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Murder For Hire

When one person hires another to murder a third, who is more culpable?

In the Getsy case in Ohio, the mastermind was tried separately on different evidence (not including Getsy's confession) and found guilty of a noncapital crime. As a result, triggerman Getsy was sentenced to death but the man who hired him was not.  A three-judge panel of the Sixth Circuit found it so outrageous that the obviously more culpable boss received the lesser penalty that it declared Getsy's sentence unconstitutional. Fortunately, the Sixth corrected this error en banc.  CJLF's brief is here.

Now there is much wailing and gnashing of teeth that Virginia is going to execute the boss but not the triggerman in a murder for hire scheme.  The anti-DP PR machine is claiming she wasn't really the "mastermind," but that claim has been examined and rejected by both state and federal courts. John Grisham has a piece in the WaPo, dated tomorrow, titled "Teresa Lewis didn't pull the trigger. Why is she on death row?" The Fourth Circuit's answer follows the jump.
Given our own review of the evidence, we cannot say that [the state court's] determination was an unreasonable one. First, the factual evidence surrounding these murders demonstrates that it was Lewis who was uniquely positioned to plan or, as the Virginia Supreme Court held on direct appeal, "mastermind . . . these gruesome crimes, which would not have occurred but for her actions." Lewis, 593 S.E.2d at 228. Lewis was Julian's wife and C.J.'s stepmother. As beneficiary of Julian's estate, and C.J.'s life insurance if Julian were dead, she alone stood to profit handsomely from their joint murder. There was also evidence that Lewis was well aware of this potential as, prior to the murders, she bragged to others that she was marrying Julian for his money and that she would benefit financially if Julian and C.J. were dead.

In contrast to her intimate involvement with the victims, Shallenberger and Fuller had never met Julian or C.J. and, without Lewis, had no way of knowing their expected movements or whereabouts. The men were also substantially younger than the more experienced and knowledgeable Lewis who, as found by the state court, lured the men into helping her achieve her financial payoff through sexual favors and money. She even went so far as to involve her 16-year-old daughter (whom the men also did not previously know) in the planning process and, on at least one occasion, she took her daughter with her to meet the men where they engaged in simultaneous, sexual relations in side-by-side vehicles.

The specific actions taken in preparation for the murders also demonstrate Lewis's ability to plan and carry out the murderous plot. After meeting the men and enlisting their help to kill Julian, Lewis withdrew $1,200 cash from her bank, which she gave to Shallenberger to purchase the murder weapons and, during the planning process, she initiated approximately 160 of the 170 documented telephone calls between her and Shallenberger. Also, only Lewis could have provided the men with the necessary information regarding her husband's employment, expected movements, and route home for the first, unsuccessful attempt to murder him on the roadway. Only Lewis could have advised the men that she would also benefit as the secondary beneficiary of C.J.'s life insurance, prompting the added plan to murder him when he came home for his father's funeral. Only Lewis could have advised the men that, as luck would have it, C.J. would be coming home from active duty for a visit and could more easily be murdered alongside his father. And, only Lewis could have provided the men with the expected whereabouts of the intended victims when they entered the mobile home to kill them.

The actions taken by Lewis at the time of the murders, and immediately thereafter, also eliminate any reasonable likelihood that Lewis was incapable of carrying out the murder plan while away from any asserted influence or control of the triggermen, or that her low IQ and prescription drug use rendered her incapable of making the necessary plans and decisions. On the night of the murders, unaided by her coconspirators, Lewis engaged in a number of activities designed to ensure that everything appeared normal to her husband and stepson, made sure the coast was clear for the triggermen, and took steps to cover her involvement. She prayed with her husband, lay down with him, and then got up to make the necessary preparations. At some point she prepared the lunch bag for him with the attached love note and "smiley face," presumably to deflect attention from her as a suspect, and, according to her, spent time with her stepson as well. Before returning to her bed with Julian, she unlocked the back door for the shooters and also confined the dog, a pit bull, in the middle bedroom where it could not interfere with them or their plans.

After the murders had been committed, and the triggermen had left, Lewis continued to exhibit this ability to operate alone in carrying out the plot. She waited from 30 to 45 minutes before calling 911, presumably hoping that Julian would finally die, making telephone calls to others in the interim. When the police finally arrived, she calmly related a false story of an unknown intruder and, while on the telephone, made a comment within earshot of the officers blaming C.J. for leaving the door unlocked. Her ability to further the intended goal of financial profit, without oversight or direction from her co-conspirators, was also immediately demonstrated. While her victims were still in the mobile home, Lewis set about to obtain Julian's most recent paycheck from his employer. Later that afternoon, she spoke with Lt. Booker and advised him that she was the sole beneficiary of C.J.'s life insurance policy. In the days that followed, Lewis contacted Lt. Booker a second time about the proceeds of the life insurance policy, telling him that Kathy could have C.J.'s personal effects so long as she got the money. She also sought to withdraw $50,000 from Julian's Prudential Securities account with a forged check that she falsely claimed he had written to her before his death. It was also later discovered that Lewis and a friend had visited an attorney shortly after the murders to ensure that Kathy would not inherit from her father and brother. Lewis also made plans to liquidate and spend her inheritance. She offered to sell Kathy her father's land and mobile home and started making plans to trade Julian's vehicle, along with the red sports car he had purchased for her before he was murdered, for a larger car. Finally, Lewis demonstrated no difficulty in making the funeral arrangements for her victims. By the morning after the murders, she had already spoken to the funeral home about the arrangements, and attempted to subtly exclude Kathy from the process. She also purchased a new suit for the occasion, and had her hair and nails done as well.

