                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                          File Name: 07a0281p.06

                     UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT
                                        _________________


                                                     X
                             Petitioner-Appellant, -
 JASON GETSY,
                                                      -
                                                      -
                                                      -
                                                          No. 03-3200
          v.
                                                      ,
                                                       >
 BETTY MITCHELL, Warden,                              -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                    No. 01-00380—Dan A. Polster, District Judge.
                                        Argued: March 7, 2007
                                  Decided and Filed: July 25, 2007
   Before: BOGGS, Chief Judge; MERRITT, MARTIN, BATCHELDER, DAUGHTREY,
   MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS,          SUTTON, McKEAGUE, and
                              GRIFFIN, Circuit Judges.*
                                          _________________
                                                COUNSEL
ARGUED: Michael J. Benza, Cleveland, Ohio, for Appellant. Daniel R. Ranke, OFFICE OF THE
ATTORNEY GENERAL, CAPITAL CRIMES SECTION, Cleveland, Ohio, for Appellee.
ON BRIEF: Michael J. Benza, Cleveland, Ohio, David C. Stebbins, Columbus, Ohio, for
Appellant. Daniel R. Ranke, OFFICE OF THE ATTORNEY GENERAL, CAPITAL CRIMES
SECTION, Cleveland, Ohio, Elise W. Porter, OFFICE OF THE ATTORNEY GENERAL OF
OHIO, Columbus, Ohio, for Appellee.
        GILMAN, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER,
GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN, JJ., joined. MERRITT, J. (pp. 19-
25, delivered a separate dissenting opinion, in which MARTIN, DAUGHTREY, MOORE, COLE,
and CLAY, JJ., joined. MARTIN, J. (pp. 26-27), joined by Judge MERRITT, and MOORE, J. (p.
28), joined by Judge MERRITT, also delivered separate dissenting opinions.




      *
       The Honorable Deborah L. Cook, Circuit Judge, took no part in the consideration or decision of the case.


                                                      1
No. 03-3200           Getsy v. Mitchell                                                          Page 2


                                        _________________
                                            OPINION
                                        _________________
         RONALD LEE GILMAN, Circuit Judge. In September of 1996, an Ohio jury convicted
Jason Getsy of murder-for-hire in connection with the killing of Ann Serafino and recommended
that he be sentenced to death. The state trial court concurred, and Getsy received no relief either on
direct appeal or in state postconviction proceedings. He thereafter filed a petition for federal habeas
corpus relief. Getsy’s petition was denied by the district court, but a panel of this court reversed the
district court’s judgment with regard to his death sentence. The panel majority held that Getsy’s
death sentence was unconstitutionally disproportionate to the life sentence that the separately tried
instigator of the plot received for procuring the murder. It also remanded the case for an evidentiary
hearing regarding Getsy’s claim of judicial bias against the state trial-court judge. Thereafter, this
court granted the Warden’s petition for en banc review and vacated the panel decision. For the
reasons set forth below, we AFFIRM the district court’s denial of Getsy’s habeas corpus petition.
                                        I. BACKGROUND
A.      Factual background
       The Ohio Supreme Court set forth the relevant facts as follows:
       Charles (“Chuckie”) Serafino lived with his mother, Ann Serafino. On the evening
       of July 6, 1995, Ann went to bed at approximately 11:00 p.m. Chuckie was on the
       love seat in the family room when, sometime after 1:00 a.m. on July 7, he heard a
       loud explosion. Shells from a shotgun blasted out the sliding glass door behind him
       and wounded him in the arm. As he ran for the bathroom to inspect his injuries, Ann
       came out of her bedroom. Chuckie remembered hearing his mother say to someone,
       “What are you doing here? Get out of here.” He also remembered hearing someone
       say, “Shoot the bitch,” or “Kill the bitch.” Serafino next recalled seeing a gun in his
       face and being shot again. He fell to the bathroom floor and pretended to be dead.
       After the intruders left, he called 911.
       Frederick Hanley, Jr., Chuckie’s neighbor, jumped from his bed upon hearing
       gunshots. He looked at his digital alarm clock, which read 1:22 a.m. As he was
       going downstairs, he heard at least one additional gunshot. Once outside, he heard
       footsteps that appeared to be running away from the Serafino residence. He
       instructed his wife to call 911 and inform the police that shots were coming from the
       Serafino residence and that someone was running towards the city of Hubbard.
       Officer Thomas Forgacs of the city of Hubbard Police Department was one of the
       first officers to respond to the call. The officers broke into the Serafino home and
       found Chuckie lying on the floor with blood all over him. Chuckie asked the officers
       to check his mother; she was dead.
       Forgacs left the scene and began checking the Hubbard area for a white Crown
       Victoria owned by John Santine. Forgacs went to 24 1/2 South Main Street, where
       he had seen Santine’s car parked on the evening of July 6. He found Santine’s car
       parked in the driveway with another car pulled in behind it.
       Earlier in the year, Santine had attempted to purchase a portion of Chuckie
       Serafino’s lawn-care business and had deposited $2,500 in the business’s account.
       Subsequently, Chuckie violated probation and was incarcerated in the Trumbull
No. 03-3200         Getsy v. Mitchell                                                           Page 3


      County Jail until July 6, 1995. While Chuckie was in jail, Santine attempted to take
      over Chuckie’s business. Santine transferred Chuckie’s building lease and
      equipment into his own name, which caused an altercation between Santine and Ann
      Serafino and Chuckie’s sister. The Serafinos filed a civil action against Santine
      while Chuckie was still in jail.
      Forgacs searched for Santine’s car because of a conversation he had had on June 20,
      1995 with Richard McNulty. McNulty, who lived at 24 1/2 South Main and who is
      a co-defendant, had previously served as a police informant. On June 20, Forgacs
      asked McNulty, who worked for Santine, “What does Johnny have in store for
      Chuckie when he gets out of jail?” McNulty told Forgacs, “He’s dead. He’s bought
      and paid for.” McNulty told Forgacs that Santine had lined up a hit man, Tony
      Antone, to kill Chuckie Serafino. Forgacs gave little credence to McNulty’s
      statements, and didn’t inform Chuckie or follow up on the information.
      Forgacs returned to the murder scene and told the Hubbard Township Police what
      McNulty had told him a few weeks earlier. Later that morning, Detective Donald
      Michael Begeot of the Hubbard Township Police Department and Forgacs went to
      the McNulty apartment at 24 1/2 South Main to take McNulty in for questioning.
      Initially, McNulty minimized his involvement and denied that he had told Forgacs
      about the contract on Chuckie. Based on other information obtained from McNulty,
      Begeot obtained an arrest warrant for Getsy. At approximately 10:00 p.m. on July
      7, 1995, Getsy was arrested in the driveway of 24 1/2 South Main. He was given
      Miranda warnings at the scene and later at the Hubbard Township Police
      Department. At approximately 1:00 a.m., on July 8, 1995, Getsy gave a videotaped
      interview.
      Getsy told Begeot that Ben Hudach called him on the evening of July 6, 1995, and
      told him to come to 24 1/2 South Main Street. When Getsy got there, Hudach, a
      co-defendant, told Getsy that they (Getsy, Hudach, and McNulty) had to “take out
      some guy.” Santine was not present, but Hudach related what Santine had told him
      earlier. Money had been discussed, but Hudach was not sure of the amount. Getsy
      later indicated that he participated in the shootings because he was scared of Santine,
      but did not do it for the money.
      Sometime on July 6, 1995, Getsy, Hudach, and McNulty drove to the Serafino
      residence. They could not find a place to park so they returned to 24 1/2 South Main
      Street. When they returned, Santine was at the apartment and drove them back to the
      Serafino house. Getsy described the guns that they took with them, which included
      a shotgun, a SKS rifle, and a .357 magnum handgun.
      Getsy explained that after Santine dropped them off, Hudach sprained his ankle and
      went back to where they were supposed to be picked up. Getsy stated, “[T]hat left
      me and Rick to get it done.” He admitted that what they were supposed to do was
      kill Chuckie Serafino.
      Getsy explained that he and McNulty fired simultaneously through the sliding glass
      door on the back of the Serafino house. They entered the house through the shattered
      door and shot at Chuckie as he was running down the hall. When they saw Ann
      Serafino, Getsy stated, they “just kept shooting.”
      During the interview with Begeot, Getsy was reluctant to mention Santine’s name.
      He told Begeot that the same thing that happened last night could happen to him. He
No. 03-3200         Getsy v. Mitchell                                                          Page 4


      asked whether Santine would ever see the interview tape. Begeot assured Getsy that
      Santine would not be able to get to him. Getsy also asked Begeot if he was going to
      die, and Begeot told him, “No.”
      Getsy admitted that he had the SKS rifle and the handgun during the shootings. He
      explained that when he was shooting the SKS, the clip fell out so he had to pull out
      the handgun.
      Getsy’s description of the weapons he and McNulty used was verified by physical
      evidence recovered at the scene. Michael Roberts, a forensic scientist, identified the
      projectiles recovered from the murder scene. None of the projectiles found outside
      the family room area, where the sliding glass door was blown out, was discharged
      by the shotgun which, according to Getsy, McNulty carried and fired. The
      projectiles linked to the shotgun were recovered in the family room.
      Getsy admitted that they had been instructed to kill any witnesses. When Begeot
      asked him what they were told about witnesses in the house, Getsy replied, “[I]f we
      were seen, to do them, too.”
      After the shootings, Hudach called Santine to tell him it was finished and to pick
      them up. Santine told Hudach that there were cops everywhere and that they should
      run through the woods to get back to the apartment. Santine also told Hudach to
      ditch the guns in the woods.
      Getsy, McNulty, and Hudach arrived back at 24 1/2 South Main, where Josh Koch
      and Santine were waiting for them. Santine ordered them to take off their clothes
      and take a bath. Getsy was the last to bathe. When he came out of the bathroom, his
      clothes and boots were gone. He did not know what happened to them.
      Koch testified that he was at 24 1/2 South Main Street on July 6 and 7, 1995. He
      knew that Getsy, McNulty, and Hudach were going out to do something for Santine,
      but they declined to give him any details. He was to watch TV and write down the
      shows that were on so the other three could memorize the list for an alibi.
      After Getsy, McNulty, and Hudach left, Koch waited in the apartment. Santine came
      to the apartment and, sometime around 1:00 a.m., jumped up and said, “I heard the
      gunshots.” Immediately thereafter, the telephone rang and Koch heard Santine
      talking to someone in a fast, excited manner. Santine said, “So you killed them,
      right, you killed them both? * * * Okay. Well, I can’t come pick you up. The cops
      are everywhere, they are pulling over everybody, you got to run through the woods
      and ditch the guns.” Santine hung up and happily screamed, “I fucking love these
      guys.”
      According to Koch, Santine was very pleased with the three men. He said, “You
      guys want $10,000? I’ll give you $10,000.” McNulty told him he just wanted a
      wedding ring for his girlfriend. Hudach said that it had been a favor for Santine.
      Getsy indicated that he needed money for his car.
      The next day, Koch heard Getsy bragging to Patricia Lawson about shooting Ann
      Serafino. Getsy grabbed a piece of pizza with no cheese on it and said, “This looks
      just like this bitch’s face after we shot her.”
      Michael Dripps, a close friend of Getsy, McNulty, and Hudach, acknowledged that
      Getsy was happy, secure, and tough when he had a gun in his hand. Dripps was
No. 03-3200           Getsy v. Mitchell                                                          Page 5


