Whether the Sixth Circuit applied the proper standards for determining whether a convicted murderer was unfairly affected by jury instructions and his own counsel’s statements during sentencing, when counsel repeatedly referred to the terrible nature of his own client’s acts in closing arguments at the penalty phase of the trial.
Respondent, Frank Spisak (“Spisak”), was convicted on four counts of aggravated murder and four other felony counts for engaging in a shooting spree on and around Cleveland State University in 1982. The jury recommended, and the judge accepted, a death sentence. After the Ohio state courts denied Spisak’s appeals, the United States Court of Appeals for the Sixth Circuit ordered a new penalty phase of the trial. The Circuit Court held that defense counsel’s deficient performance during the trial’s sentencing phase functionally denied Spisak his Sixth Amendment right to effective legal representation. The Sixth Circuit held further that the jury instructions regarding sentencing violated the Eighth Amendment, because the jury may have misunderstood them to require a unanimous rejection of the death penalty before considering a life sentence. On its second time before the United States Supreme Court, Ohio argues that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires the federal courts to defer to the Ohio Supreme Court's decision to deny Spisak’s Sixth and Eighth Amendment claims.
Questions as Framed for the Court by the Parties
- Did the Sixth Circuit contravene the directives of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") and Carey v. Musladin, 127 S. Ct. 649 (2006), when it applied Mills v. Maryland, 486 U.S. 367 (1988), to resolve in a habeas petitioner's favor questions that were not decided or addressed in Mills?
- Did the Sixth Circuit exceed its authority under AEDPA when it applied United States v. Cronic, 466 U.S. 648 (1984), to presume that a habeas petitioner suffered prejudice from several allegedly deficient statements made by his trial counsel during closing argument instead of deferring to the Ohio Supreme Court's reasonable rejection of the claim under Strickland v. Washington, 466 U.S. 668 (1984)?
In 1983, Frank Spisak (“Spisak”) was convicted of murdering a minister and three students in a racially and homophobically motivated shooting spree at Cleveland State University and was sentenced to death. See Spisak v. Mitchell, 465 F.3d 684, 688 (6th Cir. 2006). In 1984, the Ohio Court of Appeals for the Eighth District affirmed the three aggravated murder convictions and death sentence, which were subsequently upheld by the Ohio Supreme Court in 1988. See Id. Spisak appealed his convictions to the U.S. Supreme Court, but, in 1989, the Court denied his petition for certiorari. See Id. at 688-89 (citing Spisak v. Ohio, 489 U.S. 1071 (1989)).
Thereafter, Spisak brought a federal habeas corpus petition, which a federal district court denied. See Spisak v. Mitchell, 465 F.3d at 689. On appeal, the United States Court of Appeals for the Sixth Circuit granted the writ of habeas corpus on two grounds: (1) ineffectiveness of counsel during the mitigation phase of the trial and (2) improper jury instructions. See Id. at 687-88. Granting the writ afforded Spisak a new mitigation phase of his trial. See Id. at 688.
The Sixth Circuit noted that Spisak’s defense counsel “repeatedly stress[ed] the brutality of the crimes and demean[ed the] Defendant” during closing arguments of the sentencing phase. Spisak v. Mitchell, 465 F.3d at 704. Indeed,at trial, defense counsel spoke of the depravity of his own client, saying: “He is sick, he is twisted. He is demented, and he is never going to be any different.” Id. at 705. The Sixth Circuit found that defense counsel was “rambling incoherently” in a way that “abandoned the duty of loyalty owed to Defendant,” leaving Spisak “effectively deprived of assistance of counsel.” Id. at 705–06.
On appeal, Spisak also argued that the District Court erred by not instructing on an insanity defense. See Spisak v. Mitchell, 465 F.3d at 707. The Sixth Circuit denied that count, finding that Spisak’s counsel did not present enough evidence for insanity to be an issue for the jury. See Id..
