for Appellant. Daniel R. Ranke, OFFICE OF THE

ATTORNEY GENERAL, CAPITAL CRIMES SECTION, Cleveland, Ohio, for Appellee.

ON BRIEF: Michael J. Benza, Cleveland, Ohio, David C. Stebbins, Columbus, Ohio, for

Appellant. Daniel R. Ranke, OFFICE OF THE ATTORNEY GENERAL, CAPITAL CRIMES

SECTION, Cleveland, Ohio, for Appellee.

MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. GILMAN,

J. (pp. 21-35), delivered a separate dissenting opinion.

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OPINION

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MERRITT, Circuit Judge. We hold that the death sentence in this case violates the Eighth

Amendment “arbitrariness” standard outlined in Furman v. Georgia, 408 U.S. 238 (1972), which

prohibits random, disproportionate capital sentences, as well as the proportionality requirement of

Enmund v. Florida, 458 U.S. 782 (1982), and the due process, inconsistent verdict prohibition of

Morrison v. California, 291 U.S. 82 (1934).

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. Four defendants, Jason Getsy, Richard McNulty, Ben

Hudach, and John Santine, were charged with committing the murder of Ann Serafino and the

1

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attempted murder of Charles (“Chuckie”) Serafino “for hire.” Santine was charged with hiring the

other three defendants to kill Chuckie Serafino, a business rival. Santine was sentenced to life

imprisonment when a jury found him guilty of aggravated murder but not guilty of hiring Getsy to

commit the murder. McNulty and Hudach were sentenced to life imprisonment after they were

allowed to plead guilty. A jury found only nineteen-year-old Getsy guilty of the crime of murder

for hire initiated by Santine and sentenced him to death. The Supreme Court of Ohio allowed

Getsy’s death sentence to stand, but expressed its dismay about the disproportionate nature of these

inconsistent results:

That Hudach received a lesser penalty than Getsy is not surprising -- Hudach did not

enter the Serafino home. McNulty did, and he shot one of the victims; nevertheless,

he was offered a plea bargain, Getsy was not. Furthermore, McNulty did not testify

against Getsy; therefore, McNulty’s case was not a case of the state’s needing to

secure testimony to obtain a conviction on a more culpable person.

It is also troubling that Santine did not receive the death sentence even though he

initiated the crime. If not for John Santine, it is unlikely the Serafinos would have

been shot.

State v. Getsy, 702 N.E.2d 866, 892 (Ohio 1998). We agree with the Ohio Supreme Court’s

suggestion that Santine is probably more -- certainly no less -- culpable than Getsy, the young boy

he hired, but we do not agree that the death verdict can stand. As explained below, the death

sentence violates Furman, Enmund, and Morrison because like crimes are not being punished alike

in the very same case and because of the inconsistent jury verdicts in this case. We also remand the

case to the district court for an evidentiary hearing on Getsy’s claim of judicial bias in his case.

I. Background

The facts of this case, set forth below, are excerpted from State v. Getsy, 702 N.E.2d 866,

873-75 (Ohio 1998):

Charles (“Chuckie”) Serafino lived with his mother, Ann Serafino. On the evening

of July 6, 1995, Ann went to bed at approximately 11:00 p.m. Chuckie was on the

love seat in the family room when, sometime after 1:00 a.m. on July 7, he heard a

loud explosion. Shells from a shotgun blasted out the sliding glass door behind him

and wounded him in the arm. As he ran for the bathroom to inspect his injuries, Ann

came out of her bedroom. Chuckie remembered hearing his mother say to someone,

“What are you doing here? Get out of here.” He also remembered hearing someone

say, “Shoot the bitch,” or “Kill the bitch.” Serafino next recalled seeing a gun in his

face and being shot again. He fell to the bathroom floor and pretended to be dead.

After the intruders left, he called 911. . . .

Earlier in the year, [John] Santine had attempted to purchase a portion of Chuckie

Serafino’s lawn-care business and had deposited $2,500 in the business’s account.

Subsequently, Chuckie violated probation and was incarcerated in the Trumbull

County Jail until July 6, 1995. While Chuckie was in jail, Santine attempted to take

over Chuckie’s business. Santine transferred Chuckie’s building lease and

equipment into his own name, which caused an altercation between Santine and Ann

Serafino and Chuckie’s sister. The Serafinos filed a civil action against Santine

while Chuckie was still in jail.

[After the shootings, Officer] Forgacs [of the city of Hubbard Police Department]

searched for Santine’s car because of a conversation he had had on June 20, 1995

with Richard McNulty. McNulty, who lived at 24 ½ South Main and who is a co-

No. 03-3200 Getsy v. Mitchell Page 3

defendant, had previously served as a police informant. On June 20, Forgacs asked

McNulty, who worked for Santine, “What does Johnny have in store for Chuckie

when he gets out of jail?” McNulty told Forgacs, “He’s dead. He’s bought and paid

for.” McNulty told Forgacs that Santine had lined up a hit man, Tony Antone, to kill

Chuckie Serafino. Forgacs gave little credence to McNulty’s statements, and didn’t

inform Chuckie or follow up on the information. . . .

Initially, McNulty minimized his involvement and denied that he had told Forgacs

about the contract on Chuckie. Based on other information obtained from McNulty,

Begeot obtained an arrest warrant for Getsy. At approximately 10:00 p.m. on July 7,

1995, Getsy was arrested in the driveway of 24 ½ South Main. He was given

Miranda warnings at the scene and later at the Hubbard Township Police

Department. At approximately 1:00 a.m., on July 8, 1995, Getsy gave a videotaped

interview.

Getsy told Begeot that Ben Hudach called him on the evening of July 6, 1995, and

told him to come to 24 ½ South Main Street. When Getsy got there, Hudach, a co-

defendant, told Getsy that they (Getsy, Hudach, and McNulty) had to “take out some

guy.” Santine was not present, but Hudach related what Santine had told him earlier.

Money had been discussed, but Hudach was not sure of the amount. Getsy later

indicated that he participated in the shootings because he was scared of Santine, but

did not do it for the money.

Sometime on July 6, 1995, Getsy, Hudach, and McNulty drove to the Serafino

residence. They could not find a place to park so they returned to 24 ½ South Main

Street. When they returned, Santine was at the apartment and drove them back to the

Serafino house. Getsy described the guns that they took with them, which included

a shotgun, a SKS rifle, and a .357 magnum handgun.

Getsy explained that after Santine dropped them off, Hudach sprained his ankle and

went back to where they were supposed to be picked up. Getsy stated, “[T]hat left

me and Rick to get it done.” He admitted that what they were supposed to do was

kill Chuckie Serafino.

Getsy explained that he and McNulty fired simultaneously through the sliding glass

door on the back of the Serafino house. They entered the house through the shattered

door and shot at Chuckie as he was running down the hall. When they saw Ann

Serafino, Getsy stated, they “just kept shooting.”

During the interview with Begeot, Getsy was reluctant to mention Santine’s name.

He told Begeot that the same thing that happened last night could happen to him. He

asked whether Santine would ever see the interview tape. Begeot assured Getsy that

Santine would not be able to get to him. Getsy also asked Begeot if he was going to

die, and Begeot told him, “No.”

Getsy admitted that he had the SKS rifle and the handgun during the shootings. He

explained that when he was shooting the SKS, the clip fell out so he had to pull out

the handgun. . . .

After the shootings, Hudach called Santine to tell him it was finished and to pick

them up. Santine told Hudach that there were cops everywhere and that they should

run through the woods to get back to the apartment. Santine also told Hudach to

ditch the guns in the woods.

No. 03-3200 Getsy v. Mitchell Page 4

Getsy, McNulty, and Hudach arrived back at 24 ½ South Main, where Josh Koch and

Santine were waiting for them. Santine ordered them to take off their clothes and

take a bath. Getsy was the last to bathe. When he came out of the bathroom, his

clothes and boots were gone. He did not know what happened to them.

Koch testified that he was at 24 ½ South Main Street on July 6 and 7, 1995. He

knew that Getsy, McNulty, and Hudach were going out to do something for Santine,

but they declined to give him any details. He was to watch TV and write down the

shows that were on so the other three could memorize the list for an alibi.

After Getsy, McNulty, and Hudach left, Koch waited in the apartment. Santine came

to the apartment and, sometime around 1:00 a.m., jumped up and said, “I heard the

gunshots.” Immediately thereafter, the telephone rang and Koch heard Santine

talking to someone in a fast, excited manner. Santine said, “So you killed them,

right, you killed them both? . . . Okay. Well, I can't come pick you up. The cops are

everywhere, they are pulling over everybody, you got to run through the woods and

ditch the guns.” Santine hung up and happily screamed, “I fucking love these guys.”

According to Koch, Santine was very pleased with the three men. He said, “You

guys want $10,000? I'll give you $10,000.” McNulty told him he just wanted a

wedding ring for his girlfriend. Hudach said that it had been a favor for Santine.

Getsy indicated that he needed money for his car.

The next day, Koch heard Getsy bragging to Patricia Lawson about shooting Ann

Serafino. Getsy grabbed a piece of pizza with no cheese on it and said, “This looks

just like this bitch’s face after we shot her.”

Based on these facts, the Trumbull County Grand Jury returned a five-count indictment

against Getsy on July 17, 1995. The indictment charged Getsy with the aggravated murder of Ann

Serafino with prior calculation and design in violation of Ohio Rev. Code Ann. § 2903.01(A). That

count included three death penalty specifications: (1) the aggravated murder was committed in

conjunction with the purposeful killing of or attempt to kill two or more persons, Ohio Rev. Code

Ann. § 2929.04(A)(5); (2) murder for hire, Ohio Rev. Code Ann. § 2929.04(A)(2); and (3) felony

murder, Ohio Rev. Code Ann. § 2929.04(A)(7). On August 5, 1996, Getsy proceeded to a jury trial

before the Trumbull County Court of Common Pleas. The jury returned verdicts finding Getsy

guilty on all counts and specifications; thereafter, the prosecution dismissed the conspiracy count.

Following a mitigation hearing under Ohio Rev. Code Ann. §§ 2929.022(A), 2929.03, and on

September 10, 1996, the jury recommended that the death penalty be imposed on Getsy. Two days

later, the trial court accepted the jury’s recommendation and imposed a death sentence for the charge

of aggravated murder. The defendant appealed to the Ohio Supreme Court, which affirmed his

conviction and sentence. State v. Getsy, 702 N.E.2d 866, 893 (Ohio 1998).

Getsy filed a petition pursuant to 28 U.S.C. § 2254 in February 2001 after exhausting his

state remedies. Getsy raised twenty-one claims of error, two of which the district court dismissed

as procedurally defaulted. The district court determined that Getsy’s remaining claims were without

merit and dismissed the petition. Getsy now appeals from the district court’s order dismissing his

habeas corpus petition.

II. Standard of Review

In determining whether to issue a writ of habeas corpus, the provisions of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA) govern our review of a state court judgment.

28 U.S.C. § 2241, amended by Pub. L. No. 109-163, § 373, 119 Stat. 3136 (2006). Pursuant to

AEDPA, an Article III court can grant the writ of habeas corpus where the state court judgment was

No. 03-3200 Getsy v. Mitchell Page 5

“contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

The Supreme Court has defined “clearly established law” as “the holdings, as opposed to the

dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.” (Terry)

Williams v. Taylor, 529 U.S. 362, 412 (2000). For purposes of § 2254(d)(1), an explicit statement

of a particular rule by the Supreme Court is not necessary; rather, “[t]he Court has made clear that

its relevant precedents include not only bright-line rules but also the legal principles and standards

flowing from precedent.” Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005) (quoting Taylor

v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). A state court decision is “contrary to” clearly

established Supreme Court precedent “if the state court applies a rule that contradicts the governing

law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a

result different from [its] precedent.” (Terry) Williams, 529 U.S. at 405-06. A state court decision

is an “unreasonable application of” clearly established Federal law “if the state court identifies the

correct governing legal rule from [the Supreme Court’s] cases but unreasonably applies it to the facts

of the particular state prisoner’s case.” Id. at 407.

The Supreme Court has adopted the spectrum of abstraction of Teague v. Lane, 489 U.S. 288

(1989), to determine whether a particular legal principle was clearly established at the relevant time.

See (Terry) Williams, 529 U.S. at 412 (With the caveat that the source of clearly established law is

Supreme Court jurisprudence, “whatever would qualify as an old rule under our Teague

jurisprudence will constitute ‘clearly established Federal law, as determined by the Supreme Court

of the United States’ under § 2254(d)(1).”). At one end of the spectrum lie legal principles with

such a high level of generality that their application does not necessarily lead to a “predictable

development” in the relevant law and therefore cannot be considered clearly established. See

Sawyer v. Smith, 497 U.S. 227, 236 (1990). On the other end are narrowly drawn bright-line rules

with little application beyond factually indistinguishable cases. In the middle of the spectrum lie

those general principles of law crafted by the Supreme Court to constitute clearly established law

in a wide range of factual situations. It was the middle of the spectrum that Justice Kennedy

described while concurring in Wright v. West, 505 U.S. 277, 308-09 (1992):

If the rule in question is one which of necessity requires a case-by-case examination

of the evidence, then we can tolerate a number of specific applications without

saying that those applications themselves create a new rule . . . . Where the

beginning point is a rule of this general application, a rule designed for the specific

purpose of evaluating a myriad of factual contexts, it will be the infrequent case that

yields a result so novel that it forges a new rule, one not dictated by precedent.

A majority of the Supreme Court has adopted Justice Kennedy’s “case-by-case” approach. See

(Terry) Williams, 529 U.S. at 391 (“That the Strickland test ‘of necessity requires a case-by-case

examination of the evidence’ obviates neither the clarity of the rule nor the extent to which the rule

must be seen as ‘established’ by this Court.”) (citations omitted); Rompilla v. Beard, 545 U.S. 374,

125 S. Ct. 2456, 2471 (2005) (O’Connor, J., concurring) (noting the “‘case-by-case examination of

the evidence’ called for under our cases”); (Terry) Williams, 529 U.S. at 382 (Stevens, J., dissenting

in part) (“In the context of this case, we also note that, as our precedent interpreting Teague has

demonstrated, rules of law may be sufficiently clear for habeas purposes even when they are

expressed in terms of a generalized standard rather than as a bright-line rule.”).

The Furman arbitrariness principle, as supplemented by the rules against disproportionate

sentences and irreconcilable jury verdicts in the same case (discussed below), falls well within the

middle of Teague’s spectrum of abstraction, in that these principles provide sufficient content for

predictable legal development and apply to a range of factual situations. See Gregg v. Georgia, 428

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U.S. 153, 195 (1976) (noting that “each distinct [sentencing] system must be examined on an

individual basis” to determine if it satisfies the concerns of Furman). The Furman principle of

general application interpreting the Eighth Amendment has been clearly established since 1972,

decades before the state judgment at issue here. Moreover, the arbitrariness principle clearly applies

here because the inconsistent verdicts and the resulting disproportionate sentences in this case are

exactly the sort of unconstitutionally arbitrary and capricious outcomes that Furman and its progeny

condemned.