        present at the lawn-care business when Gum-out had been used to wipe prints off the
        weapons before the Serafino shootings. Dripps heard Santine instruct Getsy,
        McNulty, and Hudach to kill Chuckie Serafino and all witnesses. Dripps also
        observed McNulty and Hudach in camouflage clothing on the night of the killing.
State v. Getsy, 702 N.E.2d 866, 873-75 (Ohio 1998).
B.      Procedural background
        In July of 1995, an Ohio grand jury indicted Getsy for the aggravated murder of Ann
Serafino, the attempted murder of Charles Serafino, and related charges that included aggravated
burglary. The indictment also charged Getsy with three capital specifications that rendered him
eligible for the death penalty, including: (1) murder or attempted murder of two or more people,
(2) murder for hire, and (3) felony murder. Getsy proceeded to trial in July of 1996 and was
ultimately found guilty of all charges and specifications. Following a penalty-phase hearing, the
jury recommended that Getsy be sentenced to death. The trial judge accepted the jury’s
recommendation and imposed a sentence of death for the aggravated murder charge.
        Getsy appealed to the Ohio Supreme Court, raising 17 claims of error. The Court affirmed
Getsy’s sentence and conviction as to all grounds raised. Getsy, 702 N.E.2d at 893. Simultaneously
with his direct appeal, Getsy also filed a petition for state postconviction relief. The Ohio trial court
denied his petition for relief, and the Ohio Supreme Court declined to hear his postconviction appeal.
Subsequently, the Ohio Supreme Court summarily denied Getsy’s application to reopen his direct
appeal.
        Having exhausted all of his state-court remedies, Getsy filed a petition in federal district
court for habeas corpus relief pursuant to 28 U.S.C. § 2254. Getsy’s habeas petition raised 21
separate claims of error, 2 of which the district court dismissed as defaulted and the remainder of
which the court denied on the merits. The only issue that the district court certified for appeal was
whether Getsy’s sentence was unconstitutionally arbitrary and disproportionate in relation to that
imposed on Santine. On appeal, this court expanded Getsy’s Certificate of Appealability (COA) to
include seven additional claims: (1) whether Getsy’s due process rights were violated by the failure
of the trial judge to recuse himself, (2) whether Getsy’s confession was obtained knowingly and
voluntarily, (3) whether Getsy was denied the right to a fair and impartial jury, (4) whether Getsy
was denied his right to the effective assistance of counsel in the penalty phase of his trial, (5)
whether sufficient evidence supported Getsy’s conviction regarding the murder-for-hire aggravating
circumstance, (6) whether the Ohio prosecutor improperly engaged in selective prosecution by
seeking the death penalty against Getsy, and (7) whether the errors asserted had the cumulative
effect of denying Getsy the due process of law.
        A panel of this court reversed the judgment of the district court regarding Getsy’s death
sentence, holding that it was unconstitutionally arbitrary and disproportionate in relation to the life
sentence received by Santine in a separate trial. Getsy v. Mitchell, 456 F.3d 575, 598 (6th Cir.
2006), reh’g en banc granted, opinion vacated. The panel majority also remanded Getsy’s claim
of judicial bias for an evidentiary hearing. Id. at 595. Subsequently, the Warden petitioned this
court to rehear Getsy’s appeal en banc. We granted the petition for rehearing and vacated the panel
decision in November of 2006.
No. 03-3200            Getsy v. Mitchell                                                           Page 6


                                         II. ANALYSIS
A.      Standard of review
        Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court
        may not grant a writ of habeas [corpus] to a petitioner in state custody with respect
        to any claim adjudicated on the merits in state court unless (1) the state court’s
        decision “was contrary to, or involved an unreasonable application of, clearly
        established Federal law, as determined by the Supreme Court” . . . or (2) the state
        court’s decision “was based on an unreasonable determination of the facts in light
        of the evidence presented in the State court proceedings.”
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254(d)). “A state
court’s legal decision is ‘contrary to’ clearly established federal law . . . if the state court arrived at
the conclusion opposite to that reached by the Supreme Court on a question of law or if the state
court decided a case differently than a Supreme Court decision on a set of materially
indistinguishable facts.” Lopez v. Wilson, 426 F.3d 339, 342 (6th Cir. 2005) (en banc).
Alternatively, a state court decision will not be held to be an “unreasonable application” of clearly
established federal law unless the decision is “objectively unreasonable,” not simply erroneous or
incorrect. Williams v. Taylor, 529 U.S. 362, 409-11 (2000).
B.      Proportionality
        The primary issue raised by Getsy, and the only issue certified for appeal by the district
court, is whether Getsy’s sentence was unconstitutionally arbitrary or disproportionate in relation
to that received by Santine. Getsy’s argument ultimately rests on the fact that Santine, the
mastermind who directed codefendants Getsy, Hudach, and McNulty to kill Charles Serafino, did
not receive the death penalty. Santine’s indictment mirrored Getsy’s. In a separate trial that took
place after Getsy’s, Santine was convicted of aggravated murder and aggravated burglary, but was
acquitted of all the capital specifications charged and thus ineligible for the death penalty. Getsy
claims that this disparity renders his death sentence arbitrary and disproportionate.
         On direct review, the Ohio Supreme Court first addressed Getsy’s related contention that
Ohio’s death penalty procedures are flawed because the court “limits itself to death cases when
conducting its statutorily mandated proportionality review.” Getsy, 702 N.E.2d at 889. Relying on
its decision in State v. Steffen, 509 N.E.2d 383, 386 (Ohio 1987), which held that “[t]he
proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already
decided by the reviewing court in which the death penalty has been imposed,” the Court summarily
rejected Getsy’s argument. The Court next independently reviewed Getsy’s death sentence for
appropriateness and proportionality pursuant to Ohio Rev. Code Ann. § 2929.05. Getsy, 702 N.E.2d
at 889. Comparing Getsy’s case to other similar murder-for-hire death penalty cases in Ohio, the
Court concluded that “it is clear that imposing the death sentence on Getsy is not disproportionate.”
Id. at 892.
        Getsy renews his claim of arbitrariness and disproportionality before us en banc. At oral
argument, Getsy’s counsel conceded that Getsy’s death sentence was not arbitrary or
disproportionate at the time that it was imposed. Instead, Getsy contends that his sentence became
unconstitutional only later when a different jury sentenced Santine to life imprisonment for his role
in the same offenses. According to Getsy, Furman v. Georgia, 408 U.S. 238 (1972), Gregg v.
Georgia, 428 U.S. 153 (1976), and their progeny establish a duty on the part of the Ohio Supreme
Court to “correct this arbitrary and capricious sentence.” This argument, in our opinion, advocates
a novel constitutional rule that Supreme Court precedent simply does not support, let alone dictate.
No. 03-3200           Getsy v. Mitchell                                                          Page 7


        Getsy accurately asserts that the fractured majority holding in Furman has come to stand for
the general principle that the arbitrary and disproportionate imposition of the death penalty violates
the Eighth Amendment. See, e.g., Walton v. Arizona, 497 U.S. 639, 657 (1990) (noting that Furman
“has come to stand for the principle that a sentencer’s discretion to return a death sentence must be
constrained by specific standards, so that the death penalty is not inflicted in a random and
capricious fashion”), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
Proceeding from this abstract principle to the specific conclusion urged by Getsy—that his sentence
was unconstitutionally arbitrary or disproportionate in relation to that of Santine—necessarily entails
at least one of two additional premises: (1) that the Eighth Amendment requires comparative
proportionality, or (2) that a rule of consistency applies regarding death-specification verdicts among
separately tried coconspirators. These premises, however, have been disclaimed both by this court
and by the Supreme Court.
        Eighth Amendment proportionality, as defined by the Supreme Court, refers “to an abstract
evaluation of the appropriateness of a sentence for a particular crime.” Pulley v. Harris, 465 U.S.
37, 42-43 (1984) (holding that the petitioner was not constitutionally entitled to a proportionality
review that would “compare Harris’s sentence with the sentences imposed in similar capital cases”).
Proportionality as defined by the Supreme Court evaluates a particular defendant’s culpability for
his crime in relation to the punishment that he has received. See, e.g., Atkins v. Virginia, 536 U.S.
304 (2002) (reversing the death sentence of a mentally retarded defendant); Enmund v. Florida, 458
U.S. 782 (1982) (reversing the death sentence of a defendant who did not himself take life, attempt
to take life, or intend to take life); Coker v. Georgia, 433 U.S. 584 (1977) (reversing the death
sentence of a defendant for the rape of an adult woman that did not result in her death). In each of
these cases, the Supreme Court struck down a death sentence not because it was disproportionate
in comparison to sentences received by other, similarly situated defendants, but because of what the
Court deemed to be the inappropriateness of the sentence in relation to the particular characteristics
of the crime and the criminal at issue. These cases are of no help to Getsy, a competent adult who
personally and intentionally committed aggravated murder.
        Unlike this absolute or individualized proportionality, Getsy’s proportionality argument rests
on a claim that his death sentence is disproportionate only by comparison to Santine’s life sentence.
In Pulley, the Supreme Court considered the precise argument asserted by Getsy—that the
Constitution demands a comparative proportionality review that “purports to inquire . . . whether
the penalty is . . . unacceptable in a particular case because [it is] disproportionate to the punishment
imposed on others convicted of the same crime.” Pulley, 465 U.S. at 44. The Court squarely
rejected this argument as contrary to its holdings in Jurek v. Texas, 428 U.S. 262 (1976), Gregg v.
Georgia, 428 U.S. 153 (1976), and Profitt v. Florida, 428 U.S. 242 (1976). Pulley, 465 U.S. at 50-
51. Three years later, the Court reaffirmed Pulley’s holding in McKleskey v. Kemp, 481 U.S. 279
(1987). In that case, the Court expressly held that a defendant could not “prove a constitutional
violation by demonstrating that other defendants who may be similarly situated did not receive the
death penalty.” McKleskey, 481 U.S. at 306-07 (emphasis in original).
        Our sister circuits have also recognized this well-established principle. See, e.g., Beardslee
v. Woodford, 358 F.3d 560, 579-81 (9th Cir. 2004) (rejecting the argument that “different sentences
for equally culpable co-defendants violate the prohibition against arbitrary imposition of the death
penalty in Furman,” and concluding that no constitutional error arose from the trial court’s refusal
to allow the codefendants’ sentences into evidence); Bush v. Singletary, 99 F.3d 373, 375 (11th Cir.
1996) (per curiam) (holding that no federal constitutional claim arose by reason of the fact that the
defendant’s death sentence was disproportionate to that of his codefendant, whose death sentence
had been vacated on appeal); Hatch v. Oklahoma, 58 F.3d 1447, 1466 (10th Cir. 1995) (rejecting
the defendant’s claim that the Constitution required “a proportionality review of his sentence relative
only to his codefendant”), overruled in part on other grounds by Daniels v. United States, 254 F.3d
1180, 1188 n.1 (10th Cir. 2001); Russell v. Collins, 998 F.2d 1287, 1294 (5th Cir. 1993) (denying
No. 03-3200           Getsy v. Mitchell                                                          Page 8