However, the Sixth Circuit agreed with Spisak that the trial court’s jury instructions were improper, because a reasonable juror could believe that “the only way to get a life verdict is if the jury unanimously finds that the aggravating circumstances do not outweigh the mitigating circumstances.” Spisak v. Mitchell, 465 F.3d at 710. These improper “acquittal-first” instructions contrast with the proper standard, which allows jurors to consider mitigating factors and a life sentence without first unanimously rejecting the death penalty. Id.at 708-09. Although, under Mills v. Maryland, a trial court's sentencing phase instructions may require unanimity as to the results of weighing aggravating circumstances and mitigating factors, “the instructions cannot require unanimity as to the presence of a single mitigating factor.” Id. at 708 (citing Mills, 486 U.S. 367, 378 (1988)).
After granting certiorari, the Supreme Court vacated the Sixth Circuit’s judgment and remanded the case to the Sixth Circuit for review in consideration of two recently decided cases, Carey v. Musladin and Schriro v. Landrigan. See Spisak v. Hudson, 512 F.3d 852, 853 (6th Cir. 2008). In Musladin, the Court denied a habeas petition where the petitioner claimed prejudice from trial spectators wearing buttons with a picture of a murder victim. See Musladin, 549 U.S. 70, 72 (2006). In Landrigan, the Court denied habeas relief where defense counsel did not present mitigating evidence at sentencing, indicating that the mitigating evidence was “weak” by comparison to the aggravating evidence and would have been duplicative of evidence that the petitioner had requested counsel not to introduce at trial. See Spisak v. Hudson, 512 F.3d at 855 (citing Landrigan, 550 U.S. 465, 468–69 (2007)).
On remand, the Sixth Circuit found that the two recently decided cases were factually distinguishable from this case and that Spisak remained entitled to habeas relief. See Spisak v. Hudson, 512 F.3d at 853. The Sixth Circuit noted that Musladin dealt with spectator behavior, not inappropriate assistance of counsel, and that the performance of counsel in this case was far more egregious than in Landrigan, where counsel chose not to introduce mitigating evidence—rather than highlight the aggravating evidence, as was done in this case. See Id. at 854-855. The Sixth Circuit maintained that the situation in this case was sufficiently egregious and prejudicial to “overcome the high bar for habeas relief established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). On February 23, 2009, the Supreme Court again granted certiorari to determine whether the Sixth Circuit misinterpreted the scope of AEDPA and Musladin, and whether the Sixth Circuit exceeded its authority under AEDPA by presuming Spisak suffered from his counsel’s deficient statement, rather than deferring to the Ohio Supreme Court’s previous ruling.
The United States Court of Appeals for the Sixth Circuit granted Respondent Frank Spisak’s petition for habeas corpus relief on two grounds. See Spisak v. Mitchell, 465 F.3d 684, 687 (6th Cir. 2006), reinstated on remand by Spisak v. Hudson, 512 F.3d 852, 852 (6th Cir. 2008). First, the court held that the jury instructions during sentencing violated the Eighth Amendment under Mills v. Maryland. See Id. at 710-711; see also Mills v. Maryland, 486 U.S. 367 (1988). Second, the court held that Spisak’s attorney failed to provide the effective assistance of counsel guaranteed by the Sixth Amendment. See Id. at 708. Petitioner Keith Smith, Warden for the State of Ohio (“Ohio”), contests both rulings by the Sixth Circuit.
Were the sentencing phase jury instructions unconstitutional?
Spisak argues that the jury instructions during the sentencing phase of his trial were impermissible “acquittal-first” instructions. See Brief for Respondent, Frank Spisak at 20–23. Acquittal-first instructions direct the jury that they must unanimously reject a death sentence before considering a life sentence. See id. at 22-24. Spisak argues that the way the jury instructions were delivered at trial could have been understood by a reasonable juror to require that the jury unanimously agree on the existence of a mitigating factor before the factor was considered as mitigating evidence that could bode in favor of a life sentence. See Id. at 25. According to Spisak, these type of instructions are unconstitutional under the U.S. Supreme Court’s interpretation of the Eighth Amendment in Mills because the instructions “command that the jury unanimously reject the death penalty before considering a life sentence.” See Id. at 21, n.1.
