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Defending the devil

Everybody agreed that Frank Spisak was a despicable human being.  After oral arguments the other day in Smith v. Spisak, the Supreme Court will have to determine whether his lawyer went too far in telling the jury in Spisak's capital trial just how despicable Spisak was.

In a seven-month stretch during 1982, Spisak murdered three people and tried to kill  a couple others.  To the extent that one could discern any motivation, it apparently was predicated on his neo-Nazi beliefs; according to the Ohio Supreme Court's decision affirming his conviction and sentence (here), he admitted to killing one of his victims "while on a 'hunting party' looking for a black person to kill."  He wore a Hitler mustache to his trial, and took the stand to spew his racist beliefs. 

Spisak's quarter-century effort to stave off execution finally hit paydirt when the 6th Circuit granted his habeas petition in 2006.  One problem was the jury instructions:  they were led to believe that, in order to impose a life sentence, they would have to unanimously agree that the mitigating circumstances outweighed the aggravating circumstances.  Since then, the law has developed that a single juror holdout from death results in a life sentence.

The bigger focus, though, was on the court's finding that Spisak's counsel had been ineffective because of his argument in the mitigation phase.  Spisak was represented by Tom Shaughnessy, since deceased, who was was one of the top criminal defense lawyers of his day, and Shaughnessy began his summation by outlining, in graphic detail, the crimes that Spisak had committed.  The district court had found this to be an acceptable trial strategy, figuring that Shaughnessy was not only trying to take the teeth out of the prosecution's anticipated argument, but also attempting to gain credibility with the jury.  The problem the 6th Circuit had with that strategy was that, as far as they could see, Shaughnessy never took the next step in that strategy:  using that credibility to argue for Spisak's life.  The court found "most inexplicable" this portion of the summation,

Sympathy, of course, is not part of your consideration. And even if it was, certainly, don't look to him for sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at Frank Spisak, don't look for good deeds, because he has done none. Don't look for good thoughts, because he has none. He is sick, he is twisted. He is demented, and he is never going to be any different.

What to the court was "most shocking," though was that Shaugnessy suggested to the jury that either outcome, death or life, would be a valid conclusion, stating to the jury that 'whatever you do, we are going to be proud of you.'"  (The 6th Circuit's opinion regarding the oral argument can be found here.)

So Spisak's lawyer spent yesterday morning defending the 6th Circuit decision before the Supreme Court.  (Transcript here.)  That might be a tall order for several reasons, the first being that the Supreme Court already expressed problems with the decision:  last year, it did a GVR (grant certiorari, vacate the decision, and remand for consideration in light of other cases).  Normally when that happens, the lower court will take the hint and reverse itself.  The 6th didn't; it distinguished the cases the Court had told it to consider, and reaffirmed its earlier decision.  The second, and probably larger, problem is the highly deferential standard for ineffective assistance of counsel; courts have been especially willing to pass off even appallingly derelict performances under the rubric of "trial strategy,"  as I mentioned in a post back in May

There's certainly an argument to be made, though, that Shaughnessy's closing went over the line; Justice Alito pointedly asked the Ohio Attorney General yesterday, "Have you ever heard or read a defense summation that was more derogatory of the defendant than the summation here?"  That was the theme of an amicus brief filed on Spisak's behalf by a number of notable experts in trial practice (available here), equally critical of Shaughnessy's presentation.  In fact, it makes the argument that Shaughnessy's presentation was so derogatory toward his client that it would have been prosecutorial misconduct if the State had given it. 

Spisak's lawyer returned to that theme in his presentation, noting that he had been litigating capital cases since 1993, and "I have never seen a closing argument like this."  To which Scalia rejoined:

Have you ever conducted a capital case in which the defendant takes the stand with a Hitler moustache and says he's glad for what he's done and he will do it again? 

How many cases have you had like that?

MR. BENZA: No. Spisak is the only one like that.

And that's perhaps the biggest problem of all.  I've read the full closing argument (transcript  here), and I've got mixed feelings about what Shaughnessy did.  Many portions are brilliant in their sheer eloquence; other parts, as Justice Ginsberg observed yesterday, echoing the 6th Circuit, seemed disjointed and rambling. 

I don't believe in the death penalty, but one comes away from looking at everything involved here with the feeling that if there is indeed a case to made for a it, Spisak is Exhibit "A," and nothing anybody could have possibly said would have dissuaded a jury from imposing that punishment.

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