Indictment: 03/29/1983

Case Notes:

On 4/13/88, the Ohio Supreme Court affirmed Spisak's conviction and death sentence on direct appeal. On 4/18/03, the federal district court denied Spisak's petition for a writ of habeas corpus. On 7/31/03, Spisak filed a notice of appeal to the 6th Circuit. On 3/14/06, the 6th Circuit held oral argument. On 10/20/06, the 6th Circuit reversed the district court's decision, vacated Spisak's conviction based on an improper jury instruction claim and ineffective assistance of counsel, and remanded to the trial court for re-trial. On 11/17/06, the State filed a petition for rehearing en banc. On 12/12/06, Spisak filed a memorandum in opposition.

Ohio executes murderer who 'hunted' blacks

By Alan Johnson - Dispatch.com

February 17, 2011

LUCASVILLE, Ohio -- When Frank Spisak was going on "hunting parties" targeting blacks in Cleveland, Ronald Reagan was president, a stamp cost 20 cents and the Cincinnati Bengals played in the Super Bowl XVI. More than 10,000 days later, Spisak, 59, a triple murderer, was executed today at the Southern Ohio Correctional Facility near Lucasville. The time of death was 10:34 a.m. The 27 years between the murders on the Cleveland State University campus in 1982 and Spisak's final punishment was the longest gap in Ohio's 42 executions since 1999.

As Spisak's IV's were being hooked up, Jeffrey Duke, the brother of one of Spisak's victims, said: "They ought to hook him up to a generator. If I could get to him, that's what I'd do. A person like him, thinking he could go around killing people because he didn't like the color of their skin or their religion. I'm sorry, that's just the way I feel."

Before the lethal chemical began flowing, Spisak recited -- in German -- the first seven verses from the 21st chapter of from the Book of Revelation. He had trouble reading the passage, which had to be moved closer to him. He apparently did not read the eighth verse, which says: "But the cowardly, the unbelieving, the vile, the murderers, the sexually immoral, those who practice magic arts, the idolaters and all liars -- they will be consigned to the fiery lake of burning sulfur. This is the second death."

In a written statement handed out after the execution, Cora Warford, the mother of the youngest victim, said: "In memory of my baby boy, Brian Warford, I can finally say justice has been served. If one can this brings closure, I can say it is peace of mind for me and my family."

Among the witnesses was John Hardaway, who survived despite being shot seven times by Spisak. Spisak, who blamed mental illness for his hatred of gays, blacks and Jews, was the last person in Ohio to be lethally injected with sodium thiopental. The state will no longer use the drug because the sole U.S. manufacturer stopped making it. Beginning with the execution of Johnnie Baston on March 10, the state will use pentobarbital, a fast-acting barbiturate that is more readily available.

Between February and August of 1982, Spisak shot and killed the Rev. Horace Rickerson, 57; Timothy Sheehan, 50; and Brian Warford, 18. He said he was going on "hunting parties" and hoped to spark a race war in Cleveland. He shot Hardaway and shot at but missed a woman on the urban university campus.

Spisak was an admirer of Nazi leader Adolf Hitler. He carried a copy of Mein Kampf and grew a Hitler mustache during his 1983 trial.

Spisak suffered from bipolar disorder and had a lifelong struggle over his sexual identity. He referred to himself as Frances and in 1999 sued the state for "keeping her locked up on Death Row in an all-male prison environment where she cannot receive appropriate hormonal and surgical treatment for her physical and mental defects."

Spisak lost all his appeals, including the last one to the U.S. Supreme Court in which he argued that he should not be executed because of Ohio Supreme Court Justice Paul E. Pfeiffer's comments about the unevenness of the death penalty's application.

Gov. John Kasich agreed with the Ohio Parole Board's unanimous recommendation against granting clemency for Spisak.

Spisak's "last meal" yesterday consisted of spaghetti with tomato sauce, a salad, chocolate cake and coffee.

Frank Spisak executed for 1982 slayings of three people at Cleveland State University

By Joe Guillen - Blog.cleveland.com

February 18, 2011

LUCASVILLE, Ohio - Frank Spisak, a self-proclaimed Nazi who killed three people at Cleveland State University nearly 30 years ago in a racism-fueled rampage, was executed by injection Thursday morning.

Spisak expressed no remorse for his crimes when given a chance to say his final words. Instead, he read a handwritten note -- in German -- with verses one through seven of Chapter 21 in the Bible's Book of Revelations.

Spisak, who wore a Hitler-style mustache and saluted the Nazi leader during his 1983 trial, struggled at times to read the note clearly, complaining that the words were blurry. "Heil herr," Spisak concluded.

He was pronounced dead at the Southern Ohio Correctional Facility at 10:34 a.m. Spisak, 59, was the 42nd Ohio inmate executed since 1999 and the first executed this year. He spent more than 27 years on death row.

Over the course of several months in 1982, Spisak, driven by his Nazi beliefs, killed three people at CSU - the Rev. Horace Rickerson; CSU student Brian Warford; and Timothy Sheehan, an assistant superintendent for buildings and grounds at the university. Spisak also shot John Hardaway, a factory worker, and Coletta Dartt, a CSU employee. Spisak would go on "hunting parties" and targeted Rickerson, Warford and Hardaway because they were black, according to his parole records.

Relatives of Sheehan and Warford witnessed the execution, along with Hardaway, U.S. District Judge Don Nugent, who prosecuted Spisak, and Jim Oliver, a retired law enforcement officer who investigated the shootings.

Jeffrey Duke, Warford's brother, became upset as he waited for Spisak to enter the execution chamber. A monitor in the witness viewing area -- separated from the execution chamber only by a window -- showed medical staff in a nearby room preparing Spisak's veins to receive the injection of sodium thiopental. Duke said he would prefer that Spisak be connected to a "generator" or "batteries." "A person like that, thinking he could just kill people because he didn't like the color of their skin or religion," Duke said.

Spisak -- clean-shaven with dark colored boots on his feet -- then walked into the chamber and was strapped to a bed. He looked up and waved to his lawyers, Michael Benza and Alan Rossman, and Bill Kimberlin, a Lorain Community College psychology professor who befriended Spisak while researching death row inmates.

Warden Donald Morgan then put a microphone to Spisak's face and asked him if he would like to say any last words. "Yes, I would," Spisak said. "I would like to read from the Holy Bible."

A prison staffer held up Spisak's handwritten note as he recited the Bible verses in German. A spokesman for the Ohio Department of Rehabilitation and Correction provided reporters with copies of the note before the execution. But Spisak struggled to read his own words, drawing some amused chuckles from the victim's relatives. "It's too far away," Spisak said. "I can't read it. It's blurry."

"Speak English, you fool," said Eric Barnes, another brother of Warford's. Barnes held a piece of paper with two pictures of his brother, one as a baby and the other as a young man. Warford was 17 when Spisak shot him.

As Spisak stammered through his statement, Cathy Sheehan Daly, Timothy Sheehan's daughter, leaned over to Duke and said, "He's making it up." Spisak finished his five-minute statement and the injection began to flow. He let out a few deep inhalations, making a snoring sound. He was pronounced dead 10 minutes later.

Spisak claimed he no longer was sympathetic to the Nazi movement in an interview with the Ohio Parole Board on Jan. 4, yet he told the board he was reading a biography of Hitler at the time. Spisak claimed to be a more tolerant person. The relatives of victims and others who witnessed the execution declined to be interviewed afterward.

In a statement, the Sheehan family said they will continue to celebrate Timothy Sheehan's life. Brendan Sheehan, Timothy's son and now a Cuyahoga County Common Pleas judge, and other family members who did not witness the execution were at a nearby church Thursday morning. "Today, we chose to celebrate the life of husband and father, Timothy Sheehan, not the death of Frank Spisak," the statement said. "We are grateful that the justice system has worked and appreciate those in the criminal justice system whose diligent efforts have helped bring this matter to a final resolution."

Cora Warford, Warford's mother, said in a statement: "In memory of my baby boy Brian Warford, I can finally say justice has been served. If one can say this brings closure, I can say it is peace of mind for me and my family. Spisak will have to stand before a higher court one day as we all will and may God have mercy on his soul."

Spisak's lawyers had tried to delay the execution. They pleaded with the Ohio Parole Board and Gov. John Kasich to spare his life because he is mentally ill with a bipolar disorder. But the board decided, and Kasich agreed, the nature of Spisak's crimes outweighed concerns about his mental health. An appeal filed with the U.S. Supreme Court earlier this week also was denied. Last year, the Supreme Court upheld his death sentence, reversing a previous ruling that Spisak's sentencing hearing was unconstitutional.

Before his conviction, Spisak experimented with cross-dressing and was confused about his gender, preferring to be called Frances Anne. Numerous mental-health professionals evaluated Spisak, who pleaded not guilty by reason of insanity, before his trial. He was deemed competent when he killed.

After the execution, Spisak's lawyers lamented the state's killing of a mentally ill man. "We know what the media is going to say about Frances Spisak. But the truth is Frances was seriously mentally ill and committed the crimes because of this mental illness, not because of hate," Benza and Rossman said in a statement. "Maybe some day we will see executions of mentally ill people for what it is: barbaric."

Judge Sheehan, reached after the execution, said Spisak knew what he was doing when he killed his father. He said Spisak's final words in German only cemented that belief. "He showed his true colors in the execution," Sheehan said. Spisak's will be Ohio's last execution using the drug sodium thiopental. The drug's maker objected to its use in executions and said it would stop production, so Ohio will be the first state with a one-drug injection process using pentobarbital, a sedative used during heart surgery.

As Nazi sympathizer Frank Spisak prepares for execution, a surviving victim recalls his attack nearly 30 years ago

By Joe Guillen - Cleveland.com

February 16, 2011

COLUMBUS, Ohio — Nearly 30 years ago, John Hardaway was heading home from work when Frank Spisak, a self-proclaimed modern-day Nazi, ambushed him at a rapid-transit station and shot him seven times in his arm and right torso, leaving Hardaway for dead on the platform. Hardaway survived, but the shooting left him with chronic pain in his right hand and the vivid memory of an attack that characterized the senseless and brutal nature of Spisak's 1982 killing spree on Cleveland State University's campus.

Spisak is set to die Thursday for his rampage, which claimed the lives of three people at CSU -- the Rev. Horace Rickerson; CSU student Brian Warford; and Timothy Sheehan, CSU's assistant superintendent for buildings and grounds. Prosecutors said he targeted Hardaway, whom Spisak had never met, Rickerson and Warford because they were black. Sheehan was a potential witness in Rickerson's killing, prosecutors said.

