Getsy v. Mitchell

that Townes argue The Schultzes GETSY, Petitioner-Appellant, Inc., Co., 50 S.W.3d Jason Oster

Sunbeam court’s (Tenn.2001) district repudiates § 20-1-119. T.C.A. finding regarding only two conditions insists Townes MITCHELL, Warden, Betty savings statute for the be satisfied

need to Respondent-Appellee. is that one condition first apply: “[t]he compara name the must the defendants No. 03-3200. con who caused or as one tive tort-feasor Appeals, Court of United States damage for which injury or to the

tributed The second recovery. Sixth Circuit. seeks plaintiff comparative the named is that condition 7, 2007. Argued: March to the suit.” party is not tort-feasor (internal quo Townes, at 453-54 50 S.W.3d July and Filed: Decided omitted). The Tennessee tations however, rejected Court, implicitly has part: in relevant stating approach,

such to the decision response Assembly enact- the General McIntyre, Annotated section Code ed Tennessee a means provide 20-1-119 a com- could amend whereby plaintiff any third a defendant plaint to add as by another defendant party alleged injury, to the or contributed have caused limita- applicable statute even if the the claim otherwise bar tions would party. third against the Space, Modular Capital Curtis v. G.E. (Tenn.2005). The clear S.W.3d is meant is that statute inference plaintiffs caused when the harm ameliorate limitations discover, the statute of after an additional defendant passed, has Here, knew the Schultzes there. out defendant well Smoky potential as a about run, limitations had the statute of before purview thereby falling outside the deci- agree with We therefore statute. the district court. sion of

CONCLUSION reasons, we affirm foregoing For the judgment. court’s district See also Ohio St.3d 674 N.E.2d Benza, Michael J. BRIEF:

pellee. ON Stebbins, Ohio, Cleveland, C. Co- David Ohio, Daniel R. lumbus, for Appellant. General, Ranke, Attorney of the Office Cleveland, Ohio, Section, Crimes Capital Porter, Attorney Office Elise W. Ohio, Ohio, Columbus, Ap- General pellee. BOGGS, Judge;

Before: Chief BATCHELDER, MARTIN, MERRITT, MOORE, COLE, CLAY, DAUGHTREY, ROGERS, GILMAN, GIBBONS, GRIFFIN, McKEAGUE, SUTTON, Judges.* Circuit J., GILMAN, opinion delivered J., BOGGS, court, in which C. ROGERS, BATCHELDER, GIBBONS, McKEAGUE, GRIFFIN, SUTTON, and 318-25), MERRITT, JJ., (pp. J. joined. dissenting opinion, separate delivered DAUGHTREY, MARTIN, which CLAY, JJ., MOORE, COLE, joined. and 325-27), MARTIN, joined by Judge (pp. J. MOORE, 327-28), MERRITT, (p. J. and MERRITT, delivered also joined by Judge opinions. dissenting separate

OPINION GILMAN, Circuit LEE

RONALD Judge. con- Ohio September murder-for-hire Jason

victed killing of Ann Serafino connection sentenced he be recommended that concurred, court The state trial death. on di- relief either Getsy received no pro- postconviction Cleveland, or in state Benza, appeal rect J. Michael ARGUED: petition filed a He Ranke, ceedings. thereafter R. Of- Ohio, Appellant. for Daniel Getsy’s corpus relief. habeas General, Capital for federal Attorney fice of court, district denied Cleveland, Ohio, Section, Ap- petition Crimes * Cook, case. decision of the Circuit L. Honorable Deborah The part consideration Judge, took no in the a panel

but of this court downstairs, reversed going he heard at least district court’s judgment with regard to one gunshot. outside, additional Once his death sentence. panel The majority he heard footsteps appeared to be that Getsy’s held death sentence was un- running away from the Serafino resi- constitutionally disproportionate to the life dence. He instructed his wife to call 911 sentence that the separately tried insti- police inform the that shots were gator of the plot received for procuring the coming from the Serafino residence and murder. It also remanded the case for an running someone was towards the evidentiary hearing regarding Getsy’s city of Hubbard. judicial claim of against bias the state -trial- Officer Forgacs Thomas city judge. Thereafter, court this court grant- Hubbard Police Department was one of petition ed Warden’s for en banc re- the first to respond officers to the call.

view and vacated panel decision. For The officers into the broke Serafino below, the reasons set forth we AFFIRM home and lying found Chuckie on the the district court’s denial of habeas floor with all over him. blood Chuckie corpus petition. asked the mother; officers to check his she was dead. I. BACKGROUND Forgacs left the scene began check- background A. Factual ing the Hubbard area for a white Crown Victoria owned John Ohio Santine. For- Court set forth the gacs went Street, to 24 relevant South Main facts as follows: 1/2 where he had parked seen Saritine’s car (“Chuckie”) Charles Serafino lived with the evening of July 6. He found San- mother, Ann Serafino. On the eve- parked tine’s car in the driveway with ning July Ann went to bed at pulled another car in behind it. approximately p.m. 11:00 Chuckie was on the love seat Earlier in family year, in the Santine room had at- when, tempted sometime purchasé after 1:00 a.m. to portion on July of Chuck- 7, he heard a ie explosion. Serafino’s loud lawn-care Shells business and had from a shotgun deposited $2,500 blasted out the in the sliding ac- business’s glass door behind him count. Subsequently, wounded him Chuckie violated in the arm. probation As he ran for the and was bathroom incarcerated in the to inspect injuries, his County Ann Trumbull came out Jail until July her bedroom. Chuckie While Chuckie jail, was in remembered Santine at- hearing tempted his say someone, mother to to over take Chuckie’s business. you “What are doing here? Santine Get out transferred Chuckie’s building here.” He also lease remembered hearing equipment name, into his own say, someone bitch,” which “Shoot the caused an “Kill altercation between the bitch.” Serafino next Santine and recalled see- Ann Serafino and Chuckie’s ing gun in his face and sister. The being shot Serafinos filed a civil action again. He against fell to the bathroom floor and while Santine Chuckie still was pretended jail. be dead. After the intrud- left,

ers he called 911. Forgacs searched for Santine’s be- car Frederick Hanley, Jr., neigh- Chuckie’s cause of a conversation he had had on bor, jumped from upon his bed hearing June 1995 with McNulty. Richard gunshots. He looked at his digital McNulty, who lived at 24 1 South /2 clock, alarm which read 1:22 a.m. As he Main co-defendant, and who ais had was scared of shootings because he informant. police aas served previously money. Santine, not do it for the but did McNulty, asked Forgacs June On Santine, does 6, 1995, “What Hu- Getsy, July for on worked Sometime who for Chuckie when dach, McNulty have store drove to the Serafino Johnny For- McNulty told jail?” place out of find a gets They could not he residence. paid bought He’s “He’s dead. to 24 South gacs, they so returned park 1/2 that San- Forgacs McNulty returned, told San- When'they for.” Main Street. man, Tony An- hit up a had lined and drove apartment tine at the tine was Forgacs tone, kill Serafino. Getsy Chuckie to the Serafino house. them back McNulty’s state- they little credence took with gave guns described or fol- ments, them, and didn’t inform shotgun, Chuckie included SKS which information. on the up rifle, magnum handgun. low and a .357 after Santine Getsy explained that the murder scene returned Forgacs off, sprained dropped them Hudach Township Police the Hubbard and told they to where were went back him a few ankle and told weeks McNulty had what stated, up. Getsy picked to be supposed morning, Detective Later that earlier. get it done.” me and Rick to left “[T]hat of the Hubbard Begeot Michael Donald they sup- were and For- He admitted what Department Police Township kill Serafino. at to do was McNulty apartment posed Chuckie to the gacs went McNulty to take and'-McNulty Main South that he Getsy explained 24 1/2 simultaneously through sliding for questioning. fired of the Serafino on the back glass door minimized his involve- McNulty Initially, through They entered the house house. had told For- he and denied that ment shot Chuckie door and the shattered on Chuckie. the contract gacs about the hall. running down When as he was obtained other information Based on stated, Serafino, Getsy Ann they saw ar- McNulty, Begeot obtained from they “just kept shooting.” Getsy. At approxi- warrant rest Begeot, interview July During mately p.m. 10:00 Santine’s to mention reluctant driveway of 24 arrested 1/2 the same Begeot name. He told given Miranda Main. He was South night last could happened thing and later the scene at warnings at whether San- him. He asked happen to Department. Police Township Hubbard tape. interview a.m., would ever see the July tine on 1:00 approximately At Getsy that Santine Begeot assured interview. videotaped Getsy gave a Getsy get not be able would to.him. that Ben Hudach Getsy Begeot told die, going if he was Begeot also asked July evening of him on the called him, told Begeot “No.” and ,come to 24 and told him 1/2 had SKS Getsy he admitted got Getsy When Main Street. South during the shoot- handgun rifle and co-defendant, Hudach, told Get- there, he when was explained that ings. He Hudach, and (Getsy, they sy so SKS, clip fell out he shooting the guy.” “take out some McNulty) had to handgun. pull had to out n Santine but Hudach present, was not weapons he of the Getsy’s description him earli- had told what Santine related by physi- was verified McNulty used discussed, Hu- but Money had been er. the scene. recovered cal evidence the amount. not sure of was dach scientist, Roberts, a forensic in Michael participated he indicated that later projectiles identified the thereafter, recovered from telephone rang and Koch the murder scene. None of the projec- heard Santine talking to someone in a area, tiles found family outside the room fast, said, excited manner. Santine “So glass the sliding door where was blown you them, right, you killed killed them * * * out, was discharged by shotgun Well, both? Okay. I can’t come which, according to Getsy, McNulty car- pick you up. cops are everywhere, ried projectiles and fired. The linked to they are pulling everybody, you over got shotgun were recovered the fami- to run through the woods and ditch the ly room. guns.” hung up Santine happily screamed, “I fucking love guys.” admitted that these they had been in- structed to kill any witnesses. When Koch, According very Santine was Begeot asked him they what were told pleased said, with the three men. He about house, witnesses Getsy re- $10,000? “You guys want I’ll give you (cid:127) plied, seen, we them, “[I]f were to do $10,000.” .McNulty told him just he too.” wanted a wedding ring girlfriend. for his After shootings, Hudach said that it Hudach called San- had been a favor for tine to tell him it Santine. Getsy was finished and to indicated that he needed pick «money them up. Santine told for his car. Hudach that there cops everywhere were and that The next day, Koch heard Getsy brag- they should run through the woods to ging to Patricia Lawson about shooting get back to the apartment. Santine also Ann Serafino. Getsy grabbed piece (cid:127) told Hudach to ditch guns in pizza with no said, cheese on it and woods. just “This looks like this bitch’s face Getsy, McNulty, and Hudach arrived after we shot her.” back at 24 Main, South where Josh 1/2 Michael Dripps, a close friend of Getsy, Koch and Santine waiting were for McNulty, Hudach, acknowledged them. Santine ordered them to take off that Getsy happy, secure, was and tough their clothes and take a bath. Getsy when he a gun had in his hand. Dripps was the last to bathe. he When came present at the lawn-care business out bathroom, his clothes and when Gum-out had been used to wipe boots were gone. He did not know what prints off the weapons before the Serafi- happened to them. no shootings. Dripps heard Santine in- Koch testified that he at 24 Getsy, 1/2 struct McNulty, and Hudach to South Main Street July 6 and kill Chuckie Serafino all witnesses. He knew Getsy, McNulty, and Hu- Dripps also observed McNulty and Hu- dach were going out to do something for dach in camouflage clothing on night Santine, they but give to declined him of killing. the any details. He was to watch TV and State v. Getsy, 84 Ohio St.3d write down the shows that were on so (1998). N.E.2d 873-75 the other three could memorize the list B. background Procedural for an alibi.

