August 26, 2009
Previewing the Coming Term (Part 5): Smith v. Spisak
[This is the fifth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-724
Case: Smith v. Spisak
Oral Argument Date: October 13, 2009
Issue: Whether the Sixth Circuit contravened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) by improperly extending Mills v. Maryland.
Facts and Procedural History: In March 1983, Frank G. Spisak, Jr., respondent, was indicted by an Ohio grand jury on four counts of aggravated murder, three counts of aggravated robbery, one count of attempted murder, and one count of receiving stolen property. Respondent pled not guilty by reason of insanity, and was subsequently determined to be competent to stand trial.
In July 1983, respondent was convicted on all counts and specifications, minus one of the aggravated robbery counts. Following the mitigation phase of the trial, the jury recommended a sentence of death, which was accepted by the trial court. Respondent was sentenced to death in August, 1983, as well as terms of seven to twenty-five years in prison for each attempted murder and aggravated robbery conviction.
Respondent timely appealed to the Ohio Court of Appeals, which found respondent was improperly convicted of two counts of aggravated murder, and vacated one of the two convictions. The court affirmed the conviction and death sentence on the other aggravated murder charges.
Respondent subsequently filed several unsuccessful intervening appeals requesting remand to the Ohio Supreme Court. In November 1986, respondent filed a merits brief with the Ohio Supreme Court, raising sixty-four proposed errors of law. The Ohio Supreme Court affirmed respondent’s convictions and sentence.
Respondent then petitioned the U.S. Supreme Court for a writ of certiorari, which was denied. (Spisak v. Ohio, 489 U.S. 1071 (1989)). In December 1995, respondent filed a Petition for Writ of Habeas Corpus with the Sixth Circuit. Subsequent to that filing, respondent filed a motion with the Sixth Circuit in June 1997 to stay his execution, which was granted. On appeal, the Sixth Circuit reversed and vacated respondent’s death sentence on the grounds that (1) respondent’s trial counsel rendered ineffective assistance, and (2) the jury instructions violated Mills v. Maryland by requiring unanimity in the finding that the aggravating circumstances outweighed the mitigating factors present in respondent’s case.
The state filed a petition for certiorari, arguing the Sixth Circuit’s decision contravened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The U.S. Supreme Court granted cert., vacated the decision below, and remanded the case to the Sixth Circuit for reconsideration in light of two recent Supreme Court cases interpreting the scope of AEDPA, Carey v. Musladin and Schriro v. Landrigan. On remand, the Sixth Circuit held that neither case required reversal and reinstated its original opinion. The state filed a second petition for certiorari, which the Supreme Court granted on February 23, 2009. Oral argument is scheduled for October 13, 2009.
Summary of Petitioner’s Argument: Petitioner argues that respondent, Spisak, is not entitled to habeas relief because (1) the penalty-phase jury instructions did not violate Mills v. Maryland, and (2) trial counsel’s closing argument was not constitutionally ineffective.
First, according to petitioner, the jury instructions in this case were “fully consistent with the Eighth Amendment.” Petitioner contends that the jury was not directed to enter any findings as to particular mitigating factors. Consequently, according to petitioner, the Sixth Circuit “identified no sound basis for invalidating the instructions under Mills.”
Second, petitioner argues that trial counsel’s penalty-phase closing argument was neither deficient nor prejudicial under the two-pronged analysis of Strickland v. Washington. According to petitioner, it was not deficient because counsel reasonably emphasized respondent’s mental defects as a mitigating factor and bolstered his own credibility with the jurors by acknowledging his client’s offensive views. Further, it was not prejudicial because nothing defense counsel said could have affected the minds of jurors who had sat through a lengthy trial and heard respondent’s own “chilling, hate-filled testimony.” Consequently, petitioner requests the Court to reverse the Sixth Circuit’s grant of respondent’s writ.
Summary of Respondent’s Argument: Respondent argues that the Sixth Circuit properly reviewed the merits and underlying state court decision in determining that respondent was entitled to habeas relief on two independent grounds.
First, respondent argues the Sixth Court properly determined that Ohio’s mitigation phase jury instructions violated the Supreme Court’s directives in Mills v. Maryland. The Sixth Circuit properly reviewed the totality of the instructions and verdict forms and concluded there was a reasonable probability that a juror would have been foreclosed from considering and giving effect to the mitigation evidence presented. Consequently, it was proper for the Sixth Circuit to find that permitting one juror to force a death sentence on the remaining jurors is the essence of a Mills error.
Second, respondent argues the Sixth Circuit also properly determined that respondent’s trial counsel was constitutionally ineffective in the closing argument he delivered during the mitigation phase of the case. According to respondent, the Sixth Circuit properly determined that counsel’s improper emphasis of non-statutory aggravating circumstances, his overt attacks on respondent, “his incoherent ramblings on the justice system,” and his failure to argue the mitigating factors present in the case amounted to ineffective assistance of counsel. Consequently, respondent argues the Court should affirm the Sixth Circuit’s granting of the writ.
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