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Frank G. SPISAK Jr.






A.K.A.: "Frankie Ann Spisak"
Classification: Serial killer
Characteristics: Transvestite - Wanted to be Hitler
Number of victims: 3
Date of murders: February-August 1982
Date of arrest: September 1982
Date of birth: June 6, 1951
Victims profile: Rev. Horace Rickerson, 57 / Timothy Sheehan, 50 / Brian Warford, 17
Method of murder: Shooting (.22 handgun)
Location: Cleveland, Ohio, USA
Status: Executed by lethal injection in Ohio on February 17, 2011

Smith v. Spisak

Argued October 13, 2009.

Authorship: Jonathan Vukicevich of Washington College of Law

Docket: 08-724

Issue: Did the Sixth Circuit contravene AEDPA by improperly extending Mills v. Maryland?

Briefs and Documents


REVERSED in an opinion by Justice Breyer (January 12, 2010)

Oral Argument

Transcript (October 12, 2009)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Opinion Recap

On January 12, the Court issued its decision in No. 08-724, Smith v. Spisak. Justice Breyer wrote the opinion, which seven other Justices joined in full; Justice Stevens concurred in part and concurred in the judgment. Reversing the Sixth Circuit, the Court held that Ohio’s denial of Spisak’s habeas petition – in which he had argued that (1) the jury instructions used at his trial unconstitutionally required the jury to consider mitigating factors only if the existence of each factor was unanimously found; and (2) his attorney was constitutionally ineffective, particularly during his closing argument – was not contrary to, or an unreasonable application of, clearly established federal law.

With respect to the first issue, the Court held that, although the instructions required the jury to find unanimously that each of the aggravating factors outweighed any mitigating circumstances, the instructions did not require jury unanimity in finding the existence of any individual mitigating factor. Assuming without deciding that the Court’s decision in Mills v. Maryland was clearly established law when Spisak’s conviction became final, Justice Breyer distinguished these instructions from those that the Court struck down in Mills, which had provided that the jurors could only consider those mitigating factors that they had unanimously found. Justice Breyer reasoned that, because the instructions in Spisak’s case did not preclude the jurors from considering mitigating evidence, but merely required unanimity in the overall balance of aggravating and mitigating factors, the instructions given to Spisak’s jury differed from those in Mills, and were, therefore, not contrary to, or an unreasonable application of, clearly established Court precedent.

Regarding the ineffective assistance of counsel claim, the Court held that, even assuming the closing argument was inadequate, there was no reasonable probability that a better closing would have altered the result. Justice Breyer devoted several paragraphs of his opinion to detailing Spisak’s own damaging testimony in which he admitted to committing the murders, stated that he was motivated to kill by his admiration for Adolf Hitler, and indicated that he would kill again if given the chance. In the face of such damning testimony, the closing could have been a tactical attempt to highlight Spisak’s mental instability, even if he was not unstable enough for the jury to find him not guilty by reason of insanity. Because the sentencing phase took place immediately after the guilt phase, the Court concluded, his counsel’s strategy to highlight Spisak’s mental state was reasonable insofar as the government’s strong evidence, Spisak’s unrepentant confessions, and his threat to murder again were all fresh in the jurors’ minds. Finally, the Court found that counsel’s appeals to the jurors’ “humanity” during the closing argument sufficiently pleaded for mercy and that a different closing would thus have had no effect on the jury’s finding.

In his concurring opinion, Justice Stevens wrote that the Sixth Circuit correctly found errors in both the jury instructions and Spisak’s closing argument, and that both of these errors did in fact violate clearly established federal law. In his view, however, these errors did not prejudice Spisak. First, although the instructions used in Spisak’s trial did not violate Mills, they did violate the Court’s decision in Beck v. Alabama insofar as they required the jury to unanimously reject death before considering life. Given the overwhelming evidence against Spisak, however, Justice Stevens found that the instructional error did not have a substantial effect on Spisak’s case. Second, in contrast to the majority’s focus on whether Spisak was prejudiced by his counsel’s ineffectiveness, Justice Stevens focused on the adequacy prong, concluding that his counsel’s argument clearly fell below norms of professional conduct. That said, Justice Stevens agreed with the majority that there was no reasonable probability that a different closing would have changed the result.

