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.