III. Constitutionality of Death Sentence

Getsy contends that his sentence of death was imposed in an arbitrary and capricious manner

in violation of the Eighth Amendment of the United States Constitution because Santine, who

initiated, contracted for, and paid for the murder, was acquitted of murder for hire and sentenced to

life imprisonment. Relying on Furman v. Georgia, 408 U.S. 238 (1972), Getsy claims that the Ohio

Supreme Court’s rejection of his Eighth Amendment argument was “contrary to” relevant Supreme

Court precedent. We hold that the “arbitrariness” principle firmly established in Furman and its

progeny would be offended if the irreconcilable, arbitrary jury verdicts in this case were allowed to

stand. We, therefore, conclude that Getsy’s death sentence must be vacated.

A. Furman Principles

The Supreme Court has clearly established that the Cruel and Unusual Punishments Clause

of the Eighth Amendment condemns “the arbitrary infliction” of the death penalty. Furman, 408

U.S. at 274 (Brennan, J., concurring). In Furman v. Georgia, the Supreme Court, in a one paragraph

per curiam opinion, held that the death penalty, as then administered under statutes vesting unguided

sentencing discretion in juries and trial judges, was unconstitutionally cruel and unusual punishment

in violation of the Eighth and Fourteenth Amendments. Id. at 239-40. The concurring opinions that

followed explained that the death penalty was being imposed so discriminatorily, id. at 240

(Douglas, J., concurring), so wantonly and freakishly, id. at 306 (Stewart, J., concurring), and so

infrequently, id. at 310 (White, J., concurring), that any given death sentence was unconstitutionally

cruel and unusual. Justice White concluded that “the death penalty is exacted with great infrequency

even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few

cases in which [the death penalty] is imposed from the many cases in which it is not.” Id. at 313

(concurring). Indeed, the death sentences examined by the Supreme Court in Furman were “cruel

and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the

people convicted of [capital crimes], many just as reprehensible as these, the petitioners [in Furman

were] among a capriciously selected random handful upon whom the sentence of death ha[d] in fact

been imposed.” Id. at 309-10 (Stewart, J., concurring). Thus, Furman established that the Eighth

and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems

that permit this penalty to be arbitrarily and capriciously imposed. See id. at 310; Spaziano v.

Florida, 468 U.S. 447, 460 (1984) (Furman established that “[i]f a State has determined that death

should be an available penalty for certain crimes, then it must administer that penalty in a way that

can rationally distinguish between those individuals for whom death is an appropriate sanction and

those for whom it is not.”); Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (Furman established that

“if a State wishes to authorize capital punishment it has a constitutional responsibility to . . . apply

its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.”).

As it has evolved since Furman, the Eighth Amendment arbitrariness standard generally

prohibits the infliction of a death sentence discriminatorily on the basis of illegitimate and suspect

factors, such as the race or socioeconomic status of the defendant and the victim, and its inconsistent

or random imposition. See Eddings v. Oklahoma, 455 U.S. 104, 111 (1982) (Beginning with

Furman, the Court has emphasized its pursuit of the “goals of measured, consistent application and

fairness to the accused.”); David C. Baldus et al., Arbitrariness and Discrimination in the

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Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience

(1973-1999), 81 Neb. L. Rev. 486, 496 (2002). The second source of arbitrariness, inconsistent and

unprincipled outcomes, constituted a major factual foundation of the Furman holding. See Baldus

et al., supra, at 496 n.5. The Furman Court invalidated existing death penalty laws because, as the

laws were structured and administered at the time, they failed to generate acceptably consistent

outcomes. See Furman, 408 U.S. at 295 (Brennan, J., concurring) (noting that the existing

procedures were not constructed to guard against the totally arbitrary selection of offenders for the

punishment of death); Blystone v. Pennsylvania, 494 U.S. 299, 303 (1990) (noting that the

constitutional defect identified in Furman was that “unguided juries were imposing the death penalty

in an inconsistent and random manner on defendants”). Each of the concurring opinions in Furman

relied upon various forms of statistical evidence that purported to demonstrate patterns of

inconsistent or otherwise arbitrary sentencing. Furman, 408 U.S. at 249-52 (Douglas, J.,

concurring); id. at 291-95 (Brennan, J., concurring); id. at 309-10 (Stewart, J., concurring); id. at 313

(White, J., concurring); id. at 364-66 (Marshall, J., concurring). Evidence of such inconsistent

results, of sentencing decisions that could not be explained on the basis of individual culpability,

indicated that the system operated arbitrarily and therefore violated the Eighth Amendment.

The Supreme Court has affirmed this conception of the Eighth Amendment in its decisions

following Furman. Thus, the Court has insisted that “capital punishment be imposed fairly, and

with reasonable consistency, or not at all.” Eddings, 455 U.S. at 112. To satisfy the concerns of

Furman, the Supreme Court has thereafter required that the sentencing body’s discretion be

“directed and limited” and exercised in an “informed manner” to avoid “wholly arbitrary and

capricious action.” Gregg v. Georgia, 428 U.S. 153, 189 (1976). Furman was read as holding that

“to minimize the risk that the death penalty [will] be imposed on a capriciously selected group of

offenders, the decision to impose it ha[s] to be guided by standards so that the sentencing authority

[will] focus on the particularized circumstances of the crime and the defendant.” Id. at 199. The

jury should be “given guidance regarding the factors about the crime and the defendant that the

State, representing organized society, deems particularly relevant to the sentencing decision.” Id.

at 192. “Otherwise, the system cannot function in a consistent and a rational manner.” Id. at 189.

It is now well settled that “the penalty of death is different in kind from any other punishment

imposed under our system of justice.” Id. at 188. “From the point of view of the defendant, it is

different both in its severity and its finality. From the point of view of society, the action of the

sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate

state action.” Gardner v. Florida, 430 U.S. 349, 357 (1977). The qualitative difference of death

from all other punishments requires a correspondingly greater need for reliability, consistency, and

fairness in capital sentencing decisions. See, e.g., Ford v. Wainwright, 477 U.S. 399, 411 (1986);

Spaziano, 468 U.S. at 460 n.7; California v. Ramos, 463 U.S. 992, 998-99 (1983); Zant v. Stephens,

462 U.S. 862, 884-85 (1983); Woodson v. North Carolina, 428 U.S. 280, 305 (1976). It is of vital

importance to the defendant and to the community that any decision to impose the death sentence

be, and appear to be, based on reason rather than caprice or emotion. Gardner, 430 U.S. at 357.

Accordingly, the courts must “carefully scrutinize” sentencing decisions “to minimize the risk that

the penalty will be imposed in error or in an arbitrary and capricious manner. There must be a valid

penological reason for choosing from among the many criminal defendants the few who are

sentenced to death.” Spaziano, 468 U.S. at 460 n.7. The death-is-different principle can only be

observed here by holding that the inconsistent and disproportionate sentences in the same case

violate the clearly established Furman arbitrariness principle and hence the Eighth Amendment.

B. Disproportionality

Proportionality in sentencing is a major, independent element under the Eighth Amendment

in assessing a death sentence. The comparative disproportionality between the culpability and

sentences of Getsy and Santine demonstrates the arbitrariness of Getsy’s death sentence. Unlike our

No. 03-3200 Getsy v. Mitchell Page 8

later discussion of inconsistent verdicts, which focuses on the inconsistency of only one codefendant

being found guilty of murder for hire, a crime necessarily requiring at least two participants, this

disproportionality problem was noted by the Ohio Supreme Court because Getsy had arguably less

culpability than Santine, but received a harsher sentence, the death penalty, rather than Santine’s life

sentence:

It is clear that Getsy would not have committed these crimes if he had never met

Santine . . . .

Santine was approximately thirty-five years old. Getsy was nineteen when the

crimes were committed. Santine paid the rent for the apartment where Hudach and

McNulty lived and supplied some of the drugs that they and their friends used.

Santine bragged that he had connections with the mob and often spoke of his Mafia

connections. When anyone in the group needed money, they asked Santine for it.

Santine bragged that he had the police in his pocket . . . . Santine was known to have

shot his own brother and apparently had never served time for the incident. Santine

was known to routinely carry a duffel bag containing a gun. One time, Hudach and

Robert Stoneburner were sitting with Santine when Santine shot a wall for no

apparent reason. Santine commented that he wished it had been Chuckie (Serafino)

....

It was clear from the videotape of his statement that Getsy feared Santine and was

afraid that Santine would execute him. Getsy apparently was afraid to go to the

police because Santine made it appear that he had the police in his pocket. This

belief was supported by the fact that McNulty told police what Santine was planning

and the police did nothing . . . .

When the group first went to the Serafino house, they returned to the apartment

without completing the act, using the excuse that they could not find a place to park.

Santine became furious, eventually driving Getsy, McNulty, and Hudach back to the

place himself . . . .

It is also troubling that Santine did not receive the death sentence even though he

initiated the crime. If not for John Santine, it is unlikely the Serafinos would have

been shot.

State v. Getsy, 702 N.E.2d 866, 890-92 (Ohio 1998).

In evaluating whether a death sentence is arbitrary, the Supreme Court has directed courts

to evaluate a defendant’s culpability both individually and in terms of the sentences of codefendants

and accomplices in the same case. See Enmund v. Florida, 458 U.S. 782, 788, 798 (1982). In

Enmund, the Supreme Court found the Eighth Amendment violated when defendants with “plainly

different” culpability received the same capital sentence. It requires proportionality comparison

with others participating in the same crime:

Enmund did not kill or intend to kill and thus his culpability is plainly different from

that of the robbers who killed; yet the State treated them alike and attributed to

Enmund the culpability of those who killed the Kerseys. This was impermissible

under the Eighth Amendment.

Id. at 798.

No. 03-3200 Getsy v. Mitchell Page 9

The instant case presents the reverse situation where defendants with plainly similar

culpability received different sentences; and, furthermore, the defendant with arguably the lesser

culpability received the harsher sentence -- the death penalty. Numerous state courts have applied

the Enmund principal to require reasonable symmetry between culpability and the sentencing of

codefendants. See, e.g., People v. Kliner, 705 N.E.2d 850, 897 (Ill. 1998) (“[S]imilarly situated

codefendants should not be given arbitrarily or unreasonably disparate sentences.”); Larzelere v.

State, 676 So. 2d 394, 406 (Fla. 1996) (“When a codefendant . . . is equally as culpable or more

culpable than the defendant, disparate treatment of the codefendant may render the defendant’s

punishment disproportionate.”); Hall v. State, 244 S.E.2d 833, 839 (Ga. 1978) (“We find that . . .

the death sentence, imposed on Hall for the same crime in which the co-defendant triggerman

received a life sentence, is disproportionate.”). Similarly, the Federal Death Penalty Act recognizes

that a comparison of the sentences received by equally culpable codefendants improves the

likelihood that the death penalty will not be imposed in an arbitrary or capricious manner. See 18

U.S.C. § 3592(a)(4) (listing as a mitigating factor the lack of death sentences for equally or more

culpable codefendants).

The principle requiring proportionate punishment has deep roots in our cultural and

biological heritage. Aristotle observed in his Nicomachean Ethics almost 2,500 years ago that basic

notions of justice require treating like cases alike:

If, then, the unjust is unequal, the just is equal, as all men suppose it to be, even apart

from argument . . . . This, then, is what the just is -- the proportional; the unjust is

what violates the proportion . . . . [I]t is by proportionate requital that the city holds

together.

Aristotle, Ethica Nicomachea, in The Works of Aristotle V.3.1131a-1131b, V.5.1132b (W.D. Ross

ed. & trans., 1954); see also Aristotle, The Politics of Aristotle 129 (Ernest Barker ed. & trans.,

1946) (“Justice is1 the political good. It involves equality, or the distribution of equal amounts to

equal persons.”). Recent studies have reinforced this view. In a recent article, Judge Morris

Hoffman and Timothy Goldsmith, a distinguished Yale biologist, make this point:

[I]t is not surprising that collectively we struggle to balance the form and amount of

punishment that is appropriate, a struggle that lies at the heart of what we mean by

“justice.” . . .

The two faces of justice - to deal firmly with transgressors, but not too harshly -

reflect an intrinsic human sense of fairness and are important to the political ideal of

equality. When Aristotle commands that like cases be treated alike, he is touching

both on the personal notion that none of us wants to be punished more than anyone

else (and therefore on our self-interest) and on the social notion that none of us wants

to punish others more than they deserve (and therefore on the equilibrium between

our inclination to punish and our intuitions about fairness and sympathy). When

sentencing guidelines address the tension between sentencing individual defendants

and coordinating the sentences of similarly situated defendants, they are touching on

this very same duality.

1

Aristotle’s view that “like cases should be treated alike” has long been a foundational principal in the U.S.

legal system. See, e.g., Jennifer B. Wriggins, Torts, Race, and the Value of Injury, 1900-1949, 49 How. L.J. 99, 101 n.10

(2005); Morris B. Hoffman, The Case for Jury Sentencing, 52 Duke L.J. 951, 1000 n.179 (2003); Catherine Weiss &

Louise Melling, The Legal Education of Twenty Women, 40 Stan. L. Rev. 1299, 1347 n.120 (1988); Peter Westen, The

Empty Idea of Equality, 95 Harv. L. Rev. 537, 543 n.20 (1982); cf. H.L.A. Hart, The Concept of Law 155 (1961)

(deeming the phrase “[t]reat like cases alike” a “leading precept” of justice).

No. 03-3200 Getsy v. Mitchell Page 10

Morris B. Hoffman & Timothy H. Goldsmith, The Biological Roots of Punishment, 1 Ohio St. J.

Crim. L. 627, 638-39 (2004). Coordination of sentences for the same crime is not simply a rational,

legal principal but a deeply-held concept of justice as well.

The dissent argues incorrectly that the Supreme Court’s decision in Pulley v. Harris, 465

U.S. 37 (1984), precludes our consideration of the “comparative proportionality” of sentences in this

case.2 Pulley simply held that the Eighth Amendment does not require a systematic comparative

proportionality review of sentences in other unrelated cases. Id. at 50-51. Pulley concerned whether

the Eighth Amendment mandates a systematic comparative proportionality review of a particular

sentence to the punishment imposed on others for the same general type of crime but in unrelated

cases. Our holding neither contradicts this rule nor implicates systematic comparative

proportionality review. Cf. People v. Bean, 560 N.E.2d 258, 290 (Ill. 1990) (“[I]n reviewing the

appropriateness of a death sentence, this court will examine the facts of that particular case and the

evidence introduced at the trial and death penalty hearing, and, as a matter of reference, it may

consider the sentence imposed on an accomplice or a co-defendant in light of his involvement in the

offense.”). Instead, we simply adhere to the clearly established principle of Enmund that, in a capital

case with respect to the very same crime stemming from the very same facts, the Eighth Amendment

does not permit codefendants with plainly similar culpability to receive different sentences --

especially when the defendant with arguably less culpability receives the harshest of all sentences,

the death penalty. Following the dissent’s view would not only conflict with the clear mandate of

Enmund but would allow less culpable participants in the same criminal episode to receive the death

penalty when the more culpable participant receives a lesser sentence.

In sum, 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.