relief to a habeas petitioner who argued that his death sentence was disproportionate to that of a
codefendant who had pled guilty and been sentenced to 60 years in prison).
       By statutorily incorporating a form of comparative proportionality review that compares a
defendant’s death sentence to others who have also received a sentence of death, Ohio’s death
penalty regime actually adds an additional safeguard beyond the requirements of the Eighth
Amendment. See Steffen, 509 N.E.2d at 386. This additional form of review excludes from the
precedents used for comparison all cases, like Santine’s, where the sentence received was other than
death. Id.
        In an unbroken line of precedent, this court has upheld challenges to Ohio’s limited
comparative-proportionality review. “Since proportionality review is not required by the
Constitution, states have great latitude in defining the pool of cases used for comparison”; therefore
“limiting proportionality review to other cases already decided by the reviewing court in which the
death penalty has been imposed” falls within this wide latitude. Williams v. Bagley, 380 F.3d 932,
962-63 (6th Cir. 2004) (citing seven prior Sixth Circuit cases that have upheld Ohio’s limited
proportionality review against constitutional challenges).
        Getsy attempts to distinguish this longstanding proposition that Ohio need not have even
considered the very ground upon which his constitutional claim is based—that a similarly situated
defendant received a life sentence—by narrowing his argument. He contends that, although Ohio
need not systematically engage in comparative proportionality review as a general matter, its failure
to do so in this case, where the mastermind of the plot was acquitted of all capital specifications,
gives rise to a constitutional violation. This amounts to a thinly veiled argument that consistent
capital-specification verdicts among separately tried coconspirators (in this case, participants in a
murder-for-hire scheme) are required.
        In the absence of case law for this specific proposition, Getsy asserts that Furman’s broad
prohibition against arbitrary and capricious death sentences somehow dictates the further leap to a
consistency principle in capital cases. Getsy’s counsel properly conceded at oral argument that the
Supreme Court has never held that the Eighth Amendment requires such a rule of consistency. To
the contrary, the Supreme Court has explicitly rejected the common-law rule of consistency in other
contexts. See, e.g., United States v. Powell, 469 U.S. 57, 58 (1984) (reaffirming the holding in Dunn
v. United States, 284 U.S. 390 (1932), that “a criminal defendant convicted by a jury on one count
could not attack that conviction because it was inconsistent with the jury’s verdict of acquittal on
another count”). Nearly all courts to have addressed the issue since Powell—including our
own—have concluded that the rule of consistency regarding verdicts even in a single trial is no
longer good law. See United States v. Crayton, 357 F.3d 560, 565-66 (6th Cir. 2004) (explaining
that “the acquittal of all but one co-conspirator during the same trial does not necessarily indicate
that the jury found no agreement to act,” and collecting cases from eight other circuits).
        Moreover, we have long held that the common-law rule of consistency has no application
to conflicting verdicts returned by different juries in separate trials. See United States v. Newton,
389 F.3d 631, 636 (6th Cir. 2004) (noting that the rule of consistency “was not applied if co-
conspirators were separately tried”), vacated in part on other grounds, 126 S. Ct. 280 (2005); United
States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986) (“[I]f coconspirators are tried separately, the
acquittal of all other coconspirators does not mandate acquittal as to the remaining conspirator. . . .
In other words, it is not necessarily inconsistent for two juries to reach differing results.”); see also
Cortis v. Kenney, 995 F.2d 838, 840 (8th Cir. 1993) (same); United States v. Lewis, 716 F.2d 16, 22
(D.C. Cir. 1983) (same); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982)
(same); United States v. Espinosa-Cerpa, 630 F.2d 328, 333 (5th Cir. 1980) (same). This well-
established precedent squarely precludes the old common-law rule from applying under the
circumstances of this case.
No. 03-3200           Getsy v. Mitchell                                                          Page 9


        Getsy simply had no constitutional guarantee that his jury would reach the same results as
prior or future juries dealing with similar facts, irrespective of the offense with which he was
charged. Criminal defendants are instead protected from irrational convictions by the due process
requirement that a conviction must be supported by sufficient evidence. Powell, 469 U.S. at 67
(“[A] criminal defendant already is afforded protection against jury irrationality or error by the
independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.
We do not believe that further safeguards against jury irrationality are necessary.”); see also
Espinosa-Cerpa, 630 F.2d. at 332 n.5 (explaining the ancient origin of the English common-law rule
of consistency and “its inappropriateness to a modern American criminal system in which all
verdicts obviously are, and always have been, subject to independent review for evidentiary
support”). Thus, the constitutionality of Getsy’s murder-for-hire conviction turns not on any fortuity
regarding when he was tried or with whom, nor on the caprice permissible in another jury’s decision
to acquit on similar facts, but rather on the sufficiency of the evidence presented at his own trial.
        Only where a court declares that the evidence is legally insufficient to support the conspiracy
conviction of one defendant must the conviction of the sole coconspirator also be voided. Morrison
v. California, 291 U.S. 82, 93 (1934) (reversing two defendants’ joint conspiracy convictions where
due process precluded the state’s reliance on a legal presumption to establish an element of the
conspiracy). We pause to emphasize that, contrary to the view of the dissent, “[a] court’s
determination that there is insufficient evidence to convict cannot be equated with a jury’s
determination that a defendant, for whatever reason, should be acquitted.” Crayton, 357 F.3d at 566.
 Apparently recognizing this fundamental distinction, Getsy himself has never argued that Morrison
applies to his case, even in the wake of the original-panel majority’s unwarranted reliance on that
decision. Nevertheless, the dissent presses on with this argument, overlooking the critical distinction
between a determination made by a court as a matter of law—with which Morrison dealt—and a
jury verdict. (All discussion in this opinion of the dissent or the dissenting opinion refers to the lead
dissent authored by Judge Merritt.)
        Santine’s case was allowed to go to a jury, and that jury ultimately acquitted him of the
murder-for-hire specification. But the very fact that the issue was submitted to a jury indicates that
the evidence against him was not so deficient that the trial court could decide the question as a
matter of law. Furthermore, jury verdicts differ intrinsically from decisions made by a court. See
Crayton, 357 F.3d at 566; see also Powell, 469 U.S. at 66 (noting, in the context of inconsistent
verdicts in a single trial, that “[t]he fact that the inconsistency may be the result of lenity, coupled
with the Government’s inability to invoke review, suggests that inconsistent verdicts should not be
reviewable”). Although the dissent points out that the Supreme Court has “never retracted or
narrowed” the holding in Morrison, neither has the Court ever expanded it to require the reversal
of one conspirator’s conviction or sentence in light of a coconspirator’s acquittal by a separate jury.
Certainly Enmund v. Florida, 458 U.S. 782 (1982), in which the Supreme Court reversed the death
sentence of a defendant on the ground that he did not personally kill or intend to kill anyone, was
not such a case.
        We also disagree with the dissent’s view that considerations of consistency, even if relevant,
would require “Getsy’s death verdict [to] be set aside.” Dissenting Op. at 25. Apart from the
murder-for-hire capital specification, Getsy was also convicted of two other capital
specifications—felony murder and attempted multiple murders—that do not necessarily conflict
with the verdicts from Santine’s trial. Getsy would therefore be entitled, at most, to a new penalty-
phase hearing, not an outright voiding of his death sentence.
        Ultimately, the question before us is whether the determination of the Ohio Supreme Court
that Getsy’s death sentence was not arbitrary or disproportionate was contrary to, or an unreasonable
application of, clearly established federal law. As the above analysis demonstrates, clearly
established federal law lends no support to Getsy’s claim, with the relevant precedent actually
No. 03-3200             Getsy v. Mitchell                                                       Page 10


pointing the other way. To grant habeas relief despite such an obvious void of clearly established
authority contravening the state court’s decision would both violate AEDPA and amount to the
retroactive application of a new constitutional rule of criminal procedure in violation of Teague v.
Lane, 489 U.S. 288 (1989) (barring, with exceptions inapplicable here, the retroactive application
of a new rule of constitutional law in a collateral proceeding). We therefore decline to adopt Getsy’s
proportionality argument.
        The dissent’s references to Aristotle, Sir Francis Bacon, Sir Edward Coke, and English cases
beginning in the year 1599 strike us as quite scholarly, even if only marginally relevant. Obviously
the controlling law is that of the United States Supreme Court, not the King’s Bench. What the
dissent’s historical exposition fails to cite is even a single instance in which the Supreme Court or
any federal court has ever reversed one defendant’s sentence or conviction based on another
defendant’s later acquittal by a separate jury. The dissent does not, because it cannot, explain how
such a supposedly well-established rule has remained hidden within this country’s federal
jurisprudence for so long a time.
        This is not to say that the incongruous results from the separate trials of Getsy and Santine
are not a matter of concern. We share that concern, recognizing at the same time that reasonable
people can disagree over the relative moral turpitude of the instigator of an assassination on the one
hand and the killer hired to carry out the violent act on the other. Nevertheless, we are not
empowered to answer this philosophical question by bypassing the limitations that both Congress
and the Supreme Court have placed upon our power to grant relief under the circumstances of this
case.
        Perhaps some day the Supreme Court will hold that a comparison between the culpability
of a hired killer and that of his instigator is constitutionally required, and that inconsistent verdicts
arising from their separate trials are unconstitutional. But this is not the law of the land today, and
was obviously not the “clearly established law” at the time that the Ohio Supreme Court affirmed
Getsy’s conviction and sentence in 1999. For this reason, as well as the others set forth above, we
do not believe that the judgment of the Ohio Supreme Court on the issue of proportionality is
contrary to or an unreasonable application of clearly established federal law as determined by the
United States Supreme Court.
C.      Judicial bias
        As a second ground for habeas relief, Getsy asserts that his right to a fair trial was violated
because Judge W. Wyatt McKay, the Ohio judge who presided over Getsy’s trial, exhibited bias.
Getsy’s claim arises from events surrounding a picnic that took place in August of 1996, just after
Getsy’s trial had begun. The picnic was an annual event hosted by the Trumbull County judges.
That year it was held at a home belonging to the mother of Trumbull County Court Judge Ronald
Rice. Judge Rice’s wife, Cynthia Rice, was one of the two prosecuting attorneys trying Getsy’s
case. Both Judge Rice and Cynthia Rice attended the party, as did Judge McKay and many other
guests. While driving home from the picnic, Judge McKay was involved in a single-car accident
and was ultimately charged with driving under the influence of alcohol (DUI). Judge McKay
arrived late to court the next day wearing sunglasses and appearing to have bruises on his face, but
Getsy’s trial proceeded.
        Upon learning of the incident through the media, Getsy filed a motion for a mistrial and for
the disqualification of Judge McKay to try his case. He also filed an Affidavit of Disqualification
against Judge McKay in the Ohio Supreme Court pursuant to Ohio Rev. Code Ann. § 2701.03.
Chief Justice Moyer of the Ohio Supreme Court denied Getsy’s motion on the ground that the “mere
fact that a judge and an attorney attend the same social event does not mandate the judge’s
disqualification from pending cases involving that attorney.” In re Disqualification of McKay, 674
No. 03-3200           Getsy v. Mitchell                                                         Page 11