"I can still see the night he was shooting me," Hardaway, 83, said in a recent interview at his one-bedroom apartment on Cleveland's East Side. "He was squatting down, pulling that trigger. That will never go away. It ain't as bad as it was, but it hits me hard sometimes. Why would he do a person like that?"

Spisak's execution, after he spent more than 27 years on death row, will be the first of Gov. John Kasich's term. Spisak, 59, is among the longest-serving Ohio inmates on death row.

But recent comments from an Ohio Supreme Court justice have given new life to Spisak's attempts to avoid execution. Justice Paul Pfeifer, a Republican, called this year for an end to the death penalty law because he said it is not being applied as originally intended. Based on these comments, Spisak's lawyers have asked to delay the execution until the constitutionality of Ohio's death penalty is decided in court. The 6th U.S. Circuit Court of Appeals denied the request on Tuesday. Alan Rossman, Spisak's federal public defender, said Tuesday evening that he intends to file the same request with the U.S. Supreme Court.

Despite the last-ditch attempt to delay the execution, Hardaway said he is relieved Spisak is headed for the execution chamber at the Southern Ohio Correctional Facility in Lucasville. He feared Spisak would outlive him as the appeals process carried on and on. "I'll go down on my knees, on the side of my bed every night, to pray and see if I would be able to live," Hardaway said. "I didn't know if I'd be living this long after all that happened."

The U.S. Supreme Court denied what was thought to be Spisak's final legal appeal in January 2010. Earlier this year, Spisak's lawyers asked the Ohio Parole Board and Kasich to spare their client's life, saying he is severely mentally ill with a bipolar disorder. The Parole Board was not convinced the mental illness outweighed the nature of his crimes. The board unanimously recommended that Kasich, a Republican, deny Spisak's clemency request. Last week, Kasich followed the recommendation.

"Spisak killed three people, tried to kill at least one other and shot a fifth in his admitted plan to kill as many African-Americans as possible and start a race war in Cleveland," the board said in its report to Kasich. "A recommendation for mercy is not warranted in this case." Spisak said he committed the killings because he was a follower of Adolf Hitler and was in a war for survival "of the Aryan people," according to court records.

Numerous mental-health professionals evaluated Spisak, who pleaded not guilty by reason of insanity, before his 1983 trial. He was deemed competent when he killed. Aside from the violence he carried out, Spisak's life also was marked by socially bizarre behavior. He experimented with cross-dressing and was confused about his gender, preferring to be called Frances Anne. During his trial, he wore a Hitler-style mustache and saluted the Nazi leader in court. His lawyers still refer to him as Frances.

The lawyers, Rossman and Michael Benza, are among those scheduled to witness Spisak's death by injection. Other witnesses include Warford's brother and sister, Sheehan's daughter and Judge Donald Nugent, who prosecuted the case.

Cuyahoga County Common Pleas Judge Brendan Sheehan, whose legal career was inspired by his father's murder, said neither he nor his family would comment before Thursday's execution.

Hardaway said he would like to see Spisak die but does not have the means to travel to Lucasville. A former Georgia sharecropper who arrived in Cleveland at age 26, Hardaway was a factory worker at Production Finishing Co. on Cleveland's West Side the night he was shot.

It was about 11 p.m. when Hardaway walked up the transit station's stairs to catch his train. He had just cashed his paycheck, and about $40 fell to the ground as he was shot. Yet Spisak never said anything to him and didn't take the money, Hardaway said.

Hardaway was losing consciousness as he lay on the station's platform. A train operator soon found him and called for help. He was hospitalized for about a month, then returned to work. "He was shot seven times and was back a month later," said Jim Kelly, whose uncle supervised Hardaway. "He's a survivor. He got to see this guy's face while he was putting bullets through him and live through it."

In 1984, Hardaway sued Spisak and his accomplice, Ronald Reddish, who assisted Spisak before the shooting. Hardaway sought $1 million, citing emotional distress due to the attack. A judge granted a default judgment in Hardaway's favor, but Spisak and Reddish, who was convicted of the attempted murder of Hardaway, already had been convicted and had no assets to satisfy the judgment, Hardaway's lawyer, William White, said on Tuesday. "It's very frustrating -- you can't make a recovery," White said. "It's not unusual, it's just painful."

Hardaway expressed hope that the publicity surrounding Spisak's execution would somehow help him recover some of the money he asked for in the lawsuit. He said he needs a new hearing aid.

In some respects, Hardaway, who has two grown children, has come to terms with the assault at the rapid station. He no longer carries in his wallet the old newspaper clipping of Spisak's face, complete with Hitler mustache. He said putting the shooting behind him has allowed him to keep a level head. "White people was always good to me. Even in the country, in the South, there were some good ones and some bad ones," Hardaway said. "I never had no hard feelings toward white people at all, even after the shooting happened to me. I can't live with no hate."

Killed in shootings

• Tim Sheehan, 50, CSU employee
• The Rev. Horace Rickerson, 57, pastor
• Brian Warford, 17, CSU student

Survived shootings
• John Hardaway, factory worker
• Coletta Dartt, CSU employee

Killer used his 1983 trial ‘to spout his Nazi beliefs’

By Tom Beyerlein - Journal-News.com

February 14, 2011

The first victim was the Rev. Horace T. Rickerson, found dead with seven gunshot wounds on a restroom floor at Cleveland State University on Feb. 1, 1982. Four months later, John Hardaway was waiting for a train when he saw a man walk onto the platform. The man shot Hardaway seven times, but he survived.

Coletta Dartt left a restroom stall at Cleveland State on Aug. 9, 1982, only to encounter a gunman, who ordered her back into the stall. She shoved him aside and ran away as he shot at her. Like Rickerson, Timothy Sheehan, a Cleveland State employee, was found dead on a campus restroom floor on Aug. 27. Three days later, CSU student Brian Warford was shot to death while waiting for a bus.

For months, the Cleveland State shootings horrified a city. The terror ended on Sept. 4, 1982, when Cleveland police responding to a report of a man firing shots out of a window arrested Frank G. Spisak Jr. At his apartment, police found newspaper clippings of the murders and Nazi and white-supremacist paraphernalia. Ballistics confirmed Spisak’s weapons were used in the shootings, and Sheehan’s pager was found in Spisak’s suitcase.

More than 28 years later, his appeals exhausted, Spisak is to die by lethal injection Thursday at the Lucasville prison.

“We’re happy the law is being followed,” said Brendan Sheehan, who was to celebrate his 15th birthday the day that Spisak killed his father. Brendan Sheehan went on to become an assistant Cuyahoga County prosecutor and is now a Cuyahoga County common pleas judge. He said his family is reserving further comment until after the execution.

Spisak unsuccessfully pleaded not guilty by reason of insanity. At his 1983 trial, he sported a Hitler mustache and, in the words of a clemency report, “used his trial to spout his Nazi beliefs, (and) blamed African-Americans, Jews and homosexuals for his own shortcomings in life.” Interviewed by the Ohio Parole Board on Jan. 4, Spisak said that at the time, he and a co-defendant “thought they would create a better world by eliminating the people that were not like them. He stated they thought it would be a safer world if it were all white.”

Spisak’s victims were black, except for Sheehan. Spisak told the parole board he killed Sheehan because he was a possible witness to Rickerson’s shooting and because Spisak thought he was “a Jewish professor perverting youth.” Sheehan was an Irish-born Catholic.

Spisak was sentenced to death after a jury convicted him of aggravated murder, attempted murder and aggravated robbery. During his 27 years in prison, he has chalked up a significant disciplinary record for infractions including spitting at a chaplain, performing oral sex on another inmate, indecent exposure, possession of intoxicating substances, and possession of weapons or contraband. He unsuccessfully has sued the state for a sex-change operation and now calls himself “Frances.”

In its clemency report, the parole board wasn’t moved by Spisak’s insanity claims, noting that he planned the killings and tried to avoid detection. The board’s unanimous decision: “Spisak’s contention that he is not the ‘worst of the worst’ is not well taken.”

But Spisak’s attorney, federal Public Defender Alan Rossman, who has requested a stay of execution in federal court, said it’s inhumane to put a mentally ill killer to death. “The failure of leadership to move the state of Ohio past the point where it is acceptable to execute the severely mentally ill is another opportunity lost,” Rossman said. “Maybe someday we will have a better alternative to dealing with mentally ill defendants than killing them.”

On February 1, 1982, the body of the Reverend Horace T. Rickerson was discovered by a fellow student on the floor of a restroom on the Cleveland State University campus. Horace had been shot seven times by an assailant from a distance of more than eighteen inches. Four spent bullet casings were recovered from the scene.

On the evening of June 4, 1982, John Hardaway was shot seven times while waiting for an RTA train at the West 117th Rapid Station in Cleveland. He observed a man walking up the platform steps and had turned away when the man opened fire on him. Hardaway survived the shooting, and was later able to identify his assailant as Frank G. Spisak, Jr. Three pellets and seven shell casings were recovered from the scene.

At approximately 5:00 p.m. on August 9, 1982, Coletta Dartt, an employee of Cleveland State University, left her office to use the restroom. Upon exiting the stall, she encountered Spisak, holding a gun, who ordered her back into the stall. Instead, Coletta shoved Spisak out of the way and ran down the hallway. Spisak shot at her, but missed. A pellet was later removed from a wall in the hallway. Coletta Dartt identified Spisak as her assailant.

On August 27, 1982, the body of Timothy Sheehan, an employee of Cleveland State University, was discovered in a restroom at the university by a security guard. The guard had been searching for Sheehan after his office reported that he had failed to answer his beeper page. Timothy had been shot four times, and two pellets were retrieved from the scene.

On the morning of August 30, 1982, the body of a young student, Brian Warford, was discovered in a bus shelter on the campus of Cleveland State University. Brian died from a single gunshot wound to the head, although five spent.22 caliber casings were recovered from the scene.

On September 4, 1982, Cleveland police answered a call that a man was firing shots from a window at 1367 East 53rd Street. The police were directed to Spisak's apartment and Spisak, after admitting he had fired one shot, invited the officers inside. A shotgun and a .22 caliber automatic pistol were observed in the room. Spisak made a suspicious move toward the couch but was stopped by one of the officers who discovered a loaded .38 caliber handgun and a two-shot derringer under the couch cushions. Spisak was arrested for possession of unregistered handguns and discharging firearms within city limits, but was later released on bond. The weapons, however, were confiscated.