C. Inconsistent Verdicts

The Supreme Court has declared that inconsistent verdicts are both scandalous and

inequitable, Richardson v. Marsh, 481 U.S. 200, 210 (1987), and has accordingly indicated that

inconsistent verdicts “constitute evidence of arbitrariness that would undermine confidence in the

quality of the [jury’s] conclusion,” Harris v. Rivera, 454 U.S. 339, 346 (1981). In concluding that

the inconsistent jury verdicts in this case evidences that Getsy’s death sentence violates the Eighth

Amendment arbitrariness principle outlined in Furman, we are informed by the common law rule

of consistency, which was applied by the Supreme Court in Morrison v. California, 291 U.S. 82

(1934), and Hartzel v. United States, 322 U.S. 680 (1944). The common law rule of consistency

prohibited a jury’s acquittal of all but one of multiple defendants charged with jointly committing

a crime that requires at least two participants. E.g., Iannelli v. United States, 420 U.S. 770, 782

(1975) (listing conspiracy, adultery, incest, bigamy, and dueling as offenses that require the

participation of two people); Dunn v. United States, 284 U.S. 390, 402 (1932) (Butler, J., dissenting)

(“Upon the indictment of several for an offense that could not be committed without the

2

The dissent also argues incorrectly that our consideration of the “comparative proportionality” of the sentences

in this case is foreclosed by our precedents relying on Pulley v. Harris. See, e.g., Williams v. Bagley, 380 F.3d 932, 962-

63 (6th Cir. 2004); Wickline v. Mitchell, 319 F.3d 813, 824 (6th Cir. 2003); Smith v. Mitchell, 348 F.3d 177, 214 (6th

Cir. 2003); Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003); Buell v. Mitchell, 274 F.3d 337, 369 (6th Cir. 2001).

In each of these cases, we rejected claims regarding inadequate appellate review of the proportionality of death

sentences, reasoning that the Constitution does not require the State to provide for a system of proportionality review.

Our precedents interpret Pulley as holding that a system of comparative proportionality review is not constitutionally

required, and the state therefore has “great latitude” in defining its system of proportionality review. See Buell, 274 F.3d

at 369. Getsy’s proportionality argument does not implicate our precedents relying on Pulley because Getsy does not

challenge Ohio’s system of proportionality review. Rather, Getsy challenges the imposition of disproportionate

sentences for the very same crime stemming from the very same facts.

No. 03-3200 Getsy v. Mitchell Page 11

participation of two or more of them a verdict of guilty against one and of not guilty for the others,

is deemed wholly repugnant and invalid.”).

The principle against inconsistent verdicts was well established at common law when we

adopted the Eighth Amendment. Harison v. Errington, 79 Eng. Rep. 1292 (K.B. 1627) (riot); Marsh

v. Vauhan, 78 Eng. Rep. 937 (Q.B. 1599) (conspiracy).3 The common law crime of riot provides

a good example: “Under English law, that crime required three participants. It was legally

impossible for fewer than three people to riot. Thus, if three defendants stood trial together for riot,

and the jury convicted only one of them, this was a fatally inconsistent verdict, and the conviction

could not stand.” Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent

Verdicts, 111 Harv. L. Rev. 771, 779 (1998) (citing Harison, 79 Eng. Rep. at 1293). “The argument

was that as in conspiracy, if one only of two is found guilty the verdict is void ‘for one alone cannot

conspire.’” Dir. Pub. Prosecutions v. Shannon, [1975] A.C. 717, 723 (discussing Harison).

At common law, the rule of consistency was frequently applied to address inconsistent

verdicts between two codefendants charged with conspiracy. The crime of conspiracy cannot be

committed by an individual acting alone since, by definition, conspiracy requires an agreement

between two or more people to commit some unlawful act. Morrison, 291 U.S. at 92. Thus, the rule

of consistency invalidates the conviction of one conspirator when all the other alleged conspirators

are acquitted of the conspiracy charge.4 See, e.g., United States v. Crayton, 357 F.3d 560, 564 (6th

3

The origins of the rule of consistency can be traced back more than four centuries to the case of Marsh v.

Vauhan, 78 Eng. Rep. 937 (Q.B. 1599), in which two defendants were indicted and tried jointly for conspiracy, with the

result that one was convicted and the other acquitted. The court quashed the lone defendant’s conviction, reasoning in

a one paragraph opinion that “one cannot conspire alone.” Id. at 937. Subsequent decisions addressing irreconcilable

or repugnant jury verdicts in conspiracy and other cases based on a criminal agreement between two parties adhered to

the Marsh rule in quashing inconsistent verdicts. See, e.g., R. v. Grimes, 87 Eng. Rep. 142 (K.B. 1688); R. v. Kinnersley,

93 Eng. Rep. 467 (K.B. 1719); R. v. Thompson, 117 Eng. Rep. 1100 (Q.B. 1851).

4

Some courts in non-death penalty cases have refused to apply the rule of consistency to inconsistent verdicts

resulting from separate trials. See United States v. Newton, 389 F.3d 631, 636 (6th Cir.), vacated in part on other

grounds, 126 S. Ct. 280 (2005); United States v. Crayton, 357 F.3d 560, 564 (6th Cir. 2004); Cortis v. Kenney, 995 F.2d

838, 840 (8th Cir. 1993); United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986); United States v. Lewis, 716 F.2d 16,

22 (D.C. Cir. 1983); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982); United States v. Espinosa-

Cerpa, 630 F.2d 328, 333 (5th Cir. 1980). These courts reason that “it is not necessarily inconsistent for two juries to

reach differing results” because “different juries may hear different evidence.” Sachs, 801 F.2d at 845. These courts

also reason that application of the rule of consistency in this context “would be blatantly inconsistent with the Supreme

Court’s decision in Standefer.” See Espinosa-Cerpa, 630 F.2d at 333.

In Standefer v. United States, 447 U.S. 10 (1980), the Supreme Court held that a defendant, who would have

been an accessory at common law, may be convicted even though the named principal has been acquitted in a separate

trial. The holding in Standefer rested on Congress’s express intent to make those who were accessories at common law

principal offenders, thereby permitting their indictment and conviction for the substantive offense. Id. at 19. Contrary

to the reasoning of the courts refusing to apply the rule of consistency to inconsistent verdicts resulting from separate

trials, neither Standefer nor any subsequent Supreme Court decision has proscribed application of the rule in this context.

The cases from the courts of appeals proscribing application of the rule of consistency to inconsistent verdicts

resulting from separate trials were not capital cases. In refusing to apply the rule in this context, these cases protect the

functions of the jury at the risk of disparate or arbitrary results. Such risk cannot be tolerated in a case in which the

defendant’s life is at stake. As the Supreme Court has often stated:

[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long.

Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one

of only a year or two. Because of that qualitative difference, there is a corresponding difference in the

need for reliability in the determination that death is the appropriate punishment in a specific case.

Woodson v. North Carolina, 428 U.S. 280, 305 (1976). It would be inconsistent with the heightened need for

“reliability” in the capital sentencing decision to refuse to apply the rule of consistency.

Although this circuit has held that the rule of consistency does not apply to inconsistent verdicts resulting from

separate trials in conspiracy cases, see Newton, 389 F.3d at 636; Crayton, 357 F.3d at 564; Sachs, 801 F.2d at 845, we

have not extended this holding either to capital cases or to cases involving substantive crimes, such as adultery, incest,

bigamy, dueling, or murder for hire, that necessarily involve at least two participants. The instant indictment charged

No. 03-3200 Getsy v. Mitchell Page 12

Cir. 2004); United States v. Espinosa-Cerpa, 630 F.2d 328, 331 (5th Cir. 1980); Developments in

the Law -- Criminal Conspiracy, 72 Harv. L. Rev. 922, 972-73 (1959). The basis for the rule of

consistency in conspiracy cases “is the notion that the acquittal of all but one potential conspirator

negates the possibility of an agreement between the sole remaining defendant and one of those

acquitted of the conspiracy and thereby denies, by definition, the existence of any conspiracy at all.”

Espinosa-Cerpa, 630 F.2d at 331. Under this reasoning, the conspiracy conviction of a lone

defendant is invalid because “the verdict . . . itself den[ies] the existence of the essential facts.”

United States v. Austin-Bagley Corp., 31 F.2d 229, 233 (2d Cir. 1929).

The Supreme Court has on at least two occasions applied the rule of consistency to set aside

irreconcilable jury verdicts. In Morrison v. California, the Supreme Court held that the reversal of

the conspiracy conviction of the defendant’s sole alleged co-conspirator on constitutional grounds

required reversal of the defendant’s state conspiracy conviction. 291 U.S. at 93. In so holding, the

Court stated:

It is impossible in the nature of things for a man to conspire with himself. In

California as elsewhere conspiracy imports a corrupt agreement between not less

than two with guilty knowledge on the part of each . . . . The conviction failing as

to the one defendant must fail as to the other.

Id. at 92-93 (citations omitted); see also Gebardi v. United States, 287 U.S. 112, 123 (1932)

(reversing defendant’s conviction of conspiracy to violate the Mann Act because his alleged co-

conspirator was acquitted, and there was therefore “no proof that the man conspired with anyone

else to bring about the transportation”). The Court went on to base its conclusion on the

requirements of due process:

[T]he conviction of Morrison because he failed to assume the burden of disproving

a conspiracy was a denial of due process that vitiates the judgment as to him. Nor

is that the only consequence. Doi was not a conspirator, however guilty his own

state of mind, unless Morrison had shared in the guilty knowledge and design. . . .

The conviction failing as to the one defendant must fail as to the other.

Morrison, 291 U.S. at 93 (citing Turinetti v. United States, 2 F.2d 15 (8th Cir. 1924)). In Turinetti

v. United States, on which the Court relied, the court of appeals held that the release of one party to

the agreement must lead to the acquittal of the second party:

Therefore, since Turinetti could not have conspired with himself alone, he could not

under the law be convicted of a conspiracy. It follows that there is no lawful way to

avoid a reversal also as to Turinetti, although, under the evidence, he violated one

or more provisions of the National Prohibition Act. For the latter violations,

however, he was neither indicted nor convicted, and so the fact of such other

violations will not warrant affirmance of this conviction for conspiracy.

2 F.2d at 17.

Getsy with conspiracy to murder, but he was not convicted of this count. He was convicted of murder for hire. This was

a substantive offense. Conspiracy is separate from the substantive offense that is the object of the agreement. United

States v. Felix, 503 U.S. 378, 389-90 (1992). The rule allowing inconsistent verdicts in conspiracy cases has not been

applied and should not be applied to inconsistent verdicts on the substantive offense of murder for hire in the same case.

The law has excused inconsistent verdicts in run-of-the-mill conspiracy cases, but it has not excused inconsistent verdicts

on a substantive offense requiring the participation of two people. We should not start now to permit such arbitrary,

inconsistent verdicts -- especially in a capital case.

No. 03-3200 Getsy v. Mitchell Page 13

Similarly, in Hartzel v. United States, 322 U.S. 680 (1944), the Supreme Court reversed a

conspiracy conviction on the basis of inconsistency. Hartzel and two others were charged with

violating and with conspiracy to violate the Espionage Act of 1917. The trial judge found the

evidence insufficient to support the convictions of Hartzel’s two alleged co-conspirators. Id. at 682

n.3. The Supreme Court concluded that the setting aside of Hartzel’s only two co-conspirators’

convictions “makes it impossible to sustain petitioner’s conviction” for conspiracy to violate the

Espionage Act. Id. Thus, Morrison and Hartzel now stand for the proposition that inconsistent or

repugnant jury verdicts in conspiracy and other cases based on a criminal agreement between two

parties cannot stand. This rule adds clarity, detail, and content to the more generalized

“arbitrariness” language of Furman and mandates that Getsy’s death sentence be vacated.

Although several courts of appeals have questioned whether United States v. Powell, 469

U.S. 57 (1984), overruled the rule of consistency, see Crayton, 357 F.3d at 564; United States v.

Acosta, 17 F.3d 538, 545-46 (2d Cir. 1994); United States v. Zuniga-Salinas, 952 F.2d 876, 877-78

(5th Cir. 1992) (en banc); United States v. Bucuvalas, 909 F.2d 593, 594-97 (1st Cir. 1990); United

States v. Thomas, 900 F.2d 37, 40 (4th Cir. 1990); United States v. Dakins, 872 F.2d 1061, 1065-66

(D.C. Cir. 1989); United States v. Mancari, 875 F.2d 103, 104 (7th Cir. 1989); United States v.

Andrews, 850 F.2d 1557, 1561-62 (11th Cir. 1988); United States v. Valles-Valencia, 823 F.2d 381,

381-82 (9th Cir. 1987); Gov’t of the Virgin Islands v. Hoheb, 777 F.2d 138, 142 n.6 (3d Cir. 1985),

the Supreme Court has never expressly or even impliedly overruled the rule of consistency

previously recognized by the Court in Morrison and Hartzel. As the Tenth Circuit has noted, the

argument that the rule of consistency is no longer viable after Powell “is substantially undercut by

the fact that the Powell opinion does not discuss Hartzel or expressly overturn the traditionally

recognized exception.” United States v. Suntar Roofing, Inc., 897 F.2d 469, 475 (10th Cir. 1990).

Moreover, Powell did not concern or address inconsistent jury verdicts between two

codefendants charged with conspiracy or participation in another similar criminal contract. The

defendant in Powell was convicted of using the telephone to commit the crime of “conspiracy to

possess with the intent to distribute and possession with intent to distribute cocaine,” but she was

acquitted of knowingly and intentionally possessing cocaine with intent to distribute. Powell, 469

U.S. at 59-60. She argued that the verdicts were inconsistent because proof that she had conspired

to possess cocaine with intent to distribute, or had so possessed cocaine, was an element of the

telephone facilitation count. Id. at 60. The Court reaffirmed the holding of Dunn v. United States,

284 U.S. 390 (1932), that “[c]onsistency in the verdict is not necessary.” Powell, 469 U.S. at 62-63.

In so holding, Powell simply precludes a reversal based on inconsistency between verdicts on

separate charges against a single defendant. Powell did nothing, however, to eliminate the rule

requiring reversal of irreconcilable verdicts where one defendant is acquitted and the other convicted

of a crime that necessarily requires two people to participate in a criminal contract. See Andrews,

850 F.2d at 1570 (Clark, J., dissenting) (“I cannot agree that Powell should be expanded to let

inconsistent conspiracy verdicts stand where one defendant is acquitted and the other convicted.”).

Because nothing in Powell purports to overrule Morrison and Hartzel, we will continue to follow

the Supreme Court’s directly applicable precedent and “leave to the Court the prerogative of

overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997).

In coming to the foregoing conclusion, we are mindful that the dicta of United States v.

Newton and United States v. Crayton states that the rule of consistency “has no continuing validity.”

United States v. Newton, 389 F.3d 631, 636 (6th Cir.), vacated in part on other grounds, 126 S. Ct.

280 (2005); Crayton, 357 F.3d at 564. However, both Crayton and Newton more narrowly hold that

“an individual’s conviction for conspiracy may stand, despite acquittal of other alleged

coconspirators, when the indictment refers to unknown or unnamed conspirators and there is

sufficient evidence to show the existence of a conspiracy between the convicted defendant and these

other conspirators.” Crayton, 357 F.3d at 567 (quoting United States v. Anderson, 76 F.3d 685, 688-

89 (6th Cir. 1996)); see Newton, 389 F.3d at 636-37 (citing Anderson, 76 F.3d at 688-89). This

No. 03-3200 Getsy v. Mitchell Page 14

narrow holding was the only discussion necessary to resolve the case. As the preeminent legal

scholar Karl Llewellyn said, there is a “distinction between the ratio decidendi, the Court’s own

version of the rule of the case, and the true rule of the case, what it will be made to stand for by

another later court”:

For one of the vital elements of our doctrine of precedent is this: that any later court

can always reexamine a prior case, and under the principle that the court could

decide only what was before it, and that the older case must now be read with that

in view, can arrive at the conclusion that the dispute before the earlier court was

much narrower than that court thought it was, called therefore for the application of

a much narrower rule. Indeed, the argument goes further. It goes on to state that no

broader rule could have been laid down ex-cathedra, because to do that would

transcend the powers of the earlier court.