After Getsy, McNulty, left, Hudach and In July of grand jury Ohio Koch waited the apartment. Santine Getsy indicted for the aggravated murder came to apartment and, the sometime Serafino, of Ann the attempted murder of a.m., around 1:00 said, jumped up and “I Serafino, Charles and charges related heard gunshots.” the Immediately included aggravated burglary. The indict- (4) Getsy fair and whether Getsy capital impartial jury, with three charged also ment eligible right him his to the effective assis- rendered was denied specifications (1) phase mur- including: tance of counsel the of his penalty, the death for (5) trial, murder two or more sup- of whether sufficient evidence attempted der (3) (2) hire, felony Getsy’s regarding murder for conviction people, ported and July circumstance, Getsy proceeded to trial aggravating murder. murder-for-hire (6) ultimately guilty found prosecutor improper- 1996 and was whether the Ohio Following a charges specifications. ly prosecution by in selective engaged all hearing, recom- seeking penalty against Getsy, penalty-phase death (7) Getsy to death. be sentenced had mended whether errors asserted jury’s recom- judge accepted denying Getsy trial the cumulative effect' The imposed- process sentence of law. mendation due aggravated charge. for the murder death judg panel A of this court reversed the Getsy appealed to Ohio regarding ment of the district court Get- Court, 17 claims of error. raising sentence, sy’s holding that it was death Getsy’s sentence and con- affirmed unconstitutionally arbitrary dispropor Getsy, to grounds as all raised. viction to life tionate in relation sentence re Simultaneously with N.E.2d 893. separate ceived trial. Santine Get petition (6th also filed a for appeal, Mitchell, direct Cir. sy F.3d relief. The Ohio trial postconviction 2006), state opinion banc va reh’g granted, en relief, for and the petition denied his court majority also panel cated. The remanded to hear his Supreme Court declined Ohio Getsy’s judicial for an claim of bias eviden- appeal. Subsequently, postconviction tiary Id. hearing. Subsequently, at 595. summarily denied Supreme Court Ohio court rehear petitioned the Warden to application reopen his direct Getsy’s granted Getsy’s en banc. appeal We appeal. rehearing pan and vacated the petition for 2006. el decision in November of all of his state-court

Having exhausted remedies, in federal petition filed II. ANALYSIS pur- corpus court habeas relief

district for § Getsy’s habeas suant to U.S.C. of review A. Standard error, separate claims of raised petition the Antiterrorism and Ef Under as 2 which the district court dismissed (AED- Penalty Act of 1996 fective Death remainder of which the and the defaulted PA), a court federal only the merits. The issue court denied on may [corpus] a writ of habeas appeal grant the district court certified custody with to a in state petitioner was uncon- Getsy’s whether sentence adjudicated on the respect any claim stitutionally arbitrary and disproportionate (1) the state in state court unless imposed On merits in relation on Santine. contrary to, or in- decision “was Getsy’s Certif- court’s expanded this court appeal, of, (COA) application an unreasonable include volved Appealability sev- icate (1) law, as de- Federal clearly established claims: whether en additional ... or Court” by the termined rights were violated process due himself, “was based state court’s decision judge recuse failure of trial (2) on an unreasonable determination Getsy’s confession was ob- whether presented light facts in of the evidence voluntarily, and knowingly tained proceedings.” court right the State Getsy was denied the whether 304 Withrow, 846, (6th

Taylor v. v. Steffen, 288 F.3d its decision State 31 Ohio Cir.2002) 2254(d)). 111, 383, (1987), § (quoting 28 St.3d U.S.C. N.E.2d legal ‘contrary is proportionality “A state decision which held that “[t]he court’s re- 2929.05(A) clearly required by to’ established federal law ... if view R.C. is satis- by the state court arrived at the fied a review those already conclusion cases by by to that reached opposite reviewing decided court which on a if the question penalty Court law or state the death has been imposed,” differently summarily rejected Getsy’s court decided a case than Court argu- Supreme Court decision on a of materi- ment. The next independently set re- ally indistinguishable Lopez Getsy’s facts.” v. Wil- viewed for appro- death sentence (6th Cir.2005) son, 339, (en priateness F.3d and proportionality pursuant banc). Alternatively, § a state court Getsy, decision Ohio Ann. Rev.Code 2929.05. will not be to be an held “unreasonable Comparing Getsy’s N.E.2d at 889. case to application” clearly established federal penal- other similar murder-for-hire death “objectively law unless the decision is un- ty Ohio, cases the Court concluded that reasonable,” simply erroneous or incor- “it imposing is clear that the death sen- 362, Taylor, rect. Williams v. 529 U.S. Getsy tence on not disproportionate.” 409-11, 1495, 120 S.Ct. 146 L.Ed.2d 389 Id. at 892.

(2000). Getsy renews claim of his arbitrariness and disproportionality before us en Proportionality banc. B. argument, Getsy’s At oral counsel con- primary Getsy, issue raised and Getsy’s ceded that death sentence was not only issue appeal by certified for arbitrary or disproportionate at the time court, Getsy’s district is whether sentence Instead, imposed. that it was con- unconstitutionally arbitrary or dispro- tends that his sentence became unconstitu- portionate in relation to that received only tional later when different sen- Getsy’s argument Santine. ultimately tenced Santine to life for imprisonment Santine, rests on the fact that the master- role in the According same offenses. mind who Getsy, directed codefendants Getsy, Georgia, Furman v. 408 U.S. Hudach, McNulty to kill Charles Ser- (1972), 33 L.Ed.2d 346 afíno, did not receive the penalty. death Gregg Georgia, 428 U.S. 96 S.Ct. Getsy’s. Santine’s indictment mirrored (1976), 49 L.Ed.2d 859 and their separate place trial that took after Get- progeny duty establish a part on the sy’s, aggravated Santine was convicted of Ohio Supreme Court “correct this arbi- and aggravated murder burglary, but was trary capricious sentence.” This argu- acquitted of all capital specifications ment, opinion, in our advocates a novel charged ineligible thus for the death constitutional rule that Supreme Court penalty. Getsy claims that disparity precedent simply support, does not let renders his arbitrary death sentence alone dictate. disproportionate. review, direct

On accurately Ohio asserts Court first addressed related con- majority holding fractured in Furman has penalty proce- tention Ohio’s death come stand the general principle dures are flawed because the court arbitrary “limits that the and disproportionate im itself to death when conducting position cases its the death violates the statutorily See, mandated proportionality Eighth re- Amendment. e.g., Walton v. Getsy, view.” Arizona, 639, 657, 702 N.E.2d at Relying

305 (1977) (1990) 2861, (reversing Fur- 53 L.Ed.2d 982 the (noting that 511 111 L.Ed.2d sentence of a the death defendant principle for the “has to stand man come did rape of adult woman that not re- a to return a discretion that sentencer’s death). cases, In in her each of these sult by must constrained sentence be death Supreme down a the Court struck death standards, penal so that the death specific not it disproportion- because sentence capri in a random and not inflicted ty is comparison in to received ate sentences grounds fashion”), other overruled on cious other, defendants, similarly by situated Arizona, 584, 122 v. 536 U.S. S.Ct. by Ring the but because of what deemed to Court (2002). 2428, Proceeding 153 L.Ed.2d 556 the the inappropriateness be sentence the principle specific to from this abstract to particular in relation the characteristics by Getsy-that his sen urged conclusion and the at issue. crime criminal unconstitutionally arbitrary or tence was Getsy, cases of no a help These are to that of San- relation disproportionate competent personally adult who and inten- tine-necessarily entails at least one of two tionally aggravated committed murder. (1) premises: Eighth that additional propor Unlike this absolute or individualized requires comparative Amendment (2) proportionality, proportionality ar consistency a tionality, or that rule gument on a claim that his death rests regarding death-specification ver applies only is disproportionate by sentence com separately coconspira- tried among dicts parison to life In Pul Santine’s senténee. however, have been premises, tors. These Supreme Court considered the ley, by by court and disclaimed both this precise argument by Getsy-that asserted Supreme Court. comparative a the Constitution demands Eighth proportion Amendment “purports review that proportionality Court, by ality, as defined . ... ... whether inquire “to an abstract evaluation of refers unacceptable particular- in a case because a for a partic sentence appropriateness punishment disproportionate [it is] Harris, Pulley crime.” v. 465 U.S. ular on others convicted the same imposed 42-43, 37, 871, 29 79 L.Ed.2d 104 S.Ct. 44, 465 at 104 S.Ct. Pulley, crime.” U.S. (1984) not (holding petitioner rejected ar squarely The Court 871. constitutionally proportionali entitled to holdings contrary as its in Jur gument “compare Harris’s ty review that would Texas, 262, 2950, v. 428 U.S. 96 S.Ct. ek imposed in with the sentences sentence (1976), Gregg Georgia, L.Ed.2d v. 929 cases”). as capital Proportionality similar 153, 2909, 49 L.Ed.2d 859 428 U.S. 96 S.Ct. evaluates defined Court Florida, (1976), and v. 428 U.S. Proffitt culpability for his particular defendant’s (1976). 242, 2960, S.Ct. 49 L.Ed.2d 913 punishment crime relation 50-51, at Pulley, U.S. See, e,g., Atkins v. Vir

he has received. later, reaffirmed years Three 304, 2242, 153 122 S.Ct. ginia, v. McCleskey Kemp, Pulley’s holding (2002) (reversing the death L.Ed.2d 335 107 S.Ct. L.Ed.2d 481 U.S. (1987). mentally case, retarded sentence of a .defen the Court ex Florida, dant); 458 U.S. not Enmund defendant could pressly held 73 L.Ed.2d 1140 violation demon “prove 102 S.Ct. constitutional may who be (reversing strating death of a defen other defendants sentence life, death similarly take at situated did not receive the dant who did himself 306-07, life); life, McCleskey, to take 481 U.S. tempt penalty.” to take intend (emphasis original). 107 S.Ct. 1756 Georgia, Coker 306 recognized sister circuits have also limited review. comparative-proportionality

