The Supreme Court released one opinion today — and it was not the eagerly anticipated Citizens United. The Court released another habeas decision instead. In Smith v. Spisak, a unanimous Court reversed the U.S. Court of Appeals for the Sixth Circuit’s grant of death-row inmate Frank Spisak’s habeas petition. Justice Breyer wrote the opinion, and Justice Stevens wrote an opinion concurring in part and concurring in the judgment.
All nine justices agreed that even if Spisak’s trial counsel had been ineffective at the penalty phase, there was no reasonable probability that he was prejudiced by this fact. The Court also held that the trial court’s mitigation jury instructions did not violate clearly established Federal law. Justice Stevens disagreed on this latter point, but nonetheless concluded Spisak was not entitled to relief because his conduct had so “alienated and ostracized the jury, and his crimes were monstrous” that there was no reasonable probability of a different outcome.
This is the second reversal of a Sixth Circuit decision granting a habeas petition this term. (The first was Bobby v. Van Hook.) Three more Sixth Circuit habeas cases remain, Renico v. Lett, Berghuis v. Thompkins, and Berghuis v. Smith. Of note, all five cases involve the review of pro-defendant appellate decisions.
I previously blogged on the Spisak case here.
[NOTE: As initially posted, I inadvertantly omitted one of the cases.]
tbaugh says:
Also Berghuis v. Smith, to be argued, I believe, next Wednesday.
[Yep. One more. Will add. Thx. JHA]
January 12, 2010, 11:15 amCOA Watchers says:
And the COA 6 judges who got summarily reversed here? Martin, Moore and Clay. Shocker, I know.
January 12, 2010, 11:29 amzuch says:
Do we need another category, “Sixth Circuit Smackdown (Again)”?
Cheers,
January 12, 2010, 11:42 amStarman says:
perhaps they are reading the papers upside-down on the other side of the desk and think they are from the Ninth
January 12, 2010, 11:57 amJonathan H. Adler says:
COA Watchers –
You may be interested to know that Moore and Clay were in the majority for two of the other cases as well (Berghuis v. Thompkins and Berghuis v. Smith).
JHA
January 12, 2010, 12:07 pmCOA Watchers says:
Jonathan H. Adler — I am well ware of that. Indeed, when I see a death penalty case with any two of Merritt, Martin, Moore, and Clay granting a habeas petition in a capital case based on “ineffective assistance of counsel,” the first question that comes to mind is “will the COA 6 reverse this en banc, or will they leave that to the Supreme Court?”
January 12, 2010, 12:12 pmDavid M. Nieporent says:
This decision must come as a shock to pretty much nobody; after the oral argument, it was hard to imagine that the Court was going to do anything else. Possibly the least sympathetic defendant ever.
January 12, 2010, 12:31 pmMartinned says:
Shouldn’t at least the highest court in the land pretend that that doesn’t matter?
January 12, 2010, 1:41 pmdearieme says:
“ostracized the jury” sounds like a crime against language to me.
January 12, 2010, 1:42 pmSoronel Haetir says:
Except such considerations are in fact part of the death calculus under modern 8th amendment jurisprudence. Would you have the court ignore the very framework it has set up over the years without actually overruling that framework?
What I find interesting here is that they issued a full opinion. They’ve been relatively happy with PC reversals this term and this case seems like it could have easily continued the trend.
And this is only the second modern DP case I can recall where a full opinion issued and the justices were unanimous on the pro death side. The other was a court martial case examining whether POTUS could issue regulations narrowing the categories of offenses that are death eligible. The liberal wing said POTUS could, the conservative wing said that rule doesn’t even matter in a court martial context.
January 12, 2010, 1:59 pmMartinned says:
No, but then the job that the Supreme Court was called upon to do here wasn’t to carry out the “death calculus”, but to look at whether the calculus shouldn’t be done under different rules. Ideally they should approach that problem from a more dispassionate perspective.
