Getsy v. Mitchell, 03-3200.

Decision Date02 August 2006
Docket NumberNo. 03-3200.,03-3200.
Citation456 F.3d 575
PartiesJason GETSY, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

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, for Appellee.

Before: MERRITT, MOORE, and GILMAN, Circuit Judges.

[456 F.3d 577]

MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. GILMAN, J. (pp. 598-616), delivered a separate dissenting opinion.

OPINION

MERRITT, Circuit Judge.

We hold that the death sentence in this case violates the Eighth Amendment "arbitrariness" standard outlined in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which prohibits random, disproportionate capital sentences, as well as the proportionality requirement of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and the due process, inconsistent verdict prohibition of Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934).

This is a contract murder case with irreconcilable jury verdicts leading one defendant to be sentenced to death and another — the defendant who initiated, contracted for, and paid for the murder — to be sentenced to life imprisonment. Four defendants, Jason Getsy, Richard McNulty, Ben Hudach, and John Santine, were charged with committing the murder of Ann Serafino and the attempted murder of Charles ("Chuckie") Serafino "for hire." Santine was charged with hiring the other three defendants to kill Chuckie Serafino, a business rival. Santine was sentenced to life imprisonment when a jury found him guilty of aggravated murder but not guilty of hiring Getsy to commit the murder. McNulty and Hudach were sentenced to life imprisonment after they were allowed to plead guilty. A jury found only nineteen-year-old Getsy guilty of the crime of murder for hire initiated by Santine and sentenced him to death. The Supreme Court of Ohio allowed Getsy's death sentence to stand, but expressed its dismay about the disproportionate nature of these inconsistent results:

That Hudach received a lesser penalty than Getsy is not surprising — Hudach did not enter the Serafino home. McNulty did, and he shot one of the victims; nevertheless, he was offered a plea bargain, Getsy was not. Furthermore, McNulty did not testify against Getsy; therefore, McNulty's case was not a case of the state's needing to secure testimony to obtain a conviction on a more culpable person.

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

State v. Getsy, 84 Ohio St.3d 180, 702 N.E.2d 866, 892 (Ohio 1998). 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. As explained below, the death sentence violates Furman, Enmund, and Morrison because like crimes are not being punished alike in the very same case and because of the inconsistent jury verdicts in this case. We also remand the case to the district court for an evidentiary hearing on Getsy's claim of judicial bias in his case.

I. Background

The facts of this case, set forth below, are excerpted from State v. Getsy, 84 Ohio St.3d 180, 702 N.E.2d 866, 873-75 (Ohio 1998):

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. . . .

Earlier in the year, [John] 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 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.

[After the shootings, Officer] Forgacs [of the city of Hubbard Police Department] searched for Santine's car because of a conversation he had had on June 20, 1995 with Richard McNulty. McNulty, who lived at 24½ South Main and who is a codefendant, 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. . . .

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 24½ 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 24½ South Main Street. When Getsy got there, Hudach, a codefendant, 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 24½ 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 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. . . .

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 24½ 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 24½ 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...

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