N.E.2d 359 (Ohio 1996). Citing an affidavit submitted by Judge McKay, Chief Justice Moyer also
noted that any contact between the judge and the assistant prosecutor consisted of nothing more than
the “passing of simple social amenities.” Id.
        Following the denial of Getsy’s Affidavit of Disqualification by the Ohio Supreme Court,
Judge McKay brought in Judge John M. Stuard, a fellow Trumbull County judge with no connection
to the case, to voir dire the jury regarding the DUI incident. This process revealed that only two
jurors were aware of the incident, and both averred that it would not affect their ability to be fair and
impartial. Judge McKay subsequently denied Getsy’s motion for a mistrial and for disqualification,
and denied Getsy’s request for an evidentiary hearing on the matter. On direct review, the Ohio
Supreme Court relied on Chief Justice Moyer’s denial of Getsy’s Affidavit of Disqualification in
ruling against his judicial-bias argument. Getsy, 702 N.E.2d at 876.
         Judge McKay’s DUI prosecution overlapped with Getsy’s trial. In order to avoid the
appearance of impropriety, the Trumbull County Prosecutor’s Office trying Getsy’s case brought
in a special prosecutor from neighboring Geauga County to prosecute Judge McKay. Ultimately,
Judge McKay pled guilty to the DUI charge and was sentenced on September 5, 1996. Judge
McKay’s plea and sentencing thus followed the September 3, 1996 guilty verdict in Getsy’s jury
trial, but preceded the jury’s death-sentence recommendation handed down on September 10, 1996
and Judge McKay’s imposition of the death sentence on September 12, 1996.
        Getsy’s primary argument is that he is entitled to an evidentiary hearing to develop facts
relevant to his judicial-bias claim. The district court denied Getsy’s request for such a hearing. We
will reverse a district court’s denial of an evidentiary hearing only if the court abused its discretion.
Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir. 2005) (reciting that standard of review in
affirming the denial of an evidentiary hearing). A district court abuses its discretion where it
“applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly
erroneous findings of fact.” United States v. Martinez, 430 F.3d 317, 326 (6th Cir. 2005) (quotation
marks omitted).
        Section 2254(e)(2) sets forth certain preconditions to obtaining an evidentiary hearing in a
habeas proceeding where a petitioner has “failed to develop the factual basis of a claim in State court
proceedings.” The Supreme Court has held that “failed” within the meaning of § 2254(e)(2) refers
to “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”
Williams v. Taylor, 529 U.S. 420, 432 (2000). Here, Getsy sought to develop evidence regarding
his judicial-bias claim both at trial and in his postconviction proceedings in state court. He has thus
demonstrated diligence in accordance with § 2254(e)(2). See id. at 437 (“Diligence will require in
the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the
manner prescribed by state law.”).
         Although Getsy thus overcomes the initial statutory hurdle to obtaining a hearing, “the fact
that [a petitioner] is not disqualified from receiving an evidentiary hearing under § 2254(e)(2) does
not entitle him to one.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003). The Supreme Court
recently explained that, “[i]n deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 127 S. Ct.
1933, 1940 (2007); see also Bowling, 344 F.3d at 512 (determining that the district court’s denial
of an evidentiary hearing did not amount to an abuse of discretion after examining the following
factors: whether the petitioner “alleges sufficient grounds for release,” whether “relevant facts are
in dispute,” and whether the “state courts . . . h[e]ld a full and fair evidentiary hearing”).
Furthermore, “[b]ecause the deferential standards prescribed by § 2254 control whether to grant
habeas relief, a federal court must take into account those standards in deciding whether an
evidentiary hearing is appropriate.” Schriro, 127 S. Ct. at 1940.
No. 03-3200           Getsy v. Mitchell                                                        Page 12


         We must therefore determine, as a threshold matter, whether Getsy alleges sufficient grounds
for relief under AEDPA’s deferential standard. Id. Getsy’s judicial-bias argument focuses on two
different elements: (1) the allegedly improper ex parte contact between Judge McKay and assistant
prosecutor Rice at the picnic, and (2) the potential conflict of interest arising from Judge McKay’s
own pending prosecution. Upon examination, we conclude that neither of these arguments
demonstrates that the district court abused its discretion in denying Getsy’s request for a hearing.
        “[T]he floor established by the Due Process Clause clearly requires a fair trial in a fair
tribunal, before a judge with no actual bias against the defendant or interest in the outcome of his
particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (emphasis added) (citation and
quotation marks omitted). Under this standard, “[o]nly in the most extreme of cases would
disqualification on the basis of bias and prejudice be constitutionally required.” Williams v.
Anderson, 460 F.3d 789, 814 (6th Cir. 2006) (brackets omitted) (quoting Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813, 821 (1986)). Our judicial-bias inquiry is also informed by the Supreme
Court’s analysis of the federal statutory-recusal standard in Liteky v. United States, 510 U.S. 540,
552 (1994), in which the Court explained that “the pejorative connotation of the terms ‘bias’ and
‘prejudice’ demands that they be applied only to judicial predispositions that go beyond what is
normal and acceptable.”
         Getsy’s first claim essentially amounts to an observation that Judge McKay attended the
same annual judicial picnic that assistant prosecutor Rice and many others attended. Based on this,
Getsy speculates that Judge McKay and Rice might have interacted to an unknown extent. As this
court has previously observed, however, “ex parte contact does not, in itself, evidence any kind of
bias.” Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002) (noting that the petitioner had not even “come
close” to stating a judicial-bias claim where he alleged that the trial judge answered jurors’ questions
in the jury room during deliberations and later stopped by a picnic that the jurors were having on a
weekend to say hello).
        The Supreme Court reaffirmed in Bracy that courts ordinarily “presume that public officials
have properly discharged their duties.” 520 U.S. at 909 (quotation marks omitted). Nonetheless,
the Court granted an evidentiary hearing in that case in part because the petitioner had successfully
rebutted the presumption by showing that the trial judge was “thoroughly steeped in corruption.”
Id. This corruption was evidenced by the judge’s criminal conviction for accepting bribes in return
for fixing cases. Id.
        Getsy, by contrast, points to no events, either intrinsic or extrinsic to the proceedings, that
evidence corruption or actual bias on the part of Judge McKay. Although Getsy suggests that Judge
McKay might have been lying in his affidavit when he averred that he exchanged no more than
social pleasantries with Rice at the picnic, Getsy offers nothing beyond such conjecture. We
conclude that the district court did not abuse its discretion in denying Getsy a forum to question
attendees of a picnic that occurred over 10 years ago in order to explore his unsupported speculation
of improper communications between Judge McKay and Rice. See Bracy, 520 U.S. at 909 (noting
that, had the petitioner not overcome the presumption of propriety, the Court “might well [have]
agree[d]” that his theory of bias was “too speculative to warrant discovery”); Murphy v. Johnson,
205 F.3d 809, 816 (5th Cir. 2000) (affirming the district court’s denial of an evidentiary hearing
regarding the petitioner’s allegations of a secret deal between the prosecutor and a trial witness
where such a hearing would have been “tantamount to an impermissible fishing expedition”).
        Getsy’s contention that the pending criminal charges against Judge McKay might have
impermissibly biased the judge similarly fails to assert a valid ground for relief. His primary
argument is that Judge McKay’s prosecution was conducted by “the same prosecuting authority”
that prosecuted Getsy. In fact, however, a special prosecutor from neighboring Geauga County was
brought in to conduct Judge McKay’s criminal proceedings. This distinguishes the cases cited by
No. 03-3200            Getsy v. Mitchell                                                         Page 13


Getsy for the proposition that an attorney who is himself prosecuted by the same office that is
prosecuting his client might be laboring under a conflict of interest. See, e.g., Thompkins v. Cohen,
965 F.2d 330, 332-33 (7th Cir. 1992) (noting that the prosecution of an attorney by the same office
that is prosecuting his client might give rise to a conflict, but finding that no constitutional violation
had occurred in relation to the lawyer’s representation in that case).
        Again, Getsy points to nothing that suggests actual bias on the part of Judge McKay. The
remote possibility that currying favor with Getsy’s prosecutor would somehow help the judge in
dealing with the special prosecutor in his own case does not present a ground that a reasonable
observer would believe improperly influenced Judge McKay’s decisions in Getsy’s trial. Williams,
460 F.3d at 813 (noting that due process “prohibits a defendant from being tried before a judge
whose ‘substantial’ and ‘direct’ interests may be furthered by the outcome of the trial”). The only
specific example Getsy cites of a trial decision allegedly influenced by bias is Judge McKay’s
decision to accept the jury’s recommendation and impose the death sentence. But the jury convicted
Getsy of three capital specifications, any one of which could legally have supported the sentence
imposed. Moreover, the record reflects that Judge McKay accepted the jury’s recommendation and
imposed the death sentence after his own plea and sentencing for the DUI charges were completed.
Even under Getsy’s conflict-of-interest theory, therefore, this decision would have been untainted.
        We recognize that Judge McKay’s conduct in becoming intoxicated at a picnic attended by
assistant prosecutor Rice and then driving while impaired exhibited poor decisionmaking. These
actions, however, are distinct in character from misdeeds such as accepting bribes to fix cases that
warranted an evidentiary hearing in Bracy. Because Getsy’s allegations of judicial bias are
insufficient to support a claim for habeas relief, we conclude that the district court did not abuse its
discretion in denying his request for an evidentiary hearing. For the same reasons, we conclude that
the Ohio Supreme Court’s denial on the merits of Getsy’s judicial-bias claim was neither contrary
to nor an unreasonable application of clearly established federal law.
D.      Ineffective assistance of counsel during the penalty phase
         Getsy’s third claim asserts that he received the ineffective assistance of counsel during the
penalty phase of his trial. On direct review, the Ohio Court of Appeals and the Ohio Supreme Court
determined that this claim lacked merit. The district court on habeas review agreed, and denied
Getsy’s petition regarding this claim. This issue was not reached by the original panel of this court
in light of its grant of habeas relief on the proportionality issue.
       We note at the outset that the extensive presentation of mitigating evidence put on by Getsy’s
counsel during the penalty phase demonstrated substantial investigation and preparation. Fourteen
witnesses were called to testify on Getsy’s behalf, including his grandfather, aunt, uncle, pastor,
former wrestling coach, ex-girlfriend, and ex-girlfriend’s father. Various family members and legal
representatives of Getsy’s codefendants also testified on Getsy’s behalf. In addition to these lay
witnesses, Getsy’s counsel procured the services of Dr. James Eisenberg, a forensic psychologist,
and called him to testify regarding Getsy’s mental health.
         Getsy must show, in order to demonstrate ineffective assistance, both that (1) his counsel’s
performance was deficient, and (2) the deficient performance prejudiced him. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a “defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Despite his counsel’s extensive mitigation presentation,
Getsy points to two alleged deficiencies that he claims gave rise to constitutional violations. He first
argues that counsel did not properly investigate his background or help prepare him to give his
unsworn statement before the jury. The gist of this argument is that a more thorough investigation
and better legal guidance in relation to his unsworn statement to the jury would have permitted
No. 03-3200           Getsy v. Mitchell                                                        Page 14