Our See, e.g., principle. proportionality this well-established “Since review is not re- 560, Woodford, Constitution, v. F.3d 579- quired by Beardslee 358 states have Cir.2004) (9th (rejecting argument 81 defining in great pool latitude cases equally culpa that “different for sentences comparison”; used for “limiting therefore prohibition ble co-defendants violate the proportionality to other cases al- review arbitrary against imposition of the death ready by decided court in reviewing Furman,” in penalty concluding that im- which death has been no constitutional error arose from the trial posed” within falls this wide latitude. court’s refusal allow the codefendants’ Bagley, 932, v. F.3d Williams 380 962-63 evidence); Single sentences into Bush v. Cir.2004) (6th (citing prior seven Sixth Cir- (11th Cir.1996) 99 tary, (per F.3d 375 upheld cuit cases that have limited Ohio’s curiam) (holding that no federal constitu against proportionality review constitution- claim tional arose reason of the fact challenges). al that the defendant’s death sentence was Getsy attempts distinguish long- this codefendant, disproportionate to that his standing proposition that Ohio need not whose death sentence been vacated on had very ground have even considered the Oklahoma, v. appeal); Hatch 58 F.3d upon which his constitutional claim is (10th Cir.1995) (rejecting 1466 defen a similarly based—that situated defendant dant’s claim required Constitution narrowing received life his sentence — “a proportionality review his sentence argument. that, He although contends codefendant”), only relative to his over systematically engage Ohio need not in part grounds by ruled on other Daniels comparative proportionality as a review States, v. United 254 n. 1 F.3d 1188 matter, general its failure to do so this (10th Cir.2001); Collins, Russell 998 case, plot where mastermind of the (5th Cir.1993) F.2d 1294 (denying acquitted of all capital specifications, to a petitioner argued relief habeas who gives rise to a constitutional violation. that his death disproportion sentence was thinly argument This to a amounts veiled to that pled ate of a codefendant who had capital-specification that consistent ver- guilty and been years sentenced separately dicts among coconspira- tried prison). (in case, participants tors in a murder-

By statutorily incorporating scheme) for-hire required. are of comparative form proportionality review In the spe absence case law for this compares defendant’s death sen proposition, Getsy cific asserts that Fur tence others who also have received a prohibition against man’s arbitrary broad death, sentence Ohio’s death penalty and capricious death sentences somehow regime actually adds an additional safe dictates further to a leap consistency guard beyond the requirements of the principle capital cases. counsel Eighth Steffen, Amendment. See 509 properly argument conceded at oral N.E.2d at 386. This additional form of Supreme Court has never held review from precedents excludes used Eighth requires Amendment such a rule of cases, Santine’s, comparison all like consistency. contrary, To the the Su where the sentence received was other preme rejected has explicitly than death. Id. consistency common-law rule of in other See,

In an precedent, unbroken line of e.g., contexts. United v. Pow States upheld challenges ell, 57, 58, this court has to Ohio’s U.S. Getsy simply had no constitutional (reaffirming the hold-

L.Ed.2d States, would reach the guarantee in Dunn United ing (1932), prior juries 189, that same results as or future deal 390, L.Ed. 356 52 S.Ct. 76 facts, of by jury ing irrespective with similar the convicted a criminal defendant “a charged. with which he was Crimi attack that convic- offense could not on one count protected are from it with the nal defendants instead was inconsistent tion because by process irrational convictions the acquittal on another due jury’s verdict count”). a requirement sup that conviction must be Nearly all to have ad- courts Powell, ported by 469 including sufficient evidence. the issue since dressed Powell— (“[A] 67, criminal at 471 that the rule of concluded our own—have already protection even in a defendant is afforded consistency regarding verdicts or against jury irrationality error the longer good is no law. See single trial 560, the independent sufficiency review of Crayton, v. 357 F.3d States United (6th Cir.2004) undertaken the trial and (explaining that “the the evidence 565-66 do not that co-conspirator appellate dur- courts. believe acquittal of all but one We irrationali necessarily safeguards against jury further the trial does not ing same necessary.”); agreement ty Espinosa- no are see also the found indicate that act,” (explaining at n. 5 collecting eight Cerpa, cases from 630 F.2d. 332 to circuits). English common-law origin ancient other consistency “its inappropriate rule of Moreover, long held that we have sys ness to modern American criminal consistency no rule of has common-law are, obviously tem in which all verdicts conflicting to verdicts returned application been, always subject independent have juries separate trials. See by different Thus, evidentiary for support”). review Newton, 631, v. F.3d 636 States 389 United constitutionality murder-for- Cir.2004) (6th that rule of con (noting any fortuity turns not on hire conviction coconspirators sistency applied not if “was regarding when he was tried with tried”), part on separately vacated were whom, caprice permissible nor on 280, 803, 126 S.Ct. grounds, other acquit on similar jury’s another decision (2005); v. L.Ed.2d 35 United States 163 sufficiency facts, of the but rather on Cir.1986) (6th Sachs, 839, F.2d 845 801 own trial. presented at his evidence (“[I]f coconspirators separately, are tried coconspirators Only where court declares acquittal of all other legally sup acquittal as to the re the evidence is not mandate does insufficient words, of one de conspiracy it conviction maining conspirator.... port In other the conviction of sole necessarily ju fendant must inconsistent two is results.”); voided. Morrison v. coconspirator also also be differing see ries reach (8th 82, 93, 78 California, 291 U.S. Kenney, 995 F.2d Cortis v. Cir.1993) Lewis, defen (same); (reversing two v. L.Ed. United States (D.C.Cir.1983) (same); joint conspiracy where convictions dants’ 716 F.2d reliance precluded the state’s Sangmeister, process 685 F.2d due United States (9th Cir.1982) (same); legal presumption establish on 1126-27 Unit pause to We conspiracy). of the Espinosa-Cerpa, 630 F.2d element ed States (5th Cir.1980) that, (same). contrary to the view emphasize This well-estab dissent, court’s determination precedent precludes the squarely “[a] lished insufficient to convict evidence from under there applying common-law rule old determina- jury’s equated cannot be circumstances of this case. defendant, reason, . disagree tion that a for whatever with the We also dissent’s view consistency, be even if acquitted.” Crayton, should considerations F.3d relevant, “Getsy’s would death Apparently recognizing require at ver 566. funda distinction, Getsy Dissenting Op. dict be set aside.” [to] mental himself has never case, Apart- capi from the murder-for-hire argued applies Morrison to his specification,. tal original-panel even in the wake ma also convicted capital of two jority’s specifications felony reliance other unwarranted on deci — Nevertheless, presses attempted multiple sion. murder murders— dissent necessarily that do not with argument, overlooking with this the critical conflict the from trial. distinction between a determination verdicts Santine’s would made entitled, most, by a therefore be at to a court as a matter of law—with which new (All hearing, jury penalty-phase outright dealt—and a not an Morrison verdict. opinion voiding of his death discussion of the dissent or sentence. dissenting opinion the to the refers lead Ultimately, question before us Merritt.) Judge dissent by authored is whether the determination of the Ohio Supreme Getsy’s Court that death sen go Santine’s case was allowed to to a arbitrary not disproportion tence was or jury, jury ultimately acquitted and that to, ate contrary or an unreasonable specification. him of the murder-for-hire of, clearly application established federal very But that fact the issue was sub- analysis demonstrates, law. theAs above jury to a mitted indicates that the evidence clearly federal established law lends no against him was not so deficient that the claim, support Getsy’s with the relevant trial court could question decide the as a precedent actually pointing way. the other Furthermore, of matter law. verdicts To grant despite habeas relief such an intrinsically differ by from decisions made clearly obvious void of established authori 566; a Crayton, court. See at F.3d see ty contravening state court’s decision Powell, also at U.S. 105 S.Ct. 471 would both .violate AEDPA and amount to (noting, the context of inconsistent ver- application retroactive a new consti trial, a single dicts in fact that “[t]he procedure tutional rule of criminal in viola may the inconsistency be the result of Lane, Teague tion lenity, coupled with the Government’s ina- (1989) (bar 103 L.Ed.2d 334 review, bility invoke suggests in- ring, here, exceptions inapplicable consistent verdicts should not be reviewa- application retroactive of a new rule of ble”). Although the dissent out points a proceed constitutional law in collateral Supreme Court has “never retracted ing). adopt We therefore decline to Get- Morrison, or holding narrowed” the nei- sy’s argument. proportionality ther has the Court ever expanded it to require the conspirator’s Aristotle, reversal one The dissent’s references to Sir in light Bacon, Coke, conviction sentence of a cocon- Francis Sir Edward and En- spirator’s acquittal by a separate glish jury. beginning in year cases Certainly Florida, Enmund quite scholarly, strike as if only us even 73 L.Ed.2d marginally Obviously relevant. the con- (1982), in which trolling Court re- law is that the United States versed the death Supreme Court, sentence of a defendant the King’s not Bench. ground that he did personally not What exposition the dissent’s historical kill or anyone, intend to kill was not such a fails a single to cite is even instance in case. any which the Court or federal McKay, judge presided Ohio who over defendant’s reversed one has ever court exhibited, trial, Getsy’s claim Getsy’s bias. based on another or conviction sentence surrounding separate picnic arises from events acquittal later defendant’s 1996, just not, place August it took because The dissent does jury. begun. picnic had supposedly how after trial cannot, explain such Trum- rule remained hidden was annual event hosted has well-established judges. it County year bull That was held country’s jurisprudence federal within this belonging a home to the mother of long time. so Judge County Trumbull Ronald incongruous say that is not to This wife, Rice, Judge Cynthia Rice. Rice’s separate trials of from the results try- prosecuting attorneys of the two one concern. are a matter of Santine Judge Both ing Getsy’s case. Rice and concern, recognizing at We share Cynthia Rice as party, attended the did people can dis- time that reasonable same McKay Judge many guests. other turpitude moral agree over the relative driving'home picnic, Judge from the While an on the instigator of assassination the in McKay single-car involved acci- carry the killer hired to out one hand and ultimately charged dent and was .with driv- Nevertheless, the act on the other. violent (DUI). ing the influence of alcohol under to this empowered not answer we are Judge McKay to arrived late court the by bypassing the philosophical question day wearing sunglasses appear- next and Congress and the Su- that both limitations face, Getsy’s ing to have bruises on his but placed upon power our have preme Court proceeded. trial of grant to under the circumstances relief through the Upon learning case. of incident media, Getsy filed a the motion for mis- day Perhaps Supreme Court some disqualification Judge trial and for of comparison that a between the will hold McKay try an to his case. He also filed his culpability of a hired killer and that of against Judge Disqualification Affidavit of constitutionally required, and is instigator McKay Supreme pursu- in the Ohio Court arising from verdicts inconsistent § ant to Rev.Code Ann. 2701.03. Ohio separate trials are unconstitutional. their Moyer Supreme of the Ohio Chief Justice today, of land But this is not law the Getsy’s ground motion on the Court denied “clearly obviously and not the estab- judge and the “mere fact that a an that the Ohio Su- lished law” at time attorney does attend the same social event preme Getsy’s conviction affirmed judge’s disqualification not mandate reason, in 1999. For this as sentence involving that attor- pending from cases above, do well set forth we as others McKay, ney.” Disqualification In re of judgment that the the Ohio believe of (1996). 1249, 674 77 Ohio St.3d N.E.2d 359 Supreme proportion- Court on the issue of Citing by Judge submitted an affidavit ality to contrary or unreasonable McKay, Moyer also noted Chief Justice application clearly of established federal any judge contact between law determined States as United the, of noth- prosecutor assistant consisted Supreme Court. simple social ing “passing more than the Id. amenities.” C. Judicial bias relief, Getsy’s Affidavit Following the ground for denial As a second habeas Supreme Disqualification the Ohio right to a fair trial Getsy asserts his Court, McKay brought Judge in Judge Judge Wyatt W. was violated because Stuard, a County- clearly John fellow Trumbull upon findings M. erroneous fact.” case, Martinez, with judge no connection United States 430 F.3d (6th Cir.2005) regarding voir inci- (quotation dire DUI marks omit- ted). process only dent. This revealed that two

