This morning, at the U.S. Supreme Court, my colleague Michael Benza will argue on behalf of the respondent in Smith v. Spisak. He will argue that the U.S. Court of Appeals for the Sixth Circuit correctly granted a writ of habeas corpus to death row inmate Frank Spisak due to constitutionally defective jury instructions and ineffective assistance of counsel. The case raises a thorny AEDPA issue which has gotten most of the attention, but I think the ineffective assistance claim is more interesting. Basically, the case raises the question whether a closing argument can be so defective and counter-productive that it constitutes ineffective assistance of counsel. Quite a few prominent trial advocacty experts think so. If so, Spisak could be that case.
UPDATE: I have a PDF of the closing argument in the mitigation phase but I’m having trouble posting it. Check back to see if I’ve figured it out. Here is a PDF of the full closing from the mitigation phase of the trial.
Meanwhile, here’s an early report on the oral argument.
UPDATE: Here’s the transcript.
Abdul Abulbul Amir says:
Unless you are acquitted, it is obvious that you had ineffective assistance of counsel.
October 13, 2009, 9:38 amHadur says:
How bad was the guy’s closing statement?
October 13, 2009, 9:45 amSuperSkeptic says:
Well, that’s not the Strickland standard. I didn’t read the trial transcript, but it looks like Mike’s gonna need that luck. What could his lawyer have possibly said in closing that, without that, its probable he would have been acquitted???
From the reply brief:
October 13, 2009, 9:48 am“Spisak raised his ineffective assistance claim as one of 64 propisitions in a 497-page merit brief to the Ohio Supreme Court[]…”
PatHMV says:
I’ve seen some really, really bad closing arguments. In one that stands out, the public defender took the complete shotgun approach, tossing up every single possible issue, not really arguing any of them, just hoping something would stick. It was really pathetic.
On the other hand, his client was guilty as sin and the evidence was really clear; he didn’t have much to work with. So while I think that in theory a closing argument could be just that bad, I think it can only be judged in the context of the case that was available. As others note above, I think you have a hard time making the case that, but for the closing argument, the guy would have been acquitted (or spared the death penalty). And how rhetorically gifted must the Court assume the average competent counsel to be? Defendants are not entitled to F. Lee Bailey or Johnny Cochran, just a reasonably competent attorney. If the evidence is so close that a good closing argument could have swung it the other way, isn’t that reason enough to reject the death penalty, or even a guilty verdict entirely?
October 13, 2009, 9:55 amUVA 2L says:
Jurisprudentially speaking, your conclusion assumes that the purpose of “assistance of counsel” is to win. Other purposes are possible, and indeed the Strickland and ineffective assistance of counsel jurisprudence do not understand the purpose of “assistance of counsel” to be “guaranteeing a victory.” Safeguarding procedural fairness, for example, is the primary motivating purpose behind the Strickland standard, and therefore does not logically necessitate your broad conclusion.
October 13, 2009, 9:57 amSuperSkeptic says:
Okay: it’s not the closing at trial, but rather the closing at the penalty phase. Apparently, after losing at trial on insanity (he put the defendant on the stand where he bragged about his shooting massacre on a college campus because he was a nazi and hated blacks, jews, etc.), the lawyer kept up this theme and according to these trial ad experts he “dwelled on the details of the murder too long” and “conceded that the death penalty might be justified” somehow and at some point. His argument basically (and rationally, I think) was that his insanity, while not enough to acquit, was a mitigating factor against the death penalty. Quite reasonable it seems to me.
October 13, 2009, 10:01 amHadur says:
I wonder if anti-death penalty zealots will purposefully make bad arguments if ineffective counsel is grounds for taking somebody off death row.
October 13, 2009, 10:06 amGuest says:
I had a Senior 6th Circuit Judge for Appellate Advocacy in law school and he was of the opinion that this is already the case.