Early the next day, an anonymous caller told police that the confiscated weapons had been used in the Cleveland State University shootings. Ballistics tests confirmed the tip. A warrant was obtained, and the police returned to Spisak's apartment, confiscating several items including newspaper clippings of the homicides and Nazi-White Power paraphernalia. Spisak was later arrested, hiding in the basement of a friend's house. During a brief search of Spisak's suitcase at the scene, police discovered the beeper pager belonging to Timothy Sheehan. Spisak later admitted to shooting Horace Rickerson for allegedly making a homosexual advance toward him; to killing Tim Sheehan as a possible witness to the Horace Rickerson shooting. The prosecution suggested it was the other way around, with Spisak making the overture and being rejected. Spisak also admitted to killing Brian Warford while on a "hunting party" looking for a black person to kill; and finally, to shooting at Coletta Dartt and to shooting John Hardaway. He also told police he had replaced the barrel of the .22 caliber handgun in order to conceal the murder weapon.

More information on the victims in this case can be found here. Tim Sheehan's son Brendan Sheehan grew up to become a prosecutor and was seated as a trial court judge in Cuyahoga County in 2009. His father was murdered on Brendan's 15th birthday.

ProDeathPenalty.com

"The Long Goodbye"

ClevelandMagazine.com

May 2007

All his victims were people who had changed courses in life, seeking a second chance. Now, 25 years after Frank Spisak’s serial murders terrified Cleveland State University, the death-row inmate gets a second chance at avoiding execution. In a courtroom, survivors and lawyers will return to 1982 and confront his crimes. A jury will decide his fate. John Hyduk

He attacked five people, killing three. He would have killed more if his aim were better. Their bodies and lives were torn by the tumbling slugs from a .22-caliber automatic.

Now, 25 years after Frank Spisak wandered the city streets with a pistol popping like the devil snapping his bubble gum, he will walk again in the minds of his victims and their families. Old case files will be reopened. Healed wounds will be torn apart. Spisak, convicted of a series of 1982 murders and sentenced to death, has fought hard to live. The state of Ohio - navigating a gauntlet of court appeals - has tried just as hard to kill him.

Last October, three federal appeals court judges struck down Spisak’s death sentence and ordered him resentenced. The judges said Spisak’s lawyer had been ineffective and that the judge had given the jury improper instructions during his 1983 sentencing. Although Spisak’s guilty verdict still stands, a new jury may deliver a sentence as early as this summer. Spisak’s lawyer plans to argue that he killed because he was insane and should be spared from death.

Raised by emotionally distant parents, Frank Spisak was beset by gender issues from childhood. He blamed “an extremely strict mother who humiliated and hit him when he displayed sexual behavior,” says one court document. She “taught him to hate people of color and others whom she deemed to be ‘undesirable’ or ‘repulsive.’ ”

Even as Spisak married, he took female hormones, anticipating a sex-change operation that would never happen. He used his quick and inquisitive mind to mentally rebuild the Third Reich, joining the National Socialist White People’s Party and fancying himself a storm trooper. He collected guns.

Today Spisak’s world is a prison cell at the Mansfield Correctional Institution. Inside it he lives as a woman, corresponding through prison pen-pal Web sites, trolling for “very special girlfriends.” He signs his letters Frances Ann, under “With love” or “Every best wish.” And no one - not even his psychiatrists - can say with certainty where the invented Frank ends and the real Frank Spisak begins.

The story of Spisak and those he killed and tried to kill is a morality play with the moral still to be written. At first, the victims seem like random choices. Separated by age and race and gender and class, they would not have found themselves side by side on the same city bus. But what they had in common was this: They were all strivers after something better, people who had changed courses in life, seeking another chance. And Cleveland is a city built on second chances.

The city we live in was born that summer. Four years after default, and after 13 years of burning river jokes, we declared ourselves back on track. As The Cleveland Press closed and Halle’s department store faded, Time magazine pronounced us one of the country’s most desirable cities and the “CBS Evening News” reported we were on the road to recovery.

We did not feel like a city under siege. As crime scene investigators were pulling slugs from a campus wall, Duran Duran was opening for Blondie a few blocks away at the Agora. As another victim lay bleeding, moving vans emptied the Williamson and Cuyahoga buildings on Public Square for demolition before the building of the new Standard Oil Tower. Everywhere, the 19th century was making way for the 21st.

Second chances seemed very real then. Now, Frank Spisak has a simple request: Give me a second chance. Twelve jurors will decide how far second chances extend. On one side of the courtroom, those who hope that justice will finally be done and a verdict carried out will gather. On the other side will stand a man who believes that true mercy cannot be strained, even if is stretched thin over a quarter century.

A gavel will bang like a pistol shot. Suddenly it will be 1982 all over again. “I’m on death row for killing three men. … Although I’ve been locked up a long time, I still feel like I am young and have a lot of life left in me to live; I don’t want to have to waste it rotting in some prison! … I devote all my energies toward trying to win my appeal and get me out of here before it is too late for me to have a real second chance in succeeding in life.” Frank Spisak, in prison letters posted on the Web site mansonfamilypicnic.com.

After the cops and the coroners finish their work, the flattened slugs and photographs of spent bodies go into a fat manila folder in the Cuyahoga County Prosecutor’s Office. The folder lands on the desk of a young assistant prosecutor named Donald Nugent. He is an ice pick in a nice suit. He is 34, with a diploma from Xavier University and a Cleveland Marshall law degree folded neatly around a stint in the Marine Corps. He is halfway through a career that would see him try 50 murder cases and prosecute at least that many rapes. The graying prosecutors in the office have dubbed him “Jack Armstrong,” like the “All-American Boy” of old radio shows, and he is golden.

It is 1983, and Nugent reaches into a manila folder. He looks at pictures of what seems like half of Cleveland, bleeding.

Here is the Rev. Horace T. Rickerson, dead, shot seven times on Feb. 1, 1982. “Four spent bullet casings were recovered from the scene,” a court document reads in the same flat prose that lists ingredients on a cereal box. The pastor of the Open Door Missionary Baptist Church, Rickerson had looked at its cramped home on East 83rd Street and dreamed, because dreams not only turned into classrooms and towers, but into spires and pulpits, too. In December 1975, a ground-breaking ceremony was held, and in March 1977, Rickerson dedicated the brand-new church on Woodland Avenue, just up the street from the borrowed room above a laundromat where the congregation had started 50 years before.

A weekly radio show called “Heart to Heart” on WJMO carried Rickerson’s sermons. His last broadcast, aired the night before he died, was titled “How to Know You Are Saved.” Rickerson left to research a sermon at Cleveland State’s library and never returned. He went home. That’s the way church people say it: He went home. That August, Rickerson’s congregation gathered without him for a ceremony to burn the paid-off mortgage.

Here is John Hardaway, a working man. He had spent his young life looking at the world from inside a bottle. He battled alcohol’s demons and wrestled them to a draw, remaining sober for 17 years. “It was really a tribute to John that he stayed with it,” Nugent says now, remembering. “Every Friday night he’d go to the Black Horse Tavern and have two little cans of orange juice, cash his paycheck, and walk over and take the Rapid home.”

Hardaway was shot seven times on the evening of June 4, 1982, while waiting for an RTA train at the West 117th Street Rapid station. His one quirk, for jewelry, saved his life: A medallion he wore on his chest deflected the killing bullet aimed at his heart. “Three pellets and seven shell casings were recovered,” the court document reads. “Just imagine the Rapid driver,” says Nugent. “She pulls up to the stop at 11:30 at night and she sees Hardaway there, bleeding. And then she calls police.”

Here is Coletta Dartt, a Cleveland State University employee, who at 5 p.m. on Aug. 9, 1982, left her office to use the restroom. Exiting the stall, she encountered Spisak, holding a gun, who ordered her back into the stall. Dartt - a black belt in karate - shoved him out of the way and ran down the hallway. Spisak fired a shot as she fled. “A pellet was later removed from a wall in the hallway.”

Here are Timothy Sheehan, Cleveland State University’s assistant superintendent of buildings and grounds, and CSU student Brian Warford. Sheehan had crossed an ocean and Warford had ridden a city bus to end up at the school. There they ran afoul of a man on a different career path, and both died.

Sheehan, dead at 50, was discovered by a campus security guard on Aug. 27, 1982. He had been “shot four times, and two pellets were retrieved from the scene.” Warford was found three days later at a Euclid Avenue bus stop, dead at 17 of a “single gunshot wound to the head, although five spent .22-caliber casings were recovered from the scene.” “This was not some random spree,” Nugent says now. “Here was a guy who was a pervert right from the beginning. And who had a gun. And the gun gave him power.”

It’s June 1983, the day of trial. The court-appointed defense team huddles at the table across the aisle from Nugent. The accused squints through Coke-bottle glasses from behind a belly-warmer tie. The Sheehan family survivors watch from the back. And here comes Judge James Sweeney in his black robe. As the bailiff calls, “All rise,” the courtroom stirs.

The people in the folder do not move. “

The Brendan I saw was a frightened, devastated young man surrounded by his three sisters and his mom, not knowing what to make of the fact his dad, his best friend, was gone. And then trying to take his dad’s place and not knowing really how to do it.”

“He loved his yard, his garden,” says Brendan Sheehan, Timothy’s son. “It’s funny: A few weeks prior to my dad’s death, my sister had graduated high school. For a graduation present, my sister wanted to go to Ireland, and she and my dad went. He had said, ‘Brendan, you stay home and make sure the lawn is cut,’ stuff like that. “He came back, and it was, ‘OK, here’s the thing - you didn’t cut the lawn right; here’s how you work the hedger.’ It’s kind of ironic, like he was preparing me.”

Tim’s own college career had been full of bicycle rides across ancient lawns with professors. Born in County Cork, Sheehan attended Maynooth College, west of Dublin. Now Sheehan was an American, with a mortgage to prove it. He got up at 5 or 6 in the morning to catch the bus to work and returned at 6 in the evening. Nothing ever happened on his shady street in Fairview Park, and people worked themselves woozy to keep it that way.

The day someone decided to kill Tim Sheehan, the family planned to celebrate Brendan’s 15th birthday with dinner at a restaurant. At 2 p.m., Sheehan left his briefcase, glasses and coat at his desk, hustled off to check a report of a faulty door lock and vanished. Beeper pages went unanswered. Four hours later and a city away, a Fairview police cruiser pulled into the Sheehan driveway.