jurors incident, were aware of the 2254(e)(2) Section sets forth cer both averred that it would not affect their preconditions tain to obtaining an eviden- ability Judge impartial. be fair and tiary hearing in a habeas proceeding McKay Getsy’s mo- subsequently denied a petitioner develop where has “failed to disqualification, tion for a mistrial and for the factual of a claim in basis State court Getsy’s request and denied for an eviden- proceedings.” Court has tiary hearing on the matter. On direct held that “failed” the meaning within review, the Ohio Court relied on 2254(e)(2) § “a diligence, refers to lack of Moyer’s Getsy’s Chief Justice denial of fault, greater or some attributable Disqualification ruling Affidavit of prisoner the prisoner’s counsel.” judicial-bias against argument. Getsy, his 420, 432, Taylor, Williams N.E.2d (2000). Here, L.Ed.2d

Judge McKay’s prosecution DUI over- Getsy sought develop regard evidence lapped with trial. In order to judicial-bias his ing claim trial both at appearance impropriety, avoid the postconviction proceedings state County try- Trumbull Prosecutor’s Office court. has He thus demonstrated dili ing Getsy’s brought special prose- case in a 2254(e)(2). gence § accordance Geauga County cutor from neighboring to 437, id. at (“Diligence See 120 1479 S.Ct. prosecute Judge Ultimately, McKay. require will in the usual that case Judge McKay pled guilty to DUI minimum, prisoner, at a seek an evidentia- charge 5, and September was sentenced on ry hearing in state court in the manner Judge McKay’s plea sentencing law.”). and by state prescribed 3, thus September followed the 1996 guilty Although Getsy thus over jury verdict in Getsy’s but preceded trial} statutory comes the initial hurdle to ob jury’s death-sentence recommendation taining hearing, a “the fact that peti [a 10, September handed down on 1996 and disqualified tioner] is not receiving from Judge McKay’s imposition of the death evidentiary 2254(e)(2) an hearing § under 12,1996. sentence on September not does entitle him one.” Bowling to Getsy’s Parker, (6th primary argument Cir.2003). is 344 F.3d 512 that he is to an evidentiary entitled hear recently explained ing develop that, to judicial- to facts relevant deciding grant “[i]n whether to an bias claim. The district court denied Get- evidentiary hearing, a federal court must sy’s a request hearing. for such willWe consider hearing whether such a could en reverse a district court’s denial of an evi- an able applicant prove to the petition’s dentiary only if hearing which, true, the court allegations, abused factual if would Bell, its discretion. Abdus-Samad v. 420 entitle the applicant to federal habeas re — (6th Cir.2005) F.3d 626 that (reciting lief.” v. Landrigan, Schriro U.S. standard of in affirming -, review 1933, 1940, the denial 127 S.Ct. 167 L.Ed.2d evidentiary an hearing). (2007); A district also Bowling, see 344 F.3d at court abuses “ap its discretion where it 512 (determining that the district court’s plies standard, legal misap incorrect denial of an evidentiary hearing did not plies legal standard, the correct or relies amount to an abuse of discretion after States, in Liteky v. following factors: whether standard United examining the 552, 114 “alleges grounds sufficient L.Ed.2d petitioner (1994), release,” facts are whether “relevant in which explained for the Court courts dispute,” and whether “state “the pejorative in that connotation of the evidentiary hear- ... a full fair ‘prejudice’ h[e]ld ‘bias’ and demands that terms Furthermore, the defer- ing”). they applied only judicial predisposi- “[b]ecause be - by § 2254 prescribed standards go beyond ential is tions what normal and relief, a grant habeas control whether acceptable.” those court must take into account federal essentially first Getsy’s claim deciding whether an eviden- standards that Judge amounts an observation Schriro, tiary hearing appropriate.” McKay judicial attended the annual same at 1940. prosecutor picnic assistant Rice determine, a as must therefore We this, Based many others attended. matter, Getsy alleges whether threshold Getsy speculates that Judge McKay AED- relief under grounds sufficient might Rice have interacted to unknown Getsy’s ju- Id. standard. PA’s deferential As previously this court has ob extent. on two differ- argument dicial-bias focuses served, however, “ex contact does parte (1) allegedly improper elements: ent not, itself, any kind evidence of bias.” McKay Judge contact between parte ex (6th Bell, Alley v. F.3d Cir. picnic, Rice at prosecutor and assistant 2002) that the (noting petitioner had of interest potential conflict judicial-bias stating “come even close” McKay’s own arising Judge pending from alleged judge the trial claim where he examination, we con- Upon prosecution. jurors’ questions answered these arguments clude that neither of gdeliberations and later room durin court district demonstrates jurors stopped picnic were denying its abused discretion hello). say having on weekend hearing. request for reaffirmed Bracy in The Court by the floor established “[T]he ordinarily public “presume that courts that clearly requires a fair Due Process Clause discharged their properly officials have tribunal, a with judge trial in a fair before 909, at 117 1793 S.Ct. duties.” against the defendant or no actual bias omitted). Nonetheless, marks (quotation his particular interest in the outcome of evidentiary hearing granted the Court Gramley, 520 Bracy case.” v. U.S. petitioner the part in that case in because 904-05, 97 117 138 L.Ed.2d S.Ct. presumption the successfully had rebutted (citation added) quo (emphasis showing judge the trial was “thor- by that omitted). this stan tation marks Under in This oughly steeped corruption.” Id. dard, in extreme of cases “[o]nly the most by the judge’s evidenced corruption was the basis of bias disqualification would on in accepting for bribes criminal conviction constitutionally be re prejudice fixing for cases. Id. return Anderson, F.3d v. 460 quired.” Williams omitted) contrast, (6th (brackets points' no Cir.2006) Getsy, by 789, 814 Lavoie, events, to the intrinsic or extrinsic 475 either Aetna Ins. Co. (quoting Life corruption 813, 821, that evidence proceedings, 106 89 L.Ed.2d S.Ct. McKay. (1986)). Judge part bias of judicial-bias is actual inquiry Our 823 Judge that Although Getsy suggests by also informed Court’s in lying his affida- McKay might have been statutory-recusal analysis of the federal exchanged Again, Getsy points vit when he averred that he no to nothing pleasantries suggests part more than social with Rice that actual bias on the Getsy beyond Judge picnic, nothing McKay. possibility offers The remote conjecture. currying Getsy’s prosecu such conclude that that favor with We in help judge district did not abuse its discretion tor would in court somehow deal Getsy a denying question ing special prosecutor forum atten- his own picnic dees a present ground that occurred over case does not that a years ago explore unsup- order to reasonable improp his observer would believe ported speculation improper erly Judge McKay’s communi- influenced decisions Williams, McKay Judge cations between and Rice. trial. 460 F.3d at 813 (noting See Bracy, process “prohibits U.S. at due de that, (noting petitioner being had the over- from judge fendant tried before a presumption propriety, come whose ‘substantial’ and ‘direct’ interests “might agree[d]” well may by that his be [have] furthered the outcome of the trial”). theory speculative of bias was war- only specific example “too Johnson, discovery”); Murphy rant of a allegedly cites trial decision influenced (5th Cir.2000) (affirming F.3d by Judge McKay’s bias is decision ac evidentiary district court’s of an cept jury’s denial im recommendation and hearing regarding petitioner’s allega- pose the death sentence. But the jury tions of a secret prosecu- specifica deal between the capital three convicted tions, tor and a trial where any witness such a hear- one which legally could have ing would have to an supported been “tantamount imposed. sentence More impermissible over, fishing expedition”). the record Judge reflects McKay accepted jury’s recommenda Getsy’s contention that the pending imposed tion and the death sentence after charges against Judge McKay criminal own plea sentencing for the DUI might impermissibly have judge biased the charges completed. were Even under Get- similarly fails to ground assert valid sy’s therefore, conflicLof-interest theory, argument relief. His primary this decision would have been untainted. Judge McKay’s prosecution was conducted prosecuting “the same authority” recognize Judge McKay’s We con- prosecuted Getsy. fact, however, duct at a becoming picnic intoxicated special prosecutor from Geau- neighboring prosecutor attended assistant Rice and ga County brought in to driving impaired conduct then poor while exhibited Judge McKay’s proceedings. actions, criminal however, decisionmaking. These distinguishes Getsy This the cases by cited are distinct in character from misdeeds for the an proposition attorney that who is such as accepting bribes to fix cases that prosecuted himself by the same office that evidentiary hearing warranted an in Bra- prosecuting might is his laboring Getsy’s client be cy. allegations judicial Because of See, under a conflict of interest. e.g., are support bias insufficient to a claim for Cohen, Thompkins relief, 965 F.2d 332-33 habeas we conclude that the district (7th Cir.1992) (noting prosecution that the court did not its in deny- abuse discretion of attorney by an the same that is ing request evidentiary office his hearing. prosecuting might his give reasons, client to a rise For the same we conclude that conflict, finding but no that constitutional Ohio Supreme the Court’s denial on the violation had occurred in judicial-bias relation to the of Getsy’s merits claim was case). lawyer’s representation in that neither to contrary nor an unreasonable to gave cies that he claims rise constitu- federal clearly established application of argues tional violations. He first that law. properly investigate did not counsel his of counsel D. Ineffective assistance him background help prepare give to during penalty phase the jury. his unsworn statement before the The of gist argument is a more re- asserts that he Getsy’s third claim investigation legal thorough and. better assistance counsel the ineffective ceived guidance in to his state- relation unsworn trial. On penalty of his during phase jury permitted to would have ment review, Appeals direct Ohio testimony “corroborate[ ]” to Supreme Court determined and Ohio presented by regarding other witnesses merit. The district that this claim lacked his Santine and his troubled child- fear agreed, review and denied court on habeas that, prepa- hood. He asserts with better claim. This petition regarding this Getsy’s ration, present he would have been able original panel was not reached issue sympa- “more these considerations light grant its of habeas of this court in compelling manner” thetic than the issue. proportionality relief on other witnesses. that the extensive note at the outset We put on mitigating evidence presentation problem argu with this Getsy’s during penalty counsel nearly all of the mitigating ment is that investiga- demonstrated substantial phase now asserts that he evidence witnesses preparation. tion and Fourteen his would have addressed in unsworn behalf, Getsy’s on testify called to were simply have been cumula statement would aunt, uncle, pas- including grandfather, actually presented tive to the evidence coach, tor, ex-girlfriend, wrestling former through other sources. numerous family ex-girlfriend’s father. Various explained, As this court has “the failure to legal representatives of Get- members and mitigating present additional evidence sy’s also testified codefendants ‘merely already pre cumulative’ of that witnesses, lay behalf. addition these not rise to the level of a sented does procured Getsy’s counsel the services violation.” Broom v. Mitch constitutional psycholo- Eisenberg, Dr. forensic James (6th Cir.2006). ell, In 441 F.3d testify regarding gist, and called him stead, “in prejudice, order establish Getsy’s mental health. petitioner new evidence that a habeas way— differ in a presents must substantial show, Getsy must in order to dem strength subject matter —from the assistance, onstrate ineffective both sentencing.” actually presented at evidence (1) deficient, performance was his counsel’s (6th Mitchell, Hill 400 F.3d 318-19 performance preju deficient Cir.2005) holding cases and (collecting Washington, him. Strickland v. diced See psycholo of a hiring mitigation counsel’s 668, 687, 104 phase be gist day before (1984). preju To establish L.Ed.2d part prejudice, result gan did not dice, must show that there is a “defendant petitioner could not show how because the that, but coun probability a reasonable in ma additional time would have resulted errors, the result of unprofessional sel’s testimony). terially different have would been different.” proceeding witnesses, including Getsy’s Despite Id. his Several at aunt, uncle, attested to presenta grandfather, and mitigation counsel’s extensive tion, difficult abusive Getsy’s upbringing Getsy points alleged to two deficien- (2003) addition, In family circumstances. attor- (holding L.Ed.2d ineffec Getsy’s neys and relatives of codefendants tive assistance occurred where counsel in friendships regarding testified troduced of [the defendant’s] “no evidence codefendants, among history” despite existed their re- life existing evidence of Santine, lationship abuse); with and the lesser brutal v. Bag childhood Dickerson Moreover, (6th Cir.2006) they ley, sentences that received. 453 F.3d 698-99 Getsy explained in (holding himself his unsworn to present counsel’s failure the jury statement to how he believed mitigation regarding evidence the defen his group friends had come under dant’s borderline mental retardation con influence, Santine’s his fear prejudice). how own stituted Santine developed, alleg- and how he had Getsy’s second ineffective-assis edly his crimes committed under duress. argument tance addresses his counsel’s al Getsy particular relies on an affidavit leged to adequately prepare failure during that he submitted his postconvic- present Eisenberg’s expert Dr. testimony. that, proceedings tion he which asserted trial, Eisenberg Prior to Dr. met with assistance, with effective he would have Getsy on five different for a occasions total expand been able to upon specific certain addition, of 12 to In 13 hours. he reviewed topics in his unsworn statement. Close records, Getsy’s school pieces various reveals, however, examination top- that the trial, of evidence used at and conducted ics already thorough- asserted were either many Getsy’s interviews with friends ly by Getsy addressed and the other miti- family members. witnesses, gation simply would have support of his ineffective-assistance been example, Getsy immaterial. For ar- argument regarding Eisenberg’s Dr. ex- gues that three “critical events” in his life pert testimony, Getsy relies on an affidavit brought were never jury’s to the attention: by Dr. Eisenberg submitted in which the (1) five, age Getsy at the a saw window explained latter that “I do not believe that out by gunfire blown in the home of his I was able to communicate the [mitigatory] Thrasher, stepfather, Jim and that Getsy information that I possessed shotgun handed during incident, due to the lack of time defense (2) counsel Getsy guns had been around his entire spent with regarding my me testimony.” life and “became guns,” obsessed with particular Dr. Eisenberg claims that he “spent great he deal of time in the “was not able to discuss the issue obedi- Getsy’s woods.” But aunt fact testified authority” ence to “helped which to explain shooting to the at incident Thrasher’s why the defendants were unable resist home and to the fact adoptive pronouncement [Santine’s] authoritative father, Getsy, Bill was himself “obsessed kill Chuckie Serafino.” guns” Getsy guns and introduced at young age. A Eisenberg’s review of Dr. testimony,

