                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                    File Name: 09a0290p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                       X
                                                        -
 JASON GETSY,
                                                        -
                               Plaintiff-Appellant,
                                                        -
                                                        -
                                                             No. 08-4199
              v.
                                                        ,
                                                         >
                                                        -
                                                        -
 TED STRICKLAND, et al.,
                                                        -
                       Defendants-Appellees.
                                                       N

                                  Filed: August 17, 2009
                                    _________________

                                           ORDER
                                    _________________

        A member of the court having suggested rehearing en banc, 6 Cir. I.O.P. 35(c), the
                          *
matter was referred to all active judges, less than a majority of whom voted in favor of such
rehearing. Accordingly, the decision of the panel remains in place, the motion of the appellant
to stay execution is denied, and the Clerk is directed to issue the mandate forthwith.

        It is so ORDERED.




        *
         Judge Cook recused herself from participation in this matter.

                                               1
No. 08-4199          Getsy v. Strickland, et al.                                         Page 2


        KAREN NELSON MOORE, Circuit Judge, with whom MARTIN, COLE, and WHITE,
Circuit Judges, join, dissenting from denial of rehearing en banc. I dissent from the denial of
rehearing en banc for the reasons expressed in my concurring opinion in Getsy v. Strickland, No.
08-4199, slip op. at 8 (6th Cir. Aug. 13, 2009) and for the reasons articulated in Judge Gilman’s
dissents in Cooey v. Strickland, 479 F.3d 412, 424 (6th Cir. 2007) (Cooey II), and Cooey v.
Strickland, 489 F.3d 775, 776 (6th Cir. 2007).

        As I have previously emphasized, “‘[a] suggestion for rehearing en banc is an
extraordinary procedure which is intended to bring to the attention of the entire Court a
precedent-setting error of exceptional public importance or an opinion which directly conflicts
with prior Supreme Court or Sixth Circuit precedent.’” Bell v. Bell, 512 F.3d 223, 250 (6th Cir.
2008) (Moore, J., dissenting) (quoting 6 Cir. R. 35(c) (emphasis added)). This is precisely that
case.

        Determining when the statute of limitations begins to run for a death-sentenced prisoner
who wishes to challenge a state’s method of execution under 42 U.S.C. § 1983 is tantamount to
determining whether the prisoner will be able to challenge the method of execution at all.
Certainly, the determination of when a person becomes time barred from challenging a procedure
that may violate his or her constitutional rights is of “exceptional public importance.” Because
the panel majority in Cooey II fundamentally erred in determining the moment at which the
statute of limitations begins to run in a § 1983 method-of-execution challenge—and we are thus
improperly constrained in Getsy—en banc review is required.

        Furthermore, as stated in my concurring opinion in Getsy, applying Cooey II’s
“precedent-setting error” in Getsy’s case is unconscionable. Due to the majority’s refusal to
review Cooey II by way of its application in Getsy, Getsy will be executed on August 18, 2009,
without ever having the opportunity to have a court consider the merits of his Eighth Amendment
challenge to his method of execution, a method that a court may well find unconstitutional just
a few short months following his death by lethal injection. For the foregoing reasons, I dissent
from the denial of en banc review.
No. 08-4199        Getsy v. Strickland, et al.                                      Page 3


       MERRITT, Circuit Judge, with whom MARTIN, Circuit Judge, joins, dissenting.
I dissent from the failure to grant Jason Getsy a stay of execution until the case can be
fully heard by the court in a deliberative and careful way, or, failing that, until the
Supreme Court of the United States has an opportunity to consider the case. The
decision not to stay Getsy’s imminent execution adds one final, absurd injustice to this
court’s complete mishandling of his case.

       1. Last week, a divided panel of this court concluded that Cooey v. Strickland,
479 F.3d 412 (6th Cir. 2007) (“Cooey II”) required us to find that Getsy’s challenge to
Ohio’s 2009 alterations to its lethal-injection protocol somehow became time barred in
2003, six years before the alterations took place and five years before the new Supreme
Court decision setting out a new Eighth Amendment standard in such cases. As I
explained in dissent, this holding unnecessarily and unconscionably expanded Cooey II,
turning it into an insuperable bar to any § 1983 challenge to the state’s lethal injection
protocol. See Getsy v. Strickland, No. 08-4199 (6th Cir. Aug. 13, 2009) (Merritt, J.,
dissenting) (attached as Exhibit “A”). The court’s deceptive attempt to say that some
unknown, undescribed future case might not be time barred, if the challenged alterations
are sufficiently egregious, improperly conflates the merits of the case with the statute of
limitations, and is not even consistent with the Cooey II case or any other case in the
legal canon.