Karl Llewellyn, The Bramble Bush 52 (1930). Or, as this Court recently said: “This Court considers

as dicta any observation in the opinion of the court unnecessary to the holding in that case.”

Peabody Coal Co. v. Director, Office of Workers’ Comp. Programs, 48 Fed. Appx. 140, 144 (6th

Cir. 2002). Because Crayton and Newton were ultimately decided based on the rule of United States

v. Anderson, the discussion of whether the rule of consistency is viable after Powell was unnecessary

to the holding and therefore not binding on this Court.

Since we conclude that the Supreme Court has not overruled Morrison and Hartzel, the rule

of consistency is applicable where, as in the instant case, a jury convicts only one of multiple

defendants charged with committing the crime of murder for hire. Murder for hire requires at least

two participants: the hiring party and the person hired. See Ramsey v. Commonwealth, 343 S.E.2d

465, 470 (Va. Ct. App. 1986) (noting that murder for hire “necessarily involve[s] at least two

people”). An “essential element” of the crime of murder for hire is an agreement between the hiring

party and the person hired that the latter will be compensated for his services. State v. Carpenter,

882 A.2d 604, 653 (Conn. 2005); see Orsini v. State, 665 S.W.2d 245, 253 (Ark. 1984) (To establish

murder for hire, the government must prove that there was “an agreement to kill in exchange for

something of value.”); State v. McGann, 506 A.2d 109, 116 (Conn. 1986) (To establish a “hiring”

relationship, the government must prove “the essential element of an agreement to compensate the

[person hired] for his services.”); Commonwealth v. Gibbs, 626 A.2d 133, 138 (Pa. 1993) (To

establish murder for hire, the government must prove that the hiring party and the person hired

“contracted to kill the victim.”). Therefore, the acquittal of all but one defendant “negates the

possibility of an agreement” to kill between the sole remaining defendant and one of those acquitted

of the murder for hire and “thereby denies, by definition, the existence of” a “hiring” relationship.

See Espinosa-Cerpa, 630 F.2d at 331. If the jury convicts only one of multiple defendants charged

with the crime of murder for hire, this is a fatally inconsistent verdict requiring reversal.

Accordingly, the rule of consistency recognized in Morrison and Hartzel requires reversal

of Getsy’s murder for hire conviction and the resulting death sentence because the other necessary

participant, the hiring party, was acquitted of the same murder for hire specification. The acquittal

of Santine of murder for hire based on substantially the same evidence signifies that the jury found

no contract to kill the Serafinos, and Getsy cannot have acted alone since murder for hire requires

a plurality of actors. Getsy’s murder for hire conviction is therefore irreconcilable with the jury

verdict acquitting Santine of the same charge. As the Supreme Court established in Morrison and

Hartzel, such an inconsistent verdict cannot stand. Moreover, the opinions in Furman rested upon

a perception of just such inconsistency, see Furman, 408 U.S. at 309-10 (Stewart, J., concurring);

id. at 313 (White, J., concurring), and the arbitrariness principle firmly established in Furman is

offended by the irreconcilable jury verdicts in this case. Under these circumstances, the Ohio

Supreme Court’s decision affirming Getsy’s death sentence without identifying or applying the

No. 03-3200 Getsy v. Mitchell Page 15

governing Eighth Amendment principles was “contrary to” the principles clearly established in

Furman, Morrison, and Hartzel.5

IV. Judicial Bias

Getsy claims that he did not receive a fair trial due to bias on the part of Judge McKay, the

state court judge who presided over his trial. The bias charge stems from Judge McKay’s

attendance, during Getsy’s trial, at an annual picnic hosted by Trumbull County judges at the home

of Judge Ronald Rice’s mother. The picnic was also attended by Cynthia Rice, the wife of Judge

Rice and the assistant prosecuting attorney who was trying Getsy’s case. Following the picnic,

Judge McKay was involved in a single-car accident and was charged with driving under the

influence of alcohol. The next day Judge McKay arrived for trial with bruises on his face and

wearing sunglasses, and the trial continued without any mention of the incident. Although Judge

McKay did not divulge the cause of his injuries to the parties, Getsy’s counsel learned of the picnic,

the accident, and the judge’s arrest from local media coverage. Judge McKay was thereafter

prosecuted by David P. Joyce, Prosecuting Attorney for Geauga County, acting as Special

Prosecuting Attorney, and on September 5, 1996, Judge McKay pled guilty to driving under the

influence of alcohol.

On August 26, 1996, Getsy filed a Motion for Mistrial and a Motion for Recusal in the trial

court. He also filed an Affidavit of Disqualification against Judge McKay in the Supreme Court of

Ohio pursuant to Ohio Rev. Code Ann. § 2701.03. The motions alleged that the judge was

socializing with the assistant prosecutor, thereby giving the appearance of impropriety. Getsy also

asserted that the jury might have perceived that Judge McKay was favorably disposed toward the

prosecution both because the judge was socializing with the assistant prosecutor and because the

judge was facing prosecution for driving under the influence. (J.A. at 516-23.)

On August 27, 1996, the Chief Justice of the Supreme Court of Ohio denied the Affidavit

of Disqualification, stating:

The mere fact that a judge and an attorney attend the same social event does not

mandate the judge’s disqualification from pending cases involving that attorney. . . .

Moreover, I cannot conclude that Judge McKay had any duty to disclose his

attendance at the event in question, either before or after the event, or that his

nondisclosure was the product of any animosity or bias toward the defendant in this

case. The record is devoid of any evidence that demonstrates the existence of any

bias, prejudice, or disqualifying interest based on the claims of the affiants.

5

Contrary to the dissent’s characterization of our holding, we merely hold that the rule firmly established in

Morrison and Hartzel provides compelling evidence of the arbitrariness of Getsy’s death sentence. Our dissenting

colleague concludes that these cases do not alter the conclusion that the rule of consistency did not survive Powell. In

so concluding, our dissenting colleague fails to understand that Morrison and Hartzel are distinguishable from the line

of cases regarding inconsistency between verdicts on separate charges against one defendant. It is true, as the dissent

points out, that Powell and a number of earlier Supreme Court cases have held generally that inconsistency between

verdicts returned as to a single defendant is insufficient reason to upset a conviction. However, none of these cases

involved multiple defendants charged with jointly committing an offense, like conspiracy or murder for hire, that requires

the participation of at least two parties in a criminal agreement. Because Powell did not even involve a criminal

agreement between two parties, one of whom is acquitted of participation in the agreement, its holding does not affect

the rule recognized in Morrison and Hartzel. See Harris v. Rivera, 454 U.S. 339, 345 n.13 (1981) (acknowledging the

decision in Hartzel as distinguishable from the Supreme Court’s cases with respect to inconsistency between verdicts

on separate charges against one defendant). Thus, Powell does not mention or purport to change the doctrine of

Morrison and Hartzel and the age-old common law rule to the same effect. We are at a loss to understand why our

dissenting colleague strains so hard to get around applying the traditional doctrine -- especially in a capital case where

life is at stake. Not only are we constitutionally bound to apply the Morrison/Hartzel doctrine, we are also statutorily

bound under AEDPA.

No. 03-3200 Getsy v. Mitchell Page 16

In re Disqualification of McKay, 674 N.E.2d 359, 359 (Ohio 1996). The Chief Justice primarily

relied on Judge McKay’s affidavit, which indicated that any contact the judge had with the assistant

prosecuting attorney at the picnic consisted of the “passing of simple social amenities.” Id.

After the Chief Justice denied the application, Judge McKay brought in a fellow Trumbull

County judge to voir dire the jurors regarding the media coverage of Judge McKay’s arrest. Only

two jurors had seen the newspaper articles about Judge McKay’s accident and arrest, and both

indicated that it would not affect their ability to be fair and impartial. Concluding that the jury had

not been “impaired,” Judge McKay then denied the Motion for Mistrial and the Motion for Recusal

without a hearing.

The Due Process Clause of the Fourteenth Amendment requires that a defendant be afforded

a “fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in

the outcome of his particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (citations

omitted); see In re Murchison, 349 U.S. 133, 136 (1955) (“A fair trial in a fair tribunal is a basic

requirement of due process. Fairness of course requires an absence of actual bias in the trial of

cases.”). This Court has explained that “[i]f a habeas court determines that bias by a state judge

resulted in a constitutional violation, then the court is required to overturn the state court decision.”

Alley v. Bell, 307 F.3d 380, 386 (6th Cir. 2002). Further, this Court looks to “the Supreme Court’s

decision in [Liteky v. United States] to provide the standard for deciding judicial bias claims; in that

case, the Court explained that ‘the pejorative connotation of the terms ‘bias’ and ‘prejudice’

demands that they be applied only to judicial predispositions that go beyond what is normal and

acceptable.’” Id. (quoting Liteky v. United States, 510 U.S. 540, 552 (1994)). To state a due process

claim of judicial bias, a “defendant must show either that actual bias existed, or that an appearance

of bias created a conclusive presumption of actual bias.” United States v. Lowe, 106 F.3d 1498,

1504 (10th Cir. 1997); see also Anderson v. Sheppard, 856 F.2d 741, 746 (6th Cir. 1988) (“[W]e

require not only an absence of actual bias, but an absence of even the appearance of judicial bias.”).

In order for us to evaluate whether Getsy was deprived of his right to a fair trial, we must

know more about the extent of Judge McKay’s contact with the assistant prosecutor and the effect

of the judge’s arrest and prosecution on his ability to be neutral. The record before us is inadequate

for a meaningful review of Getsy’s claim of judicial bias, and we, therefore, grant Getsy’s request

for an evidentiary hearing. AEDPA permits a district court to hold an evidentiary hearing in a

habeas case only in limited circumstances. It provides:

If the applicant has failed to develop the factual basis of a claim in State court

proceedings, the court shall not hold an evidentiary hearing on the claim unless the

applicant shows that --

(A) the claim relies on --

(i) a new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and

convincing evidence that but for constitutional error, no reasonable factfinder would

have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2).

Although the requirements of § 2254(e)(2) are onerous, “only a prisoner who has neglected

his rights in state court need satisfy these conditions.” (Michael) Williams v. Taylor, 529 U.S. 420,

No. 03-3200 Getsy v. Mitchell Page 17

435 (2000).6 By the terms of its opening clause, § 2254(e)(2) applies only to prisoners who have

“failed to develop the factual basis of a claim in State court proceedings.” Id. at 430. If the prisoner

has failed to develop the facts, “himself or herself contributing to the absence of a full and fair

adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant

claims in federal court, unless the statute’s other stringent requirements are met.” Id. at 437.

In determining whether the prisoner must satisfy the requirements of § 2254(e)(2), the

question is not whether the petitioner has succeeded in developing the record, but whether the

petitioner has diligently attempted to do so. In (Michael) Williams v. Taylor, the Supreme Court

held that “a failure to develop the factual basis of a claim is not established unless there is lack of

diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 432.

For purposes of § 2254(e)(2), diligence requires the prisoner to make “a reasonable attempt, in light

of the information available at the time, to investigate and pursue claims in state court; it does not

depend . . . upon whether those efforts could have been successful.” Id. at 435. As the Supreme

Court explained, “[d]iligence will require in the usual case that the prisoner, at a minimum, seek an

evidentiary hearing in state court in the manner prescribed by state law.” Id. at 437.

We conclude that Getsy made a reasonable attempt, in light of the information available at

the time, to develop the factual basis of his judicial bias claim. In his Motion for Mistrial, Getsy

requested that he be allowed to question “certain individuals,” including Cynthia Rice and Judge

McKay, about the contact between the judge and the assistant prosecutor. (J.A. at 518.) Getsy was

not afforded the opportunity to examine the relevant witnesses. In his petition for post-conviction

relief, Getsy sought discovery in support of his judicial bias claim, specifically requesting further

information about the contact between the judge and the assistant prosecutor and about the effect

of the incident on the jury. (J.A. at 1358.) The state court dismissed Getsy’s petition without a

hearing. (J.A. at 1424.) Getsy also repeatedly requested, and was denied, an evidentiary hearing

in state court on the issue. Getsy’s failure to develop the factual basis of his judicial bias claim was

not due to a lack of diligence, and he therefore need not satisfy the requirements of § 2254(e)(2) with

respect to this claim. Because Getsy never received an evidentiary hearing and consequently the

record before us fails to clarify facts central to the determination of Getsy’s claim of judicial bias,

we remand for an evidentiary hearing on this claim.

6

This case is not to be confused with the case (Terry) Williams v. Taylor, 529 U.S. 362 (2000), which also

concerns the interpretation of certain provisions of § 2254, and which was decided on the same day (April 18, 2000).

No. 03-3200 Getsy v. Mitchell Page 18

V. Other Issues

Because we are vacating Getsy’s death sentence on Eighth Amendment grounds, we do not

reach the alternative grounds raised by Getsy in the challenge to his death sentence, including

ineffective assistance of counsel at the penalty7 phase, insufficient evidence to support the statutory

aggravating circumstance of murder for hire, and the cumulative effect of the errors.

Getsy also raises 3 other issues that he claims warrant a granting of the writ and a new trial:

(1) Getsy’s confession should not have been introduced at trial as it was not voluntarily given; (2)

Getsy was denied the right to a fair and impartial jury drawn from a representative cross-section of

the community; and (3) the State improperly singled Getsy out for prosecution and imposition of the

death penalty.

A. Introduction of Confession at Trial

Getsy was convicted in large part based on his videotaped confession to the police that he

committed the murder of Ann Serafino and the attempted murder of Chuckie Serafino, which he

made after he was arrested on July 7, 1995. Getsy argues that the waiver of his Miranda rights and

his subsequent confession were not made voluntarily because he was in custody and deprived of

food, rest, and the advice of counsel and family for an extended period of time. We do not have

before us any question concerning whether Getsy’s confession was unknowing and unintelligent.

See Colorado v. Spring, 479 U.S. 564, 573 (1987) (explaining that claims regarding Miranda

waivers must demonstrate not only that the confession was voluntary but also that the confession

was knowing and intelligent).

The state court correctly noted that police overreaching is necessary for a confession to be

found involuntary under the Due Process Clause of the Fourteenth Amendment. See Colorado v.

Connelly, 479 U.S. 157, 164 (1986); Clark v. Mitchell, 425 F.3d 270, 283 (6th Cir. 2005). In

Colorado v. Connelly, the defendant had approached a police officer and insisted on confessing to

a murder committed a year earlier. The defendant was later diagnosed as suffering from

schizophrenia, which interfered with his ability to make free and rational choices. The Supreme

Court held that the defendant’s deficient mental condition was not a sufficient basis from which to

find that the defendant’s confession was involuntary. Rather, the Court held that “coercive police

activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning

of the Due Process Clause of the Fourteenth Amendment.” Connelly, 479 U.S. at 167.