Bad news flooded the family room. “It was surreal,” Brendan remembers. “You’re looking at your mom. You’re thinking, ‘He died? How’d he die?’ He was murdered. Who would do that?” “I like classical music and games like chess. I used to enjoy collecting stamps - ‘the quiet hobby’ it is called.”- Frank Spisak “He is a coward. When you hide in darkness and in-wait for an unsuspecting person, and you have a gun and they don’t know what’s happening, and you ambush them - which is what he did to everybody - that shows he’s a coward.” Donald Nugent

“Slayings end myth of CSU as urban oasis” (Plain Dealer headline, Sunday, Sept. 5, 1982)

He was a little man in search of a soapbox. Frank Spisak dressed sharp, drove a candy-apple-red Mustang and considered himself a self-taught student of history. At Midpark High School, Class of ’69, he had been a scrawny library aide, singing in the choir and glee club. He liked to talk race hate and fascist politics, using words that hit like fists.

“After graduation from high school I had planned to study history in college,” Spisak wrote from his cell, “but went to work in a factory instead because I wanted money to buy myself a car and do other things.” He entered Cleveland State in 1969 but dropped out after 40 credit hours. By 1972, he was working at a factory on Cleveland’s East Side. Spisak courted a co-worker, Laverne Lampert, with flowers and Elvis Presley records. They married within a year and had a daughter.

By 1977 or 1978, after a car accident that Laverne thought had “messed his mind up,” Frank started wearing dresses during neighborhood strolls. He listened to albums of Hitler speeches. After he brought home another cross-dressing man and slept with him, Laverne walked out. They briefly reconciled two years later, but then he confided that he had always wanted to become a woman. Hormone treatments would be great, he said. Be a man, she said. She left again.

Spisak took a job that year as a machinist at the Edward Daniel Co. on St. Clair, with a Teamsters Local 507 card in his wallet and $220 every payday. He collected guns, dressed as a woman on weekends and discussed the finer points of Nazism and gay porn with any co-worker who’d listen. He took home men and partied with a black prostitute, substituting firearms for payment when he was short of cash. “Hunting parties,” Spisak called his forays out to rob and kill. Spisak stalked his victims in the city’s lonely corners. He hunted where he felt most comfortable. He returned to Cleveland State to wander the campus and study Nazi history in the university library.

And there was Brian Warford, waiting.

If good luck were pocket change, Warford would not have had bus fare. Two years before, in 1980, he had dropped out of Collinwood High as a sophomore. He’d been kicked out of the house after he stole his father’s van and his credit cards. “A loner who lacked discipline,” his father growled. Brian went to live with a sister.

But at 17, Warford saw that his life needed to come around, or he would die on the streets. Warford enrolled in an alternative education program offered at CSU, and suddenly his GED was not just a pretty thought. After late classes, he waited at a bus stop on Euclid Avenue. A pistol barked and Brian Warford fell to the sidewalk.

They found him sprawled on the cold pavement, on his right side. A single bullet rested in Warford’s head. In his trouser pockets were two lottery tickets; both tickets were losers.

“Instead of defending the mentally ill and standing up for their civil rights (rights to which they are entitled as American citizens), the lawyers in our communities have joined prosecutors and tough minded ‘hard-on-crime’ judges in sending mentally ill persons to prison and death row - treating us like we are habitual criminals!” Frank Spisak “First he’s trying to say he didn’t do it. And when he came to the point when he realized the gig was up, that’s when - for the first time - he turns to this White Power BS, this Nazi stuff. Which he had an interest in. But that wasn’t why he was killing. The reason he was doing these killings was that he was a pervert and was looking for his own self-gratification.” Donald Nugent

On Sept. 4, 1982, two Cleveland patrolmen climbed the stairs to a second-story walk-up at 1367 E. 53rd St. Labor Day weekend had just begun, and here was a call about shots fired from an apartment window, proof that when you mix alcohol and gunpowder, you get handcuffs. The resident said he had nothing to hide. Which was true: A shotgun and a 22-caliber pistol were clearly visible. The cops found a loaded .38 revolver and a two-shot Derringer buried under the sofa cushions. Frank Spisak was booked for possession of unregistered handguns and for discharging firearms within city limits. He posted bond and walked.

Two days later, the street swarmed with bulletproof vests. Two tips had told police that the gun used in the CSU murders was already in their possession. Ballistics tests linked Spisak’s .22 to Sheehan’s and Warford’s murders. Inside the apartment police found newspaper clippings detailing the killings, but no Spisak. He was pulled later that day from a friend’s basement, crouching next to a getaway suitcase. Detectives pawed through the contents: Inside was Tim Sheehan’s beeper.

Reporters barreled down I-71 to Midpark High, where old yearbooks were mined. One ex-classmate remembered the argumentative glee clubber, the library geek who talked himself into trouble and thought he could talk his way out again. He didn’t know why Spisak would murder, but “I suspect Frank has a logical explanation.”

Spisak told court-appointed psychiatrists “he tried to kill Coletta Dartt because he became angry when he heard people making fun of the White People’s Party,” a court document reads. “He decided to teach her a lesson and intended to ‘slap the shit out of her and rob her’ when she came out of the ladies’ room at Cleveland State.”

He said he “felt good” about shooting Warford. His biggest worry was “getting back across to the other side of the campus” to his car, according to one psychiatrist. “I figured in the early morning hours it was so quiet, somebody was bound to hear all the shots.” He admitted he was worried about getting caught after the first murder. “He shot Hardaway on the other side of town away from Cleveland State, where the other shootings had taken place, because ‘he didn’t want the police to link the two shootings together and link it to [him],’ and he ‘didn’t want to get caught.’ ”

After murdering Sheehan, he said, he “picked up the brass casings from his gun because the brass is worth money and also because ‘it’s sloppy to leave it laying around.’ ” “Spisak has come to a deep and intelligent understanding of the mental illness and gender identity disorders that drove his unfortunate and painful actions. The understanding underlies his deep remorse. ” defense attorney Alan C. Rossman

“Twenty-five years later, to somehow say, ‘Well, he’s got some mental problems …’ The jury heard all that. And the jury said he was responsible.”

At the trial, Fank Spisak never said he was sorry. To the families, he offered no apology. The monthlong trial began on Monday, June 13, 1983, in the common pleas courtroom of Judge James J. Sweeney. “Part of the job that you’ve undertaken is going to be sitting in judgment of a sick and demented mind that spews forth a philosophy that will offend each and every one of you,” defense lawyer Thomas M. Shaughnessy told the jury. “Make no mistake about that, you will be offended.”

Spisak grew a Hitler mustache for the trial. He greeted his lawyers with a Nazi salute. He answered Judge Sweeney’s questions with a German “jawohl” instead of “yes.” On the stand, he spoke of race war and of killing “the enemy” - Rickerson, Warford and Hardaway were black, and Sheehan “looked like a Jew professor,” Spisak said.

Faced with ballistics evidence linking Spisak to the murders and eyewitness identification from the survivors, Shaughnessy bet his client’s life on an insanity defense. But on July 11, Dr. Oscar B. Markey, the only psychiatrist called by the defense, testified that Spisak was the victim of several known mental disorders - none of which could be characterized as mental illness. Judge Sweeney asked Markey for clarification. Was Spisak mentally ill when he committed the crimes he was accused of? Was Spisak mentally ill now? “No,” Markey said. “No.”

Sweeney then instructed the jury not to consider Markey’s testimony in its deliberations. Two days later, he ruled that Spisak knew right from wrong and understood the consequences of his actions, so he could not plead “not guilty by reason of insanity.”

Resigned to a guilty verdict, Spisak’s defense looked ahead toward finding mercy in the sentencing part of the trial. “In this segment of the trial, the defense has no defense,” Shaughnessy told the jury in summation. He would see them again, he promised, during the penalty phase. After 60 witnesses and 250 exhibits, the jurors concluded, beyond a reasonable doubt, that Frank Spisak did murder and rob, propelling bullets into the bodies of his victims. This took just over five hours.

A reporter asked Spisak if he could think of any reason he shouldn’t be electrocuted. “Not offhand; can you?” Spisak said. Then he grinned. During the penalty phase, a line of psychiatrists took the stand for the defense. “Mentally unwell,” Dr. Oscar B. Markey called Spisak. “He lacks finer feelings. He is governed by fear, by anger, by circumstance, and not by remorse, by tenderness, or feelings of modesty.”

Dr. Sandra B. McPherson, a clinical psychologist, said Spisak detailed the killings to her matter-of-factly, showing no remorse. “It was like,” she testified, “discussing what I had for breakfast.” She was visibly shaken as she recalled Spisak’s inkblot test - Spisak, she said, saw only bloodstains and body parts. But none of the experts could pronounce Spisak legally insane. “Troubled” and “unwell” would not save his life.

The back of the courtroom had already reached a decision. “He’s a cold-blooded killer, and he’s no good,” a recovering John Hardaway told reporters. “He was killing people for no good reason, and he should be electrocuted.” Even Spisak’s defense attorney seemed eager to help throw the switch. As his client’s life hung in the balance, Shaughnessy’s summation murdered each victim again. “Every one of us who went through this trial, we know we can feel that cold day [and] see Horace Rickerson dead on the cold floor,” Shaughnessy said. “And we can all know the terror that John Hardaway felt when he turned and looked into those thick glasses and looked into the muzzle of a gun that kept spitting out bullets.”

Shaughnessy did argue that Spisak was mentally ill, but soon undermined his own argument. “Don’t look to him for sympathy, because he demands none,” Shaughnessy said. “He is sick, he is twisted. He is demented, and he is never going to be any different.” Summing up, Shaughnessy told the jury, “Whatever you do, we are going to be proud of you.”

After five hours of weighing testimony and balancing death against life with the possibility of parole, the jury voted with John Hardaway, for a death sentence. Judge James J. Sweeney thanked the jury. Spisak rocked in his chair.

Spisak’s final address to the court was the soapbox he’d lusted after for 32 years. “Even though this court may pronounce me guilty a thousand times, the higher court of our great Aryan warrior god pronounces me innocent,” he shouted. “Heil Hitler!”

Asked about his victims’ families afterward, Spisak was bitter. “If it makes them happy, if it makes the whole city of Cleveland happy, if they’re going to dance and celebrate my death, then let them dance and celebrate because today I die and tomorrow it will be them.” But he would not run to the electric chair. “Now [my lawyers] are going through the appeals process … until they no doubt exhaust all the different options open to them.”