       Given this situation, it is incomprehensible to me that we would refuse to stay
Getsy’s execution until the decision is final. It should be noted that all three members
of the panel agreed that if Cooey II in fact required us to dismiss Getsy’s case as time
barred, that rule would be utterly illogical and would require immediate revisitation,
either by the en banc court or the Supreme Court. Staying Getsy’s execution for the few
extra days that those two courts would require to act is the least we can do. This is
particularly true when the recency of the panel decision, combined with a sua sponte call
for en banc review, have made it difficult for Getsy’s lawyers to seek Supreme Court
review. If, after reasoned deliberation, both courts decide to leave this holding
No. 08-4199        Getsy v. Strickland, et al.                                      Page 4


undisturbed, then the execution could go forward. Refusing to wait until such reasoned
deliberation takes place is not just procedurally inappropriate, but patently unjust.

       2. The Supreme Court of Ohio has said that Getsy’s death sentence was grossly
disproportionate to the lesser sentence imposed on the most culpable of the conspirators
— the man who conceived, planned, paid for and participated in the crime. I have
previously pointed out this unprecedented injustice in the en banc dissent joined by five
other judges. It is attached as Exhibit “B.”

       3. The parole board of the State of Ohio has issued a strong, reasoned
recommendation that the Governor commute Getsy’s sentence to life. The Governor,
facing an impending election, refused after the local District Attorney publicly protested.
No. 08-4199         Getsy v. Strickland, et al.                                       Page 5


                                       Exhibit “A”

                                        No. 08-4199

                                Getsy v. Strickland, et al.

        MERRITT, Circuit Judge, dissenting. This case is about the meaning and
precedential scope of Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) (“Cooey II”).
Judge Gilman, the author of the majority opinion in the instant case, dissented from and
strongly disapproves of the Cooey II decision, a case that expressly allows actions based
on a new lethal injection “protocol.” And Cooey certainly does not even mention or
attempt by any language or logic to foreclose actions when the Supreme Court creates
a new cause of action or when new facts arise predicting severe pain in the upcoming
lethal injection process. Whatever defects my colleagues see in Cooey II, they are minor
— a mere speck in the eye of justice — compared to their opinions that create a mote
that cannot be removed without drastic surgery by the en banc court. Rather than create
such an intractable mess, it would have been much more reasonable and judicious to
write an opinion along the following lines that does not use Cooey II to bar actions
prematurely that deserve to be considered on the merits.

                                              I.

        In Cooey II, this Court held that when a prisoner brings a § 1983 challenge to a
State’s lethal-injection protocol, the date on which the statute of limitations begins to run
— the so-called “accrual date” — is determined by three considerations: (1) “the date
on which the judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review,” see 28 U.S.C. § 2244(d)(1)(A), or (2) when lethal
injection becomes the exclusive method of execution, whichever is later, unless (3) “the
lethal injection protocol . . . changes” in a way that “relates” to the condemned prisoner’s
“core complaints” about the lethal-injection process. See Cooey II, 479 F.3d at 421-23.
In Cooey II, the Court found that the second element — the date in 2001 when lethal
injection became mandatory in Ohio — determined the accrual date, thus placing
Cooey’s complaint, which was filed in 2004, outside of the two-year statute of
No. 08-4199         Getsy v. Strickland, et al.                                       Page 6


limitations made applicable by federal case law to constitutional claims under § 1983.
See id. at 424.

        But Getsy argues that this reasoning is not the end of the case because two
additional significant events distinguish his case from Cooey II and revise and extend
the accrual date. The first is the Supreme Court’s decision in Baze v. Rees, 128 S. Ct.
1520 (2008), which recognized for the first time the viability of an objection under the
Eighth Amendment to a lethal-injection protocol that creates “a substantial risk of
serious harm” or an “objectively intolerable risk of harm” when there is an “alternative
procedure” that is “feasible, readily implemented, and in fact significantly reduce[s]”
that substantial or objectively intolerable risk. See id at 1531-32 (plurality opinion).
Getsy argues that this new rule of constitutional law resets the accrual date for such
Eighth Amendment challenges. Second, and relatedly, Getsy also argues that he, unlike
Cooey, is challenging a recent material alteration to Ohio’s lethal-injection protocol and
that the accrual date should be determined by reference to the date of that alteration.

                                             II.