Getsy has not demonstrated that there was police overreaching in his case. Getsy was

arrested at around 10:00 p.m. on July 7, 1995, transported to the Hubbard Township Police Station,

and apprised of his Miranda rights. Fewer than three hours later, Getsy waived his Miranda rights

and confessed to the murder. The interview itself was of relatively short duration, lasting less than

one hour. During the interview, Getsy was not subjected to any threats or physical deprivation.

Getsy did not asked the police for food or an opportunity to rest, and they did not deny either to him.

7

When reviewing a defendant’s conviction, our concerns about double jeopardy inform the general rule that

we must consider a sufficiency of the evidence challenge to a conviction first when that issue is raised. See United States

v. Aarons, 718 F.2d 188, 189 n.1 (6th Cir. 1983) (“Where the sufficiency of the evidence is properly before us, we

consider that issue first because it is determinative of whether the appellant may be retried.”); Delk v. Atkinson, 665 F.2d

90, 93 n.1 (6th Cir. 1981) (“Several courts including this one have indicated that where it is claimed on appeal from a

federal conviction that the evidence was insufficient, the reviewing court is required to decide the sufficiency question

even though there might be other grounds for reversal which would not preclude retrial.”); United States v. Orrico, 599

F.2d 113, 116 (6th Cir. 1979) (“We decide the issue of sufficiency of the evidence, rather than admissibility, because

the former issue is determinative of the question whether [the defendant] may be retried.”). In these circumstances,

however, we need not reach Getsy’s sufficiency of the evidence claim because our rule of consistency holding means

that Getsy cannot face retrial on the murder for hire specification.

No. 03-3200 Getsy v. Mitchell Page 19

Although the transcript of Getsy’s statement reveals that he was frightened, he was frightened of

Santine, not of the police officers questioning him. Although the transcript shows that the police

assured Getsy that Santine would not harm him, Getsy did not offer any evidence to show that these

assurances impacted his decision to give his post-arrest confession. Thus, there is no merit to

Getsy’s argument that his confession was involuntary or unconstitutionally admitted.

B. Fair and Impartial Jury

In this claim, Getsy argues that his jury was not fair and impartial because: (1) pretrial

publicity infected the jury pool; (2) the trial court improperly limited voir dire; (3) the trial court

failed to remove for cause jurors who stated that they would automatically impose a death sentence

upon a conviction; and (4) prospective jurors were asked to commit themselves to imposing the

death penalty. Contrary to Getsy’s contention, nothing in the record establishes that Getsy was

denied the right to a fair and impartial jury. A review of the transcripts of the voir dire reveals that

the court questioned prospective jurors about their exposure to pretrial publicity and excused all

jurors who indicated that they could not be impartial; the trial court did not unreasonably or

arbitrarily restrict the questioning of potential jurors during voir dire; the three jurors who Getsy

asserts would automatically vote to impose the death penalty indicated that they could consider all

available options; and neither the trial court nor the prosecutor sought commitments from

prospective jurors to impose the death penalty.

Getsy also contends that his jury was not fair and impartial because the trial court improperly

excused for cause three jurors who expressed opposition to the death penalty. The state court

properly applied the standard established in Wainwright v. Witt, 469 U.S. 412 (1985), for

determining when a prospective juror may be excluded for cause because of his or her views on

capital punishment. That standard is whether the juror’s views would “prevent or substantially

impair the performance of his duties as a juror in accordance with his instructions and his oath.” Id.

at 424. The Ohio Supreme Court specifically adopted the Witt standard in State v. Rogers, 478

N.E.2d 984, 989 (Ohio 1985), vacated on other grounds by 474 U.S. 1002 (1985), and Ohio Rev.

Code Ann. § 2945.25(C)8 does not impose a higher standard than that set forth in Witt, see State v.

Roe, 535 N.E.2d 1351, 1357 (Ohio 1989); State v. Frazier, 652 N.E.2d 1000, 1007 (Ohio 1995).

The record reveals that Juror Nos. 107, 140, and 185 were properly excluded under the standard set

forth in Witt because, although these jurors equivocated in their answers, all three indicated that they

could not follow the law and impose the death sentence, even if appropriate. (J.A. at 3008, 3133,

3332.)

C. Selective Prosecution

Getsy contends that the State improperly engaged in selective prosecution by seeking the

death penalty for him and not for his three codefendants. To support his claim of selective

prosecution, Getsy bears the “heavy burden” of establishing “that, while others similarly situated

have not generally been proceeded against because of conduct of the type forming the basis of the

8

Section 2945.25 provides, in relevant part:

A person called as a juror in a criminal case may be challenged for the following causes:

***

(C) In the trial of a capital offense, that he unequivocally states that under no circumstances will he

follow the instructions of a trial judge and consider fairly the imposition of a sentence of death in a

particular case. A prospective juror’s conscientious or religious opposition to the death penalty in and

of itself is not grounds for a challenge for cause. All parties shall be given wide latitude in voir dire

questioning in this regard.

No. 03-3200 Getsy v. Mitchell Page 20

charge against him, he has been singled out for prosecution.” United States v. Berrios, 501 F.2d

1207, 1211 (2d Cir. 1974). He must also demonstrate “that the government’s discriminatory

selection of him for prosecution has been invidious or in bad faith, i.e., based upon such

impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional

rights.” Id.

We agree with the Ohio Supreme Court and the district court that this claim is unsupported

by the record. It appears from the record that the codefendants in this case were similarly charged

with the aggravated murder of Ann Serafino, with three death penalty specifications: (1) the

aggravated murder was committed in conjunction with the purposeful killing of or attempt to kill

two or more persons; (2) murder for hire; and (3) felony murder. The fact that two of the

codefendants were offered a plea agreement in which the death penalty specifications were

dismissed, and that a jury acquitted one codefendant of the death penalty specifications does not

indicate that Getsy was selectively prosecuted. Further, nothing in the record suggests that the offer

of a plea bargain to Hudach and McNulty or the lack of an offer to Getsy was based upon improper

motives. The record is thus clear that Getsy cannot establish that he was singled out for prosecution.

VI. Conclusion

We hold that Getsy’s death sentence violates Furman, Enmund, and Morrison in that its

imposition is arbitrary and disproportionate and results in inconsistent verdicts. We, therefore,

reverse and vacate the judgment insofar as it leaves undisturbed the death sentence imposed. The

State is granted 180 days after the judgment in this case becomes final in the federal judicial system

to reconsider in light of this opinion Getsy’s sentence under Ohio law. We also remand the case for

an evidentiary hearing regarding the claim of judicial bias and for further proceedings not

inconsistent with this opinion.

No. 03-3200 Getsy v. Mitchell Page 21

_________________

DISSENT

_________________

RONALD LEE GILMAN, Circuit Judge, dissenting. 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.

Binding precedent from both the Supreme Court and this court indicates that neither the

Constitution nor the federal common law contains any such rule. See McCleskey v. Kemp, 481 U.S.

279, 306-07 (1987) (rejecting the argument that the defendant could “prove a constitutional violation

by demonstrating that other defendants who may be similarly situated did not receive the death

penalty”) (emphasis in original); United States v. Crayton, 357 F.3d 560, 565 (6th Cir. 2004)

(holding that the common-law “rule of consistency [is] no longer good law”). Instead of following

these binding precedents, the majority “breaks new ground” in this case, contrary to the Supreme

Court’s decision in Teague v. Lane, 489 U.S. 288, 301 (1989), which generally bars federal courts

from applying new rules of constitutional law in habeas corpus proceedings.

The majority also circumvents the other principal limitation on a federal court’s power to

grant relief from a state-court judgment—namely, 28 U.S.C. § 2254(d)(1), as modified by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). I cannot join the majority in

sidestepping these important limitations on federal judicial power in order to (1) endorse and apply

a type of proportionality review never required by the Supreme Court, and (2) to resurrect and

expand the discredited common-law rule of consistency, which the habeas petitioner himself

understandably chose not to invoke. See Keeton v. Flying J, Inc., 429 F.3d 259, 274 (6th Cir. 2005)

(Gilman, J., dissenting) (“Judicial restraint . . . cautions against adopting a position whose merits

have not been advocated even by the party seeking relief.”).

In addition to vacating Getsy’s sentence, the majority calls into question the validity of his

underlying murder conviction by granting him an evidentiary hearing to explore charges of bias

against the state-court trial judge. This issue was thoroughly examined by the state courts of Ohio,

and I see no constitutional defect in their rejection of Getsy’s claim of judicial bias. Furthermore,

by granting relief on both Getsy’s challenge to his sentence and his attack on his underlying

conviction, the majority has placed the state in an inextricable quandary—one in which it has only

180 days to somehow cure what the majority believes to an unconstitutional sentence, even though

Getsy’s entire conviction could eventually be invalidated on the ground of judicial bias.

Because I am convinced that the district court properly applied governing constitutional and

statutory standards in its comprehensive 132-page opinion denying Getsy’s habeas petition, I would

affirm the decision below in its entirety. I therefore respectfully dissent.

I. THE MAJORITY’S NEW RULE OF CONSTITUTIONAL LAW

Relying on both the proportionality requirement of the Eighth Amendment and the common-

law rule of consistency, the majority holds that Getsy’s death sentence must be reversed “because

the other necessary participant, the hiring party, was acquitted of the same murder for hire

specification.” Maj. Op. at 14. The majority reaches this conclusion not by citing to cases from the

Supreme Court or this court that compel such a holding, but instead by attempting to distinguish

one-by-one the binding precedents that I believe refute the arguments eventually adopted by the

No. 03-3200 Getsy v. Mitchell Page 22

majority. Our role under AEDPA, however, is not to show the absence of prior authority precluding

recognition of the right at issue, but instead to determine whether that right has already been clearly

established. See 28 U.S.C. § 2254(d)(1) (setting forth the applicable standard of review).

In my view, the answer to that inquiry in the present case is rather straightforward. The

majority has not cited a single case in which the Supreme Court has declared an otherwise lawful

death sentence imposed upon a defendant unconstitutional on the ground that another participant in

the murder did not receive the death penalty. When combined with the fact that this court has never

applied the now-repudiated common-law rule of consistency to defendants tried separately, the

absence of Supreme Court caselaw supporting Getsy’s proportionality argument is fatal to his claims

for relief. In support of my conclusion, I have set forth below why I believe that the majority’s

holding runs counter to, or at the very least would require a considerable expansion of, federal law

as interpreted by both the Supreme Court and this court.

A. Teague’s principle of nonretroactivity

As a general principle, federal habeas corpus petitioners “may not avail themselves of new

rules of criminal procedure” per the Supreme Court’s decision in Teague v. Lane. See Beard v.

Banks, 542 U.S. 406, 408 (2004). The Court has explained that deciding “whether a constitutional

rule of criminal procedure applies to a case on collateral review involves a three-step process.” Id.

at 411. This process begins with a court’s determination of

when the defendant’s conviction became final. Second, it must ascertain the legal

landscape as it then existed, and ask whether the Constitution, as interpreted by the

precedent then existing, compels the rule. That is, the court must decide whether the

rule is actually “new.” Finally, if the rule is new, the court must consider whether

it falls within either of the two exceptions to nonretroactivity.

Id. (citations and quotation marks omitted). This three-step analysis reveals that the rule announced

by the majority is “new” and therefore unavailable to Getsy in this habeas corpus proceeding.

There is no question that Getsy’s conviction became final when the Supreme Court denied

his petition for certiorari in June of 1999. See Getsy v. Ohio, 527 U.S. 1042 (1999). I will thus turn

to the second step in the Teague analysis—the determination of “whether the Constitution, as

interpreted by the precedent [existing in 1999], compels the rule” adopted by the majority. See

Beard, 542 U.S. at 411.

In my view, there are three reasons why the rule announced by the majority is a “new rule”

under Teague. First, the majority revives the rule of consistency, whose reach has been severely

limited (if not completely abolished) by the Supreme Court and whose application to defendants

tried separately has been explicitly rejected by this court. The second reason is that the majority’s

inconsistent-verdict rule incorrectly construes the Supreme Court’s proportionality precedents.

These precedents examine whether capital punishment is proportionate to the criminal offense at

issue, not whether one criminal’s sentence is proportionate to those received by other offenders.

Finally, the rule vastly expands the reach of the Court’s fractured decision in Furman v. Georgia,

408 U.S. 238 (1972). I will address each of these reasons in turn.

1. The rule of consistency

As stated above, the majority bases its decision to vacate Getsy’s sentence in part on the

common-law rule of consistency, which it says “prohibited a jury’s acquittal of all but one of

multiple defendants charged with jointly committing a crime that requires at least two participants.”

Maj. Op. at 11. A helpful starting point in analyzing the majority’s rationale is the Supreme Court’s

most recent treatment of the rule of consistency in United States v. Powell, 469 U.S. 57 (1984). In

No. 03-3200 Getsy v. Mitchell Page 23

Powell, the Court reaffirmed the validity of its previous decision in Dunn v. United States, 284 U.S.

390 (1932), in which it had “held that a criminal defendant convicted by a jury on one count could

not attack the conviction because it was inconsistent with the jury’s verdict of acquittal on another

count.” Powell, 469 U.S. at 58. The defendant in Powell was convicted of using a telephone in

conspiring to distribute and possess cocaine, but was acquitted of conspiring to knowingly and

intentionally possess cocaine with the intent to distribute it. Id. at 60. Rejecting Powell’s argument

that the verdicts were impermissibly inconsistent, the Court unanimously endorsed the proposition

that the rationale underlying a jury’s verdict is unreviewable. Id. at 64-65. In so doing, the Court

explained that inconsistent verdicts “often are the product of jury lenity”—a result that the

government cannot appeal because of double jeopardy principles—and that appellate review of the

sufficiency of the evidence provided a sufficient “safeguard[] against jury irrationality.” Id. at 67.

The majority acknowledges that all but one of the courts of appeals to face this issue have

read Powell as precluding application of the rule of consistency. Maj. Op. at 11 n.4, 13. Among

those courts is the Sixth Circuit, which has addressed the continuing viability of the rule of

consistency on three separate occasions. See United States v. Newton, 389 F.3d 631, 636 (6th Cir.),

vacated in part on other grounds, 126 S. Ct. 280 (2005); United States v. Crayton, 357 F.3d 560,

565-67 (6th Cir. 2004); United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986).

This court first addressed the status of the rule of consistency in Sachs, a case in which Sachs

and a codefendant were charged with a conspiracy to infringe the copyrights of two popular films.

Id. at 841. Sachs argued that, because the charges against his alleged coconspirator were dismissed

before trial, his guilty verdict on the conspiracy count must be reversed. Without discussing Powell,

this court held that the rule of consistency did not apply where “coconspirators are tried separately,”

adopting the Eleventh Circuit’s view that the fact that “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 845 (quoting United States v. Roark, 753 F.2d 991, 996 (11th Cir. 1985)).

The court concluded that the same was true in cases where charges against a coconspirator were

dismissed before trial, meaning that Sach’s conviction could stand. Sachs, 801 F.2d at 845.