Oral Argument Recap

In Smith v. Spisak, the first capital case of the Term, the Court heard arguments regarding the level of deference a federal court must give to a state court’s death penalty conviction under AEDPA. At issue in the case was the Sixth Circuit’s application of the Supreme Court’s rulings in Mills v. Maryland and Strickland v. Washington to reverse the Ohio Supreme Court’s decision affirming Spisak’s death penalty conviction.

Ohio Attorney General Richard Cordray argued that the Sixth Circuit improperly extended Mills v. Maryland to invalidate the instructions given to Spisak’s jury, which—as is common—required unanimity in the ultimate finding that the aggravating factors outweigh the mitigating factors. According to Mr. Cordray, this application of Mills does not deserve deference under AEDPA because it is not clearly established federal law. In addition, trial counsel’s closing argument, in which he disparaged Spisak’s character, was an objectively reasonable trial tactic acceptable under Strickland, and the Sixth Circuit’s requirement that the Ohio Supreme Court expressly articulate its prejudice analysis exceeds the scope of AEDPA deference.

While most of the Justices’ questions focused on the Strickland issue, Justices Sotomayor and Ginsburg seemed concerned that Spisak’s interpretation of the jury instructions could cause a single hold-out juror to vote for death out of a concern that, if he did not, the defendant would go free. The Justices devoted several of their questions to the substance of Spisak’s lawyer’s closing argument. Mr. Cordray argued that, because Spisak had openly discussed his neo-Nazi beliefs and admitted his guilt on the stand, even stating he would kill again if given the chance, any comments by trial counsel could not have been prejudicial. Noting the extraordinary nature of the trial, several of the Justices, including Justices Breyer and Scalia, opined that the trial counsel’s closing argument seemed reasonable under the circumstances.

Michael Benza, who argued on behalf of Spisak, contended that the Sixth Circuit was correct in requiring the Ohio Supreme Court to articulate the reasoning for its conclusion that there was no prejudice under Strickland. The Justices seemed uncomfortable, however, with the argument that summary decisions could be attacked because they failed to articulate the state court’s reasoning, especially when the court cited the correct standard in its opinion. Justice Scalia noted that, under AEDPA, the burden is on the defendant to show that the state court unreasonably applied clearly established federal law; where there is doubt, the defendant loses.

Regarding the Mills claim, Mr. Benza described the trial court as having instructed the jury that it must be unanimous in all of its decisions. Mills prohibits this instruction, he argued, because it extended to all disputes of fact, including the existence of mitigating factors. While Mills was not decided until after Spisak’s trial, under the Court’s decision in Teague v. Lane, “clearly established federal law” is federal law that is decided before a defendant’s direct appeals are exhausted, as is the case here.

This case is one of several the Court will hear this Term regarding the application of Strickland v. Washington.

Pre-Argument Articles

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a federal court may grant a state prisoner’s habeas petition if the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” In Smith v. Spisak, the Court will consider whether the Sixth Circuit exceeded the limitations of AEDPA when it concluded that the Ohio Supreme Court had incorrectly rejected Spisak’s jury instruction and ineffective assistance of counsel claims.

Argument Preview

Petitioner's brief

In its brief, the State argued that the jury instructions were valid under Mills. First, the instructions did not, as Spisak contends, imply that unanimity was required as to the existence of mitigating factors, but only to the balance of aggravating factors and mitigating factors overall. Moreover, the instructions did not require a unanimous finding that the death penalty was appropriate before considering life. The State also argued that trial counsel’s comments during the mitigation phase of Spisak’s trial were an objectively reasonable trial tactic, and not prejudicial under Strickland. Because the state court properly applied both Mills and Strickland, it therefore did not violate AEDPA, and the Sixth Circuit erroneously granted Spisak’s habeas petition.

Respondent's brief

In his brief, Spisak reiterated many of the arguments he made in his opposition to certiorari. First, he argued that regardless of how the State interprets the jury instructions in this case, a reasonable juror might interpret the instructions to mean that the jury must unanimously reject death before considering life. Under this interpretation, a single juror in favor of death could make it impossible for the remaining jurors to discuss any mitigating factors because such deliberation is not permissible until the death penalty is unanimously rejected. Because Mills is clearly established law that prohibits any instruction that prevents jurors from considering mitigating factors, the Sixth Circuit correctly applied Mills to invalidate the jury instructions.