He expected to buy time, but not a second chance. The appeals might win him “a year, two years, or maybe 10.” Then, Spisak said, it would be time to ride “old blunderbolt.” Instead, Frank Spisak would outlive his lawyer and the memory of most of the city.

For 25 years, Spisak has lived on prison food and court appeals. In a series of colorful filings, Spisak has argued that since transsexualism is considered a “mental defect” under Ohio case law, the state of Ohio should pay for a sex-change operation for him. He has also asked to be allowed to resume collecting stamps and corresponding with other collectors - a request denied when he mentioned, “My specialty is collecting old German postage stamps, especially those from Nazi Germany.”

Last year a three-judge panel of the U.S. Sixth Circuit Court of Appeals went into the fat folder filled with bodies and shells and balled-up crime scene tape, and hope sprung again in a cell in the Mansfield Correctional Institution. The judges upheld Spisak’s conviction, but ordered the case back for a new sentencing proceeding. They cited improper instructions given to the jury that suggested they needed to decide between life and death unanimously. Actually, only a death sentence must be unanimous. One dissenting juror can spare a defendant and force a life sentence instead.

The judges also hammered the late Thomas Shaughnessy for representing Spisak ineffectively. They criticized him for graphically recounting the crimes in his closing argument, expressing hostility and disgust for his own client and saying very little to offset either. Much of his argument “could have been made by the prosecution,” noted one judge dryly, “and if it had, would likely have been grounds for a successful prosecutorial misconduct claim.”

A new jury has to resentence Spisak - weighing “mitigating factors” such as his mental state. The Ohio Attorney General’s Office is considering an appeal to the U.S. Supreme Court, but it’s a long shot. Most likely, Cuyahoga County Prosecutor Bill Mason will have to argue all over again that Spisak deserves to die. Attorney Alan C. Rossman now represents Spisak. For Rossman, the “mitigating factors” are clear: We should not execute the mentally ill, and Frank Spisak is mentally ill. “The Nazism was very much a part of the identity disorder,” says Rossman. “What attracted him to the White People’s Party was the uniform and the structure - and the identity. It was a symptom of his illness as opposed to a driving force.”

Rossman calls the first trial “a circus,” in part because Shaughnessy let Spisak portray himself as a Nazi. “When reviewing the trial record, there was no question in my mind that his trial counsel had nothing but contempt for him,” Rossman says.

Rossman passed the bar in 1981. He was still hanging his law degree during that summer of 1982. He’s worked on several capital punishment cases. Each is a mental challenge for him. “You never divorce yourself from the victims,” he says. But when he tries to “understand the human side” of his clients, he realizes “how broken they are.” “The difficult thing is to suspend judgment and get beyond the fangs and talons that are being portrayed, and find out how they got to where they are. Which is not to condone anything that’s happened.”

The girl’s feet do not touch the floor. She’s wearing Dora the Explorer socks in SpongeBob tennis shoes and sitting in a too-big chair. The littlest victim stares past the framed photos in the Cuyahoga County Prosecutor’s Office lobby - full of old men in stiff collars and Herbert Hoover haircuts - to the TV. A cartoon aardvark named Arthur soars over his troubles in a magic plane. She and her mother have come to see Brendan Sheehan.

An assistant county prosecutor, Sheehan is director of the Internet Crimes Against Children division. When the investigators are through, everything - the pedophiles and abuse and monsters that swallow childhood - goes into a fat folder that lands on his desk. “Right now I have 40 pending cases on my docket,” he says, motioning at an office the size of a generous chimney.

A small man can cross a courtroom in a few steps. It took Brendan Sheehan 25 years to do it. After Sheehan graduated from Baldwin-Wallace College, Don Nugent pointed him toward a bailiff job and law school. Being a prosecutor, Sheehan says, is “my dream job.”

Frank Spisak is an almost-forgotten nightmare. “I’ve always prided myself on the fact our family doesn’t talk about Frank Spisak, doesn’t think about Frank Spisak,” Sheehan says. Now he will.

It will be left to Sheehan’s co-workers, his fellow prosecutors, to try this case. But he plans to be there, “sitting in the back of the courtroom, like I did 25 years ago.” As the surviving head of the Sheehan clan, sworn to protect his mother and sisters, how can he not?

He believes that keeping Spisak on death row is not impossible, but resentencing him will be tricky. “How do you recapture what was said 20-some years ago to a jury on how this guy deserves the death penalty?” Sheehan asks. “Times have changed.”

Donald Nugent is now U.S. District Judge Nugent, presiding over a courtroom in the federal courthouse on Huron Road and an office the size of the 14th green at Firestone Country Club. Spisak’s name comes up, and suddenly we are talking about marriage chapels. “I’ve gone to every one of Brendan’s sisters’ weddings and his wedding,” Nugent says, “and in the Irish tradition they have a father’s prayer. Well, he’s not there. And they always have someone say the father’s prayer in place of Tim. That comes home to Kathleen and the kids. In the happiest moment of their lives, the Sheehans are reminded of the butchering of Spisak and the loss of their father.”

No matter how the case ends, Nugent says, “All of the victims’ families will know that the police, the prosecutors and everyone who was charged of representing them did everything that was legal and proper and appropriate to see that justice was done. And the fact that someone, maybe, didn’t was not something they had control over.”

If he weren’t a judge, would Nugent like another crack at prosecuting Spisak? You do not ask a barber if you need a haircut. “In a minute,” Nugent says. “And I would be his worst nightmare.” Sometime soon, perhaps this summer, another jury will be handed a fat folder filled with spent slugs and bleeding bodies and crime scene tape. They will weigh whether a damaged man deserves a second chance, though he took such chances away from three others.

Cuyahoga County Prosecutor William Mason will seek another death penalty for Frank Spisak. He has promised to deliver his office’s lead arguments himself.

A gavel will bang like a pistol shot, and Spisak will live or die. Another judge will enter a courtroom as the bailiff calls, “All rise.” Regardless, the people in the folder will not move.

Cheating Death

A cross-dressing Nazi murdered a prosecutor's dad 25 years ago. He's back

By Jared Klaus

ClevelandMagazine.com

"The buses kept coming. As each slowed to a stop, Brendan Sheehan scanned the glowing windows for his father. But he only saw strangers. His dad, the maintenance supervisor at Cleveland State, was never late. And he surely wouldn't be tonight. It was Brendan's 15th birthday, and Tim Sheehan was taking the family to dinner.

Brendan, his worried mother at his side, thought about this as he choked back diesel fumes. Another bus came, emptied, grumbled away. Then another. "The buses kept coming," remembers Brendan. "My dad never got off."

Then a police car rolled around the corner into the Sheehans' quiet, flag-waving Fairview Park neighborhood, and into the driveway of their two-story home. The officer sat his mother down in the family room. Your husband's been killed. "Every time I walk into that room in my mom's house," says Sheehan, "I remember that conversation."

His next vivid memory is sitting in court -- "the green, ugly cloth chairs" -- looking into the eyes of the man who murdered his father. He was a puny loser named Frank Spisak, who dressed as a woman and fantasized he was a Nazi, killing black men in the name of Hitler. Tim Sheehan, an Irish immigrant, had simply gotten in the way.

Spisak sat proudly on the stand wearing a Hitler mustache, presenting an odd visage of the master race, cavalierly chatting about his killings as acts of God. But he found a superior nemesis in bad-ass prosecutor Don Nugent. Nugent patiently baited Spisak with his own vanity, spun him into a corner, then exposed him as nothing more than a punk, a coward, a Nazi wannabe, and dime-store thief.

Spisak was sentenced to death. The prosecutor became Sheehan's hero, justice personified.

Twenty-five years later, Sheehan has taken Nugent's place. He's now the toast of the Cuyahoga County Prosecutor's Office, handling more than twice the caseload of the average prosecutor and trying murder cases of his own. It's as if that moment in court more than two decades ago never left him.

"It's almost like he's on a mission," says Assistant Prosecutor Dan Kasaris. "He's a bulldog."

The walls of Sheehan's closet-like office are papered with mementos from his cases -- exhibits, crayon drawings from young victims of molestation, and pictures of his three young children. Strangely absent are any pictures of his father. He's never really talked about his dad's murder. Not even his wife Michelle knows the details.

But now Tim Sheehan's brutal killing is about to be splashed across front .ages again. Frank Spisak, still alive 25 years after his death sentence, finally found a sympathetic ear last month. A federal appeals court ruled that his lawyer had committed misconduct and struck down his death sentence. He'll likely be returning to the Justice Center, right by Sheehan's office, where the whole charade will play out again.

Now the prosecutor must do something he never prepared for: explain to his daughters, ages six and eight, that their grandpa was killed by a piece of shit. His eight-year-old is already so paranoid from overhearing her parents talk about the real-life monsters of Sheehan's work that she locks all the doors and windows in the family's home at eight o'clock every night.

But Sheehan says the hardest part was telling his mother and sisters "that this nightmare is creeping its way back."

*****

Frank Spisak Jr. was a nobody until he started killing.

In high school, he was just an awkward dork who liked to draw swastikas. His dad, a factory worker who played the trumpet in a polka band, had packed up his family and fled their neighborhood near Buckeye Road to escape black migration, moving to Middleburg Heights when Frank was young. Spisak, a member of the chess club, was just a nerd looking for attention.

He enrolled at Cleveland State, but dropped out the following year when he could no longer afford tuition. So he made a curriculum of his own at a downtown bookstore, where he worked the stock room, mostly feeding his bizarre appetite for everything Hitler. He read so much that he eventually wore his eyes out, requiring thick, jar-bottom glasses.

At 22, he married a woman named Laverne. They had a daughter, Sally Ann, and Spisak found work at a string of dead-end factory jobs, once making casket parts at a shop on Madison Avenue. Laverne found the whole Nazi thing a bit off-putting, but it wasn't enough to make her leave. Even when her husband blasted taped speeches by Rudolf Hess, Hitler's deputy, Laverne just tried to shut her ears.

But after three years of marriage, things started getting really weird. Spisak suffered a head injury in a car accident that "messed his mind up," Laverne would later testify. Her husband started expressing dark desires and dressing like a woman. At night, he'd go out on the corner and get paid to turn tricks for guys looking for a lady with a little extra equipment.

Laverne told her husband he was "sick in the head" and that he needed help. Spisak ignored her pleas. Then things got even more bizarre. One night, Spisak came through the door of their East 53rd Street home with a transvestite, walked by his wife, who was sleeping on the couch, and went into the bedroom to have sex with the man. "I told Frank it's either me or that thing," Laverne said later. Her husband picked the latter.