In the two more recent cases, this court has squarely held that the rule of consistency did not

survive the Supreme Court’s decision in Powell. See Newton, 389 F.3d at 636; Crayton, 357 F.3d

at 565-67. The Crayton court addressed the question at length, analyzing the Powell decision and

the response of our sister circuits to that decision. Id. at 565-66 (citing cases from the First, Fourth,

Fifth, Ninth, and Eleventh Circuits that read Powell as “render[ing] the rule of consistency no longer

good law”); see also United States v. Morton, 412 F.3d 901, 904 (8th Cir. 2005) (confirming, after

this court’s ruling in Crayton, that the Eighth Circuit reads Powell as barring reversal of “a

conviction of one defendant [because it] is inconsistent with a verdict of acquittal of another

defendant on the same count”). Rejecting the contrary view of the Tenth Circuit, this court held that

“the rule of consistency previously recognized in this circuit did not survive Powell.” Crayton, 357

F.3d at 566-67 (refusing to follow United States v. Suntar Roofing, Inc., 867 F.2d 469, 475 (10th Cir.

1990)) (quotation marks omitted). The defendant’s conviction for conspiracy to possess cocaine was

therefore upheld, even though the jury had acquitted his only coconspirator of the same offense.

357 F.3d at 562.

Crayton’s principal holding was reaffirmed just last year in Newton, 389 F.3d at 636. Like

his counterpart in Crayton, the defendant in Newton was convicted of conspiring to possess illegal

drugs with the intent to distribute them. Id. at 633. His only alleged coconspirator, a man named

Tim Wilson, was acquitted on the conspiracy charges in a separate trial. Id. at 634. Newton argued

on appeal that his conviction was void under the rule of consistency because Wilson’s acquittal left

Newton as the sole remaining conspirator, and a person cannot conspire with himself. Citing

Crayton, this court stated that “the rule of consistency has no continuing validity.” Id. at 636.

Without the rule, “Newton [could] be convicted of conspiring with Wilson despite Wilson’s

No. 03-3200 Getsy v. Mitchell Page 24

acquittal.” Id.; see also id. at 639 (Moore, J., concurring in part and dissenting in part) (expressing

agreement “with the majority’s resolution of Newton’s claim[] as to the sufficiency of the evidence,”

which included the analysis of the rule of consistency). The clear import of these cases is that, in

this circuit and in others, defendants cannot seek to overturn conflicting jury verdicts on the basis

of the rule of consistency. This is most definitely the law of the circuit and not, as the majority

struggles to show, simply “dicta” that can be disregarded. Maj. Op. at 14.

Furthermore, this court has never applied the old rule of consistency to invalidate conflicting

verdicts returned by juries in separate trials. See Newton, 389 F.3d at 636 (noting that the rule of

consistency “was not applied if co-conspirators were separately tried”) (citing Sachs, 801 F.2d at

845); see also Michelle Migdal Gee, Prosecution or Conviction of One Conspirator as Affected by

Disposition of Case Against Coconspirators, 19 A.L.R. 4th 142, § 3[b] (2005) (collecting cases).

The very law review article on which the majority relies makes this point explicitly and

convincingly:

When the inconsistent verdicts come from different juries in successive trials, see,

e.g., Standefer v. United States, 447 U.S. 10, 11-13 (1980), there is no true

inconsistency. . . . A truly inconsistent verdict, as I am defining it . . . , is one that

not only clashes with the logic of another verdict, but that also does so in a way that

reveals jury error. When two juries reach verdicts that conflict with each other, the

result may be uncomfortable. Indeed, it may be difficult to square with our

traditional concern for the appearance of justice. But the inconsistency does not

confirm that either jury reached its verdict improperly. That is a crucial distinction.

Without any reason to think that either jury was acting erroneously, we have no

reason to view either verdict with suspicion.

Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv.

L. Rev. 771, 780 n.43 (1998). Therefore, even if the majority were correct in limiting the reach of

the Powell decision, and even if we were not bound by this court’s decisions in Clayton and

Newton, the rule of consistency would still not apply in the present case, where the conflicting

verdicts were rendered in separate trials.

Finally, I see nothing in the Supreme Court’s earlier decisions in Morrison v. California, 291

U.S. 82 (1934), or Hartzel v. United States, 322 U.S. 680 (1944), that alters the interpretation of

Powell that this court has recently adopted. Both Morrison and Hartzel stand for the

unexceptionable proposition that, where a court declares that the evidence is insufficient to support

one defendant’s conspiracy conviction, the conviction of the only other party to the conspiracy must

also be voided. See Morrison, 291 U.S. at 93; Hartzel, 322 U.S. at 682 n.3; see also United States

v. Bucuvalas, 909 F.2d 593, 596 (1st Cir. 1990) (citing Morrison as support for the principle “that

where the evidence against all of an individual’s alleged co-conspirators is deemed legally

insufficient, the evidence against that individual is by definition also insufficient”).

A court’s finding that the evidence was legally insufficient to support a conviction, however,

is not the same as a jury’s refusal to convict. This proposition is fully consistent with Powell, where

the Supreme Court explained that appellate review of the sufficiency of the evidence is the primary

bulwark against irrational jury verdicts. See Powell, 469 U.S. at 67. Read together, then, Morrison,

Hartzel, and Powell reaffirm that the evaluation of the sufficiency of the evidence proffered at trial

is the exclusive means of safeguarding against verdicts that, while apparently irreconcilable, may

be nothing more than the product of jury leniency or nullification and are not appealable by the

government. See id. at 66-67; Bucuvalas, 909 F.2d at 597 (opining that “the Court’s emphasis in

Powell on the sufficiency of the evidence fully embraces the Hartzel ruling”).

No. 03-3200 Getsy v. Mitchell Page 25

2. Comparative proportionality

Although the rule of consistency is not a principle rooted in the Eighth Amendment, the

majority elsewhere in its opinion reveals that its true concern is that Getsy’s death sentence is

“disproportionate” to the sentence imposed upon the “mastermind” of the conspiracy to murder the

Serafinos—namely, Santine. Maj. Op. at 8. But the Supreme Court’s proportionality jurisprudence,

contrary to the majority’s view, focuses on whether the punishment of death is appropriate for

specific types of criminal conduct, not on whether one defendant’s death sentence is morally

justifiable with respect to that of another participant in the same crime.

Proportionality, as the Supreme Court has explained, refers “to an abstract evaluation of the

appropriateness of a sentence for a particular crime.” Pulley v. Harris, 465 U.S. 37, 42-43 (1984).

Evaluating the nature of the offense and the penalty, as well as sentencing practices in various

jurisdictions, the “Court has occasionally struck down punishments as inherently disproportionate,

and therefore cruel and unusual, when imposed for a particular crime or category of crime.” Id. at

43. Examples of “inherently disproportionate punishments” that are set forth in Pulley include a

death sentence for the rape of an adult woman that does not result in death, and a death sentence for

a defendant who aids and abets the commission of a felony but does not take life, attempt to take

life, or intend to take life. Id. (citing Enmund v. Florida, 458 U.S. 782 (1982), and Coker v.

Georgia, 433 U.S. 584 (1977) (plurality opinion)). These are the very examples seized on by Getsy,

who argues in his brief that his sentence “is disproportionately severe in comparison to the sentences

imposed on all of the other participants as well as others similarly situated.”

But the Court in Pulley expressly rejected the argument that Getsy is making (and that the

majority appears to accept)—namely, that the Constitution requires “comparative proportionality

review.” See 465 U.S. at 51. This type of review, the Court observed, “purports to inquire . . .

whether the penalty is . . . unacceptable in a particular case because [it is] disproportionate to the

punishment imposed on others convicted of the same crime.” Id. at 43. Even though a comparative

proportionality review is not constitutionally required, the Ohio Supreme Court conducts such

reviews. This court has repeatedly upheld the Ohio Supreme Court’s review procedures as falling

“within the wide latitude allowed” states in defining the type of cases used for comparison. See

Wickline v. Mitchell, 319 F.3d 813, 824 (6th Cir. 2003) (rejecting the habeas petitioner’s “claim that

the Ohio Supreme Court failed to grant him meaningful proportionality review of his death

sentence”); Buell v. Mitchell, 274 F.3d 337, 368-69 (6th Cir. 2001) (rejecting the habeas petitioner’s

“contentions regarding inadequate appellate review of the proportionality of death sentences under

the Ohio statute . . . because no proportionality review is constitutionally required”). Getsy’s

proportionality argument is thus foreclosed by both our own precedents and those of the Supreme

Court.

Nothing in the Supreme Court’s decision in Enmund v. Florida, 458 U.S. 782 (1982), is to

the contrary. The defendant in Enmund was the getaway driver for two others who had robbed and

murdered an elderly couple. Id. at 784. He was convicted of two counts of first-degree murder and

one count of robbery, and was sentenced to death. The Supreme Court granted certiorari to decide

“the question whether death is a valid penalty . . . for one who neither took life, attempted to take

life, nor intended to take life.” Id. at 787. In answering that question, the Court reaffirmed that it

was not deciding “the disproportionality of death as a penalty for murder, but rather the validity of

capital punishment for Enmund’s own conduct.” Id. at 798. Continuing its analysis, the Court

reiterated that “[t]he focus must be on his culpability, not on that of those who committed the

robbery and shot the victims, for we insist on individualized consideration as a constitutional

requirement in imposing the death sentence[.]” Id. (citation and quotation marks omitted) (emphasis

in original).

No. 03-3200 Getsy v. Mitchell Page 26

The Supreme Court then held that, because “Enmund did not kill or intend to kill,” his

culpability was insufficient to support a sentence of death under the Eighth Amendment. Id. In

other words, death is a disproportionate penalty for defendants who do not take life, attempt to take

life, or intend to take life. See id. at 787, 801. At no point in its opinion did the Court say that the

Eighth Amendment requires state and federal courts to compare the conduct of one defendant to that

of a codefendant involved in the same crime. Indeed, the Court’s lone reference to the conduct of

Enmund’s codefendants was in the context of differentiating between criminals who do take life (or

intend to take life) and those, like Enmund, who do not. See Tison v. Arizona, 481 U.S. 137, 149

(1987) (reading Enmund as resting on the fact that Enmund’s “own participation in the felony

murder was so attenuated” and that “there was no proof that Enmund had any culpable mental state,”

and so limiting the Enmund holding). Enmund, in sum, held nothing more and nothing less than that

states may not impose the death penalty on defendants who do not kill, attempt to kill, or intend to

kill a human being—the precise question on which the Court granted review.

The majority’s reading of Enmund turns that case on its head. First, the narrow holding of

Enmund cuts decisively against Getsy, since he took Ann Serafino’s life and thus falls squarely

within the class of offenders for whom death is a permissible punishment. More importantly, the

Supreme Court stated in Edmund what it would go on to reaffirm in Pulley—that what the

Constitution requires is “individualized consideration” of a defendant’s culpability, “which means

that [courts] must focus on relevant facets of the character and record of the individual offender.”

Id. at 798 (citations and quotation marks omitted). The focus in Edmund was “on his culpability, not

on that of those who committed the robbery and shot the victims[.]” Id. (emphasis in original).

Similarly, the focus in the present case must be on Getsy, not on Santine or any of the others who

participated in the conspiracy to murder the Serafinos. Rather than supporting the majority’s

creation of a comparative-proportionality requirement, therefore, the decision in Enmund reinforces

the proposition at the heart of Pulley—that the Eighth Amendment assures that the punishment will

fit the crime, but does not bar one defendant in a murder conspiracy from receiving a death sentence

simply because another of the coconspirators received a life sentence.

Just as mystifying to me is the majority’s reliance on the writings of Aristotle, a law review

article that also cites Aristotle, and three state-court decisions discussing proportionality as a matter

of state constitutional law. Maj. Op. at 9-10. These authorities, needless to say, stray far from the

only source of law that permits us to invalidate a state-court ruling and grant habeas relief—the

decisions of the United States Supreme Court. See 28 U.S.C. § 2254(d)(1).

Moreover, the state-court cases cited by the majority, even if they were valid sources of law

for a federal habeas court to consider, provide little support for the majority’s holding. In one of

those cases, People v. Kliner, 705 N.E.2d 850, 897-98 (Ill. 1998), the state court affirmed the death

sentence of a hired killer, even though the person who had hired him had pled guilty and received

a 60-year term of imprisonment. The Florida Supreme Court in Larzelere v. State, 676 So. 2d 394,

406 (Fla. 1996), likewise affirmed the death sentence in the converse situation—one where a mother

who hired her son to kill her husband was convicted of capital murder, but the son was acquitted of

the murder charge in a subsequent trial. Finally, the one case of the three in which a state court

actually overturned a sentence as disproportionate under state law predated the Supreme Court’s

decision in Enmund and explicitly reaffirmed the validity of its prior decisions upholding death

sentences imposed on one “but not necessarily all of the participants in a criminal transaction.” Hall

v. State, 244 S.E.2d 833, 839 (Ga. 1978). These decisions demonstrate that even those state courts

that conduct a comparative proportionality review of the type endorsed by the majority have upheld

death sentences despite apparently inconsistent verdicts rendered in separate trials.

Furthermore, I read the Supreme Court’s decision in McCleskey v. Kemp, 481 U.S. 281

(1987), as resolving any remaining doubt as to the viability of comparative-proportionality

challenges. The defendant in McCleskey was a black man convicted of killing a white police officer.

No. 03-3200 Getsy v. Mitchell Page 27

After he was sentenced to death, McCleskey argued that his sentence violated the Eighth

Amendment. McCleskey relied on statistical evidence of “a disparity in the imposition of the death

sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the

defendant.” Id. at 286. He also maintained “that the sentence in his case is disproportionate to the

sentences in other murder cases.” Id. at 306. Citing Pulley, the Supreme Court rejected

McCleskey’s challenge and upheld his death sentence. McCleskey, the Court explained, could not

“prove a constitutional violation by demonstrating that other defendants who may be similarly

situated did not receive the death penalty.” Id. at 306-07 (emphasis in original). The Court reasoned

that the possibility that juries in other cases may have acted out of “discretionary leniency” and

declined to impose the death penalty did not render death sentences that were imposed “arbitrary

and capricious.” Id. at 307.

In rejecting McCleskey’s comparative proportionality argument, the Supreme Court

appended a lengthy footnote to explain why “[t]he Constitution is not offended by inconsistency in

results based on the objective circumstances of the crime.” Id. at 307 n.28. The Court elaborated:

Numerous legitimate factors may influence the outcome of a trial and a defendant’s

ultimate sentence, even though they may be irrelevant to his actual guilt. If sufficient

evidence to link a suspect to a crime cannot be found, he will not be charged. The

capability of the responsible law enforcement agency can vary widely. Also, the

strength of the available evidence remains a variable throughout the criminal justice

process and may influence a prosecutor’s decision to offer a plea bargain or to go to

trial. Witness availability, credibility, and memory also influence the results of

prosecutions. Finally, sentencing in state courts is generally discretionary, so a

defendant’s ultimate sentence necessarily will vary according to the judgment of the

sentencing authority. The foregoing factors necessarily exist in varying degrees

throughout our criminal justice system.