BTW, is it just me or did Scalia use his concurrence to once again advocate locking up (or executing) innocent people?
January 12, 2010, 2:04 pmVasco says:
What concurrence?
January 12, 2010, 2:19 pmMartinned says:
Oops, that was yesterday’s McDaniel v Brown, and the concurrence was by Justice Thomas, with Scalia concurring.
January 12, 2010, 2:20 pmdcperson says:
when death sentences are given so incredibly rarely…it seems strange to think that someone who meets the first prong of Strickland won’t meet the second. It just seems that the impact of a lawyer is much higher when the penalty is much less likely to be imposed.
I guess this was the case…but I wonder how frequently that would happen.
January 12, 2010, 2:28 pmtbaugh says:
And to add one more possibility to the hopper, Metrish v Newman, 08-1401, another 6th circuit habeas grant of relief to the petitioner, was on the conference for October 9, then nothing until yesterday, when it was listed for this Friday. Could be they were waiting till they released the McDaniel decision, as the case involves a sufficiency question, and maybe the Court will PC reverse, or vacate and remand to consider in light of McDaniel.
Panel was Aldrich, a district judge, and Moore again, with Sutton dissenting.
January 12, 2010, 2:44 pmSuperSkeptic says:
“All nine justices agreed that even if Spisak’s trial counsel had been ineffective at the penalty phase, there was no reasonable probability that he was prejudiced by this fact. The Court also held that the trial court’s mitigation jury instructions did not violate clearly established Federal law. Justice Stevens disagreed on this latter point, but [...]” (emphasis added.)
Recall that the topic of the previous post was the interesting issue of “whether a closing argument can be so defective and counter-productive that it constitutes ineffective assistance of counsel (at the penalty phase for death or not). Many of us argued that it was not, but it would have been an interesting call for them to make. The (almost) unanimity may have sprung from this particularly terrible defendant and the avoidance of settling that issue.
January 12, 2010, 2:45 pmspo says:
clay also wrote the 6th circuit’s decision in Bobby v. Bies–the reception at SCOTUS was less than warm . . . .
is it too uncharitable to refer to him as another “Clinton moderate”?
January 12, 2010, 2:46 pmspo says:
i’d bet metrish is getting a GVR in light of Mcdaniel
January 12, 2010, 2:47 pmDavid M. Nieporent says:
On the Mills issue, yes, but they did look at it dispassionately. On the Strickland issue, it was relevant. Which is why all nine judges said, “This defendant was so hopeless that nothing his counsel did could have possibly prejudiced his case.”
The only person I felt sorry for was his appellate counsel, who had to make patently silly arguments that the trial counsel should have stressed that the defendant was doing well in prison.
January 12, 2010, 2:55 pmChris Travers says:
I agree with the court. On the other hand, those closing arguments by Spisak’s lawyers were really pretty horrible. If there was ever a case for serious malpractice suits, that seems to be it.
The defence lawyer basically almost asked the jury to give the guy the death penalty. That seems rather inexcusable to me and while I agree with the court in this case, I think the defence lawyer really needs to be held accountable.
January 12, 2010, 3:04 pmMartinned says:
True.
January 12, 2010, 3:07 pmMartinned says:
I’m not sure that I agree. While he wasn’t crazy enough to be aquitted, I can see why his attorney would look for a way to work it in as a mitigating factor. Unfortunately, doing so means walking a fine line between talking about the defendant’s crazy and scaring the jury too much.
January 12, 2010, 3:09 pmChris Travers says:
But the part of the arguments that Stevens quotes basically doesn’t argue that the guy is crazy. They argue that the defendant is evil and without redeeming value. The arguments would have been inappropriate if they had been made by a prosecutor, let alone a defence attorney.
IMO when a defence attorney makes statements which are SO opposed to the interest of the defendant that they would be over the line for a prosecutor, that is clear malpractice.
