In evaluating whether a death sentence is arbitrary, the Supreme Court has directed courts to evaluate a defendant's culpability both individually and in terms of the sentences of codefendants and accomplices  [*26]  in the same case. See Enmund v. Florida, 458 U.S. 782, 788, 798, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). In Enmund, the Supreme Court found the Eighth Amendment violated when defendants with "plainly different" culpability received the same capital sentence. It requires proportionality comparison with others participating in the same crime:

    Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the Kerseys. This was impermissible under the Eighth Amendment.

Id. at 798.

The instant case presents the reverse situation where defendants with plainly similar culpability received different sentences; and, furthermore, the defendant with arguably the lesser culpability received the harsher sentence -- the death penalty. Numerous state courts have applied the Enmund principal to require reasonable symmetry between culpability and the sentencing of codefendants. See, e.g., People v. Kliner, 185 Ill. 2d 81, 705 N.E.2d 850, 897, 235 Ill. Dec. 667 (Ill. 1998)  [*27]  ("[S]imilarly situated codefendants should not be given arbitrarily or unreasonably disparate sentences."); Larzelere v. State, 676 So. 2d 394, 406 (Fla. 1996) ("When a codefendant . . . is equally as culpable or more culpable than the defendant, disparate treatment of the codefendant may render the defendant's punishment disproportionate."); Hall v. State, 241 Ga. 252, 244 S.E.2d 833, 839 (Ga. 1978) ("We find that . . . the death sentence, imposed on Hall for the same crime in which the co-defendant triggerman received a life sentence, is disproportionate."). Similarly, the Federal Death Penalty Act recognizes that a comparison of the sentences received by equally culpable codefendants improves the likelihood that the death penalty will not be imposed in an arbitrary or capricious manner. See 18 U.S.C. § 3592(a)(4) (listing as a mitigating factor the lack of death sentences for equally or more culpable codefendants).

The principle requiring proportionate punishment has deep roots in our cultural and biological heritage. Aristotle observed in his Nicomachean Ethics almost 2,500 years ago that basic notions of  [*28]  justice require treating like cases alike:

    If, then, the unjust is unequal, the just is equal, as all men suppose it to be, even apart from argument . . . . This, then, is what the just is -- the proportional; the unjust is what violates the proportion . . . . [I]t is by proportionate requital that the city holds together.

Aristotle, Ethica Nicomachea, in The Works of Aristotle V.3.1131a-1131b, V.5.1132b (W.D. Ross ed. & trans., 1954); see also Aristotle, The Politics of Aristotle 129 (Ernest Barker ed. & trans., 1946) ("Justice is the political good. It involves equality, or the distribution of equal amounts to equal persons."). n1 Recent studies have reinforced this view. In a recent article, Judge Morris Hoffman and Timothy Goldsmith, a distinguished Yale biologist, make this point:

    [I]t is not surprising that collectively we struggle to balance the form and amount of punishment that is appropriate, a struggle that lies at the heart of what we mean by "justice." . . .
    
    The two faces of justice - to deal firmly with transgressors, but not too harshly - reflect an intrinsic human sense of fairness and are important to the political  [*29]  ideal of equality. When Aristotle commands that like cases be treated alike, he is touching both on the personal notion that none of us wants to be punished more than anyone else (and therefore on our self-interest) and on the social notion that none of us wants to punish others more than they deserve (and therefore on the equilibrium between our inclination to punish and our intuitions about fairness and sympathy). When sentencing guidelines address the tension between sentencing individual defendants and coordinating the sentences of similarly situated defendants, they are touching on this very same duality.

 
Morris B. Hoffman & Timothy H. Goldsmith, The Biological Roots of Punishment, 1 Ohio St. J. Crim. L. 627, 638-39 (2004). Coordination of sentences for the same crime is not simply a rational, legal principal but a deeply-held concept of justice as well.

The dissent argues incorrectly that the Supreme Court's decision in Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984), precludes our consideration of the "comparative proportionality" of sentences in this case. n2 Pulley simply held that the Eighth Amendment does not require a systematic comparative proportionality review of sentences in other unrelated cases. Id. at 50-51. Pulley concerned whether the Eighth Amendment mandates a systematic comparative proportionality review of a particular sentence to the punishment imposed on others for the same general type of crime but in unrelated cases. Our holding neither contradicts this rule nor implicates systematic comparative proportionality review. Cf. People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258, 290, 147 Ill. Dec. 891 (Ill. 1990) ("[I]n reviewing the appropriateness of a death sentence, this court will examine the facts of that particular case and the evidence introduced at the trial and death penalty hearing, and, as a matter of reference, it may consider the sentence imposed on an accomplice or a co-defendant in light of his involvement in the offense."). Instead,  [*31]  we simply adhere to the clearly established principle of Enmund that, in a capital case with respect to the very same crime stemming from the very same facts, the Eighth Amendment does not permit codefendants with plainly similar culpability to receive different sentences -- especially when the defendant with arguably less culpability receives the harshest of all sentences, the death penalty. Following the dissent's view would not only conflict with the clear mandate of Enmund but would allow less culpable participants in the same criminal episode to receive the death penalty when the more culpable participant receives a lesser sentence.

In sum, sentencing Getsy to death, while the arguably more culpable Santine received a life sentence for the very same crime, violates the Eighth Amendment, as construed by the Supreme Court in Furman and Enmund, and its prohibition of arbitrary and disproportionate death sentences.