Id. These practical difficulties inherent in reviewing discretionary sentencing decisions mirror the

concerns expressed by the Court when it rebuffed a challenge to seemingly inconsistent jury verdicts

in Powell. See 469 U.S. at 64-67. As the Court noted in both Powell and McCleskey, the power of

the jury to express “the collective judgment of the community” through a compromise verdict or the

exercise of mercy may lead to imperfect outcomes, but they are outcomes that are just as likely to

benefit criminal defendants as to prejudice them. See id. at 67; McCleskey, 481 U.S. at 307.

The majority’s proportionality holding, as applied in this case, leads to exactly the type of

“imprudent and unworkable” results that the Supreme Court warned against in Powell. See 469 U.S.

at 66. Without intending a parade of horribles, I offer two examples that I believe demonstrate the

illogical consequences to which the majority’s rule leads. Assume that, unlike in the present case,

the jury did not find the murder-for-hire specification and recommended that Getsy be sentenced to

life in prison. The majority’s rule would appear to prevent the state, at the subsequent trial of

Santine, from seeking the death penalty on the basis of murder for hire, since Santine could point

to the jury verdict in Getsy’s case and allege inconsistency. Alternatively, what if Santine had fled

the jurisdiction and was not located and brought to trial until well after Getsy’s conviction or, worse

still, until after Getsy was executed? If the jury at his much-later trial failed to find the murder-for-

hire specification, would Getsy’s death sentence become unconstitutional years after the fact? These

examples, which are just two of many that one could posit, expose as “imprudent and unworkable”

a rule that makes the validity of one person’s conviction and sentence contingent upon the verdict

of another jury at the later trial of his or her “partner in crime.”

Beyond these practical concerns, caselaw from our sister circuits provides a strong indication

that the majority’s proportionality theory runs directly counter to the Supreme Court’s holdings in

McCleskey and Pulley. The Tenth Circuit, for example, has rejected under similar factual

No. 03-3200 Getsy v. Mitchell Page 28

circumstances the same comparative proportionality argument advanced by Getsy and endorsed by

the majority. See Hatch v. Oklahoma, 58 F.3d 1447, 1466 (10th Cir. 1995). In Hatch, the

defendant’s accomplice, Glen Burton Ake, entered the home of Richard and Marilyn Douglass by

pretending that he was lost and requesting directions from the Douglasses. Id. at 1451. Ake then

retrieved a firearm from the car, and he and Steven Hatch reentered the home, both armed. Id. The

duo bound and gagged Richard and Marilyn, as well as their son Brooks, and attempted to rape the

Douglasses’ 12-year-old daughter. Id. Ake then told Hatch to return to the car, to prepare it for their

departure, and to “wait for the sound.” Id. After Hatch left the house, Ake shot each of the

Douglasses, killing the parents and wounding both children.

The two defendants were tried separately. Hatch waived his right to a jury trial, while Ake

availed himself of that right. After various appeals, Hatch was sentenced to death, and the

Oklahoma state courts affirmed. Id. at 1452. Ake’s case eventually reached the United States

Supreme Court, which reversed his conviction and remanded for a new trial. Ake v. Oklahoma, 470

U.S. 68, 74 (1985). The jury at the second trial convicted Ake of first-degree murder and shooting

with intent to kill, but recommended a life sentence, which the trial judge imposed. See Ake v. State,

778 P.2d 460, 461-62 (Okla. Crim. App. 1989).

Before the Tenth Circuit, Hatch argued “that the Constitution require[d] that he receive a

sentence proportional to others who have committed the same offense.” Hatch, 58 F.3d at 1466.

Hatch maintained that, because Ake was “more culpable for the murders,” Hatch’s “sentence should

be no more severe than his codefendant,” who received life imprisonment. Id. at 1466 & n.14. The

Tenth Circuit acknowledged that the Supreme Court’s decision in Pulley had directly dealt with

“appellate court review for proportionality in relation to all defendants.” Id. at 1466 (emphasis in

original). What Hatch sought was slightly different—“a proportionality review of his sentence

relative only to his codefendant.” Id. The Tenth Circuit found this distinction irrelevant for

constitutional purposes, concluding that Pulley foreclosed Hatch’s challenge. Hatch, the court held,

“was constitutionally entitled to a determination of his individual culpability, and he received that

individualized consideration. The Constitution does not demand that he receive a review of his

comparative responsibility as well.” Id. (citation omitted); see also Bush v. Singletary, 99 F.3d 373,

375 (11th Cir. 1996) (per curiam) (holding that a successive habeas petitioner did not raise a federal

constitutional claim by arguing that his death sentence was disproportionate to that of his

codefendant, whose death sentence had been vacated on appeal); Russell v. Collins, 998 F.2d 1287,

1294 (5th Cir. 1993) (denying relief to a habeas petitioner who argued that his death sentence was

disproportionate to that of a codefendant who had pled guilty and had been sentenced to 60 years

in jail).

Similarly, both the jury and the Ohio courts on appellate review have provided Getsy with

“a determination of his individual culpability.” Hatch, 58 F.3d at 1466. They have concluded that

Getsy shot and killed Ann Serafino, that the evidence supports the finding of three specifications

(murder for hire, felony murder, and attempting to kill two or more persons), and that the

aggravating circumstances outweigh the mitigating ones. The Ohio Supreme Court, employing a

type of proportionality review that this court has upheld, see Buell, 274 F.3d at 368-69, also found

that Getsy’s sentence was not disproportionate to those imposed on others convicted of similar

crimes and sentenced to death. See State v. Getsy, 702 N.E.2d 866, 892 (Ohio 1998).

Nothing more is required by the Constitution. See McCleskey, 481 U.S. at 306 (reaffirming

Pulley’s holding that comparative “proportionality review is not constitutionally required”); see also

Hatch, 58 F.3d at 1466 (citing cases from the Fourth, Fifth, and Eighth circuits agreeing that

comparative proportionality review is not constitutionally mandated). Because comparative

proportionality review is not constitutionally required, and because the Supreme Court and our sister

circuits have rejected a proportionality argument substantially similar to the one advanced by Getsy,

I believe that the majority has erred in adopting a contrary position.

No. 03-3200 Getsy v. Mitchell Page 29

The majority has responded to my discussion of proportionality by arguing that this court’s

precedents upholding the Ohio Supreme Court’s system of proportionality review against

constitutional challenges do not control in the present case because Getsy “does not challenge

Ohio’s system of proportionality review.” Maj. Op. at 10 n.2. Rather, the majority says, Getsy is

challenging only the application of that system to his case. Id. I find this response unconvincing

for two reasons. First, the majority is wrong as a matter of fact. Getsy spends approximately five

pages in his appellate brief attacking the validity of Ohio’s system of proportionality review.

(Appellant’s Br. at 120-125) Second, even if Getsy is challenging only the application of the

proportionality review scheme to his case (as opposed to the constitutionality of the system as a

whole), the majority has misconceived the import of this court’s precedents.

The cases of Williams, Wickline, Smith, and Buell all uphold a particular type of

proportionality review conducted by the Ohio Supreme Court, which compares the individual death

sentence at issue with “previous cases in which the death penalty has been imposed.” Wickline, 319

F.3d at 824-25. That is to say, the Ohio Supreme Court specifically excludes from the precedents

used for comparison those cases in which defendants, like Santine, received a sentence of life

imprisonment. But what the majority holds, in essence, is that the Ohio Supreme Court

unreasonably applied clearly established federal law by refusing to conclude that Getsy’s sentence

is disproportionate to the one received by Santine, even though this court has consistently held that

the Ohio Supreme Court is not obligated to consider the life sentence of a coconspirator at all. I

cannot accept the notion that a state court’s failure to consider something that this court has

repeatedly said that it need not consider can constitute reversible constitutional error and serve as

the basis for habeas corpus relief.

To sum up, I believe that the rule announced by the majority is a new rule of constitutional

law that conflicts with Supreme Court precedents rejecting substantially similar arguments. Caselaw

from both this court and our sister circuits confirms that the only type of proportionality review

mandated by the Constitution is an evaluation of “the appropriateness of a sentence for a particular

crime,” not the appropriateness of a sentence relative to the one received by other participants in the

crime. See Pulley, 465 U.S. at 42-43. Nothing cited by the majority persuades me otherwise. I thus

believe that the decision that is contrary to clearly established federal law is not the one rendered

by the Ohio Supreme Court, but that of the majority today.

3. Inconsistent verdicts at separate trials do not implicate Furman

The majority further asserts, without support, that the common-law rule of consistency

informs the inquiry into whether a death sentence is unconstitutionally arbitrary under Furman v.

Georgia, 408 U.S. 238 (1972). Maj. Op. at 6, 15. Furman was a fractured 5-4 decision by the

Supreme Court that effectively created a temporary moratorium on capital punishment in the United

States. No single rationale united the five justices who found the death penalty as then administered

“cruel and unusual” within the meaning of the Eighth Amendment, and subsequent decisions of the

Court demonstrate that the majority’s reliance on Furman is unavailing as a basis to set aside

Getsy’s sentence.

One way in which I believe that the majority misconceives the significance of Furman is by

failing to acknowledge the manner in which the Supreme Court has subsequently interpreted its

decision in that case. In Gregg v. Georgia, 428 U.S. 153 (1976), for example, the Court upheld the

constitutionality of Georgia’s death penalty system—a modified version of the system that it had

declared unconstitutional in Furman. The petitioner in Gregg challenged, on the strength of

Furman, the continued chance that the discretionary nature of the Georgia system would result in

the arbitrary imposition of the death penalty in murder cases. But the Court rejected this argument,

describing Furman as holding “only that, in order to minimize the risk that the death penalty would

be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided

No. 03-3200 Getsy v. Mitchell Page 30

by standards so that the sentencing authority would focus on the particularized circumstances of the

crime and the defendant.” Id. at 199 (joint opinion of Stewart, Powell, and Stevens, JJ.); see also

Blystone v. Pennsylvania, 494 U.S. 299, 314 (1990) (“In Furman, the Court held that vesting the

sentencer with unbridled discretion to determine whether or not to impose the death penalty resulted

in a system in which there was no objective way to distinguish between defendants who received

the death penalty and those who did not.”).

The jury at the sentencing phase of Getsy’s trial “focus[ed] on the particularized

circumstances of the crime and the defendant,” Gregg, 428 U.S. at 199 (joint opinion of Stewart,

Powell, and Stevens, JJ.), and the majority does not contend otherwise. Nor does the majority claim

that Ohio’s capital punishment system “vest[ed] the sentencer with unbridled discretion to determine

whether or not to impose the death penalty” in his case. Blystone, 494 U.S. at 314. Such claims

would in any event be contrary to both law and fact because Ohio’s sentencing regime requires the

jury to find statutory aggravating factors before it can impose the death penalty, and to weigh those

factors against any mitigating circumstances, which is exactly what the jury did in the present case.

I also believe that the majority misconceives the applicability of Furman in two other ways.

One is its failure to recognize that Furman focused not on the unfairness or arbitrariness of

individual death sentences, but on the arbitrariness of state capital-punishment regimes as a whole.

See Gregg, 428 U.S. at 200 (joint opinion of Stewart, Powell, and Stevens, JJ.) (“[T]he petitioner

looks to the sentencing system as a whole (as the Court did in Furman and we do today) and argues

that it fails to reduce sufficiently the risk of arbitrary infliction of death sentences.”). Even the

justices most ardently opposed to the death penalty believed that what rendered the regime

unconstitutional was its systematic irrationality, not the unjust outcome in a particular case. See,

e.g., McCleskey v. Kemp, 481 U.S. 279, 323 (1987) (Brennan, J., joined by Marshall, Blackmun, and

Stevens, JJ., dissenting) (stating that “concern for arbitrariness focuses on the rationality of the

system as a whole”). Because the Court’s decision in Furman rested primarily on concerns about

the irrationality of state capital-sentencing regimes “as a whole,” I disagree with the majority’s

characterization of that case as focusing on inconsistent results in individual cases. Maj. Op. at 7-8.

The other way in which I believe the majority misinterprets Furman is by incorporating the

rule of consistency, as well as the Supreme Court’s decisions in Morrison and Hartzel, into

Furman’s Eighth Amendment principles. Maj. Op. at 13-15. According to the majority, the rule

of consistency and Morrison/Hartzel “add[] clarity, detail, and content to the more generalized

‘arbitrariness’ language of Furman.” Maj. Op. at 13. I fail to see, however, how cases decided 28

and 38 years prior to Furman can be used to clarify the Court’s later decision. Instead, I would look

to the Court’s more recent interpretations of the Eighth Amendment, all of which, as I have shown

above, substantially limit the reach of Furman. I therefore believe that the majority errs in giving

an expansive reading to Furman, and that it has created a new rule of constitutional law in doing so.

4. The majority’s rule does not fall within the exceptions to Teague

Because none of the Supreme Court cases cited by the majority “compel” the constitutional

rule that it adopts today, that rule is a “new” one that cannot benefit Getsy in his collateral attack

on his state conviction and sentence unless “it falls under one of Teague’s exceptions.” See Beard

v. Banks, 542 U.S. 406, 411, 416 (2004). Those narrow exceptions are for (1) “rules forbidding

punishment of certain primary conduct [or] rules prohibiting a certain category of punishment for

a class of defendants because of their status or offense,” and (2) “watershed rules of criminal

procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. at

416-17 (citations and quotation marks omitted).

Neither Getsy’s “status” nor the nature of his criminal offense form the basis for the

majority’s rule, so the first exception does not apply. See id. As for the second exception, the Court

No. 03-3200 Getsy v. Mitchell Page 31

in Beard “emphasized the limited scope” of the exception, noting that it had “yet to find a new rule

that falls under the second Teague exception,” id. at 417, which includes only those procedural

protections as fundamental to the system of criminal justice as the right to counsel. The rule

announced by the majority, unlike the right to counsel, is not one that transforms the courts’

“understanding of the bedrock procedural elements essential to the fairness of a proceeding,” id. at

418 (citation omitted) (emphasis in original). Teague’s limited second exception, therefore, is

similarly inapplicable.

That the majority’s rule aims to avoid “potentially arbitrary impositions of the death

sentence” does not alter either the analysis or the outcome. Id. at 419. Indeed, the Beard Court

specifically rejected the argument that rules with such an objective automatically fall under the

second Teague exception. The Court explained that all of its Eighth Amendment jurisprudence in

the capital-punishment context “is directed toward the enhancement of reliability and accuracy in

some sense,” but nonetheless held that “the fact that a new rule removes some remote possibility of

arbitrary infliction of the death sentence does not suffice to bring it within Teague’s second

exception.” Beard, 542 U.S. at 419-20 (citation and quotation marks omitted). Because I believe

that the majority’s holding constitutes a new rule of constitutional law, and because that rule does

not fall within either of the narrow exceptions to Teague’s principle of nonretroactivity, I would

deny Getsy any relief on the basis of that rule.

B. AEDPA standard

As the majority acknowledges, Getsy must also demonstrate that the decision of the Ohio

Supreme Court is contrary to or an unreasonable application of clearly established federal law as

determined by the United States Supreme Court. See 28 U.S.C. 2254(d)(1); Williams v. Taylor, 529

U.S. 362, 412-13 (2000). A legal principle is clearly established only if it constitutes an “old rule”

under Teague. See id. at 412 (explaining that “whatever would qualify as an old rule under [the

Court’s] Teague jurisprudence will constitute clearly established Federal law . . . under

§ 2254(d)(1)”) (quotation marks omitted). For the reasons set forth above, I believe that the

majority’s rule is new, rather than old, and that the questionable principle announced today does not

constitute clearly established federal law.