Ohio argues that the jury instructions were not acquittal-first instructions, and even if they were, they are still permissible under Mills and the Eighth Amendment protections afforded to those charged with the death penalty. See Brief for Petitioner, Keith Smith, Warden at 26, 27-28. According to Ohio, the jury instructions were silent on the issue of unanimity about mitigating circumstances, and therefore, a reasonable jury would not interpret silence to require unanimity. See Id. at 23. Ohio argues that the instructions in Spisak’s case did not violate the Eighth Amendment, which Mills only held to require that jurors be allowed “to consider and give effect to all relevant mitigating evidence.” See Id. at 17 (citing Mills, 486 U.S. at 374-75). Ohio argues that, unlike Mills, the instructions here allowed for consideration of mitigating evidence—the jury was not told to make a specific finding on any of the mitigating facts, the trial court never suggested the jury could consider only those factors on which they agreed unanimously, and the instructions indicated that the jurors should consider all relevant mitigating evidence. See Id. at 20.
Did the defense counsel provide competent assistance during the mitigation phase of Spisak’s trial?
Spisak argues that his death penalty sentence should be vacated because he did not receive effective assistance from his lawyer, as guaranteed by the Sixth Amendment, during the mitigation phase of his trial. See Brief for Respondent at 44-45. Both parties agree that the ineffective-assistance claim is subject to the two-prong analysis laid out in Strickland v. Washington. See Id. at 33; Brief for Petitioner at 31 (citing Strickland v. Washington, 466 U.S. 668 (1984)). The first prong considers “whether ‘counsel’s performance was deficient,’ and, if so, the second is whether ‘the deficient performance prejudiced the defense.’” Brief for Petitioner at 31.
A. Was defense counsel’s assistance deficient?
Spisak asserts that his lawyer’s performance during the mitigation phase of the trial was inconsistent with professional standards of conduct. See Brief for Respondent at 59. He claims that his attorney went far beyond candidly acknowledging the weakness in his case and, instead, took up the mantle of prosecutor, emphasizing aggravating factors at closing argument, rather than advocating for mitigation. See Id. at 54-55. Furthermore, Spisak argues that his attorney repeatedly disparaged and demonized him, even going so far as to suggest to the jurors they could be proud of themselves if they returned a recommendation for death. See Id. at 53, 62.
Ohio argues that the defense counsel’s strategy was objectively reasonable given the “strong presumption of reasonableness” that the federal courts should assume under the Strickland standard of review. See Brief for Petitioner at 31 (citing Strickland, 466 U.S. at 688). Additionally,Ohio argues that defense counsel’s strategy must be viewed from his perspective at the time of trial, rather than through the clarifying lens of hindsight. See Id. at 31-32. Faced with overwhelming evidence of guilt, and horrific details of the crimes already before the jury, Ohio argues that defense counsel chose to candidly admit the lurid details and depravity of his client’s mind in order to establish credibility with the jury and align himself with them. See id. at 36–37. Ohio cites numerous trial advocacy texts that support admitting theweaknesses in your case before the opposition points them out in order to gain credibility with the jury and undermine an opponent’s ability to use your weaknesses against you. See id. at 37.
B. Did defense counsel’s performance unfairly prejudice Spisak?
Both parties agree that under the proper Strickland analysis, the defendant must show that actual prejudice occurred because of the deficient performance of counsel. See Brief for Petitioner at 41; see Brief for Respondent at 60. However, Ohio alleges that the Sixth Circuit merely paid lip service to Strickland, citing it without actually performing the detailed analysis that it requires before finding prejudice. See Reply Brief for Petitioner at 10. According to Ohio, Strickland requires the court to reweigh the total aggravating evidence against the total mitigating evidence from the case anew. See id. at 10 (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)). Ohio argues that because the court’s opinion fails to discuss reweighing, it is more consistent with the “presumption of prejudice” standard of United States v. Cronic, rather than the appropriate standard from Strickland. See Brief for Petitioner at 41 (citing Cronic, 466 U.S. 648 (1984)). Ohio cites the Sixth Circuit’s repeated invocation of Rickman v. Bell, an earlier circuit decision applying Cronic, as evidence that the court was applying the wrong standard. See Id. (citing Rickman, 131 F.3d 1150 (6th Cir. 1997)).
