Wednesday, August 02, 2006

8th Amendment bars death sentence for lesser offender

The 6th Circuit ruled 2-1 today in lengthy opinion that the death sentence is unconstitutional when applied to a killer-for-hire Jason Getsy, but not to the man who hired him, John Santine.

The decision trumps an Ohio Supreme Court ruling that found the disparate sentences troubling, but not enough to overturn Getsy's execution.

"We agree with the Ohio Supreme Court’s suggestion that Santine is probably more -- certainly no less -- culpable than Getsy, the young boy he hired, but we do not agree that the death verdict can stand," the 6th Circuit said.

In his dissent, Circuit Judge Ronald Lee Gilman said that in reaching its decision, "the majority today reaches beyond the arguments advanced by Getsy and announces a new rule of constitutional law."

Essentially the 6th Circuit majority held that a jury's decision to hand down a life sentence for the man who actually hired the killer is "irreconcilable" with another jury's decision to sentence the hired killer to death.

John Santine was charged in Cleveland District Court with hiring three other men for the 1995 murder of Ann Serafino and the attempted murder of Charles “Chuckie” Serafino.

Charles Serafino was a business associate of Santine. Apparently, Santine had been trying to buy out Serafino's lawn care business. When Charles Serafino went to jail on a probation violation, Santine transferred the leases for Serafino's building and equipment into his own name. Informants told law enforcement that Santine had planned to kill Serafino after he was released from jail. Getsy later gave a taped interview with police admitting to being involved in the shooting.

On the night of the attack, Serafino was seated on a love seat when a shotgun pellets blasted through a sliding glass door and injured him in the arm. As he ran to the bathroom, his mother Ann came out of the bedroom where she had been sleeping. Charles Serafino remembers the shotgun being put to his head and being shot again. Although alive, he played dead and later called 911. Getsy admits to being one of the gunmen.

A jury found Jason Getsy, then 19, guilty of murder for hire at the behest of Santine and sentenced him to death. A separate jury found Santine found guilty of aggravated murder, but not guilty of hiring Gesty. The two other defendants were given life in prison after pleading guilty.

Getsy appealed, but the Supreme Court of Ohio upheld his death sentence – although the state’s high court was concerned that Getsy received a stiffer sentence while a co-defendant who actually shot one of the victims was given a plea deal even though his testimony was not important. The Ohio justices also were concerned about the relatively light sentence given to Santine.

“It is also troubling that Santine did not receive the death sentence even though he initiated the crime,” the Ohio justices said. “If not for John Santine, it is unlikely the Serafinos would have been shot.”

Getsy then turned to the federal courts, ultimately ending with today's decision by the 6th Circuit.

The two-judge 6th Circuit majority said that the seminal 1972 decision in Furman v. Georgia, which prohibits arbitrary and capricious death sentences, and the Supreme Court decisions that followed it demands that Getsy's sentence be overturned.

"[S]entencing Getsy to death, while the arguably more culpable Santine received a life
sentence for the very same crime, violates the Eighth Amendment, as construed by the Supreme
Court in Furman and Enmund, and its prohibition of arbitrary and disproportionate death sentences," the 6th Circuit said.

The court majority also said that Getsy's murder-for-hire conviction must be overturned based on the rule of consistency, where one defendant cannot be convicted of committing a crime that requires at least two participants if all other defendants aren't convicted of that same crime.

"The acquittal of Santine of murder for hire based on substantially the same evidence signifies that the jury found no contract to kill the Serafinos, and Getsy cannot have acted alone since murder for hire requires a plurality of actors," the court said. "Getsy’s murder for hire conviction is therefore irreconcilable with the jury verdict acquitting Santine of the same charge."

In his dissent, Gilman disagreed with the court's ruling that Getsy's death sentence could not stand.

"The majority has not cited a single case in which the Supreme Court has declared an otherwise lawful death sentence imposed upon a defendant unconstitutional on the ground that another participant in the murder did not receive the death penalty," he wrote. "When combined with the fact that this court has never applied the now-repudiated common-law rule of consistency to defendants tried separately, the absence of Supreme Court caselaw supporting Getsy’s proportionality argument is fatal to his claims for relief."

He essentially argued that the rules of consistency is not a requirement that Getsy's death sentence be overturned because one jury found the facts enough to convict, while another did not.

Gilman also disagreed that Santine's sentence should be compared with Getsy's sentence.

"Because comparative proportionality review is not constitutionally required, and because the Supreme Court and our sister circuits have rejected a proportionality argument substantially similar to the one advanced by Getsy, I believe that the majority has erred in adopting a contrary position," he said.

(Updated to correct error: Two different juries tried Santine and Serafino)

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