Getsy to “corroborate[]” the testimony presented by other witnesses regarding his fear of Santine
and his troubled childhood. He asserts that, with better preparation, he would have been able to
present these considerations in a “more sympathetic and compelling manner” than the other
witnesses.
        The problem with this argument is that nearly all of the mitigating evidence that Getsy now
asserts that he would have addressed in his unsworn statement would have been simply cumulative
to the evidence actually presented to the jury through numerous other sources. As this court has
explained, “the failure to present additional mitigating evidence that is ‘merely cumulative’ of that
already presented does not rise to the level of a constitutional violation.” Broom v. Mitchell, 441
F.3d 392, 410 (6th Cir. 2006). Instead, “in order to establish prejudice, the new evidence that a
habeas petitioner presents must differ in a substantial way—in strength and subject matter—from
the evidence actually presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 318-19 (6th Cir.
2005) (collecting cases and holding that counsel’s hiring of a mitigation psychologist the day before
the penalty phase began did not result in prejudice, in part because the petitioner could not show
how additional time would have resulted in materially different testimony).
        Several witnesses, including Getsy’s grandfather, aunt, and uncle, attested to Getsy’s
difficult upbringing and abusive family circumstances. In addition, attorneys and relatives of
Getsy’s codefendants testified regarding the friendships that existed among the codefendants, their
relationship with Santine, and the lesser sentences that they received. Moreover, Getsy himself
explained in his unsworn statement to the jury how he believed that his group of friends had come
under Santine’s influence, how his own fear of Santine developed, and how he had allegedly
committed his crimes under duress.
         Getsy relies in particular on an affidavit that he submitted during his postconviction
proceedings in which he asserted that, with effective assistance, he would have been able to expand
upon certain specific topics in his unsworn statement. Close examination reveals, however, that the
topics asserted were either already thoroughly addressed by Getsy and the other mitigation
witnesses, or simply would have been immaterial. For example, Getsy argues that three “critical
events” in his life were never brought to the jury’s attention: (1) at the age of five, Getsy saw a
window blown out by gunfire in the home of his stepfather, Jim Thrasher, and that Getsy was
handed a shotgun during the incident, (2) Getsy had been around guns his entire life and “became
obsessed with guns,” and (3) he “spent a great deal of time in the woods.” But Getsy’s aunt in fact
testified to the shooting incident at Thrasher’s home and to the fact that Getsy’s adoptive father, Bill
Getsy, was himself “obsessed with guns” and introduced Getsy to guns at a young age.
        Moreover, in comparison to other cases granting habeas relief for ineffective assistance of
counsel during the penalty phase, the supposed revelations cited by Getsy concerning his
background fail to meet the high bar for demonstrating a constitutional violation. See, e.g., Wiggins
v. Smith, 539 U.S. 510, 515-17 (2003) (holding that ineffective assistance occurred where counsel
introduced “no evidence of [the defendant’s] life history” despite existing evidence of brutal
childhood abuse); Dickerson v. Bagley, 453 F.3d 690, 698-99 (6th Cir. 2006) (holding that counsel’s
failure to present mitigation evidence regarding the defendant’s borderline mental retardation
constituted prejudice).
        Getsy’s second ineffective-assistance argument addresses his counsel’s alleged failure to
adequately prepare and present Dr. Eisenberg’s expert testimony. Prior to trial, Dr. Eisenberg met
with Getsy on five different occasions for a total of 12 to 13 hours. In addition, he reviewed Getsy’s
school records, the various pieces of evidence used at trial, and conducted interviews with many of
Getsy’s friends and family members.
No. 03-3200           Getsy v. Mitchell                                                      Page 15


        In support of his ineffective-assistance argument regarding Dr. Eisenberg’s expert testimony,
Getsy relies on an affidavit submitted by Dr. Eisenberg in which the latter explained that “I do not
believe that I was able to communicate the [mitigatory] information that I possessed to the jury due
to the lack of time defense counsel spent with me regarding my testimony.” Dr. Eisenberg in
particular claims that he “was not able to discuss the issue of obedience to authority” which “helped
to explain why the defendants were unable to resist [Santine’s] authoritative pronouncement to kill
Chuckie Serafino.”
        A review of Dr. Eisenberg’s testimony, however, demonstrates that he extensively discussed
the influence that Santine exerted over Getsy and the other codefendants, as well as the duress which
he opined drove Getsy to kill. When asked to explain why he believed Getsy committed the crimes
at issue, Dr. Eisenberg responded as follows:
       A.      . . . I think the inexperience on Jason’s part is another factor and something
               I alluded to in my report is his obedience to authority. I think Jason believed
               that John Santine had the authority to order this.
       Q.      It is your opinion that he was intimidated by Mr. Santine?
       A.      Yes.
       ...
       Q.      In what ways is Jason’s case different from other death penalty defendants
               that you have interviewed, sir?
       A.      . . . The dynamics of these three boys, all relatively young, certainly not
               much life experience amongst these three boys, and four if you include Mike
               Dripps. I think the intimidation factor from John Santine, I don’t think I’ve
               ever done a death penalty case quite as remarkably intimidating as this, with
               the exception of some cults that I’ve worked with.
The relationships among Getsy, Hudach, and McNulty, as well as their relationship with Santine,
were, in fact, central themes of Dr. Eisenberg’s testimony. Dr. Eisenberg also discussed in detail
Getsy’s troubled childhood and its effect on his mental state. Moreover, Getsy’s counsel introduced
Dr. Eisenberg’s written report into evidence, which contained an entire section titled “Obedience
to Authority” that explained the psychological basis for Getsy’s obedience to Santine’s authority.

        Getsy’s conclusory assertions that his trial counsel failed to conduct a reasonable
investigation and failed to assist Getsy or Dr. Eisenberg with their testimonial presentations
ultimately amount to very little. He cites nothing outside of what the jury already heard in various
forms through the 14 mitigation witnesses presented. See Hill, 400 F.3d at 318-19. We therefore
conclude that the Ohio Supreme Court’s denial of Getsy’s ineffective-assistance-of-counsel claim
was not contrary to or an unreasonable application of clearly established federal law.
E.     Other issues
        Both the district court and the original panel of this court denied Getsy relief based on his
claims that (1) the introduction of his videotaped confession at trial was improper, (2) his jury was
not fair and impartial, and (3) he was selectively prosecuted. We agree with the original panel’s
disposition of these issues and therefore reinstate the portions of the original decision addressing
them. Getsy, 456 F.3d at 596-98 (addressing those claims in Parts V.A., B., and C.), vacated; see
Rubin v. Schottenstein, Zox & Dunn, 143 F.3d 263, 270 (6th Cir. 1998) (reinstating, en banc, a
portion of the original panel’s decision).
        This leaves two remaining issues raised by Getsy before the original panel that it did not
reach: (1) his claim that insufficient evidence supported his conviction on the murder-for-hire
No. 03-3200           Getsy v. Mitchell                                                       Page 16


aggravating circumstance, and (2) his claim that the cumulative effect of all of the grounds he asserts
collectively violated his constitutional rights. We will now address both of those claims. See Wilson
v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985) (addressing en banc an issue that the parties had raised
before the original panel but that the panel had not addressed).
       1.      Sufficiency of the evidence supporting murder for hire
        The Ohio Supreme Court concluded that sufficient evidence supported Getsy’s conviction
on the murder-for-hire aggravating circumstance. Getsy’s habeas petition regarding this claim was
denied by the district court. Whether Getsy is entitled to habeas relief ultimately depends on
whether the Ohio Supreme Court’s denial was based on an unreasonable application of clearly
established federal law regarding the sufficiency of the evidence. The applicable standard inquires
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
      As the Ohio Supreme Court noted, the most compelling evidence that Getsy committed the
murder in exchange for compensation comes from Getsy’s own confession:
       Q.      OK. What was discussed there at the house when you come over between
               you and Ben Hudach?
       A.      He said that we had something to do, we had to do.
       ...
       Q.      What did he tell you you had to do?
       A.      Said we had to take out some guy.
       ...
       Q.      Was it Ben that was telling you this, or was it John Santine that was telling
               you this? Be honest now.
       A.      It was Ben but it came from John.
       Q.      He said you guys had to take this guy out?
       A.      Yes.
       Q.      So basically John was directing this through Ben?
       A.      Yes, sir.
       Q.      Were you guys to receive something for doing this?
       A.      He mentioned money.
       Q.      Talk up.
       A.      Mentioned money.
       Q.      How much money?
       A.      I really can’t remember; it was four (4) digits.
       Q.      Ten Thousand?
       A.      No.
       Q.      Five Thousand?
       A.      Ten, five, somewhere like that.
       ...
       Q.      . . . So, you get to the house; Ben starts telling you you guys are going to get
               paid about $5,000—each, or $5,000 total?
       A.      I don’t know.
       Q.      OK. To do this guy?
       A.      Yes.
       ...
       Q.      Did you get your money?
       A.      No.
       Q.      Why not?
No. 03-3200            Getsy v. Mitchell                                                          Page 17


        A.      ‘Cause we were going to get it later. It wasn’t for the money, I was doing it
                because I was scared.
In addition to Getsy’s confession, Joshua Koch testified that Santine himself specifically discussed
compensation with Getsy and his codefendants after the attack was over:
        Q.      Did [Santine] say anything else?
        A.      He said how much he was pleased with them and he asked them in the room,
                “You guys want $10,000, I’ll give you $10,000.” Rick said he just wanted
                a wedding ring for his girlfriend. John said he would get his girlfriend the
                biggest f***ing diamond ring in the world.
        Q.      Did Ben indicate what he wanted?
        A.      Ben jumped forward and said that this was a favor for John Santine, he took
                care of him.
        Q.      Did Jason ever say anything?
        A.      He interrupted and made it clear that he was doing it for money.
        Q.      And what did he need the money for?
        A.      Something about his car, he had something that he had to pay for, maybe
                payments, maybe insurance.
        Q.      So he told John that night that he needed the money to help pay for his car?
        A.      Right.
        Koch’s testimony, combined with Getsy’s confession, supports a finding that Santine
procured the commission of Serafino’s murder in exchange for money, and that Getsy acceded to
the arrangement. Getsy’s confession establishes that the offer of money was made prior to and
specifically in exchange for the “take out.” Although Getsy asserts that the money played only a
small role in the killing, Koch testified to the contrary that Getsy was, in fact, motivated to commit
the murder by the offer of money. Compare State v. Yarbrough, 767 N.E.2d 216, 240 (Ohio 2002)
(holding that sufficient evidence supported the murder-for-hire conviction of the appellant where
a witness both “heard the conversation in which Calvin Davis hired appellant to kill Arnett” and
“actually saw McGhee pay his portion in cash”) with State v. Lindsey, 721 N.E.2d 995, 1001 (Ohio
2000) (noting that the trial court had dismissed the murder-for-hire specification where the state had
“failed to present any evidence of compensation”).
        In response, Getsy contends that “there was substantial evidence demonstrating that Santine
threatened and coerced [Getsy and his codefendants] into the shooting of Chuckie Serafino.” But
even if true, this observation simply establishes that Getsy may have been motivated by additional
concerns beyond remuneration. A reasonable juror could have decided to credit Koch’s testimony
that Getsy “made it clear he was doing it for the money.” “Circumstantial evidence alone is
sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis
except that of guilt.” United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005). Similarly, as
addressed in Part II.B. above, the fact that a different jury acquitted Santine of the murder-for-hire
specification is of no consequence to the question of whether a reasonable juror at Getsy’s trial could
have determined otherwise beyond a reasonable doubt. We find no basis to conclude that the Ohio
Supreme Court’s denial of Getsy’s sufficiency-of-the-evidence claim was unreasonable.
        2.      Cumulative error
         Getsy’s final claim asserts that, even if none of the trial errors he alleges warrants habeas
relief individually, their collective effect violated his constitutional rights. Getsy failed to raise this
claim before the state court, but the Warden has not raised the issue of procedural default and has
thereby waived it. See Slagle v. Bagley, 457 F.3d 501, 514 (6th Cir. 2006) (noting that the defense
of procedural default may be waived by failing to assert it). Assuming without deciding that
No. 03-3200           Getsy v. Mitchell                                                      Page 18