On the other hand, Spisak asserts that the Sixth Circuit neither improperly applied Cronic nor applied the incorrect “presumption of prejudice” standard.See Brief for Respondent at 33-34. Furthermore, Spisak argues that the court properly cited Strickland as the controlling law, and “[w]hen a court cites the correct legal standard it is presumed that the court actually applied that standard.” Id. at 34. Lastly, Spisak argues that the Sixth Circuit only cited Rickman with regards to the performance prong of Strickland, rather than Rickman’s application of the Cronic presumption of prejudice standard. See id. at 35-36.
In response, Ohio argues that the even if Spisak’s attorney performed deficiently during the closing, there was no prejudice that resulted. See Brief for Petitioner at 12. The State asserts that Spisak’s crimes were so heinous, and his own cold-blooded testimony about his victims so damning, that there is no likelihood the jury would have reached a different conclusion, even with competent assistance. See Id. at 15; Reply Brief for Petitioner at 22.
Did the Sixth Circuit contravene the Antiterrorism and Effective Death Penalty Act of 1996?
The issue underlying both questions presented to the Court in Smith v. Spisak is how deferentially federal courts should evaluate a state court’s application of federal law when considering a petition for habeas corpus. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prohibits federal courts from granting a petition for habeas corpus unless the state court reached a “decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).
Ohio argues that AEDPA requires the federal courts to exercise deference to the Ohio state courts’ rejection of Spisak’s jury-instruction and ineffective-assistance claims on direct review. See Brief for Petitioner at 15. Ohio argues that Spisak is not entitled to habeas relief because the Ohio Supreme Court reasonably applied federal law when it affirmed Spisak’s death sentence. See Id. at 22, 31. According to Ohio, the Sixth Circuit adopted an expansive reading of Mills to overturn the Ohio Supreme Court’s denial of Spisak’s habeas claims. See Id. at 17. This is inappropriate under AEDPA, because federal courts are only supposed to overturn unreasonable determinations by state courts. See Id.; 28 U.S.C. § 2254(d)(1). Ohio argues that not only does the “Sixth Circuit’s affirmative-instruction requirement [find] no basis in Mills,” but other circuits have decided contrarily on this issue, establishing a circuit split on the issue, at the very least. See Id. at 24-25. As such, Ohio argues that the Ohio Supreme Court most certainly did not violate clearly established law, which would be necessary for the Sixth Circuit to overturn the conviction. See Id.
Spisak counters by pointing out that the Supreme Court of Ohio dismissed his ineffective-assistance claim summarily, without any analysis. Brief for Respondent at 38. Spisak argues that this type of summary disposition is not the careful analysis to which the AEDPA intended the federal courts to defer. See Id. at 41-42. He argues that, because the Ohio Supreme Court offered no analysis or explanation of its decision, the Sixth Circuit had no way to decipher what the court’s conclusion was on each individual prong of the Strickland analysis, and that the Sixth Circuit therefore did not necessarily owe deference to the Ohio Supreme Court’s conclusions under AEDPA. See Id.
The U.S. Supreme Court's decision in this case will affect the scope of Mills v. Maryland and could potentially force states to re-evaluate their procedural policies in relation to jury instructions and the standard for ineffectiveness of counsel.