In the face of this overwhelming evidence of Lewis' actual capacity to act alone and make decisions to further the murderous plot, Lewis presented comparatively weak evidence that this alleged dependent personality disorder combined with her low IQ and prescription drug abuse to render her incapable of acting in that capacity and explain the "cold" affect and demeanor she exhibited during and after the murders. While Lewis had a low IQ, her education records indicated that she successfully attended school for some time and was an average student. There was no evidence of Shallenberger's comparative intelligence, and Fuller's IQ was much lower than Lewis' IQ. There was also little evidence to support Lewis' claim that a drug dependency played any significant part in the crime. By her own admission, she was not under the influence of any drugs at the time of the murders, and there was no evidence that she experienced withdrawal or other adverse effects after she was arrested and incarcerated.

In sum, having fully considered the evidence in support of the vileness aggravator, and the totality of the mitigating evidence presented at the sentencing hearing and on state habeas to refute and mitigate that aggravator, the Virginia Supreme Court properly analyzed this claim under Strickland and its progeny, and held that there was no reasonable probability that the sentencer, had he been confronted with the additional evidence, would have rejected the vileness aggravator or, barring that, otherwise found that there was sufficient evidence in mitigation to warrant rejection of the penalty of death. Having independently considered Lewis' contentions, we cannot say that the state court's adjudication of Lewis' claims is contrary to or an unreasonable application of the applicable precedents. Accordingly, Lewis is not entitled to habeas relief on this basis and we affirm the dismissal of these claims.

Grisham writes, "Why, then, did the triggermen get life without parole while Lewis received a sentence of death? Ostensibly, it is because she was the ringleader and thus more culpable. But what could make a killer more culpable than repeatedly shooting a sleeping victim?"

Hiring him to do it, obviously. The anti side screams at the top of its collective lungs that the hirer is more culpable than the hiree when that position suits its purpose, then turns around and screams the exact opposite when the sentences are reversed.

In the Getsy case, the hirer was indeed more culpable, but the Confrontation Clause prevented his conviction of capital murder.  Letting criminals off with less than they deserve is the result, sometimes, of the protections of the Bill of Rights, but that is no reason to let off with less the ones we can convict.  In this case, the more culpable defendant was indeed the one who got the greater penalty.  Along with being the hirer, Lewis also displayed uncommonly cold-blooded treachery in the long-planned murder of members of her own family.

Grisham claims that other similar cases have not resulted in death sentences for the wife.  Without knowing the details of those cases, we have no way of knowing that the cases are indeed similar. How many of these "similar" cases are double murders, Mr. Grisham?  Of all the factors to distinguish murders, number of victims is the most obvious and objective.  If they are similar, the problem is in those other cases, not this one.

Ariane de Vogue has this story on the case at ABC.


As a general rule, I cannot fathom a basis for the conclusion that the person who hires out a murder would ever be less culpable than the person who accepts the contract and actually commits the crime. That makes no sense. In fact, if i had to pick, I would make it presumptively true that the hirer is more culpable than the hiree, as it were. To be sure, sometimes it is probably true that the murderee had it coming. But even then, whatever justification defense the hirer has should likewise be available to the hiree. So while I am not an enthusiastic supporter of the death penalty, if we are going to have it, I am not at all offended by applying it to those who contract out killings. Seems eminently fair to me.

The holes in the anti-side's arguments are so obvious. First of all, we simply cannot have a rule that murderers acting in concert get the benefit of the lenience to one of them. Murderers are not entitled to some sort of cosmic fairness as between themselves. Moreover, such a rule would work an obvious system-wide unfairness, murderers who act alone would only have one shot at lenience, whereas murderers who act in concert would get the benefit of each murderers' shot at lenience. It's on thing to have the arbitrariness of the jury system--quite another to enshrine a built-in advantage to killers who act in concert--especially when killers who act in concert are committing a separate crime by agreeing to do the killing. If you don't want to be in a position where an arguably more culpable person doesn't get death but you do, then don't commit capital murder.

Second, as it stands now, the death penalty isn't just about the crime, but about the killer as well. Thus, a jury could take into consideration many things besides the crime itself. And also, since all it takes is one juror, in many jurisdictions, to make the punishment life (and that attribute is something murderers want), are we really going to let one holdout juror acquit multiple murderers of the death penalty across different trials. That's just plain nuts.

To my simple mind, this does not present any great conundrum. The problem is not that A got the death penalty; the problem is that B did not ALSO get the death penalty. We should be happy that at least a bit of justice is being meted out. In too many cases, none is.

Our system is larded with irrational leniency. But the ineluctable fact that we sometimes blockheadedly get a few things wrong is hardly a reason to always and intentionally get EVERYTHING wrong.

In my view, the system is larded with irrationality, but I am not so sure it preponderates in any particular direction. Having said that, I surely agree with Bill's last sentence.

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