cumulative error can form the basis for § 2254 habeas relief, Getsy is not entitled to such relief in
this case. The above analysis demonstrates that Getsy has not shown the existence of any
constitutional error at trial. His cumulative-error claim therefore fails because there are simply no
errors to cumulate. See Baze v. Parker, 371 F.3d 310, 330 (6th Cir. 2004) (“Because Baze cannot
establish any errors to cumulate and because his theory that errors can be considered in the aggregate
depends on non-Supreme Court precedent, this claim is also without merit.”).
                                       III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
No. 03-3200           Getsy v. Mitchell                                                        Page 19


                                          _______________
                                             DISSENT
                                          _______________
        MERRITT, Circuit Judge, dissenting. The Ohio state prosecutor, the Ohio Supreme Court,
and apparently our Court as well, all concede that the death penalty verdict against Jason Getsy
based on a “murder for hire” scheme directly contradicts John Santine’s not guilty verdict of the
same crime. The crime is indivisible. “Murder for hire” is a conspiracy-type crime requiring a
criminal agreement and a confederation between two or more people. Getsy, a teenage boy, was
convicted of receiving “murder for hire” money from Santine, and Santine was acquitted of paying
the “murder for hire” money to Getsy. Thus the two verdicts are inconsistent and irrational, and the
verdict against Getsy should not be allowed to result in his execution.
         The Ohio Supreme Court said clearly that the “predominant” reason for imposing the death
penalty on Getsy in this case “is the murder-for-hire specification,” 702 N.E.2d 866 at 892, but then
observed that the death sentence in the case is “troubling” because John Santine, the only alleged
“hirer” and the instigator of the murder, was acquitted of murder for hire: “If not for John Santine,
it is unlikely the Serafinos would have been shot.” Id. In the severed state trial seeking the death
penalty against Santine based on the “murder for hire” theory — the trial that led to the Ohio
Supreme Court opinion — the state prosecutor repeatedly emphasized to the jury that Santine was
by far the most blameworthy defendant. The prosecutor said then (contrary to his present position)
that Santine “could control” Getsy because Santine was “about a decade and a half older” than
Getsy, who was 19 years old. (App. 7361) Getsy was an inexperienced, uneducated boy and “could
be easily led, sort of a semi-military lifestyle.” Id. The prosecutor told the jurors that Santine
“enticed” Getsy “into his web,” “provided marijuana,” “talked big,” “provided the motive,” and
“was the only person here with a motive for the killing.” Id. Throughout the case the prosecutor
repeated this theory of the case, comparing the relative culpability of the Getsy boy and Santine.
Acquitting Santine, the jury rejected the State’s theory that Getsy and Santine formed a criminal
agreement of murder for hire — the “predominant” aggravator, as acknowledged by the Ohio courts.
        Getsy’s irrational, inconsistent death verdict should be set aside based on a clear, long-
standing common law principle — a principle adopted by the Supreme Court as a matter of due
process long ago, Morrison v. California, 291 U.S. 82 (1934), as explained below. As outlined in
Section I below, in 1791 and for the two preceding centuries, the English Common Law followed
the rule that inconsistent verdicts of guilt based on an alleged criminal agreement or conspiracy must
be quashed. In addition, as explained in Section II, literally and textually speaking, the state killing
of Getsy in contrast to the treatment of Santine is so grossly disproportionate and unequal as to be
both “cruel and unusual” and, therefore, the type of “punishment” expressly forbidden by the Eighth
Amendment.
        In many cases decided over the last two centuries, the Supreme Court and the lower federal
courts have found that English common law rules and principles in existence when the Founders
wrote the Constitution serve as valuable tools in defining the meaning of the liberties established
in the Bill of Rights, such as those requiring due process of law, forbidding cruel and unusual
punishment, establishing the right to a jury trial, guaranteeing cross-examination of witnesses and
other civil liberties. We learn of that long tradition of Anglo-American common law adjudication
and how it influences our constitutional rights in the first year of law school. See, e.g., Morrison
v. California, 291 U.S. 82 (1934) (adopting under the Due Process Clause the common law rule
requiring at least two conspirators to uphold a verdict based on the formation of a criminal
agreement, as discussed below); Deck v. Missouri, 544 U.S. 622, 631-32 (2005) (holding that Eighth
Amendment normally prohibits shackling a capital defendant at trial and sentencing, citing early
English common law cases); id. at 637-38 (Thomas, J., dissenting) (recognizing the same rule based
No. 03-3200           Getsy v. Mitchell                                                       Page 20


on Blackstone and Coke’s treatises); United States v. Booker, 543 U.S. 220 (2005) (following
common law requirements for trial by jury in criminal sentencing); Crawford v. Washington, 541
U.S. 36, 42-50 (2004) (basing the meaning of Confrontational Clause concerning cross-examination
on Blackstone and case law from English courts and American colonies). See the recent scholarly
discussion of the use of English common law in constitutional interpretation, Meyler, Towards a
Common Law Originalism 59 Stan. L. Rev 551 (Dec. 2006).
                  I. The Invalidity of Inconsistent Verdicts in Prosecutions
                              Based on A Criminal Agreement
       Since 1599 during the reign of Queen Elizabeth I, when Sir Edward Coke was Attorney
General and the young philosopher-scientist, Sir Francis Bacon, was Queen’s Counsel, the rule of
Anglo-American law has been that “one cannot conspire alone,” or alone commit a contract crime
like murder for hire. This exact language was first enunciated in Marsh v. Vaughn, 78 Eng. Rep.
937 (Q.B. 1599). The opinion of the Queen’s Bench states as follows:
       The defendants pleaded not guilty, and the one was found guilty and the other not.
       And it was hereupon moved, that the bill should abate; for it ought to be against two,
       and the one cannot conspire alone; and the one being acquitted, the other sole
       cannot be attainted.
Id. (Emphasis added.) This is no judicial aberration. This is the way English law has dealt with
such disproportionate punishment. This rule has been consistently followed in English law from that
day to this. See, e.g., Harison v. Errington, 79 Eng. Rep. 1292 (K.B. 1627) (riot); Rex v. Grimes,
87 Eng. Rep. 142 (K.B. 1688) (two were charged with “confederationem” and “though one was
acquitted, yet the jury had found the other guilty” requiring the court to quash the guilty verdict);
Rex v. Kinnersley, 93 Eng. Rep. 467 (K.B. 1719) (same); Queen v. Thompson, 117 Eng. Rep. 1100
(Q.B. 1851) (same); Rex v. Plummer, 2 K.B. 339, 345 (1902) (court invalidated a conspiracy
conviction after a guilty plea when the defendant’s two alleged co-conspirators were acquitted). See
also IV Blackstone’s Commentaries on the Laws of England, ch. 10, ¶ 15, p. 136 (1765) (Legal
Classics Library 1983) (requiring conviction of two to constitute a criminal agreement “for there
must be at least two to form a conspiracy”). This ancient rule of consistency and proportionality in
punishment was legislatively enacted by Parliament in 1977, Criminal Law Act, 1977, ch. 45 § 5(8),
which provides that when other persons charged with a criminal agreement “have been acquitted of
conspiracy by reference to that agreement (whether after being tried with the person convicted or
separately) the conviction shall be quashed if under all the circumstances of the case his conviction
is inconsistent with the acquittal of the other.” For more than four centuries, from 1599 until the
present day, that has been the law. Since the time of Lord Coke, the English courts under this
doctrine would never have let Getsy’s conviction of murder for hire stand.
        In a supreme instance of legal legerdemain, the majority opinion in this case tries to spin the
opinion of the Supreme Court in United States v. Powell, 469 U.S. 57 (1984), into a rejection of this
ancient rule and the rule’s insistence on a measure of rationality, consistency and proportionality in
punishment. That reliance is completely specious because Powell is not a multi-defendant case in
which a defendant’s conviction of a criminal agreement with another stands as the jury acquits his
only alleged co-conspirator. Powell was simply a single defendant situation in which the jury
convictions on separate counts were inconsistent under one reading of the charges made in the
separate counts. There the Supreme Court, relying on language from an earlier opinion by Justice
Holmes, held that the separate counts provided rough equity or fairness in holding that the Powell
defendant must take the bad count with the good counts. See 469 U.S. at 62 (quoting and agreeing
with Justice Holmes in Dunn v. United States, 284 U.S. 390, 393 (1932), in which Holmes relied on
an English case from the Queen’s Bench, Latham v. The Queen, 122 Eng. Rep. 968 (Q.B. 1864), for
No. 03-3200           Getsy v. Mitchell                                                      Page 21


the proposition that “each Count in an indictment is regarded as if it was a separate indictment”).