Moreover, however, in comparison to other cases demonstrates that he extensively granting habeas relief for ineffective assis- discussed the influence that Santine exert- tance during of counsel phase, codefendants, ed Getsy over and the other supposed revelations Getsy cited as well as. the duress which he opined concerning background fail to meet drove kill. asked to When ex- high for demonstrating bar plain why constitutional he believed committed the See, Smith, e.g., issue, violation. Wiggins v. 539 crimes Dr. Eisenberg responded 510, 515-17, 156 as follows: Court’s conclude that Ohio on Ja- inexperience I think the A. ... Getsy’s factor and ineffective-assistance-of- another denial part son’s to or my report contrary claim not something I alluded to counsel was I authority. application clearly estab- unreasonable is his obedience that John San- believed lished federal law. think Jason authority to order this. tine had the that he was intim-

Q. your opinion It is E. Other issues by Mr. idated Santine? original Both the district court and A. Yes. panel of this court denied relief (1) on his claims that the introduc based case ways is Jason’s differ- Q. In what videotaped confession at trial tion his penalty from other death defen- ent (2) jury not fair and improper, his was interviewed, you have dants (3) selectively prose impartial, and he was sir? panel’s with the agree original cuted. We dynamics The of these three A. ... disposition of these issues and therefore relatively young, certainly all boys, portions original of the deci reinstate experience amongst much life addressing Getsy, them. 456 F.3d at sion boys, you and four if these three (addressing those claims Parts 596-98 Dripps. I think include Mike vacated; V.A., B., C.), see Rubin intimidation factor from John San- Dunn, Schottenstein, F.3d Zox & tine, ever I don’t think I’ve done (6th Cir.1998) banc, a (reinstating, en case as remark- quite death decision). portion original panel’s this, ably intimidating as with remaining This leaves two issues raised that I’ve exception of some cults it original panel that before the with. worked (1) his claim that insuffi- did not reach: Hudach, relationships among Getsy, his supported conviction on cient evidence relationship McNulty, as well as their circum- aggravating the murder-for-hire fact, Santine, were, in central themes stance, the cumula- his claim that Eisenberg’s Dr. Eisen- testimony. Dr. grounds all of he asserts tive effect of Getsy’s trou- berg in detail also discussed his constitutional collectively violated his and its effect on mental bled childhood address both those rights. We will now Moreover, Getsy’s intro- counsel state. Beebe, F.2d claims. See Wilson report into Eisenberg’s Dr. written duced Cir.1985) (6th en banc an (addressing evidence, which contained an entire section had before the parties that the raised issue Authority” that ex- titled “Obedience panel had not panel but that original psychological basis plained addressed). authority. obedience to Santine’s Getsy’s conclusory assertions that sup- Sufficiency the evidence to conduct a reasonable trial counsel failed porting murder for hire Getsy or investigation and to assist failed Court conclud The Ohio pres- Eisenberg Dr. with their testimonial supported evidence Get- very little. that sufficient ultimately amount to ed entations ag murder-for-hire conviction on the nothing sy’s outside of what the He cites Getsy’s habeas circumstance. already through gravating forms heard various claim denied petition regarding See presented. witnesses mitigation Getsy is enti- Hill, the district court. Whether therefore 400 F.3d at 318-19. We remember; really tied to I ultimately depends habeas relief A. can’t it four was (4) digits. whether Ohio Court’s denial was based on an application unreasonable Q. Ten Thousand? clearly regard- established federal law No. A. ing sufficiency the evidence. Q. Five Thousand? “whether, applicable inquires standard af- Ten, five, A. somewhere like that. viewing light ter the evidence in the most to the prosecution, any favorable rational trier of fact could have found the essential So, house; ...Q. you to the Ben get beyond elements the crime a reasonable telling you you guys go- starts are v. Virginia, doubt.” Jackson $5,000 each, ing get paid about — L.Ed.2d 560 $5,000 total? (emphasis original). IA. don’t know. noted, As the Ohio Q. guy? OK. To do this

most compelling evidence that com- A. Yes mitted the in exchange murder for com- Getsy’s pensation comes from own confes-

sion: Q. you get your money? Did

Q. What was OK. discussed there at A. No. you the house when come over be- Why Q. not? you tween and Ben Hudach? going get A. ‘Cause we were it later. A. something He said that we had It I money, doing wasn’t for the was do, we had to do. it because I was scared. confession, addition to Joshua Q you What tell you did he had to do? Koch testified that specifi- Santine himself A. Said we had to take out guy. cally some discussed compensation his after the codefendants attack was over: Q. this, it you Was Ben that telling was Q. say anything Did [Santine] else? or was it John Santine that was telling you this? Be A. He said how much pleased honest he was now. with them and he asked them in the A. It was but Ben it came from John. room, $10,000, “You guys want I’ll Q. you guys He said had to take this give $10,000.” you just Rick said he guy out? a wedding ring girl- wanted for his A. Yes. John get friend. said he would Q. basically So John directing * girlfriend biggest f* dia- *ing through Ben? ring mond in the world. Yes, A. sir. Q. Did Ben indicate what he wanted? Q. you guys Were something receive jumped A. Ben forward and said this? doing Santine, this was a favor for John money. A. He mentioned he took care of him.