January 12, 2010, 3:18 pmSuperSkeptic says:
I have to disagree. What the defense lawyer did was say ‘this guy is so crazy, you cannot give him the death penalty.’ Not too unrealistic (or shabby) under the circumstances.
January 12, 2010, 3:24 pmSuperSkeptic says:
But you miss his argument, which was designed to appeal to the humanity and mercy of the good jurors in overcoming evil without doing evil likewise. He lost, but it shouldn’t be malpractice to try to win.
January 12, 2010, 3:28 pmSuperSkeptic says:
Oh, and you are looking at quotes Stevens cherry-picks. Reading his whole argument changes the context, of course.
January 12, 2010, 3:35 pmBob from Ohio says:
Convicted in 1983. 27 years.
A travesty.
Another travesty is left wing judges in the 9th and 6th circuitss who have forgotten their oath of office in their zeal to impose their personal views.
January 12, 2010, 3:39 pmspo says:
It really is amazing how far Strickland and its progeny have gotten from the text of the Sixth Amendment. Ok, fine, when counsel is so bad there’s effectively no counsel, then toss, but that’s not even remotely close to what happened here. The guy made an argument that was basically “This guy’s so messed up and sick that killing him is simply not justice.” That’s not “no counsel”, and that should be the standard–particularly in a penalty phase argument. Whatever one thinks of the death penalty, the penalty phase is less important than guilt/innocence.
January 12, 2010, 3:42 pmMartinned says:
I’m not sure that someone like mr. Spisak would agree. His guilt was pretty much a done deal. The real question was whether he would get the needle.
January 12, 2010, 4:28 pmArthurKirkland says:
I eagerly await the category “Fourth Circuit Smackdown — This Is Getting Ridiculous” coming into vogue in six or seven, followed by the “Is There Any Point To Calling This The Roberts Court Anymore?” thread.
January 12, 2010, 5:05 pmChris Travers says:
that wasn’t the way I read it, and Stevens pointed out that the defence atty never asked for leniency on the basis of any of this and simply left it as “whatever you do we will be proud of you.”
Can you point me to a complete transcript of the closing arguments?
January 12, 2010, 5:40 pmPintler says:
I’m not sure why the preferences of people guilty of brutal murders should be considered important. Presumably, they would prefer to be released, and compensated for the inconvenience of being forced to stand trial, and thus considering their opinion doesn’t seem useful. Whatever results you want from the justice system – deterrence, punishment, or prevention of future crimes – you aren’t going to further those aims by catering to the wishes of the guilty.
There are lots of good arguments against capital punishment, but that it is applied against factually guilty people who would prefer otherwise isn’t one of them.
January 12, 2010, 5:57 pmspo says:
My point, of course, re: guilt/innocence is that the decision to turn a free citizen into a convict is more weighty than the decision to execute or spare a capital murderer.
January 12, 2010, 6:02 pmMalvolio says:
Yeah, pretty much. I really think that when a death sentence is less likely to lead to actual death than, say, the ‘flu, something is very very wrong.
Mmmm, dunno about that. One commentator described him:
If he hadn’t actually managed to kill anyone, he would be hilarious.
Spisak was originally arrested for shooting a pistol out his apartment window. The cops came, arrested him, confiscated the gun, and cut him loose. Later, an anonymous call suggested to the not-excessively-swift Cleveland police that they compare ballistics on that gun to bullets recovered in a series of killings.
The question I have is, as Spisak had no accomplices or, I’m guessing, friends, who made the call? The only answer is, Spisak himself. He wanted to get caught and when simply discharging a firearm at random didn’t do it, he resorted to give the cops broad hints. How pathetic is that?
January 12, 2010, 6:02 pmMartinned says:
@Pintler: The point was that – particularly in capital cases – the attorney’s performance during the penalty stage is at least as important as his performance during the guilt stage, when it comes to judging whether the assistance of counsel was “ineffective”. In this case, though, it seems pretty clear that counsel did ok.