October 13, 2009, 10:17 amUVA 2L says:
As a professor once described to me, there are four (at least formal) divisions using the Strickland two-pronged standard:
1. Counsel’s ‘simple’ negligence (e.g., strategic error) + no prejudice to D = no relief under Strickland
2. Counsel’s ‘gross’ negligence + no prejudice to D = no relief under Strickland, but relief under J. Marshall’s dissenting opinion in Strickland
3. Counsel’s ‘simple’ negligence (e.g., strategic error) + prejudice to D = probably no relief under Strickland.
4. Counsel’s ‘gross’ negligence + prejudice to D = relief under Strickland.
* Note that I’m not using ‘simple’ and ‘gross’ negligence in any sort of technical way, but only to suggest the relative performance errors that are necessary under the Strickland two-prong standard. Also, prejudice can obviously come in degrees, but the four situations give a good approximation of the Strickland standard.
This case would seem to be a situation of (3), which (if I read Strickland correctly) would not merit relief under the Strickland standard. In other cases, the following have not been considered ineffective assistance of counsel:
- Att’y sleeping throughout trial
- Att’y using heroine or cocaine throughout the trial
- In a capital case, an att’y could name no Supreme Court capital case.
That all is stated, of course, as a descriptive matter of Strickland. One could imagine granting relief to defendants for situations comprising (3) (e.g., ‘simple’ negligence + prejudice to D), but that would require some narrowing or elimination of the deference given to attorneys for their strategic choices by the Supreme Court in Strickland and related cases.
Of course, the Supreme Court can always alter / narrow / overrule its past decisions, so I have no idea how this case will come out on the other side.
October 13, 2009, 10:17 amObeliskToucher says:
I could almost live with this if such a finding resulted in an immediate (i.e., not subject to judicial or non-judicial hearings or appeals) disbarment of the counsel for a significant period (say, 5 years) on grounds of incompetence.
October 13, 2009, 10:34 amDave N says:
Hadur: I wonder if anti-death penalty zealots will purposefully make bad arguments if ineffective counsel is grounds for taking somebody off death row.
I believe it happens. It is absolutely no risk. Your client has already been found guilty of first-degree murder. Now all you have to do is be ineffective and you get through your actions (a new penalty hearing, probably years in the future) what you could not get with your argument (keeping your client from being executed).
October 13, 2009, 11:22 amSteve says:
It is absolutely no risk.
Of course there’s a risk, the risk that you would have otherwise been able to persuade the jury not to give your client the death penalty.
If your client is really certain to get the death penalty, something I would contend is unknowable, then getting them another penalty hearing years down the road is of no benefit, since he’ll just get the death penalty again. The notion that you purchased years of delay is illusory since you could have filed all those appeals whether you butchered the closing argument or not.
October 13, 2009, 11:31 amSebastian says:
I saw an astonishingly bad closing argument as a juror in a rape case. There was DNA evidence suggesting sexual contact, so the case was bad. But the 15 year old girl had identified her rapist as Mexican, when the the DNA fingered an Asian man, so there was at least some area for throwing up smoke.
Instead, the lawyer went for a “the fat little girl wanted it” defense in closing argument and without even the slightest hint that it was going that direction in the four days of trial. And it wasn’t even that he was hinting. He pretty much just said, “she was overweight and wanted to feel sexually attractive” without any setting it up in the testimony at all. What a way to alienate every woman on the jury. Part of me wondered if he was some kind of vigilante attorney, trying to get his client convicted.
October 13, 2009, 11:31 amDave N says:
Steve,
If you feel the aggravation is horrendous so that you are relatively certain it will be a death verdict, you aren’t risking much: if there are children who were sexually abused before being murdered, for example, or a police officer shot down in the line of duty simply because the perp hated cops.
If you knew that the sentence is highly likely to be death, make your best argument but don’t do everything–that way your client has an “ace in the hole” for a later claim of IAC.
This is particularly true in the Ninth Circuit, which seems to delight in ignoring the second Strickland prong in the capital sentencing phase–by speculating that ALMOST anything has a reasonably probability of affecting the verdict.
October 13, 2009, 11:40 amRoy Englert says:
The actual closing argument is just stunning. I don’t have a hyperlink for it, but I do have it in the form of a PDF file, which I’d be happy to send to the Volokh Conspiracy to post a link to if anyone’s interested.
October 13, 2009, 11:48 amDave N says:
I, for one, would be very interested in reading it.
October 13, 2009, 11:50 amRealistLiberal says:
I would also be interested in reading it. I’ve seen snippets in the various briefs but I’d be curious to see the full argument to see if it was a tactical decision to gain credibility with the jury or a true bumbling.