With respect to the ineffective assistance of counsel claim, Spisak argued first that the state court’s summary decision should be subjected to de novo review, and the Sixth Circuit’s analysis showed that he is entitled to habeas relief. Alternatively, Spisak contended, the Sixth Circuit correctly determined that the state court’s summary rejection of Spisak’s ineffective assistance claim was an unreasonable application of Strickland because the state court did not articulate the appropriate legal analysis. The closing argument made by Spisak’s trial counsel constituted ineffective assistance under Strickland because (1) his performance fell below professional norms insofar as his closing argument both provided support for the State’s case and limited the jury’s consideration of mitigating factors, and (2) his actions were prejudicial: if he had focused his closing argument on Spisak’s diagnosed mental illnesses, there is a reasonable probability that one juror would have voted for a life sentence.

Amicus brief

A number of states joined an amicus brief in support of Ohio. The amici argued that the Sixth Circuit improperly expanded the scope of Mills, and that such a new interpretation should not be considered “clearly established” federal law for AEDPA purposes. The Sixth Circuit’s decision thus highlights the need for the Court to clarify the proper meaning of “clearly established” under AEDPA. This is especially important because the Sixth Circuit’s improper interpretation of Mills potentially invalidates other states’ jury instructions in capital cases.

Grant Write-up


In 1983, a jury convicted Frank Spisak of murdering three people. At the sentencing phase of Spisak’s trial, the jury was instructed (among other things) that “[i]f all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count outweighs the mitigating factors, then you must return that finding to the court.” The jury recommended a sentence of death, which the trial court accepted.

Spisak’s direct appeals were unsuccessful. In 1997, Spisak sought federal habeas relief, which the district court denied. On appeal, the Sixth Circuit reversed and vacated Spisak’s death sentence on the grounds that (1) Spisak’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 Spisak’s case.

The State filed a petition for certiorari in which it argued that the Sixth Circuit’s decision contravened AEDPA. The 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 of its prior decision and reinstated its original opinion.

The State filed a second petition for certiorari, which the Supreme Court granted on February 23, 2009.

Second petition for certiorari

The State argued that the Court should grant cert. for two reasons. First, the Sixth Circuit ignored AEDPA’s limitations when it relied on Mills to invalidate the jury instructions in Spisak’s case. The prohibited Mills instructions required unanimity as to the existence of specific mitigating factors, whereas the instructions at issue here only required unanimity in the ultimate finding that, on the whole, the mitigating factors did or did not outweigh the aggravating factors. Because the Court has never specifically addressed instructions like these, the Sixth Circuit incorrectly found that the Ohio Supreme Court unreasonably applied clearly established federal law in violation of AEDPA. The divergent lower court interpretations of similar jury instructions show both that the law in this area is not clearly established for AEDPA purposes, and that the Court should grant cert. to clarify the law.

Second, the Sixth Circuit improperly granted relief on Spisak’s ineffective assistance of counsel claim. Although the lower court articulated the proper standard for ineffective assistance of counsel under Strickland v. Washington, it actually applied the less demanding standard of United States v. Cronic.

Spisak made four arguments in opposition to certiorari. First, the Ohio Supreme Court’s opinion does not warrant deference because it disposed of Spisak’s Mills claim in a summary fashion, providing no explanation for its rejection of the claim. Second, Mills applies to the jury instructions in this case because a reasonable juror could have interpreted the instructions to require unanimity in finding the existence of mitigating factors. Third, on remand the Sixth Circuit properly applied the Strickland standard to Spisak’s ineffective assistance of counsel claim. Finally, comments by Spisak’s trial counsel during closing arguments that disparaged Spisak’s character amounted to ineffective assistance of counsel because the comments were not part of a legitimate trial strategy, and could have persuaded at least one juror to vote for death.

In its reply, the State countered that AEDPA deference applies even when the state court’s opinion did not include detailed reasons for its analysis. Further, other circuits and other panels within the Sixth Circuit have reached opposite conclusions when applying Mills. With respect to the ineffective assistance claim, the Sixth Circuit failed to even complete the prejudice analysis required by Strickland.



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