        It is impossible to legitimately rely on Powell and Dunn here because two terms later in
Morrison v. California, 291 U.S. 82 (1934), the Supreme Court in a unanimous opinion by Justice
Cardozo, followed the ancient English rule that an inconsistent verdict of conviction in a multiple
defendant case based on a criminal agreement must be quashed as a matter of due process. In that
case the Court found in a state criminal case that the California Supreme Court erred in violation of
the Due Process Clause in upholding a conspiracy verdict against one party to an illegal contract
for the sale of land when the other party lacked the requisite element of intent and was, therefore,
acquitted. Justice Cardozo explained:
       It is impossible in the nature of things for man to conspire with himself. Turinetti v.
       United States, 2 F. (2d) 15, 17. In California as elsewhere conspiracy imports a
       corrupt agreement between not less than two with guilty knowledge on the part of
       each. People v. Richards, 67 Cal. 412; 7 Pac. 828; People v. Kizer, 22 Cal. App. 10,
       14; 133 Pac. 516, 521; 134 id. 346; People v. Entriken, 106 Cal. App. 29, 32; 288
       Pac. 788; DSands v. Commonwealth, 21 Gratt. (Va.) 871, 899; Pettibone v. United
       States, 148 U.S. 197, 203, 205. . . . In such circumstances the conviction of Morrison
       because he failed to assume the burden of disproving a conspiracy was a denial of
       due process that vitiates the judgment as to him. Nor is that the only
       consequence. . . . . The conviction failing as to the one defendant must fail as to the
       other. Turinetti v. United States, supra; Williams v. United States, 282 Fed. 481,
       484; Gebardi v. United States, supra.
291 U.S. at 92-93 (emphasis added). Under the Due Process Clause of the Fourteenth Amendment,
the Supreme Court reversed the conspiracy conviction and followed the English rule in existence
when our Constitution was framed. The Court has never questioned the validity of its unanimous
due process holding in Morrison. It has never retracted or narrowed the constitutional holding
quoted above derived directly from the ancient English rule. See, e.g., Hartzel v. United States, 322
U.S. 680, 682 n. 3 (1944) (the Court described two other defendants as “the only co-conspirators of
petitioner named in the indictment and the setting aside of their convictions makes it impossible to
sustain petitioner’s conviction upon the basis of count 7 of the conspiracy count”). In Powell, relied
on in error by the majority, the Supreme Court does not even mention Morrison or the traditional
rule — obviously considering it unrelated to Powell’s single-defendant, separate count
inconsistency, just as the English courts considered the two rules completely unrelated, as Justice
Holmes recognized in his opinion in Dunn. Powell is, therefore, entirely irrelevant to the problem
before us and cannot be legitimately spun as a justification by the majority in favor of upholding
Getsy’s execution.
        It is equally misguided for the majority to say that a clear, unanimous constitutional holding
in 1934 in Morrison, never overruled or questioned since, does not meet the standard of “clearly
established law” found in AEDPA. If a clear rule of law four centuries old, adopted as a matter of
Due Process 70 years ago by the Supreme Court, will not meet the AEDPA test, nothing will.
        In response to this dissenting opinion, the majority has attempted to distinguish the Morrison
case. It says that Morrison does not apply because (a) one of the two alleged co-conspirators,
Santine, was acquitted by a jury rather than by a court, and because (b) the inconsistent punishment
in this case was imposed “by different juries in separate trials” instead of in a joint trial. The
majority would create a brand new “ancient” rule that is incompatible with the original common law
rule and with the Morrison case. They gut the ancient rule of consistent and proportional
punishment adopted in Morrison by limiting it to situations where only a judge rather than a jury
has acquitted one of the two alleged co-conspirators, and then only after a joint trial. These two
No. 03-3200                Getsy v. Mitchell                                                                Page 22


exceptions were explicitly rejected by the English common law and by Parliament, as the cases and
parliamentary action discussed above clearly demonstrate. The majority refuses to acknowledge that
the English common law rule adopted in Morrison applies to jury acquittals in separate trials.
       Justice Cardozo’s unanimous opinion in Morrison states the rule it adopts using the same
language as the English courts: “It is impossible in the nature of things for a man to conspire with
himself . . . . The conviction failing as to one defendant must fail as to the other.” 291 U.S. at 93.
This language states a general rule and leaves no room for the majority’s two exceptions. The
Morrison rule does not turn on fortuitous circumstances like whether the trial judge granted a
severance and tried the defendant separately, or granted a motion for acquittal rather than letting the
case go to the jury. In the present case, Getsy and Santine were indicted jointly but severed for trial.
The majority makes the question of life or death in this case turn on the granting of a severance. My
colleagues in the majority refuse to carry out the basic purpose of the rule: the elimination of
inconsistent and disproportionate punishment among alleged co-conspirators.
         In addition, and equally important, the effect of the majority’s exception for separate trials
is to make Morrison and the ancient rule completely inapplicable to all modern death penalty cases.
The states that continue to use the death penalty bifurcate such trials by conducting a guilt phase trial
and then a second trial for imposing the punishment. E.g., Ohio Rev. Code § 2929.03 (describing
trial jury’s role in determining the sentence for a capital defendant). As a result, trial judges in
capital cases now grant a severance and try defendants separately rather than jointly. The
bifurcation of all capital trials, together with extensive voir dire of jurors and the present
requirements for jury findings of individual aggravating circumstances, makes the conduct of multi-
defendant capital trials too complex. Therefore, the current practice in capital cases is to grant a
severance and try defendants separately, as in the case of Getsy and Santine. The majority’s
exceptions mean that the ancient rule of consistency and proportionality of punishment no longer
applies in death penalty cases because such trials are not conducted as joint trials.
        The ancient rule was adopted and applied when there were almost 200 crimes in addition to
murder carrying the death penalty — robbery, larceny, burglary, rape, assault, treason, sedition,
blasphemy, sodomy, and many others. The ancient rule was designed to eliminate some of the
harshness and arbitrariness of the death penalty by introducing a common sense rule of consistency
and proportionality among the participants in the same criminal episode. It is ironic, indeed, that
the majority has now eliminated the rule in capital cases. What was true for four centuries in such
cases — “it is impossible in the nature of things for a man to conspire with himself” — is no longer
true. The majority is willing to destroy the ancient rule, but the judges are unable to cite a single
capital case supporting their position from the entire history of Anglo-American law. No such case
has ever suggested, much less applied, the majority’s exceptions. The Morrison rule has existed for
four centuries only to be effectively overruled today in capital cases by the majority of this Court.

                             II. Post-Furman Death Penalty Jurisprudence
                                   Also Outlaws Getsy Death Sentence
       Modern post-Furman Eighth Amendment proportionality analysis dramatically reinforces
the ancient rule’s policy against unequal or disproportionate punishments in connection with the
same criminal event. The post-Furman line of Eighth Amendment death penalty cases based on
“evolving standards of decency that mark the progress of a maturing society”1 emphasize the need

        1
            Trop v. Dulles, 356 U.S. 86, 100-01 (1958):
        The phrase in our Constitution [“cruel and unusual punishment”] was taken directly from the English
        Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta.
No. 03-3200            Getsy v. Mitchell                                                                Page 23


to eliminate the kind of grossly disproportionate, arbitrary death sentences found in this case. As
I will explain below, the Supreme Court’s Enmund Eighth Amendment proportionality case
reinforces the Supreme Court’s adoption of the ancient rule in the Morrison due process case. The
modern, post-Furman mode of death penalty analysis — based on the more humane set of “evolving
standards of decency” that now limit the death penalty — reinforces the ancient rule’s natural law
requirements of rationality and symmetry. Therefore, the more formalist, “originalist” judge and
the more pragmatic, “living-constitution” judge should be able to agree on the outcome of this case.
But my brothers and sisters in the majority are unable to open their minds to a consideration of either
mode of analysis.
        In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court, in a one paragraph per
curiam opinion, held that the death penalty was unconstitutionally cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments. Id. at 239-40. The concurring opinions that
followed explained that the death penalty was being imposed so discriminatorily, id. at 240
(Douglas, J., concurring), and so wantonly and freakishly, id. at 306 (Stewart, J., concurring), that
any given death sentence was unconstitutionally “cruel and unusual.” Indeed, the death sentences
examined by the Supreme Court in Furman were “cruel and unusual in the same way that being
struck by lightning is cruel and unusual. For, of all the people convicted of [capital crimes], many
just as reprehensible as these, the petitioners [in Furman were] among a capriciously selected
random handful upon whom the sentence of death ha[d] in fact been imposed.” Id. at 309-10
(Stewart, J., concurring). Thus, Furman established that the Eighth and Fourteenth Amendments
cannot tolerate the infliction of a sentence of death under legal systems that permit this penalty to
be arbitrarily, capriciously and inconsistently imposed. Id. at 310; Spaziano v. Florida, 468 U.S.
447, 460 (1984) (Furman established that “[i]f a State has determined that death should be an
available penalty for certain crimes, then it must administer that penalty in a way that can rationally
distinguish between those individuals for whom death is an appropriate sanction and those for whom
it is not.”); Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (Furman established that “if a State
wishes to authorize capital punishment it has a constitutional responsibility to . . . apply its law in
a manner that avoids the arbitrary and capricious infliction of the death penalty.”).
        It is now also well settled that the penalty of death is different in kind from any other
punishment imposed under our system of justice. “From the point of view of the defendant, it is
different both in its severity and its finality. From the point of view of society, the action of the
sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate
state action.” Gardner v. Florida, 430 U.S. 349, 357 (1977). The qualitative difference of death
from all other punishments requires a correspondingly greater need for reliability, consistency, and
fairness in capital sentencing decisions. It is of vital importance to the defendant and to the
community that any decision to impose the death sentence be, and appear to be, based on reason
rather than caprice or emotion. Gardner, 430 U.S. at 357. Accordingly, the courts must “carefully
scrutinize” sentencing decisions “to minimize the risk that the penalty will be imposed in error or
in an arbitrary and capricious manner. There must be a valid penological reason for choosing from
among the many criminal defendants the few who are sentenced to death.” Spaziano, 468 U.S. at
460 n.7. The death-is-different principle can only be observed here by holding that the inconsistent
and disproportionate sentences in the same case violate the clearly established Furman arbitrariness
principle and hence the Eighth Amendment.
        In evaluating whether a death sentence is arbitrary, the Supreme Court has directed courts
to evaluate a defendant’s culpability both individually and in terms of the sentences of codefendants


       The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. . . .
       Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the
       Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning
       from the evolving standards of decency that mark the progress of a maturing society.
No. 03-3200            Getsy v. Mitchell                                                          Page 24