January 12, 2010, 6:04 pmSoronel Haetir says:
Except (as I read it anyway) the attorney was attempting to argue that it was actually derangement not cold evil. He failed. Sometimes an attorney just doesn’t have anything to offer, this is one of those cases.
January 12, 2010, 6:15 pmSuperSkeptic says:
Chris Travers,
Here is a link to the full closing pdf from Professor Adler’s previous post on the topic.
http://law.case.edu/faculty/adler_jonathan/SPISAK_-_CLOSING_ARGMT_-_MITIGATION.pdf
January 12, 2010, 6:23 pmMartinned says:
…which brings us back to the great philosophical questions of our time: What exactly is the difference between derangement and cold evil?
January 12, 2010, 6:26 pmChris Travers says:
After reading it I am speechless…. I can’t figure out what the defendant’s lawyer’s main point was at all. He wanders between
* The defendant is a truly evil person beyond rehabilitation. The only mitigating factor is that we pride ourselves as being a humane society and therefore you might want to think twice before condemning him to death, and
January 12, 2010, 7:45 pm* Insanity is not an exact science. This guy is clearly crazy by some definition even if it isn’t the currently accepted medical definition of our day, and
* I hope I didn’t offend any of you during the trial. If I did, please put that aside during your deliberations.
NickM says:
When the client has expressed pride in his murders on the stand and says he intends to kill again (even specifically naming an intended victim), there isn’t much left for the attorney to argue.
I thought from the transcript that it was a reasonable attempt to play to jurors’ potential feelings.
Nick
January 12, 2010, 9:05 pmreadery says:
Spisak’s lawyer may have provided a defense so equivocal in its possible ineffectiveness as to keep courts arguing, and his client out of the death chamber, more than two decades after his conviction. His client’s case went to the Supreme Cout twice on the question of whether his arguments were defective, each time buying a very disagreeable multiple murderer against whom there was overwhelming evidence precious years a life.
A more brilliant, a more masterful a more — I will say it — effective assistance of counsel could scarcely be imagined. Spisak owes his counsel an enormous debt for the service he rendered him, staving off death for an unambiguously guilty and capital-punishment-worthy client for more than two decades by plowing brilliantly fertile ground and sowing highly effective seeds for years of appelate argument and years of appelate decisions and reversals.
January 12, 2010, 9:45 pmMartinned says:
@readery: All the more reason to make sure public defenders are well funded.
January 12, 2010, 11:20 pmDavid Nieporent says:
So, in fact, you did figure out his main points. Mission accomplished.
And that’s pretty good, considering he had absolutely nothing to work with. The guy was sane (legally) and yet proud of killing and eager to do it again. And a big fan of Hitler.
January 13, 2010, 4:03 amGuy says:
Without commenting on this particular case, would you find the basis for this form of ineffective assistance of counsel more persuasive if it was based on equal protection + right to an attorney rather than right to an attorney + due process? I can see a good argument there. Given that life and or liberty (in liberty’s core sense of not being in prison) are at stake, I think a fairly strict standard of scrutiny is called for in cases of unequal treatment (by providing lawyers of varying quality) by the state. In fact, so far as “ineffectiveness” is guided by customary standards in the legal community, it might be that an easier case could be made under the Equal Protection Clause than the Due Process Clause.
January 13, 2010, 8:44 amFredrik Nyman says:
“In 1983, an Ohio jury convicted Spisak of three murders
and two attempted murders at Cleveland State University
in 1982″.
And *TWENTY-SEVEN* years later, Spisak is still alive and kicking. WTF?
January 13, 2010, 11:26 amThe Volokh Conspiracy » Blog Archive » Sixth Circuit 0–3 in Habeas Cases This Term says:
[...] Two more Sixth Circuit habeas cases remain, Renico v. Lett and Berghuis v. Thompkins. As I noted here, in all five cases, the Sixth Circuit granted the habeas petition. Will the Supreme Court reverse [...]
March 30, 2010, 10:41 am