To the extent that the majority relies on the fact that the Supreme Court has not squarely

rejected the rule adopted today, that fact admits to the inconsistency of the majority’s holding with

the requirements of AEDPA because it demonstrates that the Court has not yet addressed the issue.

The majority insists that relevant Supreme Court “precedents include not only bright-line rules but

also the legal principles and standards flowing from precedent.” Maj. Op. at 5 (quoting Ruimveld

v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005)). But whatever the breadth of those “legal principles

and standards” may be, this court has held that “[t]he Supreme Court’s silence on a particular issue

cannot constitute ‘clearly established’ Federal law.” Hill v. Hofbauer, 337 F.3d 706, 712 n.3 (6th

Cir. 2003); see also Taylor v. Withrow, 288 F.3d 846, 855 (6th Cir. 2002) (Boggs, J., concurring)

(opining that “the silence of the Supreme Court may not be construed as clearly established law

sufficient to allow a federal court to reverse a state determination”).

Even if the Supreme Court’s unanimous decision in Powell did not signal the death knell for

the rule of consistency, and even if McCleskey and Pulley did not definitively reject the idea of

comparative proportionality review, all the majority can say is that the Court has not yet spoken to

the rule articulated today. But this court’s cases make abundantly clear that the Supreme Court’s

silence on an issue is simply not enough to reverse a state-court decision under AEDPA. I therefore

believe that the majority has erred in granting habeas relief on the basis of ambiguities that it

perceives to exist (and I do not) in the Court’s caselaw.

No. 03-3200 Getsy v. Mitchell Page 32

II. EVIDENTIARY HEARING

I agree with the majority that Getsy made a reasonable attempt to develop the factual basis

of his judicial-bias claim and that the strict requirements of AEDPA do not bar his pursuit of this

issue. Maj. Op. at 17. Despite overcoming these initial hurdles, however, Getsy is not automatically

entitled to an evidentiary hearing. See Fullwood v. Lee, 290 F.3d 663, 681 (4th Cir. 2002) (“[E]ven

if [the petitioner’s] claim is not precluded by § 2254(e)(2), that does not mean he is entitled to an

evidentiary hearing—only that he may be.”) (quoting McDonald v. Johnson, 139 F.3d 1056, 1059-60

(5th Cir. 1998) (alterations and emphasis in original). Getsy must instead satisfy the criteria

contained in the Supreme Court’s pre-AEDPA cases, principally its decision in Townsend v. Sain,

372 U.S. 293, 313 (1963), which sets forth six circumstances under which a federal court either may

or must grant an evidentiary hearing upon the request of a state habeas petitioner. See Cardwell v.

Greene, 152 F.3d 331, 338-39 (4th Cir. 1998) (holding that where § 2254(e)(2) does not bar a habeas

petitioner’s request for an evidentiary hearing, “the district court may proceed to consider whether

a hearing is appropriate, or required under Townsend”), overruled on other grounds by Bell v. Jarvis,

236 F.3d 149 (4th Cir. 2000).

But the six criteria listed in Townsend are relevant only if, as a threshold matter, “the

petitioner alleges additional facts that, if true, would entitle him to relief.” Fullwood, 290 F.3d at

681 (citation and quotation marks omitted); see also Davis v. Lambert, 388 F.3d 1052, 1061 (7th Cir.

2004) (“Under pre-AEDPA standards, a federal evidentiary hearing is required only if . . . the

petitioner alleges facts which, if proved, would entitle him to relief . . . .”); Insyxiengmay v. Morgan,

403 F.3d 657, 670 (9th Cir. 2005) (same). Getsy must therefore point to facts that, if proved, would

demonstrate that judicial bias on the part of the state-court trial judge violated his due process rights.

See Bracy v. Gramley, 520 U.S. 899, 905 (1997) (explaining that “the Due Process Clause of the

Fourteenth Amendment establishes a constitutional floor” that “requires a fair trial in a fair tribunal,

before a judge with no actual bias against the defendant or interest in the outcome of his particular

case”) (citations and quotation marks omitted). I do not believe that Getsy has made such a

showing.

Getsy’s allegations focus on (1) Judge McKay’s alleged contacts with Getsy’s prosecutor

at a party held at the home of the prosecutor’s mother-in-law; and (2) Judge McKay’s conduct in

court the day after the party, when he arrived late and wore sunglasses in court. The first of these

claims alleges the Judge McKay was biased because of his out-of-court friendship with the

prosecutor, whereas the second claim appears to assert that the judge conducted the proceedings in

a manner that strongly suggested to the jury that he favored the prosecution. See Wallace v. Bell,

387 F. Supp. 2d 728, 737 (E.D. Mich. 2005) (explaining the two types of judicial-bias claims, and

granting habeas relief where the state-court trial judge called his own witness to bolster the

prosecution’s case and the state appellate court failed to recognize that judicial bias is a structural

error).

As to his first claim, Getsy seeks the opportunity “to discover the names of other persons at

the party or to depose such people.” The thrust of Getsy’s argument, as I understand it, is that Judge

McKay must have been socializing with the prosecutor and therefore improperly discussed the

pending case with her, or became so friendly with her as to favor the prosecution, or both. This

court, however, has already held in a capital case that “ex parte contact does not, in itself, evidence

any kind of bias.” Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002) (holding that the habeas

petitioner’s allegations that the state-court judge engaged in ex parte communications with jurors

during the trial and with the family members of the victim “fail[ed] to present a viable claim of

constitutionally-impermissible judicial bias,” and did not entitle the petitioner to an evidentiary

hearing). The Chief Justice of the Ohio Supreme Court reached the same conclusion in reviewing

Getsy’s motion to disqualify Judge McKay, observing that “[t]he mere fact that a judge and an

No. 03-3200 Getsy v. Mitchell Page 33

attorney attend the same social event does not mandate the judge’s disqualification from pending

cases involving that attorney.” In re Disqualification of McKay, 674 N.E.2d 359 (Ohio 1996).

I agree with the district court that the decision of the Chief Justice, and the subsequent action

of the Ohio Supreme Court in adopting his opinion, is not contrary to or an unreasonable application

of clearly established federal law. Furthermore, I do not believe that Getsy’s mere allegation that

Judge McKay and the prosecutor are both lying and that they did in fact socialize extensively and/or

discuss his case at the party entitles him to an evidentiary hearing on the issue. The Supreme Court

reaffirmed in Bracy that courts ordinarily “presume that public officials have properly discharged

their duties.” 520 U.S. at 909 (citation and quotation marks omitted). To overcome that

presumption, Getsy has offered nothing more than his suspicions that Judge McKay and the

prosecutor had extensive contacts, such that Judge McKay developed a “judicial predisposition[]

. . . beyond what is normal and acceptable.” Alley, 307 F.3d at 386 (quoting Liteky v. United States,

510 U.S. 540, 552 (1994)).

An evidentiary hearing, however, should be held only where it “would be meaningful, in that

a new hearing would have the potential to advance the petitioner’s claim.” Campbell v. Vaughn, 209

F.3d 280, 287 (3d Cir. 2000) (Becker, C.J.). Far from being “meaningful,” Getsy’s plan to question

people who attended a party a decade ago about their recollection of the interaction between Judge

McKay and the prosecutor threatens to devolve into a fishing expedition that will contribute little

if anything to his ultimate claim that Judge McKay denied him “the right to a fair trial in a fair

tribunal.” Alley, 307 F.3d at 386.

Getsy also fails to make a colorable showing that Judge McKay’s behavior in court the day

after the party and his automobile accident dropped below the “constitutional floor” of judicial

conduct. Bracy, 520 U.S. at 904. As the Bracy Court emphasized, “most questions concerning a

judge’s qualifications to hear a case are not constitutional ones,” but are instead “answered by

common law, statute, or the professional standards of the bench and bar.” Id. The Second Circuit,

in reviewing allegations of misconduct on the part of a state-court trial judge, has similarly pointed

out that “federal courts have authority under their supervisory powers to oversee the administration

of criminal justice within federal courts [but] lack such authority with respect to state courts. The

only commands that federal courts can enforce in state courts are those of the Constitution.” Daye

v. Attorney Gen. of New York, 712 F.2d 1566, 1571 (2d Cir. 1983) (footnote omitted).

Judge McKay’s regrettable actions outside the courtroom certainly violated Ohio law, as his

drunk driving conviction demonstrates. His decision to continue the trial despite any lingering

physical effects from his consumption of alcohol or the single-car accident may even have been so

ill-advised as to fall below the “professional standards of the bench and bar.” Bracy, 520 U.S. at

904. Getsy, however, has not pointed to any acts by Judge McKay in court following the accident

that evince favoritism to the prosecution or that would have signaled to the jury that the judge was

on the state’s side. In other words, Getsy has not alleged any facts that, if true, would establish that

the conduct of the trial judge violated Getsy’s constitutional rights. See Fullwood, 290 F.3d at 681.

Furthermore, the voir dire conducted by another judge revealed that only two jurors had even heard

of Judge McKay’s accident and arrest, and all of the jurors agreed that the judge’s personal situation

would not affect their disposition of the murder case. I do not believe, under these circumstances,

that Judge McKay’s refusal to recuse himself deprived Getsy of “a fair trial in a fair tribunal.”

Bracy, 520 U.S. at 904 (citation and quotation marks omitted).

Finally, even if Getsy’s entitlement to an evidentiary hearing is a closer question than what

I believe it to be, we should not be second-guessing the district court’s refusal to conduct such a

hearing unless that court abused its discretion. See Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir.

2005) (reciting that standard of review in affirming the denial of an evidentiary hearing). A district

court abuses its discretion where it “applies the incorrect legal standard, misapplies the correct legal

No. 03-3200 Getsy v. Mitchell Page 34

standard, or relies upon clearly erroneous findings of fact.” United States v. Martinez, 430 F.3d 317,

326 (6th Cir. 2005) (citation and quotation marks omitted). The majority, however, has not

subjected Getsy’s request for an evidentiary hearing either to the governing pre-AEDPA

requirements or to the highly deferential abuse-of-discretion standard of review. For the reasons

stated above, I do not believe that Getsy is entitled to an evidentiary hearing under the still-

applicable pre-AEDPA standards, and I therefore cannot say that the district court “committed a

clear error of judgment” in denying him the requested hearing. Fair Intern. Exploration, Inc. v. The

Captain Lawrence, 245 F.3d 857, 861-62 (6th Cir. 2001) (applying the abuse-of-discretion standard

in affirming the district court’s denial of an evidentiary hearing) (citation and quotation marks

omitted).

III. REMEDY

I have set forth in Parts I and II above what I believe to be the majority’s extraordinary

departure from established law and the standard of review in habeas corpus cases. My final

disagreement with the majority relates to the remedy prescribed. The majority “reverse[s] and

vacate[s] the judgment below insofar as it leaves undisturbed the death sentence imposed,” but then

grants the state 180 days “to reconsider in light of this opinion Getsy’s sentence under Ohio law.”

Maj. Op. at 20. This disposition, to say the least, leaves me puzzled—a reaction that I dare say the

district court and state courts will share when trying to decipher how to proceed on remand. While

purporting to give the state flexibility in resentencing Getsy, the majority has effectively placed the

state in a straightjacket. See Maj. Op. at 18 n.7 (“[O]ur rule of consistency holding means that Getsy

cannot face retrial on the murder for hire specification.”).

For example, if the district court denies Getsy relief on his judicial-bias claim after the

evidentiary hearing, must the court nevertheless issue an unconditional writ with respect to Getsy’s

death sentence? The answer, as I understand the majority opinion, is “yes.” This is because further

state proceedings cannot cure what the majority identifies as the constitutional defect—the failure

of the jury at Santine’s separate trial to find the murder-for-hire specification. In other words, Getsy

might now be categorically ineligible for the death penalty even though the jury unanimously found

beyond a reasonable doubt two other valid capital specifications (felony murder and attempting to

kill two or more persons) that could have independently supported a death sentence.

I also assume that the same answer would be required even if the district court finds merit

in Getsy’s judicial-bias claim and conditionally grants habeas relief, subject to the state giving him

a new trial. Normally the state on retrial could drop the murder-for-hire specification, charge Getsy

with the other two capital specifications, and, if a jury convicts him of those specifications, carry

out the death sentence. This plausible solution flows from the Supreme Court’s directive that, “in

the habeas context, state courts should be given an opportunity to remedy errors that occurred at the

state level.” Bell v. Jarvis, 198 F.3d 432, 444 (4th Cir.1999) (citing Hilton v. Braunskill, 481 U.S.

770, 775 (1987)), vacated on other grounds, 236 F.3d 149 (4th Cir. 2000). But whether this course

would be available in the present case remains unclear, since there is nothing that the state can

do—short of declining to seek the death penalty—that would alter the verdict from Santine’s

separate trial.

If I am right in this assessment, then the majority has in effect granted an unconditional writ

of habeas corpus with respect to the death sentence, because the state has no way to cure the problem

created by the majority’s new rule of comparative proportionality. The majority has thus

constructively commuted Getsy’s death sentence to a term of life imprisonment. But federal courts

lack the power to do this in the exercise of their habeas jurisdiction. See Duhamel v. Collins, 955

F.2d 962, 968 (5th Cir. 1992) (“A federal court does not . . . have the authority to commute a death

sentence to life imprisonment[.]”) (citing Fay v. Noia, 372 U.S. 391, 430-431 (1963)); see also

Mapes v. Tate, 388 F.3d 187, 194 (6th Cir. 2004) (cautioning that, “[a]lthough the death penalty

No. 03-3200 Getsy v. Mitchell Page 35

understandably evokes strong passions and emotions, the prevailing interests of federalism and

comity demand that federal courts exercise restraint when issuing a writ of habeas corpus”).

The majority has not cited any cases authorizing a remedy of this nature or scope. My

review of the caselaw in this area has likewise revealed none. The types of cases in which federal

courts grant unconditional writs that preclude corrective action are truly exceptional ones in which

the constitutional provision at issue itself bars further proceedings. See Cave v. Singletary, 84 F.3d

1350, 1357-58 (11th Cir. 1996) (Kravitch, J., dissenting) (explaining that retrial or resentencing may

be barred where the state violated the defendants’ rights under the Double Jeopardy or Speedy Trial

Clauses, or failed to produce constitutionally sufficient evidence). To the extent that the majority

believes that the comparative-proportionality rule that it has created fits within one of these narrow

exceptions, I disagree. Indeed, the possibility that the rule announced today would require a remedy

of this nature cuts strongly against endorsing the rule in the first place.

IV. CONCLUSION

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.

Perhaps some day the Supreme Court will hold that a comparison between the culpability

of a murderer and that of his codefendant is constitutionally required, and that inconsistent verdicts

arising from 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, I do not

believe that the judgment of the Ohio Supreme Court in this case is contrary to or an unreasonable

application of clearly established federal law as determined by the United States Supreme Court.

I would accordingly affirm the district court’s denial of habeas relief on all of Getsy’s claims. And

because Getsy has not alleged any facts that, if true, would entitle him to relief on his claim of

judicial bias, I do not believe that the district court abused its discretion in denying him an

evidentiary hearing. I therefore respectfully dissent.