Petitioner Keith Smith, Warden for the State of Ohio (“Ohio”), argues that the jury instructions during the sentencing phase were proper and should not be invalidated under Mills. See Brief for Petitioner, Keith Smith, Warden at 14 (citing Mills, 486 U.S. 367 (1988)). The Commonwealth of Pennsylvania, in an amicus brief joined by eighteen other states (“Pennsylvania”), argues that the Sixth Circuit impermissibly expanded Mills to find “new obligations not mentioned there.” Brief of Amici Curiae Pennsylvania, et al. ("Pennsylvania") in Support of Petitioner at 6. Pennsylvania notes that Mills has traditionally been understood to prohibit States from instructing a sentencing jury that it must unanimously determine mitigating factors. See id. at 2. Pennsylvania argues that state justice systems are undermined when state court criminal convictions, “vetted by rounds of state appellate proceedings,” are cast aside when lower federal courts capriciously expand upon Supreme Court precedent in unexpected ways. See id. at 5. Pennsylvania notes that, when analyzing under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Supreme Court proceeds with a very structured method of analysis: it looks first to the legal right asserted by the defendant and then considers whether the body of federal law provides a clear answer to the question presented. See id. at 6. If no such answer is provided, the Court generally concludes that there was no basis to find that the state unreasonably applied federal law. See id. (citing 28 U.S.C. § 2254(d)(1)).Amici find it “troubling” that the Supreme Court remanded this case to the Sixth Circuit to consider in light of this method of analysis, but, on remand, the Sixth Circuit never reconsidered its assessment of clearly established federal law. See id. at 7 (citing Spisak v. Hudson, 512 F.3d 852, 853-53 (6th Cir. 2008)). A decision for Spisak in this case would thus give lower federal courts a broader level of review under AEDPA, and leave state criminal determinations more open to being overturned by federal courts.
The Supreme Court’s decision in this case will also clarify the standard for determining when counsel’s ineffectiveness in sentencing hearings gives rise to habeas relief. Ohio points out that Strickland v. Washington governs the appropriate standard for “ineffectiveness of counsel” claims. See Brief for Petitioner at 31. Pennsylvania notes that the Sixth Circuit did not use Strickland, but rather United States v. Cronic, in its analysis of ineffective assistance of counsel in this case. See Brief of Pennsylvania at 14 (citing Cronic, 466 U.S. 648 (1984)). Pennsylvania argues that, under Strickland, there are “a vast number of different approaches that professionally responsible counsel may elect to take in defending an accused.” See Brief of Pennsylvania at 16. When faced with overwhelming evidence against their client, for example, defense counsel might choose to be direct with the jury about what their client did in an attempt to build credibility and avoid a death sentence for their client. See id. How the Court rules in this case could affect defense counsel’s consideration of such strategies, which are fundamental to any defense.
Respondent, Frank Spisak (“Spisak”), counters these arguments by pointing out that the Sixth Circuit discussed Strickland and that a court is presumed to have applied a certain legal standard when it cites to that standard. See Brief for Respondent, Frank Spisak at 32–33. Several law professors and others who teach and write about trial advocacy drafted an amicus brief supporting Spisak and generally questioning the effectiveness of his counsel. See Brief of Amici Curiae Steven Lubet, et al., in support of Respondent. The professors take issue with many of defense counsel’s comments during his closing argument, indicating that “defense counsel defied all recognized strategies of trial advocacy” in this case. Id. at 4. The amici argue that defense counsel “dwelled on the central weakness of his own case,” misstated the appropriate standard for the jury to consider, and was so “inefficient and disorganized” as to barely be able to give his client effective representation, if at all. Id. Defense attorneys are generally given freedom to choose comments as they wish in accordance with the particulars of their case. However, amici argue that in this case, the Court might delineate a point at which the defense attorney takes that freedom too far and actually offers ineffective counsel through his candor.
In this case, the Supreme Court will determine the scope of Mills v. Maryland in prohibiting jury instructions that are unclear as to whether unanimity is required to weigh evidence of mitigating factors by a jury faced with making a death sentence recommendation. The Court will also review the Sixth Circuit Court of Appeals’ analysis of defense counsel’s allegedly deficient performance under Strickland v. Washington. In so doing, the Court will further clarify the degree of deference required by federal courts in reviewing state court applications of federal law under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
The authors would like to thank Professor John Blume and Professor Faust Rossi for their insights on this case. John Blume is a Professor of Law at Cornell Law School and the Director of the Cornell Death Penalty Project. Faust Rossi is the Samuel S. Leibowitz Professor of Trial Techniques at Cornell University and a co-author of the Brief of Amici Curiae Steven Lubet, et al., in support of Respondent.