Laverne packed up their daughter and left, taking everything -- even the refrigerator and stove. Spisak was left with little more than a hot plate and a coffeepot.

He started dressing like a woman full-time, and had the license bureau change his name to Frankie Ann. He saw a psychologist about getting a sex change, and even began taking hormone treatments. But he couldn't afford the surgery, and he made an ugly woman. With his bad makeup and frizzed-out hair, he looked like Little Orphan Annie gone disco. The guys in the neighborhood would whistle caustically from their porches as Spisak walked by.

Frank, too, seemed to loathe Frankie Ann, and his fascination with Hitler grew into an obsession. He started collecting Nazi memorabilia, swords, framed pictures of Hitler. Neighbors would hear him blasting the Führer's speeches in German on his stereo, as Spisak marched back and forth across his living room, dressed in military garb. He developed an obsession with guns and ammunition, and started stockpiling.

Strangely, he also began dating a black female prostitute. Even as a Nazi, Spisak failed. Then God saved him, he would later recall for a jury.

On the morning of February 1, 1982, he was at the Cleveland State library on the first floor of Rhodes Tower, reading a 1930s book of Nazi propaganda, when he got up to go to the bathroom.

Inside, Spisak saw two feet underneath the door of one of the stalls. He went to the next toilet and put his eye up to a hole bored in the wall -- it was a black man, the Reverend Horace Rickerson. Accounts of what happened next are fuzzy, but the prosecution later claimed that Spisak had asked the reverend for sex but was rejected.

Spisak then pulled a pistol from his pocket, stuck the nose through the hole, aimed at Rickerson's torso, and squeezed until there were no more bullets.

As the preacher slumped to the floor, Spisak fled to the library snack bar. He felt "pretty good" about the killing, he would say later. So good, he sat down and enjoyed a cup of coffee. But curiosity got the better of him, and he returned downstairs to watch a crowd gathering around the bathroom. There, he locked eyes with the campus maintenance man. Something in his eyes spooked Spisak, some hint of recognition -- as if the man knew he was looking at the killer. Tim Sheehan had no idea that his life had just been set on a timer.

*****

Love brought Tim Sheehan across the Atlantic. He was working as a policeman in England when he met his wife, Kathleen, an Irish ex-pat living in America. He followed her back, and they started a family in the melting-pot suburb of Fairview Park.

He got work where he could, first managing the warehouse at Higbee's, eventually working his way up to overseeing maintenance at CSU. Every night, neighbors would see him walking home from the bus stop, briefcase in hand, young Brendan clipping at his heels. "I think they were very, very close," says longtime neighbor Stephanie Gamery. "All the girls were good, but Brendan was kind of standout."

The Sheehans were true Irish. Gamery remembers Kathleen sending over warm soda bread, and Brendan and his sister performing a traditional dance at one of her ladies' club meetings. "They were just charming," says Gamery, in a crackly grandmother's voice. "They literally stole our hearts."

Yet not far from Fairview Park, Cleveland had become gripped by violence. The summer of '82 was a bloody one. The city was averaging four dead bodies a week. Gang killings were rampant. People fled downtown each night, afraid to be caught there after dark. Police didn't know yet that a serial killer was in their midst. Murdering the preacher had put a taste in Spisak's mouth. It felt as if he had "accomplished something," he would claim.

He'd also befriended another loner and Nazi wannabe, Ron Reddish. Together, they'd cruise the streets in Reddish's Buick LeSabre, looking for black men. "Hunting parties" is what Spisak called them. He found his second victim late one hot June night. John Hardaway walked into the Black Horse Café on Madison and West 117th, just as he had every payday for 17 years. The bartender cashed his check as he drank a glass of tomato juice. Then he left to catch the Rapid at the station across the street.

As Hardaway waited for the train, he glanced over to see a man standing with his legs spread apart, arms extended, squeezing the trigger of a .22-caliber semi-automatic pistol. Five bullets riddled Hardaway's body. He crumpled to the ground, crawling away on numb limbs as he faded out of consciousness. Four days later, he awoke in a hospital bed. One of the bullets had struck a gold medallion hanging from his neck, saving his life.

A couple months later, Spisak returned to CSU. Coletta Dartt, who worked in the chemistry lab, was just getting off work at five o'clock when she stopped to use the bathroom. When she opened the stall door, she was staring down the barrel of a gun. "Get back!" Spisak demanded. Dartt pushed him away and ran into the hallway. Spisak chased after her and fired a round down the hallway, but missed. A frantic crowd poured from the classrooms. But Spisak was gone. Panic gripped the campus. Rewards were offered for information on the bathroom shooter. But police were without a solid lead. The attacks seemed so random.

Still, Spisak was paranoid. He kept thinking of the maintenance man outside the bathroom the day he killed Rickerson. So he began to follow the man around campus, prosecutors would later speculate. One day he walked past Tim Sheehan intentionally, just to see if he could notice a look of recognition on the man's face. He was sure that he did.

On the morning of August 27, 1982, Kathleen Sheehan gave her husband $10 and waved goodbye. Tim was cutting out of work early that day to play golf, then coming home for Brendan's birthday. With the summer session concluded, Rhodes Tower was eerily empty. As Tim stood at the urinal, feet shuffled in behind him. He turned around to see Spisak pointing a pistol at his forehead. The two men locked eyes in silence. Then two bullets blew out the side of Tim's face. One pierced his neck. Another hammered into his chest. Tim fell face down in a pool of blood and urine. As the last twitches of life left Sheehan's body, Spisak rustled around in the man's pants and took out his wallet, which held the $10 Sheehan's wife had given him. Spisak went home and waited for the hysteria to hit TV news.

He would claim he felt that God had made him invisible, "stuffing the ears of everybody." So he went hunting again the next night. Seventeen-year-old Brian Warford, waiting at a bus shelter on Euclid outside campus, died instantly from a perfectly placed shot to the head.

A week later, police actually had Spisak in custody. He was arrested after getting drunk and shooting his gun out the window of his house. But the cops had no idea he was the Cleveland State killer, and Spisak was allowed to post bond.

For the moment, he was invisible. But God couldn't protect Spisak from his own mouth. He'd bragged about the murders not only to his ex-wife, but also to his girlfriend. Then police received an anonymous call, telling them to take a second look at the guns they'd confiscated from Spisak's house. The weapons matched those used in the killings.

Spisak was driving home one day when he saw squad cars lining his street. He drove to Reddish's house, but a neighbor tipped police. They found Spisak crouched in a basement crawl space. The CSU killer was behind bars. For the first time in months, the city could sleep.

Spisak proudly admitted to the murders, even autographing his swastika T-shirt for detectives. He came to court with his head held high, sporting the Hitler mustache he'd grown in jail, carrying a copy of Mein Kampf, and greeting Judge James Sweeney with a "Heil Hitler" salute. Yet he didn't seem to grasp the contradiction that a member of the master race was pleading insanity.

Defense attorney Tom Shaughnessy could do little except paint his client as crazy as he seemed. He put Spisak on the stand, egging him into casually admitting to killing in the name of God and Hitler, whom he regarded as a Jesus figure. Blacks were overpopulating the world, Spisak argued, and he was helping cull the herd. "There's a lot of work to be done. Unfortunately, there's not enough people to get it done," he announced, his chin up in the air like a duke.

Lying in wait was Assistant Prosecutor Don Nugent, a lady-killer with the jurors, with piercing eyes and a poker-room swagger. "Nugent presents a very strong image, where lightning's going to flash from the heavens if you do wrong," says longtime defense attorney Richard Drucker. Nugent asked Brendan's mom to take the stand and do the unthinkable: stare down the man who gunned down her husband. Kathleen refused, terrified. Brendan pleaded with Nugent not to force her. "He was trying to be strong and take his dad's place," says Nugent.

But the prosecutor was stronger. Kathleen tearfully testified to the morning she said goodbye to her husband for the last time. In exchange, Nugent promised an eye for an eye. "That's a big responsibility," says Nugent. "If they put their trust in you, you better live up to it."

Brendan had envisioned his father's killer as a frightening monster. But what he found in court was a skinny, effeminate creep. "I think, 'Who is this punk, this squirrelly-looking punk guy?'" Sheehan remembers.

Spisak coldly recalled how he shot Tim Sheehan. "When I saw him go down, I knew I hit him," he testified. Shaughnessy showed him a crime-scene photo of Tim's body. "I thought I did a good job," Spisak said. Then Nugent came in for the cross-examine.

When Spisak proudly claimed he shot Hardaway at the Rapid station as "blood of atonement" for the recent Flats slaying of a white woman by a black man, Nugent pointed out that the killing hadn't been made public until a day after Hardaway was shot. Spisak had committed the crime for no more noble purpose than his own sick pleasure, Nugent told the jury. "Like your hero, Adolf Hitler, you got a yellow streak all the way down your back," Nugent taunted the enraged Nazi.

The prosecutor found Spisak's weaknesses and used them to humiliate him, calling him by his female name, Frankie. "The name is Frank to you, buddy," Spisak shot back. "The name is whatever I want to call you," Nugent replied. "I was overwhelmed by what [Nugent] was doing," Brendan remembers. He was "aggressive, prepared."

Not even the defense's own psychiatrist could help Spisak. In a shocking moment, the doctor testified that Spisak suffered a personality disorder -- not legal insanity.

Spisak was convicted for all the murders, and was as good as sitting in the electric chair. Asked by a reporter afterward if he could think of any reason why he shouldn't be fried, Spisak smiled and responded, "Not offhand, can you?" The jury agreed, sentencing Spisak to die. He left the courtroom with a rousing "Heil Hitler!"

*****

Sheehan never forgot the cowboy prosecutor. In his junior year of high school, he volunteered by passing out yard signs for Nugent's judicial campaign. Nugent, who won, was used to keeping in touch with the victims, but Sheehan would regularly call for advice. Nugent became his mentor, even steering him toward his alma mater, the Cleveland Marshall College of Law.

For Sheehan, life fell into place fast. He proposed to his girlfriend from law school, and they had two daughters and, later, a son -- whom he named Tim, after his father. After graduation, he clerked for Nugent, who had been appointed by President Clinton as a federal judge. Sheehan was making a cool $80,000 salary, which rose higher when he went to practice civil law.