and accomplices in the same case. Enmund v. Florida, 458 U.S. 782, 788, 798 (1982). In Enmund,
the Supreme Court found a violation of the Eighth Amendment when defendants with “plainly
different” culpability received the same capital sentence. The Court required proportionality
comparison with others participating in the same crime:
        Enmund did not kill or intend to kill and thus his culpability is plainly different from
        that of the robbers who killed; yet the State treated them alike and attributed to
        Enmund the culpability of those who killed the Kerseys. This was impermissible
        under the Eighth Amendment.
Id. at 798.
         The instant case presents the situation where the defendant with the lesser culpability
received the harsher sentence — the death penalty. Numerous state courts have applied the Enmund
principle to require reasonable symmetry between culpability and the sentencing of codefendants.
See, e.g., People v. Kliner, 705 N.E.2d 850, 897 (Ill. 1998) (“[S]imilarly situated codefendants
should not be given arbitrarily or unreasonably disparate sentences.”); Larzelere v. State, 676 So.
2d 394, 406 (Fla. 1996) (“When a codefendant . . . is equally as culpable or more culpable than the
defendant, disparate treatment of the codefendant may render the defendant’s punishment
disproportionate.”); Hall v. State, 244 S.E.2d 833, 839 (Ga. 1978) (“We find that . . . the death
sentence, imposed on Hall for the same crime in which the co-defendant triggerman received a life
sentence, is disproportionate.”). Similarly, the Federal Death Penalty Act recognizes that a
comparison of the sentences received by codefendants is required. See 18 U.S.C. § 3592(a)(4)
(listing as a mitigating factor the lack of death sentences for equally or more culpable codefendants).
        The principle requiring rational, proportionate punishment is the essence of the rule of law.
It has deep roots in our cultural and biological heritage. Aristotle observed in the Nicomachean
Ethics that basic notions of justice require treating like cases alike:
        If, then, the unjust is unequal, the just is equal, as all men suppose it to be, even apart
        from argument. . . . This, then, is what the just is — the proportional; the unjust is
        what violates the proportion. . . . [I]t is by proportionate requital that the city holds
        together.
Aristotle, Ethica Nichomachea, in The Works of Aristotle V.3.1131a-1131b, V.5.1132b (W.D. Ross
ed. & trans. 1954). In a recent article, Judge Morris Hoffman and Timothy Goldsmith, a
distinguished Yale biologist, make this point:
        [I]t is not surprising that collectively we struggle to balance the form and amount of
        punishment that is appropriate, a struggle that lies at the heart of what we mean by
        “justice.” . . . .
        The two faces of justice — to deal firmly with transgressors, but not too harshly —
        reflect an intrinsic human sense of fairness and are important to the political ideal of
        equality. When Aristotle commands that like cases be treated alike, he is touching
        both on the personal notion that none of us wants to be punished more than anyone
        else (and therefore on our self-interest) and on the social notion that none of us wants
        to punish others more than they deserve (and therefore on the equilibrium between
        our inclination to punish and our intuitions about fairness and sympathy).
Morris B. Hoffman & Timothy H. Goldsmith, The Biological Roots of Punishment, 1 Ohio St. J.
Crim. L. 627, 638-39 (2004).
No. 03-3200           Getsy v. Mitchell                                                     Page 25


        In another instance of obfuscation, the majority argues that the Supreme Court’s decision in
Pulley v. Harris, 465 U.S. 37 (1984), precludes our consideration of the “comparative
proportionality” of sentences in this case. Pulley’s holding has nothing to do with this case. Pulley
simply held that the Eighth Amendment does not require a state supreme court to systematically
review the comparative proportionality of sentences in other cases unrelated to the case at hand. Id.
at 50-51. Pulley concerned whether the Eighth Amendment mandates in every case a proportionality
review of a particular death sentence in comparison with the punishment imposed on others for the
same general type of crime in unrelated cases. Our holding neither contradicts this rule nor requires
systematic comparative proportionality review of unrelated cases. Instead, we simply adhere to the
clearly established, common sense principle of Enmund that, in a capital case with respect to the
very same crime stemming from the very same facts, the Eighth Amendment does not permit the
codefendant with less culpability to receive the death penalty when the codefendant with greater
culpability receives a lesser sentence. The majority’s view is in conflict with the holding of Enmund
and allows the less culpable participant in the same criminal episode to receive the death penalty
when the more culpable participant receives the lesser sentence.
        Thus both the ancient rule invalidating inconsistent conspiracy verdicts and the modern rule
directly phrased in terms of consistency, rationality and proportionality require the conclusion that
Getsy’s death verdict should be set aside.
No. 03-3200           Getsy v. Mitchell                                                      Page 26


                                          ________________
                                              DISSENT
                                          ________________
        BOYCE F. MARTIN, JR., Circuit Judge, dissenting, joined by Judge Merritt. I join Judge
Merritt’s cogent dissent. I write separately only to highlight how this case brings into stark relief
why the death penalty in this country is “arbitrary, biased, and so fundamentally flawed at its very
core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J.,
dissenting).
        In Moore, the majority and I disagreed as to whether the performance of Moore’s trial
counsel was unconstitutionally defective, and whether this performance—or lack
thereof—unconstitutionally prejudiced the outcome of his trial. My generalized thoughts about the
arbitrary imposition of the death penalty were predicated on the notion that a defendant’s life or
death should not hinge on the proficiency of his attorney, especially when most states’ compensation
schemes for appointed counsel provide precious little incentive for good lawyering. Id. at 270
(“[O]ne of the most clear examples of the arbitrariness of the death penalty is the common
knowledge that those defendants with decent lawyers rarely get sentenced to death.”).
        In a subsequent death penalty case, Benge v. Johnson, I parted ways with the majority
because “the only legal hook on which Benge’s death sentence hangs is the jury’s finding that he
also committed aggravated robbery by stealing Gabbard’s ATM card in the process of killing her.”
474 F.3d 236, 254 (6th Cir. 2007) (Martin, J., dissenting). I then considered the hypothetical other
acts that Benge could have committed and yet escaped death under state law:
       Had Benge impulsively and fatally hit his common law wife in the head with a tire
       iron in an abhorrent act of extreme domestic violence, instead of killing her to gain
       access to her ATM card, as the prosecution alleged and the jury supposedly found,
       would his conduct somehow be less heinous and reprehensible? Such a murder
       would be at least as revolting as the one that occurred here, yet as far as I can tell,
       would have presented none of the aggravating factors required for a death sentence
       under Ohio law.
Id.
         In Jason Getsy’s case, sadly, we need not consider hypotheticals, such as the better-paid
lawyer who would likely have done a better job, or the brutal murder which, for whatever reasons,
could not be coupled with any of a state’s statutory aggravating circumstances. For in Getsy’s case
the hypothetical is made real. The nineteen-year-old Getsy was sentenced to death for being one
of the trigger men in a murder-for-hire conspiracy. His two compatriots, Richard McNulty and Ben
Hudach, did not receive the death penalty because both were offered and accepted plea bargains.
Thus there is some logic, perhaps, to why McNulty and Hudach received lesser sentences. But there
is no logic to why John Santine, the mastermind of the conspiracy, who paid Getsy, McNulty, and
Hudach to do his dirty work, and who took great steps to make sure they completed the job, also did
not receive a death sentence. As the Supreme Court of Ohio noted despite upholding Getsy’s death
sentence:
       It is clear that Getsy would not have committed these crimes if he had never met
       Santine . . . .
       It was clear from the videotape of his statement that Getsy feared Santine and was
       afraid that Santine would execute him. Getsy apparently was afraid to go to the
No. 03-3200           Getsy v. Mitchell                                                      Page 27


       police because Santine made it appear that he had the police in his pocket. This
       belief was supported by the fact that McNulty told police what Santine was planning
       and the police did nothing . . . .
       When the group first went to the Serafino house, they returned to the apartment
       without completing the act, using the excuse that they could not find a place to park.
       Santine became furious, eventually driving Getsy, McNulty, and Hudach back to the
       place himself . . . .
       It is . . . troubling that Santine did not receive the death sentence even though he
       initiated the crime.
State v. Getsy, 702 N.E.2d 866, 890-92 (Ohio 1998).
        The majority argues that no Supreme Court, Sixth Circuit, or Ohio state precedents demand
that the proportionality principle include in its calculus other defendants who have not been
sentenced to death (such as Santine in this case). I side with Judge Merritt in rejecting this
proposition. Yet even if the majority were correct, that only bolsters my concerns, for the majority’s
rule effectively blesses an arbitrary scheme: that an Ohio state court must weigh the proportionality
of an individual’s death sentence against others who have received the death sentence, but that the
same state court need not weigh the proportionality of an individual’s death sentence against that
of a co-conspirator who did not receive death.
        The majority adds that the Supreme Court’s decision in United States v. Powell, 469 U.S.
57 (1984), and the gloss put on Powell in United States v. Crayton, 357 F.3d 560 (6th Cir. 2004),
have sounded the death-knell of the common-law “rule of consistency.” Once again, however, even
if the majority were correct on this score, it places itself in a serious pickle. For if Powell and
Crayton do not require that the rule of consistency be brought to bear on a case such as Getsy’s, then
this court’s application of the death penalty is a fortiori inconsistent. This state of affairs I find
unconscionable, even as I remain bound to apply the laws of this court and of the Supreme Court.
Cf. Benge, 474 F.3d at 258; Moore, 425 F.3d at 270. “[It] is not justice. It is caprice.” Abdul-Kabir
v. Quarterman, — U.S. — , 127 S. Ct. 1654, 1686 (2007) (Scalia, J., dissenting).
        Jason Getsy and John Santine are not hypothetical players in a criminal law final exam.
They are real people who committed real crimes, indeed, the same crimes. That Getsy will be put
to death while Santine will be spared, and that the law (at least according to the majority) actually
sanctions this result, makes it virtually impossible for me to answer in the affirmative what Justice
Blackmun viewed as the fundamental question in Callins v. Collins, 510 U.S. 1141, 1145 (1984) —
namely, does our system of capital punishment “accurately and consistently determine” which
defendants “deserve” to die and which do not?
No. 03-3200           Getsy v. Mitchell                                                        Page 28


                                        _________________
                                            DISSENT
                                        _________________
       KAREN NELSON MOORE, Circuit Judge, dissenting. I join Judge Merritt’s excellent
opinion in full, and I write separately to address Getsy’s judicial bias claim. I believe that Bracy v.
Gramley, 520 U.S. 899 (1997), has far more bearing on the case before us than the majority lets on.
         In Bracy, the Supreme Court concluded that the district court abused its discretion by
refusing to permit Bracy to undertake discovery. Id. at 909. Evidence came to light that Bracy’s
trial judge had accepted bribes, and although there was no evidence that the trial judge accepted a
bribe in Bracy’s case, Bracy alleged that his lawyer, a former associate of the trial judge, agreed not
to object or otherwise interfere with a prompt trial so that Bracy’s case could proceed quickly and
camouflage bribe negotiations for a case to be tried later. Id. at 907-08. The Court acknowledged
that “[i]t may well be . . . that petitioner will be unable to obtain evidence sufficient to support a
finding of actual judicial bias in the trial of his case,” but concluded that the specificity of Bracy’s
allegations combined with the circumstantial evidence linking Bracy’s lawyer to the corrupt trial
judge was sufficient to warrant discovery. Id. at 908-09.
         Similarly, in this case, Getsy has specific evidence of circumstances raising the possibility
of bias—specifically, evidence that Judge McKay socialized with Prosecutor Rice during the trial
and that Judge McKay was charged for drunk driving, raising the possibility that Judge McKay
curried favor with the prosecutor’s office in order to garner favorable treatment during his criminal
prosecution, cf. Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir. 1992) (noting that a defense lawyer
may act out of self-interest rather than in the defendant’s interest when the lawyer is under criminal
investigation), or because of his relationship with Prosecutor Rice, who might be both a close friend
and a potential witness in the judge’s criminal case. Indeed, Judge McKay took the bench the day
after his arrest without informing the defense of what had happened, raising the likelihood of further
impropriety well above the speculative level. Just as in Bracy, Getsy has not been able to prove how
these improprieties prejudiced him directly, but has made specific allegations that can only be
proven or disproven with further evidentiary development, and I would conclude that, just as in
Bracy, the district court’s decision to deny Getsy an opportunity for further evidentiary development
was an abuse of discretion.
        The majority makes much of evidence that Judge McKay was prosecuted by a special
prosecutor from another county, but this evidence does not show when the special prosecutor took
over the case and under what circumstances, actually highlighting 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 decision to deny him this opportunity yet again.
