John P. Fox: I dedicate this effort to my fiance, Meghan Maher.
Suppose A hires B to kill C. The state in which A and B are tried has adopted a two-stage capital-sentencing regime-the common Model Penal Code system, which does not permit capital punishment unless the jury finds the defendant guilty of murder and separately finds one or more capital specifications during a penalty phase.1 A and B are tried separately,2 with both prosecutors proceeding on the theory that A hired B to kill C. At the penalty phase of A's trial, A's jury fails to find that the murder was committed for hire-the sole capital specification the prosecution sought to prove.3 At the penalty phase of B's trial, B's jury finds this specification, and B is sentenced to death.
As A and B have been convicted of the same murder and under the same theory, one jury's finding that A did not hire B to kill C must be inconsistent with the other jury's finding that B was hired by A to kill C. On appeal of B's death sentence, B's lawyer argues that because A's jury did not find that the for-hire specification was established, the specification could not be established against B either because any other result would create a troubling life-and-death inconsistency. The court, invoking the common-law rule of consistency, agrees, thus resolving the inconsistency in favor of B and saving him from execution. These are the facts of Getsy v. Mitchell, a recent Page 250 decision by a panel of the Sixth Circuit that was subsequently overturned on en banc review.4
At common law, the rule of consistency mentioned in Getsy prevented certain types of inconsistency in sentencing.5 Because every felony was punished with death,6 rules evolved to prevent "the scandal and inequity of inconsistent verdicts,"7 which created life-and-death disparity in sentences. Stated plainly, the rule of consistency prevented conviction of a single defendant upon the acquittal of his confederates if the crime for which he was charged required multiple parties.8 Because one man could not riot or duel on his own, the state could not charge a defendant for these crimes after the acquittal of his confederates.9 Further, if the state alleged that A and B entered into a conspiracy to kill C, and A was acquitted, B was likewise immune from punishment.10 Superficially, Getsy merely applied this reasoning to murder for hire, preventing the triggerman's execution after the mastermind's acquittal on the admittedly persuasive theory that a murder-for-hire plot requires more than one participant.11 Page 251
Given that the "scandal and inequity" of inconsistent verdicts is at least as great a concern today as it has ever been,12 the Sixth Circuit's invocation of the common-law rule to prevent an obvious inconsistency might seem admirable-or would, that is, if we ignored two realities: common-law doctrines may not age well, and jury verdicts may reflect more than factual guilt.
The rule of consistency worked well at common law because it imposed some stability on all-or-nothing common-law sentencing, preventing conspirator B's execution upon coconspirator A's outright acquittal.13 In the modern capital-sentencing system, where all-or-nothing has given way to shades of culpability and punishment, the concept of consistency must likewise grow complex. For example, where A and B are separately convicted of the substantive offense of murder, but only B is found to have committed that murder for hire, the "scandal and inequity" of sentencing A to life imprisonment while sentencing B to death is no longer a true life-or-death proposition, as A retains his life conditioned on his spending it in a prison cell.14 Also, the jury's ability to mete out a significant and lasting punishment that is short of death may have enticed A's jury to acquit on the for-hire specification-a judgment that is unrelated to the factual matter of whether B committed the murder for hire, or to the collateral matter of whether B is entitled to similar leniency.
Part II of this Note will survey the common-law rule of consistency and Supreme Court decisions such as United States v. Powell15 and Standefer v. United States16 that chiseled away at consistency review to the point that the rule of consistency was pronounced dead by a majority of circuits. Part III will explain the inconsistency that caused a panel of the Sixth Circuit to invoke the rule in Getsy and will outline why the court's reasoning made reversal inevitable. Part IV will list the myriad ways in which the rule of consistency-including the version set forth in Getsy-is unsound as a matter of law and of policy. Nevertheless, Part V will define a type of consistency Page 252 review that would be defensible-indeed desirable-under the Supreme Court's post-Furman v. Georgia17 capital-sentencing jurisprudence.
While the rule of consistency cited in Getsy has a common-law pedigree, the phrase "rule of consistency" did not appear until quite recently.18 In actuality, the common law applied either of two types of consistency review, depending on whether the participants in the crime were both principals or a principal and an accessory.19
The first common-law rule prevented the conviction of an accessory after acquittal of the principal.20 This might be termed the "principal- accessory rule." If the principal was not convicted, the principal-accessory rule made the accessory immune from punishment because he was only punished as "a partaker of [the principal's] guilt."21 This is the proper analysis for murder for hire since the hiring party, though "concerned" with the murder, is not the "absolute perpetrator" and may be miles away when the crime is committed.22 Principal-accessory consistency is distinct from the common-law rule of consistency, as acquittal of one party in a principal- accessory crime-the accessory-may not require acquittal of the other-the principal.23 Page 253
The second common-law rule, which this Note will refer to as the rule of consistency, prevented the conviction of one principal for a crime that required multiple principals. The rule states that "[u]pon the indictment of several [individuals] for an offense [requiring] participation of two or more . . . a verdict of guilty against one and of not guilty for the others, is . . . repugnant and invalid."24 This analysis applies to dueling, rioting, and the like-crimes that require more than one principal, since multiple parties must be at the scene of the crime in order for the crime to occur.25Conspiracy is likewise a multiple-principal crime because the act of conspiring is itself the substantive crime, making all those who participate in the planning principals.26 Conspiracy thus diverges from murder for hire, where the act of murder is the substantive crime and a hiring party (who is not present for the murder itself) is not a principal.27
Most American jurisdictions collapsed the distinction between accessories and principals in the early twentieth century in order to charge all parties as principals.28 As this revision aimed to make accessories more susceptible to punishment,29 it is doubtful that revisers intended to bring crimes previously subject to the principal-accessory rule under the ambit of rule-of-consistency review.
In the twentieth century, the Supreme Court routinely rejected consistency review under varying conditions: allowing an internally inconsistent verdict against a defendant to stand in a criminal trial,30rejecting collateral estoppel in the context of an accessory indicted after the Page 254 acquittal of a principal,31 and refusing to harmonize inconsistent sentences rendered against codefendants in the same trial.32 While the rule of consistency seemed to live on in the limited context of conspiracy prosecutions, a majority of federal circuits had pronounced the rule dead there as well by the century's close.33 The Court's steady erosion of consistency review occurred on two fronts-cases involving inconsistent verdicts against a single defendant and cases involving inconsistent verdicts rendered against codefendants tried separately.
In Dunn v. United States, a prohibition-era decision, the Court ruled that an internally inconsistent verdict rendered against a criminal defendant would not require reversal since any inconsistent acquittals among the charges would be interpreted as signs of juror lenity.34 Dunn involved a defendant's appeal from a jury verdict convicting him of maintaining a nuisance by keeping liquor for sale and acquitting him on a charge of possession of liquor.35 Dunn appealed on the ground that since the evidence on both counts was the same, an acquittal on possession could not be reconciled with a conviction for maintaining a nuisance.36 Justice Holmes rejected this argument, ruling that consistency in the verdict was not necessary since every count in the indictment was "regarded as if it was a separate indictment."37 Provided that...