Q. up. Talk Q. say Did anything? Jason ever A. money. Mentioned A. interrupted and made it clear He Q. much money? How that he doing money. it for

317 money is sufficient “Circumstantial evidence alone Q. did he need And what to sustain conviction such evidence for? every hypoth- need not remove reasonable car, had he Something A. about his guilt.” v. except esis that of States United for, pay he had to something that (6th Cir.2005). Barnett, 398 F.3d 522 maybe insurance. maybe payments, Similarly, in Part II.B. as addressed he Q. night he John that that- told So above, jury acquit- that fact a different help for money pay needed specifi- ted of the murder-for-hire Santine car? his consequence question cation is of no Right. A. juror Getsy’s of whether a reasonable testimony, with Koch’s combined be- trial could have determined otherwise confession, that Getsy’s supports finding yond a reasonable doubt. find no ba- We the commission of Serafi- procured Santine sis to conclude that Ohio money, and exchange no’s murder in for sufficiency-of-the- Getsy’s denial of Court’s Getsy arrangement. that acceded to evidence claim was unreasonable. of that the confession establishes 2. Cumulative error money prior specif was made to and

fer out.” Al ically exchange in for the “take that, Getsy’s final claim asserts money though Getsy asserts alleges even if none the trial errors he killing, only a small role in played their individually, warrants habeas relief contrary Getsy Koch testified to the effect violated constitutional collective his was, fact, claim rights. Getsy to commit the mur failed raise this motivated court, the state but the Warden has before money. Compare the offer of State der procedural not raised the issue of default 227, 767 Yarbrough, 95 Ohio St.3d thereby Slagle waived it. See has (2002) (holding that suffi N.E.2d Cir.2006) (6th Bagley, F.3d supported the murder-for- cient evidence de (noting procedural that the defense appellant of the where hire conviction it). may by failing fault be assert waived both the conversation witness “heard deciding that cumulative Assuming without Davis hired to kill appellant which Calvin § can form the 2254 habeas error basis his “actually pay Arnett” and saw McGhee relief, Getsy is not entitled to such relief cash”) Lindsey, with State v. portion analysis this case. The demon above 479, 721 N.E.2d Ohio St.3d Getsy exis has not shown the strates trial court had dis (noting any constitutional error at trial. tence specification the murder-for-hire missed His claim therefore fails cumulative-error any present had “failed to where the state cu- simply there are no errors because compensation”). evidence Parker, 371 F.3d mulate. See Baze v. response, Getsy contends that “there Cir.2004) (6th (“Because cannot Baze demonstrating was substantial evidence cumulate and be any establish errors to [Get- threatened and coerced Santine theory can be consid cause his that errors shooting sy into the codefendants] non- aggregate depends ered in the true, But even if of Chuckie Serafino.” precedent, this claim is simply establishes that merit.”). observation also without may motivated addi- Getsy have been III. CONCLUSION beyond remuneration. A

tional concerns juror above, have decided to reasonable could forth For all of reasons set testimony that “made judgment credit Koch’s we AFFIRM the district money.” court. doing it he it for the clear

MERRITT, web,” “provided marijua- Judge, dissenting. Circuit “into his motive,” na,” big,” “provided “talked prosecutor, The Ohio state the Ohio Su- only person here and “was preme Court, apparently our Court as killing.” Id. Throughout motive for well, all concede that the death prosecutor the repeated the case this theo- Getsy a against verdict Jason based on case, ry comparing of cul- the the relative directly “murder for hire” contra- scheme Getsy pability boy of and Santine. Ac- guilty dicts John not of Santine’s verdict Santine, rejected quitting jury the same crime. The crime is indivisible. theory Getsy State’s and Santine conspiracy-type “Murder for hire” is a of agreement formed a criminal murder requiring agreement a crime criminal and “predominant” aggravator, for hire —the peo- confederation between two or more acknowledged by as the Ohio courts. ple. Getsy, teenage boy, was convicted irrational, receiving money “murder for hire” from inconsistent death Santine, acquitted pay- and Santine was verdict should be set aside based on a clear, ing money the “murder for hire” to Getsy. longstanding princi- common law Thus the two verdicts ple principle adopted by are inconsistent and the Supreme —a irrational, against and the verdict Getsy process ago, Court as a matter of long due California, 82, should not allowed to in his be result exe- Morrison 54 U.S. 281, (1934), cution. S.Ct. explained L.Ed. as below, below. outlined in I As Section clearly The Ohio Court said centuries, 1791 and for the two preceding “predominant” that the impos- reason for English Common Law followed ing the death on in this case rule that guilt inconsistent verdicts of “is specification,” the murder-for-hire based on an criminal alleged agreement or 180, 892, Ohio St.3d 702 N.E.2d 866 at but addition, conspiracy quashed. must be In then observed the death sentence in explained II, literally as in Section and “troubling” the case is because John San- textually speaking, killing of Get- state tine, only alleged “hirer” and the insti- sy in contrast to the treatment Santine gator murder, acquitted of the was of mur- grossly disproportionate unequal is so Santine, der “If for hire: not John it is and, as be both “cruel and unusual” unlikely the Serafinos would have been therefore, “punishment” the type of ex- shot.” Id. In the severed state trial seek- pressly Eighth forbidden Amend- ing the penalty against death Santine ment. based on theory— the “murder for hire” the trial led to the Ohio many cases decided over the last two opinion prosecutor centuries, state re- the Supreme Court and the low- —the peatedly emphasized jury to the that San- er federal courts that English have found tine far the blameworthy most common law rules and principles in exis- (con- prosecutor defendant. The said then tence when Founders wrote Con- trary to present position) that Santine stitution serve defining as valuable tools in “could meaning control” because Santine was liberties established “about decade and a half Rights, older” than the Bill of requiring such as those Getsy, years law, who was 19 old. (App.7361) process due cruel forbidding Getsy was an inexperienced, punishment, uneducated unusual establishing right boy led, easily trial, “could be sort of a to a guaranteeing cross-exami- semi-military lifestyle.” The prosecu- Id. nation of witnesses and other civil liber- tor jurors told the that Santine “enticed” long ties. We learn of that tradition adjudication law The defendants Anglo-American pleaded guilty, common it influences our constitutional guilty and how the one was found and the other See, year of law school. rights the first hereupon not. And it moved, California, e.g., Morrison v. abate; the bill should for it ought to be (1984) (adopting 78 L.Ed. 664 against two, and one cannot con- Clause the common under the Due Process alone; spire being acquit- and the one conspirators requiring law rule at least two ted, the other sole cannot be attainted. based the formation uphold verdict added.) (Emphasis judicial Id. This is no agreement, a criminal as be discussed aberration. This way English is the law Missouri, low); 631— Deck has dealt with such disproportionate pun- 161 L.Ed.2d 953 ishment. This rule has consistently been Eighth normally Amendment (holding English followed'in day law from that shackling capital a defendant at prohibits See, Errington, this. Harison v. e.g., 79 sentencing, citing early English trial and (K.B.1627) (riot); Eng. 1292 Rep. Rex v. cases); 637-38, law 125 common id. Grimes, (two (K.B.1688) Rep. Eng. 87 142 (Thomas, J., dissenting) (recog 2007 charged were “confederationem” nizing the same rule based on Blackstone “though acquitted, yet one was treatises); United States v. Coke’s had found other guilty” requiring Booker, 220, 738, 125 S.Ct. 160 543 U.S. verdict); quash guilty court to Rex v. (2005) (following L.Ed.2d 621 common law (K.B.1719) Kinnersley, Eng. Rep. 93 467 requirements by jury in criminal trial (same); Queen Thompson, Eng. 117 sentencing); Washington, 541 Crawford (same); Rep. (Q.B.1851) 1100 Rex v. 36, 42-50, 1354, 124 S.Ct. 158 L.Ed.2d (1902) Plummer, (court 2 K.B. 345 (2004) (basing meaning of Confron a conspiracy invalidated conviction after a concerning tational Clause cross-examina guilty plea when the defendant’s two al- tion on law from En Blackstone case leged acquitted). were co-conspirators See colonies). courts and American See glish also IV Blackstone’s Commentaries on the scholarly of the the recent discussion use 10, ¶15, ch. England, p. Laws in English of common law constitutional of (re- 1983) Library (Legal Classics interpretation, Meyler, a Com Towards. conviction of two to constitute a quiring L. Originalism mon Law 59 Stan. Rev 551 agreement criminal “for there must be at (Dec.2006). conspiracy”). a This least two form Invalidity I. The of Inconsistent consistency rule and proportion- ancient of in Based Verdicts Prosecutions ality in enact- punishment legislatively was Agreement Aon Criminal Criminal Law ed Parliament 5(8), Act, 1977, § provides ch. which during reign Queen Since 1599 charged a persons that when other with' I, Elizabeth when Sir Edward Coke was agreement acquitted criminal “have been Attorney young philoso- General and the conspiracy by agree- to that reference Bacon, pher-scientist, Sir Francis (whether being ment after tried with the Counsel, Queen’s Anglo-Ameri- the rule of separately) the convic- person convicted conspire can law has been that “one cannot quashed be if under all the cir- alone,” tion shall crime or alone commit a contract his. conviction is cumstances of the case language like hire. murder for This exact acquittal of the oth- inconsistent with Vaughn, first enunciated in Marsh v. centuries, from Rep. (Q.B.1599). opinion er.” For more than four Eng. present day, that has been Queen’s Bench states as follows: 1599 until the Coke, agreement law. Since the time Lord on a criminal based must be English quashed process. courts under this doctrine as a matter of due In would never let that case the Court found in a state crimi- have conviction of mur- nal that the case California der for hire stand. erred in violation the Due Process legal legerde supreme a instance of in upholding conspiracy Clause verdict main, majority opinion in this case against party illegal one contract for spin opinion tries to of the Supreme party the sale land when the other Powell, Court United States v. lacked the requisite element of intent and (1984), 83 L.Ed.2d 461 was, therefore, acquitted. Justice Cardozo rejection into a of this ancient rule and explained: the rule’s insistence on measure of ra impossible It is of things the nature tionality, consistency proportionality for man to conspire with Turi himself. punishment. complete That reliance States, netti v. United F.2d 17. In ly specious because Powell is a multi- California as conspiracy elsewhere im defendant case in which defendant’s con ports corrupt agreement between not agreement viction a criminal with an less than with guilty knowledge two other stands as the jury acquits only Richards, part People the of each. v. 67 alleged co-conspirator. Powell simply 412, 828; Kizer, Cal. 7 P. 22 People v. single a defendant in situation which the 10, 14, 516, 521; Cal.App. 133 Pac. [Peo jury separate convictions on counts were Kirk, 346; 22 ple Cal.App. 10] 134 Pac. reading inconsistent under one the Entriken, People 29, 32, Cal.App. 106 charges made in separate the counts. 788; Commonwealth, 288 Pac. Sands v. Court, Supreme There the relying on lan 871, 871, 899; 62 Va. 21 Gratt. Pettibone an guage opinion by from earlier Justice States, 197, 203, 205, v. United 148 U.S. Holmes, held that separate counts 542, 13 37 S.Ct. L.Ed. 419.... In such rough provided equity or fairness in hold circumstances the conviction of Morrison ing that the Powell defendant must take he because failed to assume the burden the bad count with good counts. See disproving a conspiracy awas denial 62, 469 (quoting 105 S.Ct. 471 process of due judg vitiates the agreeing with in Justice Holmes Dunn v. ment as to him. Nor only is that the States, 390, 393, United 284 U.S. 52 S.Ct. consequence The failing conviction toas. 189, (1932), 76 L.Ed. 356 in which Holmes the one defendant must fail as to the relied on English an case from the States, other. Turinetti v. United su Bench, Queen’s Queen, Latham v. The 122 pra; States, Williams v. United 282 Eng. Rep. (Q.B.1864), proposi for the 481, 484; Fed. Gebardi v. United States tion that “each Count in an indictment is 112, 35, [287 U.S. S.Ct. L.Ed. 206