October 13, 2009, 12:02 pmRoy Englert says:
I’ve sent a PDF file of the closing argument to Jonathan Adler and hope he’ll be able to post it soon.
[It's too big a file for our WordPress settings, but I should have a version up elsewhere shortly. JHA]
October 13, 2009, 12:04 pmJay says:
Dave N–The problem I have with that suggestion is that, at least in my experience clerking, the trial attorneys in DP cases are not from the ACLU or MegaFirm LLC in New York doing it pro bono and full of wily tricks–they show up later, on habeas. Trial defense counsel tends to be locally appointed via whatever process the state uses (I realize in some states this would include public defenders, who might be a bit more sophisticated, but I doubt the average guy from a three-lawyer firm is planning a grand strategy to get his client freed years down the line.)
October 13, 2009, 12:13 pmIt would also be a bit more convincing if proponents of this idea could point to a case where there’s any evidence it actually happened, rather than darkly muttering about what just must be true.
Dave N says:
Jay,
The problem is that you want proof of a negative. It would require some attorney to actually confess that he or she did, in fact, engage in those tactics.
At least in my jurisdiction, public defenders handle 90% of all death penalty cases and the remaining 10% are court-appointed. In my experience the appointing judge wants to make sure that the appointed counsel knows what he or she is doing.
October 13, 2009, 12:20 pmCory J says:
I don’t think the closing argument is wholly reproduced within, but the 6th Circuit opinion has a good bit of it. Scroll down to page 16.
October 13, 2009, 12:59 pmDudeman says:
When there is nothing to like about your client, get the jury to like you. If the jury likes the defense attorney, there is always the chance that the client will get (by proxy) some sympathy. At times, this is the best you got.
October 13, 2009, 1:01 pmEvery criminal defendant (in their mind) receives ineffective assistance. The most resounding thanks I received was “You did better than I thought.” This was following acquittal and the Judge admonishing the defendant to be more careful in the future (apparently only the jurors thought the State had failed to meet its burden.)
Absurd says:
It is absurd to suggest that a defense attorney would purposefully be ineffective at the penalty phase in the hopes he would win a new sentencing years later. The chances of winning a new sentencing hearing is not good. Your chance of convincing a jury that your client should not receive the death penalty is much better. Indeed, most sophisticated defense attorneys believe the chances of convincing a jury not to sentence your client to death is quite good — even in a really bad case — if you prepare a really good mitigation defense. (Most of the worst killers are the way the are because they had some pretty horrible experiences growing up. There are, obviously, exceptions.)
Perhaps it’s happened in a case here or there. It’s an irrational strategy, but perhaps it has happened nonetheless. I guess we can’t ever know for sure. But to say it happens a lot or is part of some broad strategy is simply preposterous.
October 13, 2009, 1:34 pmSteve says:
If you knew that the sentence is highly likely to be death, make your best argument but don’t do everything–that way your client has an “ace in the hole” for a later claim of IAC.
And then what? Maybe, if you hit the jackpot, your client gets a new sentencing hearing. Guess what, he’s still a cop killer, and he’s still getting the death penalty. The strategy has no upside.
October 13, 2009, 1:49 pmDave N says:
Absurd,
You obviously do not practice in the rarified confines of the Ninth Circuit Court of Appeals — particularly since, as I noted previously, that Court seems to believe that the most minute possibility in a sentence other than death satisfies the second Strickland prong.
My suggestion is that this strategy is not an “all or nothing.” Rather, I believe it is more sophisticated than that. Try hard but don’t use everything. Hold back something for later use, which is easy since mitigation can be just about anything.
October 13, 2009, 1:49 pmDave N says:
Steve,
It has the definite upside of delay. A second penalty hearing will have to be reviewed by the state and federal courts just like the first penalty hearing was.
October 13, 2009, 1:51 pmPatHMV says:
Steve, you obviously haven’t talked much with any anti-death penalty advocates. There strategy is to buy their guy every extra day they can, no matter what. Every day he’s alive is a day he’s not dead, and brings them one day closer (in their dreams) to the day that the country abolishes the death penalty. When the Supreme Court temporarily abolished the death penalty back in the 70s with Furman v. Georgia, there were a lot of people on death row whose sentences were suddenly commuted to life imprisonment. Delaying a defendant’s execution for just 3 years, from 1970 to 1972, would have gotten him a life sentence instead of death. The strategy has a great deal of upside.