At the sentencing hearing, the court read aloud its sentencing opinion and imposed the death penalty on Roberts. As the court was doing so, defense counsel noticed that the prosecutor was looking at a document and appeared to be reading along with the trial judge. At the end of the court's reading, defense counsel raised a "vehement" objection to the prosecution's apparent ex parte involvement with the sentencing opinion.

The trial judge conceded that the prosecution had participated in the drafting of the opinion without the knowledge of defense counsel. The trial judge stated that he had given notes to the prosecutor and had instructed the prosecutor, "[T]his is what I want." The court added that the opinion had to be corrected six or seven times. The trial judge apologized to defense counsel for not providing them with a copy of the opinion before the sentencing hearing.

R.C. 2929.03 governs  [*52]  the imposition of sentences for aggravated murder. R.C. 2929.03(F) clearly contemplates that the trial court itself will draft the death-sentence opinion: "The court * * * when it imposes sentence of death, shall state in a separate opinion its specific findings as to the existence of any of the mitigating factors * * *, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors * * *." (Emphasis added.)

Our prior decisions have stressed the crucial role of the trial court's sentencing opinion in evaluating all of the evidence, including mitigation evidence, and in carefully weighing the specified aggravating circumstances against the mitigating evidence in determining the appropriateness of the death penalty. For example, in State v. Green (2000), 90 Ohio St.3d 352, 360, 2000 Ohio 182, 738 N.E.2d 1208, we vacated the death penalty because the trial court's sentencing opinion "was constitutionally deficient." There, the trial court's sentencing opinion "improperly considered  [*53]  nonstatutory aggravating circumstances, and failed to consider relevant mitigating evidence." Id. We concluded that "the collective deficiencies in the trial court's decision to impose the death penalty, as reflected in the sentencing opinion, undermine our confidence in that decision. * * * These cumulative errors reflect grievous violations of the statutory deliberative process." Id. at 363-364, 738 N.E.2d 1208.

Similarly, in State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925, we vacated the death sentence because of grievous errors in the trial court's sentencing opinion. In Davis, we noted, "[T]he General Assembly has set specific standards in the statutory framework it created to guide a sentencing court's discretion 'by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.'" (Emphasis sic.) Id. at 372-373, 528 N.E.2d 925, quoting Proffitt v. Florida (1976), 428 U.S. 242, 258, 96 S.Ct. 2960, 49 L.Ed.2d 913.

In this case, our confidence in the trial  [*54]  court's sentencing opinion is undermined by the fact that the trial judge directly involved the prosecutor in preparing the sentencing opinion and did so on an ex parte basis. The trial judge is charged by statute with the sole responsibility of personally preparing the opinion setting forth the assessment and weight of the evidence, the aggravating circumstances of the murder, and any relevant mitigating factors prior to determining what penalty should be imposed. The fact that the trial judge provided his notes to the prosecutor to guide the prosecutor in drafting the sentencing opinion does not change the result. The various drafts of the opinion that ultimately imposed death on Roberts involved the assistance of the prosecutor.

The trial court's delegation of any degree of responsibility in this sentencing opinion does not comply with R.C. 2929.03(F). Nor does it comport with our firm belief that the consideration and imposition of death are the most solemn of all the duties that are imposed on a judge, as Ohio courts have also recognized. See State v. Vrabel (Mar. 2, 2000), Mahoning App. No. 95 CA 221, 2000 Ohio App. LEXIS 803, 2000 WL 246482, *15  [*55]  ("The role of this Court in reviewing a death penalty case is codified by statute and defined by the Ohio Supreme Court. It is a duty of immense proportions which we undertake with great solemnity"). The judge alone serves as the final arbiter of justice in his courtroom, and he must discharge that austere duty in isolation. The scales of justice may not be weighted even slightly by one with an interest in the ultimate outcome. Given the prosecutor's direct role in the preparation of the sentencing opinion, we cannot conclude that the proper process was followed here.

That conclusion is compelled particularly in light of the trial court's ex parte communications about sentencing with the prosecutor in preparing the sentencing opinion. The Code of Judicial Conduct, Canon 3(B)(7) specifies, "A judge shall not initiate, receive, permit, or consider communications made to the judge outside the presence of the parties or their representatives concerning a pending or impending proceeding * * *" Both the trial judge and the prosecutor should have known that any ex parte assistance in the preparation of the court's sentencing opinion was wholly inconsistent  [*56]  with these vital ethical constraints. See Disciplinary Rule 7-110(B)(2) and (3).

The trial court's consultation with the prosecutor, particularly when undertaken without the knowledge or participation of defense counsel, can neither be ignored nor found to be harmless error. Cf. Gardner v. Florida (1977), 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (defendant "was denied due process of law when the death sentence was imposed, at least in part, on the basis of information [from a presentence report] which he had no opportunity to deny or explain"). We cannot cure the deficiencies in the preparation of the sentencing opinion by our own independent assessment.

The trial court's decision to use the prosecutor in preparing the sentencing opinion constitutes a grievous violation of the statutory deliberative process. It is so severe a violation that independent reweighing cannot serve as an adequate remedy. See State v. Green, 90 Ohio St.3d at 363-364, 738 N.E.2d 1208. We find that we must vacate the sentence because of the critical constitutional interests and notions of justice that are implicated by the prosecutor's  [*57]  participation in drafting the sentencing opinion.

We accordingly sustain Roberts's claim of error in the trial judge's use of the prosecutor to assist directly in the preparation of the sentencing opinion. Accordingly, we vacate the sentence and remand to the trial court for resentencing as set forth expressly below.