January 12, 2010

Supreme Court Decides Smith v. Spisak

On January 12, the Supreme Court decided Smith v. Spisak, No. 08-724.

An Ohio jury convicted Frank G. Spisak, Jr. of three murders and two attempted murders. Spisak subsequently was sentenced to death. The Ohio state courts denied Spisak's challenges to his conviction both on direct appeal and on collateral review.

Spisak then sought a federal writ of habeas corpus, arguing in part that the sentencing phase of his trial violated the U.S. Constitution for two reasons. First, Spisak claimed that the jury instructions given during the penalty phase unconstitutionally required jury unanimity regarding the presence of mitigating factors, contrary to Mills v. Maryland, 486 U.S. 367 (1988). Second, he claimed that his counsel's inadequate closing argument during the penalty phase constituted ineffective assistance of counsel, contrary to Strickland v. Washington, 466 U.S. 668 (1984). The District Court denied his petition.

The U.S. Court of Appeals for the Sixth Circuit, however, accepted those two claims and ordered the District Court to issue a conditional writ of habeas corpus forbidding Spisak's execution. The State of Ohio sought certiorari in the Supreme Court and the Court granted that petition. In 2007, the Court vacated the Sixth Circuit's judgment and remanded the case for further consideration in light of two recent decisions. On remand, the Sixth Circuit reinstated its earlier opinion. The State again sought certiorari and the Court again granted the petition.

The Court reversed the Sixth Circuit and held that the Ohio state courts' decisions rejecting Spisak's claims were not contrary to, or an unreasonable application of, the Mills or Strickland decisions. In doing so, the Court first compared the jury instructions and verdict forms from the penalty phase of Spisak's trial to those at issue in Mills. In Mills, the Court held that the jury instructions and verdict forms violated the Constitution because, read naturally, they directed the jury that it could not find a particular circumstance to be mitigating unless all 12 jurors agreed that the mitigating circumstance had been proven to exist. In Spisak's case, on the other hand, the Court found that the jury instructions and verdict forms did not create such a suggestion, either directly or by implication.

The Court then considered Spisak's argument that his counsel's closing argument during the penalty phase of his trial had been so inadequate as to violate the Sixth Amendment. Without deciding whether counsel's argument had been inadequate, the Court held that there was no reasonable probability that a better closing argument would have made a significant difference or changed the result of the sentencing. Specifically, the sentencing phase immediately followed the guilt phase, so that the jurors had fresh in their minds the government's evidence regarding the killings, including photographs of the dead bodies. Also fresh in the jurors' minds was three defense experts' testimony that Spisak suffered from mental illness, so that it would not have made a significant difference if counsel had repeated that testimony in his closing. Spisak could identify no other mitigating factors that his counsel failed to mention. And counsel made several appeals to the jurors' sense of humanity, so that no more elaborate appeal for mercy would likely have changed the result.

Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsburg, Alito, and Sotomayor joined, and in which Justice Stevens joined in part. Justice Stevens filed an opinion concurring in part and concurring in the judgment.

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