It was the normal path for a budding lawyer -- follow the money. Sheehan, however, had another agenda. When Bill Mason became prosecutor in 1999, he started noticing the bright-eyed attorney following him. "Wherever I was, he showed up," says Mason. Then one day, Sheehan gathered his nerve and asked Mason for a job on the steps of the courthouse. The prosecutor wanted to make sure Sheehan knew what he was getting himself into. He'd start out making a measly $34,000, busting deadbeat dads in child-support court. "It doesn't matter," Mason remembers the kid saying. "I just want to do it."

Telling his wife about his latest career move was a more delicate conversation. But Michelle stood by him. "We tightened our belts, and we figured out a way to get it done," she says. "You live for what you want, and that's what he wanted, so we supported him." Sheehan got what he asked for. He scratched his way through child-support court, then juvie, then moved up to trying small-time felony cases and parole violations. In 2001, he was putting together a case against a loner named Timothy Moulder for robbing a roofing company when he got his chance to go big.

A year after the robbery, Moulder had been called in by prosecutors as a suspect in a gangland-style slaying in Bay Village, but he was dismissed after his girlfriend backed up his alibi. But Sheehan knew the murdered man -- roofer Robert Cutler -- was the cops' main witness to Moulder's robbery.

Sheehan urged Bay Village police to collect surveillance tapes from businesses near the murder scene. On the morning of the murder, Moulder was videotaped at a nearby gas station. It destroyed his alibi. His girlfriend quickly ratted him. The boy prodigy had cracked a murder case. "It was Brendan Sheehan, because of him, why that case went to trial," says Judge Ron Suster.

Sheehan earned his way to a sidekick job on bigger and bigger cases. He was a darling of the old-time prosecutors, tipping verdicts with a baby face and Eddie Haskell politeness that the veterans had lost to cold eyes and stomach-turning pauses. "He's the kind of guy I think most people like their daughter to bring home," says attorney Drucker. "He's got an all-American type of appeal."

He was taking his game to new heights -- as well as new lows. During the trial of a Warrensville Heights bar owner, accused of holding an after-hours strip show at his bar, Sheehan wanted to paint the scene to jurors. So he brought in the stripper, a 50-year-old grandmother in skin-tight leather pants, to dance in the courtroom. He cranked up a boombox playing the bump-and-grind song "My Neck, My Back," as the over-the-hill temptress rolled around on the floor.

Judge Carolyn Friedland, wearing a prudish strand of Barbara Bush pearls, watched the show as if she might vomit. She dismissed the case midtrial. Today, Sheehan looks at a newspaper clipping tacked to his office wall, where he's pictured holding a pair of extra-large stripper panties. He's still proud of that case. "I was trained by the best," he says of Nugent, "not afraid to fail."

Something had possessed Sheehan. In 2003, he took 28 cases to trial, winning 24 -- a number unheard of in the prosecutor's office. "Nobody's ever tried that many cases," says Mason. That year he was given the Carmen Marino Award. Usually bestowed as recognition for the lifers in Mason's office, Sheehan had captured it in just four years. "I think we caught everybody off guard when we gave it to Brendan," says Mason. "But it was an easy call."

Mason then tapped Sheehan to run the internet crimes division, busting online sex predators and kiddie-porn peddlers. Today, he has 43 cases on his plate; the average prosecutor has less than half that. Michelle says her husband often works until 2 a.m. preparing for the next day.

She doesn't know much about her husband's father, just bits and pieces recounted by Sheehan and his sister. "He's always kept that quiet," she says. "I always wondered: If [Spisak] gets put to death, are you gonna go watch?" But to her husband, Spisak was already dead and buried. "We moved on," he says. "The fact that Frank Spisak is in a jail cell, and is not talked about, and is not even mentioned, is almost as satisfying."

Yet Spisak has made quite a life for himself on death row. He's lobbied, unsuccessfully, for the prison to allow him to have a sex change. In 1999, he filed a federal lawsuit to force the state to refer to him as a woman. And he's spent 25 years burning public money, dragging out the appeals process for as long as he can. He never got much sympathy -- until last month. The Sixth Circuit Court in Cincinnati ruled that Spisak hadn't received a fair defense and struck down his death sentence.

Shaughnessy had done his best to make his client appear insane, but it backfired, ruled the judges, actually making a better case for killing Spisak than for sparing him. "Don't look to him for sympathy," the lawyer told jurors at one point, "because he demands none."

Yet lawyers who knew him say Shaughnessy was simply going by the book. "It's a standard technique -- take the thunder from the opposing party," says Assistant Prosecutor Steve Dever. "Expose [the weaknesses of your case] for yourself so that your opponent can't do it." Unfortunately, Shaughnessy isn't alive to defend himself; he died of throat cancer in 1997.

The state has appealed, but if it loses its challenge, Spisak will return to Cleveland to be resentenced. Twenty-five years later, with the horror of his killings long gone from the headlines, finding 12 jurors to unanimously deny him mercy is a long shot.

To Sheehan, the only thing that matters is that his father's killer is getting a walk. For his mother and sisters, it's a slap in the face. "You're living the case until it is concluded," says Nugent. "Then a decision like this comes out . . . It's like a death. You're never prepared for it."

Spisak may never see his way out of Mansfield Correctional, but he's found a way back into the Sheehans' lives. Sheehan's kids have heard his worried mother and sister talking about it; they want to know if they should be afraid. "I said, 'My dad was shot by someone who was mean and bad, a bully,'" Sheehan says. Those words may be enough to comfort his kids, but Sheehan just wants to bury this thing. And prison walls aren't thick enough.

*****

The letter comes from "Death Row, U.S.A." Written in neat, girlish print, it begins with "Happy Thanksgiving" and a smiley face. Spisak is writing Scene to dispel the "ignorance" surrounding his case. He's no Nazi, he claims. And he's truly sorry for the killings. "Mental illness caused the crimes," he writes, "and I'm sorry that I got mentally ill enough to hurt and kill others [sad face]."

He signs the letter "Miss Frances Ann Spisak, a.k.a. STARGIRL, WHITE ROSE in a concrete jungle." The killer seems truly happy to be alive.

Killer Frank Spisak, not his attorney, brought on death penalty, justices rule

By Robert Barnes - The Washington Post

January 13, 2010

As jurors prepared to decide whether Ohio killer Frank G. Spisak Jr. should live or die, a lawyer told them this: "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."

That was Spisak's attorney talking. His unorthodox closing argument asked only that jurors take "pride" in their own "humanity" in making their decision. But the Supreme Court essentially said Tuesday that when your client grows a mustache like Adolf Hitler's, admits to killing three people and wounding two, expresses remorse only about a victim who "wasn't Jewish like I thought he was," and says he would like to kill again, even a sterling closing argument is not likely to save him.

The court overturned a decision from the U.S. Court of Appeals for the 6th Circuit and ruled that it was not ineffectiveness of counsel that earned Spisak a death sentence. After jurors heard "Spisak's boastful and unrepentant confessions and his threats to commit further acts of violence," Justice Stephen G. Breyer wrote, "we . . . do not see how a less descriptive closing argument with fewer disparaging comments about Spisak could have made a significant difference."

He said there was no "reasonable probability that, but for the deficient closing, the result of the proceeding would have been different."

Spisak, who committed his crimes in and around Cleveland State University in the early 1980s, has bounced through a series of courts since, and his case was making its second appearance at the Supreme Court. The justices also rejected an argument that jury instructions were inadequate.

The closing argument by attorney Tom Shaughnessy, now deceased, caused a lively debate when the justices considered it earlier in the term. Justice Antonin Scalia called it "brilliant," saying there was nothing the lawyer could have done but urge the jurors to consider their own humanity. Others were less generous. Justice John Paul Stevens, who agreed with the outcome of the case, nevertheless wrote separately to emphasize the "catastrophe of counsel's failed strategy," and said it was difficult to demonstrate how egregious it was "without reproducing it in its entirety."

Stevens added: "Indeed, the argument was so outrageous that it would have rightly subjected a prosecutor to charges of misconduct." Even so, Stevens said, he had to agree with the rest of the court: "Even the most skillful of closing arguments -- even one befitting Clarence Darrow -- would not have created a reasonable probability of a different outcome in this case.

By Stephen Koff - The Plain Dealer

January 12, 2010

The high court overruled appellate judges who had saved Spisak, a former cross-dresser who fashioned himself as a modern-day Nazi, from death for his 1982 killing spree. The Cuyahoga County prosecutor's office says it will soon ask Ohio to impose the capital sentence that has been delayed by appeals ever since a Cleveland jury recommended it in 1983.

"I don't ever feel triumphant about death-penalty cases," Ohio Attorney General Richard Cordray said in a phone interview after the Supreme Court's ruling. Cordray had argued to the high court in October that Spisak's legal claims had no merit. "But it's a good result, it's a just result, and we feel good about it."

Spisak's appellate attorneys, however, are troubled by the ruling. Part of their case rested on the fact that before his conviction, Spisak's trial lawyer appeared to side not with his own client but, rather, with the prosecution, telling jurors during closing arguments how awful and murderous Spisak was. Other attorneys and even justices on the U.S. Supreme Court agreed that it was a bizarre, if not wholly incompetent, defense.

Yet the high court refused to overturn Spisak's death penalty on that basis. Instead, it ruled that the totality of Spisak's actions -- not only his murder spree but his Nazi salute and "Heil Hitler" remarks and lack of remorse -- provided the jury with ample grounds on which to recommend a death sentence.

"The court seems to be saying that in some cases, it doesn't matter how badly the lawyer performs, let's just kill the defendant," said Michael Benza of Chagrin Falls, who argued Spisak's case before the high court. Spisak might have been better off had his trial lawyer, the late Thomas Shaughnessy, simply slept through the case, Benza said.

Between February and August 1982, Spisak shot and killed three people at CSU -- the Rev. Horace Rickerson; CSU student Brian Warford; and Timothy Sheehan, CSU's assistant superintendent for buildings and grounds. He tried to kill two others.

He said he did it because he was a follower of Adolph Hitler and was in a war for survival "of the Aryan people," according to court records.

Defending a client like Frank Spisak, who sometimes called himself Frances Anne Spisak, would have been a challenge for any lawyer, especially after a judge denied the use of the insanity defense. So Shaughnessy, who died in 1997, tried something that has been characterized as either one of the worst defenses known to man or a tactic of utter brilliance.

He told jurors during closing arguments just how "sick," "twisted" and "demented" his client was. He described the crimes in vivid detail, saying at one point, "You can almost smell the blood." And he told the jurors not to look for good thoughts or deeds from Spisak, because they would find none.