regarded if it as was a separate indict (1932)],supra. ment”). 92-93, 291 U.S. at (emphasis 54 S.Ct. 281 It impossible legitimately rely added). Under the Due Process Clause of Powell and Dunn here because two terms Amendment, the Fourteenth Supreme later in v. California, Morrison 291 U.S. Court reversed the conspiracy conviction (1934), 54 78 L.Ed. 664 English and followed the rule in existence in opinion Court by unanimous when our Constitution was framed. Cardozo, Justice followed the En- ancient Court questioned has never validity glish rule inconsistent verdict of process its unanimous due in holding Mor- conviction in a multiple defendant case rison. It has never retracted or narrowed They gut case. de with the Morrison holding quoted above the constitutional English proportional ancient rule of consistent and ancient directly from the rived States, by in limit- See, adopted Morrison punishment United Hartzel v. e.g., rule. only ing judge it to situations where 680, 682 n. (1944) (the acquitted than a has two rather one described Court L.Ed. only co-conspira alleged co-conspirators, two and then only as “the other defendants joint exceptions trial. These two' in the after named indictment petitioner tors explicitly rejected by English were their convictions setting aside of Parliament, as the common law and petitioner’s it sustain impossible makes parliamentary action discussed 7 of the cases the basis count upon conviction count”). Powell, clearly majority demonstrate. The relied on in above conspiracy acknowledge English refuses majority, error adopted ap- in Morrison or the common law rule Morrison not even mention does separate trials. considering plies jury acquittals it obviously traditional rule — single-defendant, unrelated to Powell’s opinion unanimous Justice Cardozo’s inconsistency, just as the count separate using adopts Morrison states the rule it rules courts two English considered English as language the same courts: unrelated, Holmes completely as Justice impossible things “It is in the nature of in Dunn. recognized opinion Powell conspire man to with himself.... The is, therefore, entirely irrelevant to the must failing conviction as to one defendant legiti be problem us and cannot before to the other.” 291 U.S. at fail as by the ma mately justification as a spun language general This states a S.Ct. 281. jority upholding execu favor majority’s no for the rule and leaves room tion. exceptions. The Morrison rule does two majority for the equally misguided It is like not turn on fortuitous circumstances clear, say judge granted that a unanimous-constitution- a sever whether the trial Morrison, in never over- holding separately, al in 1934 or ance and tried defendant since, questioned does not meet acquittal ruled or a motion for rather than granted “clearly jury. established law” In the go the standard of the case to the letting case, If of law in AEDPA. a clear rule in present found and Santine were old, as a matter of trial. The adopted jointly four centuries but severed for dicted by years ago Supreme or majority question Due Process makes the of life test, Court, granting not meet the AEDPA of a will in this case turn on the death majority nothing My colleagues will. in the severance. carry purpose of refuse to out the basic dissenting opinion, response In to this of inconsistent the rule: elimination distinguish majority attempted has punishment among disproportionate and says It case. Morrison Morrison alleged co-conspirators. (a) of the two apply because one does Santine, addition, important, equally and co-conspirators, was ac- alleged court, sepa- for by majority’s exception of the by than effect quitted rather (b) Morrison and the rate trials is make punish- the inconsistent and because all completely inapplicable ancient rule imposed “by in case was differ- ment cases. The states penalty of in a modern death juries separate in trials” instead ent penalty the death that continue to use joint majority The create trial. would conducting guilt trials incompati- bifurcate such new “ancient” rule that is brand then a trial for trial and second original phase law rule and ble with the common punishment. E.g., imposing majority willing destroy Rev. The Ohio the an- § (describing jury’s rule, Code 2929.03 trial role cient but the judges are unable to cite determining in a capital sentence for a single capital supporting case their posi- defendant). result, As a in judges trial tion from history Anglo- the entire capital grant cases now a severance and American law. No such case has ever try separately defendants rather than suggested, much applied, majori- less jointly. capital ty’s The of all tri- The Morrison rule has exceptions. bifurcation als, together with extensive voir dire only for four existed centuries to be effec- jurors the present requirements and tively capital today overruled cases jury findings of aggravating majority individual cir- of this Court. cumstances, makes the conduct of multi- Penalty II. Post -Furman Death capital complex.

defendant trials too Jurisprudence Therefore, Also Outlaws practice capital current Getsy Death grant a Sentence try cases is to severance de- separately, fendants as case Get- post-Furman Eighth Modern Amend sy majority’s exceptions and Santine. The ment proportionality analysis dramatically mean that of consistency the ancient rule policy reinforces the ancient against rule’s proportionality punishment long- no unequal disproportionate punishments applies penalty er in death eases because connection the same criminal event. joint such trials are not conducted as tri- post-Furman Eighth The line Amend als. ment death cases based on “evolv adopted rule ap- ing ancient decency standards of that mark the plied when there progress were almost 200 crimes a maturing society”1 empha in addition to murder carrying the death size the need to eliminate the kind of penalty robbery, larceny, burglary, rape, grossly disproportionate, arbitrary death — assault, treason, sedition, blasphemy, sod- sentences found in this case. As I will omy, many below, explain others. The ancient rule Court’s En designed to eliminate some of the mund Eighth Amendment proportionality harshness and arbitrariness death case reinforces the adop Court’s penalty by a introducing common tion sense of the ancient rule in the Morrison consistency rule of proportionality and process modern, due post-Fur case. The among the in man mode of participants the same crimi- penalty analysis— death ironic, indeed, nal It episode. that the based the more “evolving humane set of majority has now eliminated the rule in decency” standards of that now limit the capital cases. What was for penalty true four death the ancient —reinforces centuries in such impossible cases—“it is rule’s natural requirements law of rational in things the nature of for ity a man to symmetry. Therefore, con- and the more spire with formalist, himself’—is no longer true. “originalist” judge and the more Dulles, 86, 100-01, Trop 1. v. States, 78 S.Ct. of man.... v. Weems United 217 590, (1958): 2 L.Ed.2d 630 349, 544, U.S. 30 S.Ct. 54 L.Ed. 793. The phrase in our Constitution recognized [“cruel and Court in that case that the punishment”] directly unusual was taken precise, words of the Amendment are not English Rights from the Declaration of of scope and that their is not static. The 1688, the principle represents and it can be meaning Amendment must draw its from Magna traced back the Carta. evolving decency of standards that mark concept underlying Eighth The basic progress maturing a society. of nothing dignity Amendment is less than the

323 420, not.”); 446 Godfrey Georgia, U.S. judge “living-constitution” pragmatic, of L.Ed.2d 398 on the outcome 100 S.Ct. agree be able should (Furman in sisters that “if a State my and established case. But brothers this their it majority open capital punishment unable to are wishes to authorize of either mode responsibility to a consideration of to ... minds has a constitutional analysis. its law in a manner that avoids the apply arbitrary infliction of the capricious and 238, 92 Georgia, 408 U.S. In Furman v. penalty.”). death (1972), Su- 33 L.Ed.2d S.Ct. Court, per paragraph cu- one preme penal well that the It is now also settled penalty death opinion, held that the riam ty any in kind from of death is different unusual unconstitutionally cruel and sys our punishment imposed other under and Eighth in violation punishment justice. point tem of “From of view 239-40, Id. at Amendments. Fourteenth defendant, its it is different both in opinions concurring 2726. The S.Ct. severity finality. point From the and its pen- the death explained that that followed society, the action the sover view discriminatorily, being imposed so alty was eign taking the life of one of its citizens J., (Douglas, con- 92 S.Ct. 2726 id. at dramatically any from other le also differs freakishly, wantonly curring), so gitimate state action.” Gardner Flori (Stewart, J., con- id. at 92 S.Ct. da, 349, 357, 1197, 51 any given death sentence curring), (1977). The differ qualitative L.Ed.2d 393 unconstitutionally “cruel and unusual.” punishments ence of death from all other Indeed, the death sentences examined greater need requires correspondingly “cru- in Furman were reliability, consistency, and fairness for way being in the same el and unusual capital sentencing It is of vital decisions. lightning is cruel and unusual. struck to the and to the defendant importance For, people [capital convicted all the any community impose decision crimes], as just reprehensible as many be, be, and based appear death sentence these, were] Furman petitioners [in caprice or emotion. on reason rather than selected random among capriciously Gardner, 357, 97 430 U.S. at S.Ct. of death upon handful whom sentence “carefully must Accordingly, the courts 309-10, Id. at imposed.” in fact been ha[d] “to mini sentencing decisions scrutinize” (Stewart, J., concurring). im will be mize the risk that Thus, Eighth that the Furman established arbitrary ca or in an posed error cannot toler- Fourteénth Amendments a valid There must be pricious manner. of death the infliction of sentence ate choosing from penological reason systems permit penal- legal under many criminal defendants among the and incon- ty arbitrarily, capriciously to be Spazi are sentenced to death.” few who 310, 92 sistently imposed. Id. at S.Ct. 7,n. ano, 468 at 460 447, Florida, 2726; v. 468 U.S. Spaziano only principle can death-is-different The (1984) 3154, 460, L.Ed.2d 340 104 S.Ct. in holding that the observed here be (Furman has that a State “[i]f established disproportionate sentences consistent an avail- death should be determined that clearly the estab same case violate crimes, then it for certain penalty able principle and arbitrariness lished Furman way in a must administer Eighth hence the Amendment. rationally those distinguish can between death sentence evaluating whether a appropri- In death is an whom individuals has direct- arbitrary, it is Court for whom is sanction and those ate ed culpa- required. courts evaluate defendant’s fendants is See 18 U.S.C. 3592(a)(4) § bility individually (listing mitigating both and in terms as factor the lack of death sentences for or accomplices equally sentences codefendants and codefendants). Florida, culpable more the same case. Enmund 782, 788, 798, 3368, rational, The principle requiring propor- (1982). Enmund, L.Ed.2d 1140 punishment tionate is essence of the Supreme Court found a violation of the rule of law. It has deep roots our Eighth Amendment when defendants with heritage. cultural and biological Aristotle “plainly culpability different” received the in the observed Nicomachean Ethics that capital same sentence. The re- justice treating basic notions of require quired proportionality comparison with like cases alike: others participating the same crime: If, then, unjust just unequal, is is

