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July 26, 2007

Getsy v. Mitchell Was Rightly Decided En Banc

I
think Orin Kerr is quite right about the 6th Circuit's correct en banc decision in Getsy v. Mitchell, and frankly, I'm surprised that the vote tally of the en banc decision was so close.

I suspect I may be more of a fan than Orin of the so-called "rule of consistency" in single trials. (That's the rule, now largely defunct, that forbids a single jury from convicting one of two alleged co-conspirators while acquitting the other.)

But where two people alleged to have acted jointly are tried by separate juries, as was the case in Getsy v. Mitchell, the rule should not apply. There's just no way on earth to infer, from the fact of one jury's acquittal, that the other jury erred in any way by convicting.

I hope that the Supreme Court will not grant cert in this case; as I argued in my Harvard Law Review article on inconsistent criminal jury verdicts (111 Harvard Law Review 771), I'd like to see the Court revisit and reform its approach to logically inconsistent verdicts -- and Getsy v. Mitchell strikes me as a case that would just lead the Court to dig its heels in deeper rather than presenting an opportunity for helpful reform.

Posted by Eric at July 26, 2007 11:44 AM