        To determine whether these arguments are precluded or approved by Cooey II,
it is important to understand the nature of the doctrine of binding precedent, which has
been a part of our judicial process since at least the time of Henry de Bracton, whose
work The Laws and Customs of England was published in the thirteenth century. See
SIR FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH
LAW 183-84 (Lawyers Literary ed. 1959). This doctrine is especially necessary in the
federal court of appeals, a multi-judge court, in which confusion would reign supreme
and “the labor of judges would be increased almost to the breaking point if every past
decision could be reopened in every case.” See BENJAMIN CARDOZO, Lecture IV:
Adherence to Precedent, in THE NATURE OF THE JUDICIAL PROCESS 149 (1920). Like
cases must be decided alike, both for this prudential reason and because our judicial goal
of fostering equal citizenship and equal status under the law requires it. Yet “in this
perpetual flux [of cases], the problem which confronts the judge is . . . [that] he must first
extract from the precedents the underlying principle, the ratio decidendi” of the case.
No. 08-4199              Getsy v. Strickland, et al.                                Page 7


Id. at 28. My colleagues in the majority simply fail to try to narrow Cooey II to its
essential holding.

        In Cooey II, the Court analogized a § 1983 method-of-execution challenge to a
petition for habeas corpus for the purpose of determining the accrual date. See Cooey
II, 479 F.3d at 421-22. That is, the ratio decidendi of Cooey II is that the requirements
set out in 28 U.S.C. § 2244(d)(1) determine the date upon which a § 1983 claim like this
one accrues. That statute provides as follows:

 The limitation period shall run from the latest of —
        (A) the date on which the judgment became final by the conclusion of direct
 review or the expiration of the time for seeking such review;
 ....
        (C) the date on which the constitutional right asserted was initially
 recognized by the Supreme Court, if the right has been newly recognized by the
 Supreme Court and made retroactively applicable to cases on collateral review; or
        (D) the date on which the factual predicate of the claim or claims presented
 could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).1

        The Court in Cooey II only applied subsection (A) because it was the only one
relevant to that particular case.             Baze had not yet been decided, and the 2009
amendments had not taken place, so the applicability of subsections (C) and (D) were
neither argued nor considered, and it ignores the principle of extracting and applying the
ratio decidendi of a case to interpret it to require us to ignore the other provisions of §
2244(d)(1). Cooey II does not stand for the rule that my colleagues claim, i.e., that in
all lethal-injection cases the statute of limitations expired two years after Ohio adopted
lethal injection as the exclusive method of execution in 2001. It stands rather for the
creation of a process that imports from the federal habeas corpus statute the accrual dates
set out for the statute of limitations. Under those rules, when the whole process set out




        1
            Subsection (B) is not relevant to this case, and therefore is elided.
No. 08-4199         Getsy v. Strickland, et al.                                    Page 8


in Cooey II is properly used, Getsy’s case is viable and well within the statute of
limitations if it fits within the criteria laid out in subsections (C) or (D).

                                    A. Subsection (C)

        Subsection (C) has three elements: the claimant must (1) assert a constitutional
right, (2) that has been “newly recognized by the Supreme Court” and (3) “made
retroactively applicable to cases on collateral review.” Those elements are present here.
In Baze, the plurality made clear that the question before it was one of first impression,
and that the Court had “never invalidated a State’s chosen procedure for carrying out a
sentence of death as the infliction of cruel and unusual punishment.” Baze, 128 S. Ct.
at 1530. The Court had previously upheld every type of execution method, from
hanging to shooting to electrocution. See id. at 1526-27, 1530. But in Baze it
recognized that execution by lethal injection could violate the Eighth Amendment if it
involves a “demonstrated risk of severe pain” that is “substantial when compared to the
known and available alternatives.” Id. at 1537.

        Justices Thomas and Scalia observed that this “formulation of the governing
standard” found “no support in the original understanding of the cruel and unusual
punishment clause or in any of our previous method-of-execution cases,” id. at 1556
(Thomas, J., concurring in the judgment), because no case had previously suggested that
capital punishment would be unconstitutional if “it involve[d] a risk of pain — whether
‘substantial,’ ‘unnecessary,’ or ‘untoward’ — that could be reduced by adopting
alternative procedures,” id. at 1560. Justice Thomas went on to observe that the new
“formulation” of the standard was more lenient than the Sixth Circuit’s previous
formulation in Workman v. Bredesen, 486 F.3d 896, 907 (6th Cir. 2007), which required
an intent to create pain. The separate opinions of Justice Stevens, Justice Breyer, and
Justice Ginsburg (joined by Justice Souter) likewise make clear that the plurality opinion
creates a “newly recognized” constitutional right, which in their views arise from the
doctrine that, with respect to capital punishment, the Eighth Amendment “‘must draw
its meaning from the evolving standards of decency that mark the progress of a maturing
No. 08-4199         Getsy v. Strickland, et al.                                      Page 9


society.’” See id. at 1568 (Ginsburg, J., dissenting) (quoting Atkins v. Virginia, 536 U.S.
304, 311-12 (2002)).

