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Sixth Circuit Head Shaker


On Wednesday, the Sixth Circuit issued a decision which is so patently lawless, so obviously violates the limits placed on habeas corpus by Congress and the Supreme Court, as to be beyond belief. The 2-1 decision in the case of Getsy v. Mitchell effectively arrogates to a federal habeas court the power to conduct intracase proportionality review and commute a death sentence because the judges think that a co-defendant who got life was more culpable. Congress has limited federal habeas to enforcing clearly established federal law as determined in Supreme Court precedents. The precedents claimed as clearly establishing this rule are Furman v. Georgia and Enmund v. Florida, neither of which establishes a rule that is even in the ballpark. The decision also creates a new rule on habeas corpus, in clear violation of the Supreme Court's decision in Teague v. Lane.

No competent judge could seriously believe that this decision is within the authority of the court. This is raw defiance. Hopefully, the Sixth Circuit now has a majority of judges who understand and respect the limits of their authority and will correct this disgrace of a decision en banc. If not, it is a prime candidate for another spanking via summary reversal by the Supreme Court.


"Lawless"? "Raw defiance"? "Disgrace"? Time for a vacation, man.

Guest, please explain your viewpoint. It is quite clear that this decision is flawed, to say the least.

1) There is absolutely zero case law from the US Supreme Court (which is what counts under AEDPA, the law which, theoretically anyway, binds federal courts) that dictates that arguably less culpable accomplices (who are still constitutionally eligible for the death penalty) cannot receive the death penalty if their arguably more blameworthy accomplices did not. Thus, there was absolutely no basis for the Sixth Circuit's decision to toss the sentence on that basis. Thus, either the result stems from the stupidity of the court or willfulness. Given the detail in which the decision is written, the first option seems to be out. Thus, we are left with the conclusion that the decision is the result of wilfulness, which is unacceptable in a free society.

2) The silliness of the court's remand with respect to the trial judge's attendance at a party defies reason. First, the appeals court ignored its role as an appellate tribunal by failing to give adequate deference to the trial judge and second the order simply allows for a fishing expedition by the defense, which in any event is bad, but particularly in the habeas context with the issues of comity etc.

3) Perhaps you can defend the decision on the merits. We'll see.


The point of my remark was that the OP was using extremely strong language to criticize a decision pertaining to a guy who's going to die in prison no matter what. The panel's decision doesn't have to be right for it to be uncivil and impolitic to criticize it in such personal terms. Why the anger? You seem even angrier than the OP - "stupidity"? "unacceptable in a free society?" C'mon, dude. Unless you're a member of the victim's family, this decision cannot possibly have any direct effect on your life - do you even live in the 6th Circuit? - so what's with the name-calling? I like reading Scheidegger's stuff because he's a smart dude and because it helps me see both sides of a lot of issues - despite the fact that I disagree with much of what I read. But the overheated, vitriolic rhetoric just ruins it - why not keep it civil so you have a chance of persuading people like me who might not have made up their minds 100%? How would you like it if I expressed my disagreement with your point of view by impugning your character? Not much, I bet.

First of all, I rejected the idea that "stupidity" was the cause of the decision, so I don't think your criticism is a fair one.

Second, the "unacceptable in a free society" goes to the very nature of the problem here--unelected judges, appointed and confirmed to follow the law are not doing so, and this is not an isolated problem. And yes, I believe it a character issue for the judges who signed off on this. They seem to think that their notion of justice trumps that of the people of Ohio. They are wrong, lawless, arrogant and deserve to be called out on it.

This footnote from Harris v. Pulley indicates that the 6th Circuit majority is well over the line:

"At oral argument, counsel for respondent pointed to People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 (1983), as an example of California's evolving practice of proportionality review. There the court reduced a first degree murder conviction carrying a life sentence to a second degree conviction. The court relied in part on the disparity between Dillon's punishment and that received by the six other participants in the crime. Dillon was not a death case, did not involve any cross-case comparison, and hardly signifies an established practice of proportionality review."


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