October 13, 2009, 2:07 pmSuperSkeptic says:
Having read the penalty-phase closing now, I stand by what I said before. He must have called him a “sick and demented mind” 15 times – but then said that was the reason to NOT kill him, arguing that our (the jury’s) humaness (not being crazy as him) is a reason to have “pride” (his choice of wording) in doing the right thing and rising above his crazy need to kill by not killing him. “We’re different” than the defendant, he argued, citing Judeo-Christian philosophy. He also repeatedly told them “you will always be a spisak juror” to plant it in their minds that they’d have to live with giving someone the death penalty their entire lives. Perfectly reasonable. He did not take a dive.
October 13, 2009, 2:19 pmAnderson says:
His argument basically (and rationally, I think) was that his insanity, while not enough to acquit, was a mitigating factor against the death penalty.
According to the amicus brief, the lawyer expressly told the jury that his client was not deserving of mitigation.
Wowzers.
I don’t see how the “but he’s guilty as sin” argument renders harmless a totally terrible *sentencing*-phase closing argument.
OTOH, the SCOTUS is unlikely to make “shitty lawyering” a ground for reversal in & of itself.
October 13, 2009, 2:21 pmSteve says:
Steve, you obviously haven’t talked much with any anti-death penalty advocates. There strategy is to buy their guy every extra day they can, no matter what.
Seriously, death penalty opponents have a strategy of delaying executions? I had no idea!
Mind you, I already addressed this argument above by explaining that the defendant gets years of appeals regardless of whether he tries this ploy or not, so it doesn’t actually buy him any additional delay. Sure, there’s the minute possibility that this ploy may prove to be the magic issue that gets you a new sentencing hearing, but there’s likewise a minute possibility that even the least sympathetic defendant might have escaped the death penalty if you hadn’t thrown the first sentencing hearing. So it’s incorrect to suggest that this strategy gives the defendant a free shot.
October 13, 2009, 2:38 pmDave N says:
Having read the transcript, I agree with SuperSkeptic. Prior to reading it, I was under the impression that the defense attorney made no real argument at all.
October 13, 2009, 2:42 pmPatHMV says:
Steve, you just don’t seem to have much actual knowledge of what you’re talking about. Despite all the efforts to reduce the opportunities to delay (such as the AEDPA of 1996), every error still provides extra opportunities to challenge cases, and to delay executions further.
If the Court’s opinion in this case even acknowledges the possibility that some closing argument could constitute ineffective assistance of counsel, then every single person on death row will suddenly be filing new claims that their defense counsel’s closing argument was so bad as to constitute ineffective assistance. It won’t matter how frivolous the claim may be, it will be made. Once made, courts will have to hear it, to give it some consideration and rule on it one way or the other. That takes time. Not days, generally, but months or more. And the execution is stayed during those months. Even if the inmate has exhausted all of his appellate and habeas rights under the AEDPA, this will be alleged to be a new rule of law, akin to newly discovered evidence, and so he will have a new right to have his claim considered.
It matters not if the chance has a 0.01% chance even of getting a new sentencing hearing. It has a 100% chance of getting a new delay while the claim is considered.
October 13, 2009, 2:55 pmTerrivus says:
The case raises a thorny AEDPA issue which has gotten most of the attention, but I think the ineffective assistance claim is more interesting.
Um, yeah, except the ineffective assistance claim is also on AEDPA review. So what most of the commenters here are missing is that whether the closing argument in the penalty phase was constitutionally ineffective isn’t the issue; it’s whether the state court decisions holding otherwise were an unreasonable application of law. The Court has already said it applies a “doubly deferential” standard to IAC arguments on AEDPA review. I don’t see this making much headway at all.
October 13, 2009, 3:11 pmSteve says:
It matters not if the chance has a 0.01% chance even of getting a new sentencing hearing. It has a 100% chance of getting a new delay while the claim is considered.
Yes, as to people who have already been sentenced. Going forward, it’s merely one more argument to add to that 497-page appeal brief. The argument was that an attorney utilizing this strategy can win an additional risk-free delay for his client, not that he might win a new delay for a whole bunch of people who are already on death row.