        The Court also made clear that the new standard would apply to all condemned
prisoners awaiting execution by lethal injection. The plurality discusses at some length
how the new formulation should be “implemented” with respect to stays of execution.
See id. at 1537-38 (plurality opinion). Justice Alito’s concurrence fleshes these
principles out further. See id. at 1538-42 (Alito, J., concurring). It is clear that they
contemplate the Baze formulation applying to all challenges to lethal-injection protocols,
whether those challenges are brought on direct appeal or — far more likely — by
prisoners whose direct appeals have become final. Thus, the Supreme Court has now
created a “newly recognized” constitutional right “made retroactive to cases on collateral
review.” Absent a later date made applicable by subsection (D), the accrual date for
challenges of this sort would be the date of the Supreme Court opinion in Baze, April 16,
2008. We are not called upon to apply the new formulation to the present case on the
merits and should leave that in the first instance to the District Court on remand. It is
clear, however, that under this new accrual date, Getsy’s claim is not barred by the two-
year statute of limitations.

                                    B. Subsection (D)

        Getsy also asserts that the May 2009 changes to Ohio’s lethal-injection protocol
grant the Warden broad discretion to determine the execution procedures used, thereby
increasing the risk of unconstitutional execution. The new protocol states:

 o. The Warden shall consider the needs of the condemned inmate, visitors and family
 members, the execution team, prison staff and other, and may make alterations and
 adjustments to this or other policies as necessary to ensure that the completion of the
 execution is carried out in a humane, dignified and professional manner.
May 14, 2009, Execution Protocol Number 01-COM-11, superseding 01-COM-11 dated Oct.
11, 2006.   Getsy contends that, under this new discretionary standard, neither avoidable,
severe pain nor intentionally inflicted pain is ruled out once the execution is under way, if such
No. 08-4199        Getsy v. Strickland, et al.                                    Page 10


pain would ensure that the execution was completed. We need not decide the merits of this
contention, but only whether the argument is time-barred under Cooey II.

       It may be that Getsy’s argument creates an issue “related” to his “core complaints,” and
thus falls within the exception created by the express language of Cooey II itself. But
whatever the meaning of Cooey II on this point, it is beyond doubt that a challenge to the
amended protocol falls within § 2244(d)(1)(D), since the new May 2009 protocol provides a
new “factual predicate” that could not “have been discovered through the exercise of due
diligence” prior to its passage. To state the problem more clearly, imagine that a defendant
is sentenced to death in 1996. In 2001, the State adopts lethal injection as its sole method of
execution. In 2009, it decides to cut costs by halving the dosage of each drug that it uses in
its three-dug protocol, and further decides that the drugs will be administered by first-year
medical students who perform the procedure for free. Imagine further that the several people
who are executed under this new protocol suffer a prolonged and excruciating death. If our
defendant then seeks to challenge this newly amended protocol, it would seem absurd to read
Cooey II to require a court to find that the challenge became time-barred in 2003, despite the
fact that the challenge specifically attacks changes that were made in 2009. The merits of
Getsy’s challenge may be weaker than those laid out in this hypothetical. But the statute-of-
limitations question is the same. When a prisoner challenges a change in a State’s method of
execution, that change provides a new “factual predicate” that resets the two-year statute of
limitations. As all of the opinions in Baze make clear, the constitutionality of a particular
method of execution will depend on the specific factual details of its administration. Thus, a
change to those details resets the accrual date for a constitutional challenge. See Walker v.
Epps, 550 F.3d 407, 414-15 (5th Cir. 2008) (“Of course, in the event a state changes its
execution protocol after a death-row inmate’s conviction has become final, the limitations
period will necessarily accrue on the date that protocol becomes effective.”).

       Getsy’s execution, which is currently scheduled for August 18th, should be temporarily
stayed pending the District Court’s resolution of the merits of Getsy’s claim under the standard
set out in Baze.
No. 08-4199        Getsy v. Strickland, et al.                                    Page 11


                                          Exhibit “B”

                                          No. 03-3200

                                       Getsy v. Mitchell

       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
No. 08-4199        Getsy v. Strickland, et al.                                    Page 12


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 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
No. 08-4199        Getsy v. Strickland, et al.                                   Page 13


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
No. 08-4199        Getsy v. Strickland, et al.                                    Page 14


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 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
No. 08-4199        Getsy v. Strickland, et al.                                    Page 15


       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
No. 08-4199         Getsy v. Strickland, et al.                                     Page 16


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 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
No. 08-4199             Getsy v. Strickland, et al.                                            Page 17


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 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


        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. 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. 08-4199         Getsy v. Strickland, et al.                                      Page 18


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,
No. 08-4199         Getsy v. Strickland, et al.                                      Page 19


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 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.”);
No. 08-4199        Getsy v. Strickland, et al.                                       Page 20


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. 08-4199        Getsy v. Strickland, et al.                                    Page 21


       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.

                                                 ENTERED BY ORDER OF THE COURT

                                                       /s/ Leonard Green
                                                 ___________________________________
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