Enmund did not kill or to kill intend be, equal, as all suppose men it to even culpability plainly thus his is different apart This, argument.... then, from is killed; yet from that of the who robbers just what the proportional; is—the the State treated them alike and attrib- unjust is what violates propor- culpability uted to Enmund of those by proportionate tion .... is requital [I]t Kerseys. who killed the This was im- city together. holds permissible under Eighth Amend- Aristotle, Nichomachea, Ethica in The ment. 1b, Works Aristotle V.3.1131 a-113 (W.D. trans.1954). 798, 102 Id. at S.Ct. 3368. V.5.1132b Ross ed. & article, In a Judge recent Morris Hoffman presents instant case the situation Goldsmith, and Timothy distinguished where culpa the defendant with the lesser biologist, Yale point: make this bility received the harsher sentence —the not surprising collectively [I]t is we penalty. death Numerous state courts struggle to balance the form and amount applied have principle Enmund to re punishment is appropriate, a quire symmetry reasonable between culpa struggle that lies at the heart of what bility sentencing and the of codefendants. by “justice.”.... we mean See, Kliner, e.g., People 81, 185 Ill.2d justice The two faces of firmly deal (1998) 235 Ill.Dec. 705 N.E.2d —to transgressors, but not too harsh- (“[S]imilarly situated codefendants should ly an intrinsic human sense of given arbitrarily not be unreasonably or —reflect important fairness and are politi- to the sentences.”); disparate State, Larzelere v. equality. cal ideal of When Aristotle (Fla.1996) (“When 676 So.2d commands that like cases be treated equally codefendant ... is culpable as alike, he touching person- both on the defendant, culpable more than the dispa al notion that none of us wants to be rate treatment of may the codefendant (and punished anyone more than else render the punishment dispro defendant’s self-interest) therefore on our and on portionate.”); State, Hall v. 241 Ga. the social notion that none of us wants (“We 244 S.E.2d find that punish they others more deserve than sentence, ... the death on Hall imposed (and therefore equilibrium on the be- for the same crime in which the co-defen our tween inclination to punish and our dant triggerman sentence, received a life is intuitions about fairness and sympathy). disproportionate.”). Similarly, the Federal Penalty Death recognizes Act that a com B. Timothy Morris Hoffman & H. Gold- parison smith, of the sentences received code- The Biological Roots Punish- of JR., MARTIN, BOYCE F. Circuit merit, L. 638-39 St. J.Crim. 1 Ohio joined by Judge Judge, dissenting, (2004). MERRITT. obfuscation, the of instance In another I join Judge cogent I dissent. Merritt’s Supreme Court’s argues that the majority this separately only highlight how write Harris, in Pulley decision why death brings into stark relief case (1984), pre- 79 L.Ed.2d country “arbitrary, bi- penalty in this is “compara- consideration cludes our ased, fundamentally at its and so flawed in this of sentences proportionality” tive beyond Moore very repair.” core that it is nothing to do holding has Pulley’s case. Cir.2005) (6th Parker, 425 F.3d simply held that Pulley case. with this (Martin, J., dissenting). require a Eighth Amendment does not Moore, disagreed I majority systematically re- court supreme state performance of Moore’s as to whether the proportionality of comparative view the unconstitutionally defec trial counsel was unrelated to the in other cases sentences tive, performance and whether —or Pulley at con- 50-51. case hand. Id. unconstitutionally prejudiced lack thereof — Eighth Amendment cerned whether My generalized of his trial. the outcome every proportionality a case mandates arbitrary imposition thoughts about death particular a sentence review of on the penalty predicated were the death imposed punishment with the comparison life or death notion that defendant’s general type of on others for the same of his proficiency on the hinge should not holding Our nei- most states’ attorney, especially crime in unrelated cases. when sys- appointed coun requires compensation schemes for this rule nor ther contradicts precious little incentive for provide sel review proportionality comparative tematic (“[O]ne of the Id. at 270 good lawyering. Instead, simply we cases. of unrelated examples clear of the arbitrariness most established, clearly common to the adhere the common knowl penalty the death is that, in capi- of Enmund principle sense decent defendants with edge that those very respect to the same tal case with death.”). rarely lawyers get sentenced facts, very stemming from the same crime case, death subsequent penalty In a permit does not Eighth Amendment Johnson, ways parted I with Benge v. culpability with less the codefendant hook on only legal “the majority because code- the death when the receive hangs sentence Benge’s death which culpability receives greater with fendant ag- finding he also committed jury’s majority’s is in view sentence. lesser robbery by stealing Gabbard’s gravated holding Enmund and with the conflict killing her.” process ATM card culpable participant in the the less allows Cir.2007) (6th (Martin, 236, 254 474 F.3d death to receive the episode same criminal J., dissenting). I then considered culpable partici- penalty when the more Benge could other acts hypothetical pant the lesser sentence. receives yet escaped death have committed invalidating the ancient rule Thus both law: under state verdicts and conspiracy inconsistent fatally hit Benge impulsively Had directly in terms of phrased rule modern law wife in the head common consistency, rationality proportionality act extreme tire iron an abhorrent killing violence, her death the conclusion domestic instead require card, as the to her ATM gain access aside. should be set verdict prosecution alleged and jury suppos- planning Santine was and the police did edly found, would nothing.... his conduct somehow reprehensible? be less heinous and group When the first went to the Serafi- Such a murder would be at as house, least they no apart- returned to the revolting here, as the one occurred act, completing using ment without yet tell, as far Ias can would have they the excuse that could not find a presented none of the aggravating fac- park. place furious, to Santine became tors a required for death sentence eventually under driving Getsy, McNulty, and Ohio law. Hudach back to the place himself.... It is ... troubling that Santine did not Id. receive the though death sentence even case, In Jason sadly, we need he initiated the crime. hypotheticals, not consider such as the bet- v. Getsy, State 84 Ohio St.3d ter-paid lawyer likely who would have (1998). N.E.2d 890-92 job, done better or the brutal murder which, reasons, for could majority whatever not be The argues that Supreme no coupled any Court, of a statutory Circuit, state’s Sixth prece- or Ohio state aggravating circumstances. For dents demand proportionality Get- sy’s principle case the hypothetical is made real. include its calculus other de- The nineteen-year-old Getsy fendants who have not been sen- sentenced to (such case). tenced to death for death being trig- one of the as Santine in this I side ger men with Judge Merritt in conspiracy. rejecting propo- murder-for-hire compatriots, His two if sition. Yet even McNulty majority Richard were cor- Hudach, rect, only Ben my concerns, did not bolsters receive the death penalty majority’s effectively because were rule both offered and ac- an blesses cepted plea arbitrary bargains. Thus there is some scheme: that Ohio state court logic, perhaps, must why McNulty weigh proportionality and Hu- of an indi- dach received vidual’s against lesser death sentences. But there sentence others who logic why Santine, no have sentence, John received the death mas- but that termind of conspiracy, same state paid Getsy, weigh who court need not McNulty, work, proportionality and Hudach dirty to do his of an individual’s death and who great steps against took sentence co-conspirator make sure they completed job, who did also not receive death. did not re- ceive death sentence. As the majority adds that Court of despite Ohio noted upholding Get- Court’s Powell, decision in United States v. sy’s death sentence: 83 L.Ed.2d 461 It is clear that would not have (1984), gloss put and the Powell committed these crimes if he had never United States Crayton, 357 F.3d 560 met Santine.... (6th Cir.2004), have sounded the death- It was clear from the videotape of his knell of the common-law “rule of consisten statement that Getsy cy.” feared Santine and again, however, Once even if the was afraid that Santine majority would execute were score, correct on this it him. apparently go was afraid places itself in a pickle. serious if For police because Santine made it Powell Crayton do require appear that he police had the in his the rule of consistency brought be to bear pocket. This belief supported by on a Getsy’s, case such as then this court’s McNulty the fact that told police application what of the death is afoHio- Bracy’s proceed quickly I case could of affairs find that This state n inconsistent. unconscionable, remain bound to camouflage negotiations as I bribe for a even the 907-08, this court apply the laws of to tried later. Id. at case be Benge, 474 F.3d at Supreme Court. acknowledged 1793. The Court that S.Ct. Cf. Moore, 258; 270. is not “[It] 425 F.3d at well be may petitioner be ... will “[i]t v. is Abdul-Kabir justice. caprice.” It sup unable to obtain sufficient to evidence — -, Quarterman, 127 S.Ct. U.S. judicial port a finding of actual bias the (2007) (Scalia, 1654, 1686, 167 L.Ed.2d case,” trial of his but concluded that the J., dissenting). Bracy’s allegations combined specificity linking with the circumstantial evidence Getsy and John Santine are not

Jason Bracy’s lawyer corrupt to judge final trial players in a criminal law hypothetical discovery. are who commit- to They people exam. real was sufficient warrant Id. crimes, indeed, the crimes. 908-09, 117 ted real same death while put That will be to case, Similarly, in this has specific (at will and that the law spared, Santine be raising pos evidence of circumstances majority) actually according to the

least sibility bias—specifically, evidence result, virtually makes it sanctions this Judge McKay socialized with Prosecutor in the affirma- impossible for me to answer during Judge Rice the trial and that Blackmun as the tive viewed what Justice McKay driving, charged for drunk Collins, v. question in Callins fundamental McKay raising possibility Judge 1141, 1145, 1127, 127 114 S.Ct. office prosecutor’s curried favor with (1994)—namely, sys- does our L.Ed.2d 435 garner in order favorable treatment punishment “accurately and capital tem of during Thomp his criminal prosecution, cf. which consistently defendants determine” (7th Cohen, 965 F.2d Cir. kins not? to die and which do “deserve” 1992) lawyer may a defense (noting that MOORE, Circuit KAREN NELSON than in act out of self-interest rather Judge, dissenting. lawyer when the defendant’s interest investigation), or under criminal because join opinion Judge

I excellent Merritt’s Rice, who relationship his with Prosecutor full, I separately and write address a poten a close friend and might be both judicial I believe that bias claim. judge’s criminal case. tial witness Gramley, Bracy Indeed, McKay (1997), Judge took the bench has far more 138 L.Ed.2d informing day us than the after arrest without bearing on case before his majority raising lets on. happened, defense of what had well impropriety further likelihood of Court concluded Bracy, as in speculative level. Just above its that the district court abused discretion Bracy, Getsy prove has not been able Bracy permit to undertake by refusing to him prejudiced improprieties how these Ev- discovery. Id. at 117 S.Ct. 1793. allegations has directly, specific but made Bracy’s trial light idence came with proven disproven be or only that can bribes, although judge accepted had development, and I evidentiary further judge that the trial was no evidence there that, just Bracy, as in would conclude Bracy’s case, Bracy accepted a bribe deny Getsy an court’s decision to district lawyer, alleged a former associate evidentiary for further devel opportunity judge, agreed object of the trial of discretion. opment trial was an abuse prompt so otherwise interfere The majority makes much of evidence

that Judge McKay was prosecuted by a

special prosecutor from county, another but this evidence does not show when the special prosecutor took over the case and under what circumstances, actually high-

lighting the need for further evidentiary

development. The state courts denied this opportunity to Getsy at every turn, and I respectfully dissent from the majority’s de-

cision to deny him this opportunity yet again.

UNITED America, STATES of

Plaintiff-Appellee, RAYBORN, Gerald Defendant-

Appellant. No. 05-6894. United Court Appeals, States

Sixth Circuit. Argued: April 17, 2007. Decided and Filed: July

Case Details

Case Name: Getsy v. Mitchell

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 25, 2007

Citation: 495 F.3d 295

Docket Number: 03-3200

Court Abbreviation: 6th Cir.