It boggles the imagination to suggest that the public defenders who most often try these death penalty cases are all sitting around thinking, “Okay, if I intentionally botch the argument at the penalty phase, maybe some habeas lawyer will be able to take the case all the way up to the Supreme Court and win a ruling that a bad closing argument represents ineffective assistance of counsel, and then a bunch of people that I don’t represent can get their execution delayed! Hey, it’s risk-free, other than the fact that I’m botching my client’s argument and guaranteeing that they’ll get the death penalty, so why shouldn’t I try it?”
…of course, even if that unlikely scenario came to pass, the Supreme Court would be announcing a new rule that wouldn’t be available retroactively to habeas petitioners on death row. Oh, but wait, I forgot that I don’t have much actual knowledge of what I’m talking about!
October 13, 2009, 3:24 pmCareless says:
Looking at the PDF, his words filled 50 pages of 25 line paper at about 45 characters per line, probably well over 7,000 words. The state’s was a bit over half that much.
So I ask: are 45 minute closing arguments in cases like this normal or at least not outrageous?
October 13, 2009, 3:40 pmDavid Nieporent says:
Having read the oral argument transcript, Mike’s going to need every bit of that luck.
October 13, 2009, 5:29 pmShelby says:
Careless,
I don’t know. But I suspect that in death penalty cases they aren’t that unusual.
October 13, 2009, 5:33 pmNunzio says:
I agree with David Nieporent.
Here’s Justice Scalia to Mike:
“You said you’ve — you’ve conducted many capital cases. Have you ever conducted a capital case in which the defendant takes the stand with a Hitler moustache and says he’s glad for what he’s done and he will do it again?”
October 13, 2009, 5:51 pmSoronel Haetir says:
You seem to be overlooking the instructions issue. That would seem to have a better (though still not good IMO) chance of being a winner. Questioning a closing where the attorney did in fact have a strategy would open so many cans of worms. Almost better to do away with closings than to allow the lawyer that kind of freedom to throw a case.
October 13, 2009, 6:53 pmSuperSkeptic says:
From the early report on the oral argument:
It’s the second time the case has come before the high court. The justices reinstated Spisak’s death sentence two years ago in a 6-3 decision that scolded federal appeals courts for second-guessing trial judges in murder cases.
This time they’ll scold the federal appeals court for second-guessing the trial lawyer.
I wonder who will dissent…
October 13, 2009, 7:14 pmTerrivus says:
You seem to be overlooking the instructions issue. That would seem to have a better (though still not good IMO) chance of being a winner.
You’re kidding, right? The instruction issue (Mills) is without a doubt the clear loser of the two. Mills wasn’t even decided when the state court rendered its final decision. And it’s not even close to applicable to the facts of this case. Under AEDPA, it’s not even close. At least the ineffective assistance claim derives from Strickland, which gives it some basis for survival on AEDPA review.
October 14, 2009, 9:52 amSPO says:
Yarborough v. Gentry seems to settle the closing argument issue pretty well.
October 14, 2009, 11:54 amliamascorcaigh says:
Seems to me the only thing Spisak’s attorney did not do was hand out DIY catalogues to the jurors so they could pick out the color they’d like the death chamber to be painted in. He looks like he was doing a Pontius Pilate on his client in order not to alienate the local legal establishment. A deplorable display of ethical imbecility.
October 14, 2009, 4:07 pmDavid Nieporent says:
Liamascorcaigh: so, answer the challenge posed by the Supreme Court: what exactly was he supposed to do, given that he had a Hitler-loving client who told the jury he was unrepentant?
October 14, 2009, 11:48 pmNickM says:
Unrepentant is an understatement here. He stated on the stand his intent to kill again in prison.
Nick
October 15, 2009, 3:59 pmJS says:
Has anyone considered the fact that this attorney may have been arguing the case the way his client wanted? For all we know,the defendant was fully advised and informed about the possible trial stategies and chose to pursue this route. I see defense attorneys making arguments I know that don’t beleive is in the client’s best interest all the time.
October 16, 2009, 4:13 pmThe Volokh Conspiracy » Blog Archive » Court Reverses in Smith v. Spisak says:
[...] previously blogged on the Spisak case here. Categories: Criminal Procedure, Habeas, Sixth Circuit, Supreme [...]
January 12, 2010, 10:58 am