But the attorney appealed to the jury's sense of "humanity," although he did not explicitly ask for leniency. Instead, he told the 12 jurors, "Whatever you do, we are going to be proud of you."

The jurors concluded that Spisak should die.

New lawyers filed several appeals, contending that Shaughnessy practically guaranteed a capital sentence with his odd tactics. The appeals lawyers also said that poor jury instructions might have led jurors to disregard factors such as Spisak's mental health -- experts testified of borderline personality disorder and gender identity conflict -- that could have resulted in a different verdict.

The Supreme Court on Tuesday, however, upheld the death sentence. This was the high court's second time dealing with the case. At the heart of the opinion by Justice Stephen Breyer were the basic facts of Spisak's behavior and crimes.

Even assuming "that the closing argument was inadequate," Breyer wrote," there is "no reasonable probability" that a better closing argument "would have made a significant difference."

In a separate, concurring opinion, Justice John Paul Stevens said he agreed that Shaughnessy's closing argument was "rambling" and "outrageous."

Nevertheless, Stevens wrote, Spisak's own behavior "alientated and ostracized the jury, and his crimes were monstrous."

"In my judgment," Stevens said, "even the most skillful of closing arguments -- even one befitting Clarance Darrow -- would not have created a reasonable probability of a different outcome in this case."

Spisak is being held in the Mansfield Correctional Facility.

State v. Spisak, Not Reported in N.E.2d, 1984 WL 13992 (Ohio App. 1984). (Direct Appeal)

CORRIGAN, C.J.:

Appellant Frank G. Spisak, Jr. was indicted on four counts of aggravated murder with 20 separate specifications, on two counts of attempted murder, on three counts of aggravated robbery, and one count of receiving stolen property. FN1 R.C. 2903.01; R.C. 2929.04; R.C. 2903.02; R.C. 2923.02; R.C. 2911.01; R.C. 2913.51. The appellant entered pleas of not guilty and not guilty by reason of insanity to all counts but one, to which he entered a plea of no contest.

The case went to trial on June 7, 1983. On July 15, the jury convicted the appellant on the four counts of aggravated murder, on the two counts of attempted murder, and on two counts of aggravated robbery. The appellant was acquitted on one count of aggravated robbery and on one specification on the fourth count of aggravated murder.

A sentencing hearing began on July 16, 1983. The appellant attempted to establish the existence of factors which would serve in mitigation of the imposition of the death sentence. R.C. 2929.03. The majority of the appellant's argument dealt with one issue, diminished capacity at the time of the acts. See R.C. 2929.04(B)(3). The appellee argued that any mitigating factors were outweighed by the aggravating circumstances of the murders. On July 19, 1983, the jury found that the aggravating circumstances outweighed any mitigating factors so as to justify imposition of the death sentence. The jury thus recommended to the court that such a sentence be imposed. The court, after conducting an independent analysis of the issues, agreed with the jury's finding and recommendation. Accordingly, the appellant was sentenced to death. Additionally, the appellant was sentenced to a term of 7-25 years on each conviction for attempted murder and aggravated robbery.

Since his arrest, the appellant has consistently admitted to committing the acts in question. The events which resulted in the appellant's indictment and subsequent convictions were as follows: In February of 1982, the appellant was an employee of the Edward W. Daniel Company. On the first day of that month, he decided that he did not feel up to going to work, so he called in sick. (Tr. 1381). The appellant then decided to go to the library at Cleveland State University. He always carried a gun when he left his apartmentdue to the fact that he was once mugged by five men. (Tr. 1382).

After arriving at the library, the appellant read for several hours. He then got up and went to the rest room. Once inside the rest room, he saw a black man who, he claimed at trial, exposed himself and ordered to have sex with the appellant. (Tr. 1390-1391). The appellant became extremely agitated and shot the man several times. (Tr. 1391, 1397). That man, who was later found dead, was identified as the Reverend Horace Rickerson.

On June 4, 1982, the appellant and a companion, Ronald Reddish, were driving on the west side of Cleveland. They stopped and parked near the R.T.A. rapid transit station at the intersection of Madison Avenue and West 117th Street. (Tr. 1414). The appellant, believing he saw a black man enter the train station, decided to follow him. He testified that he intended to kill the black man as retribution for two white women who were alternately raped and killed by a black man. (Tr. 1415-1418). The appellant also admitted at trial that he considered that a murder on the west side of Cleveland and would not be linked to the Rickerson murder at Cleveland State. (Tr. 1673-1674). Unable to find the black man, the appellant returned to the car. As he was getting into the car, the man he had just seen, John Hardaway, walked directly past the appellant and Reddish and into the station. The appellant quickly pursued. After entering the station, he pulled his gun, approached Hardaway, and fired several times. (Tr. 289, 1422-1424). Hardaway, gravely injured, managed to crawl onto the train platform. He was spotted by a train operator, who called for help. (Tr. 304, 313, 316). Hardaway was subsequently taken to St. John's Hospital and treated for his injuries. He later identified the appellant as the man who shot him. (Tr. 291-292).

Coletta Dartt, an employee in the Chemistry Department at Cleveland State University, went to the women's rest room in the University's Science Building at 5:00 P.M. on August 9, 1982. (Tr. 378-379). She was inside the rest room for several minutes. When she opened the door to her stall and prepared to leave, a man jumped out from the adjacent stall and aimed a gun at her. (Tr. 384). He ordered Dartt back into her stall, but she pushed him back and dove for the door. She felt the man grab for the shoulder on which she was carrying her shoulder bag. (Tr. 384-385). As she ran down the hall, Dartt heard a loud explosion and realized the man had fired his gun at her. (Tr. 385). At trial, Dartt identified the appellant as the man who confronted her in the rest room. (Tr. 386).

In a pre-trial statement to the police, the appellant stated that he shot at Dartt during the course of a robbery. (Tr. 1119). At trial, he testified that he was upset because he overheard Dartt and several other people making derisive remarks about the Nazi Party. The appellant testified at trial that he remembered shooting at Dartt. (Tr. 1435).

On August 27, 1982, the appellant was again in the men's rest room at Cleveland State University when he encountered Timothy Sheehan. Sheehan was in charge of maintenance for the physical plant of the University, and the appellant testified that he thought Sheehan was a Jewish professor who seduced and perverted young people. (Tr. 1465-1466). The appellant had earlier stated to the police that he was worried that Sheehan might recognize him, as Sheehan was in the rest room on February 1 immediately before the appellant shot and killed Horace Rickerson. (Tr. 1115-1116, 1155).

On August 27, Sheehan was standing at an urinal and allegedly staring at the appellant. (Tr. 1505). The appellant pulled his gun and shot Sheehan several times, fatally wounding him. (Tr. 1505). He took Sheehan's paging beeper and gathered up the brass bullet casings that were lying on the floor. (Tr. 1510). He then left the rest room.

The appellant and Ronald Reddish decided to go driving on the night of August 29, 1982. They drove through the near east side and downtown area of Cleveland on their “hunting” mission. (Tr. 1470). After driving for the better part of the night, the appellant took Reddish home. Still restless, the appellant continued to drive until he arrived at the Cleveland State campus. Brian Warford, a young black man, was sitting asleep at a bus stop. (Tr. 1474, 1478). The appellant parked the car and checked to insure that no other people were in the area. (Tr. 1475-1477). He approached Warford, and at close range, shot and killed him. (Tr. 1477-1480). The appellant was unable to find the bullet casings on the sidewalk because it was too dark. (Tr. 1700). Although he was worried that somebody may have heard the shooting, he was apparently able to avoid detection and made his way home. (Tr. 1481-1482).

On September 4, 1982, several Cleveland Police cars were dispatched to a house on East 53rd Street as a report was received of a man firing a gun from a window. (Tr. 690). After arriving on the scene, several officers went to the second floor of the house. The appellant, who was found inside, admitted to firing one shot. He was arrested for discharging a weapon within the city limits and for possession of unregistered handguns. (Tr. 701). Several weapons were confiscated, and the appellant was taken to the Justice Center. (Tr. 707). He later posted bond and was released. (Tr. 708).

On September 5, 1982, the Cleveland Police received a call from a woman with information about the Cleveland State murders. The caller, who asked to remain unidentified, told the police that the guns that were confiscated from the house on East 53rd had been used in the killings at Cleveland State University. (Tr. 715-717). Tests were then performed on the confiscated weapons, and comparisons were made with the pellets and casings found in connection with the Cleveland State homicides. After conducting this investigation, the police obtained a warrant to search the appellant's apartment. (Tr. 762-763.)

While they were in the process of searching the apartment, a neighbor told the police that her son had seen the appellant and Reddish driving in a car. The woman gave the police the license number that her son had copied down. (Tr. 868-869). Through the use of a computer, the police utilized the license number to get the address of the car's owner. Officers then went to a house at 4324 Marvin Avenue in Cleveland. Ronald Reddish answered the door and was quickly taken outside. (Tr. 892-893). Upon entering the house, the officers noticed open suitcases, one of which contained the appellant's identification. (Tr. 893-894). They also discovered a paging beeper that was later identified as the one which belonged to Timothy Sheehan. (Tr. 540-543). The appellant was found hiding in a basement crawl space. (Tr. 894). He was arrested, advised of his constitutional rights, and taken to the Justice Center. (Tr. 894, 896-897).

After the appellant entered his pleas, the court ordered that he undergo examination to determine his mental condition at the time of the commission of the offenses for which he was indicted. R.C. 2945.39. The appellant was examined by five doctors who were either trained in psychiatry or psychology: Dr. Phillip Resnick, Dr. Sandra McPherson, Dr. Kurt Bertschinger, Dr. S.M. Samy, and Dr. Oscar Markey. The first four doctors explicitly stated in their reports that the appellant's mental condition was not of such nature that it would support a plea of legal insanity. The fifth report, that of Dr. Oscar Markey, was ambiguous in that regard. At trial, the appellant called Markey to testify in support of his plea of not guilty by reason of insanity.

After listening to Markey's proposed testimony during a voir dire hearing, the court determined that Markey could testify before the jury. (Tr. 1845-1930). Shortly after Markey began his testimony, the court ordered the jury returned to the jury room, and Markey was further questioned by the court and counsel out of the presence of the jury. Finally, the appellee objected to the continuation of Markey's testimony. (Tr. 2001). The appellee argued that Markey's testimony was irrelevant to the issue of legal insanity as it indicated that the appellant was legally sane at the time of the acts. The court agreed with the appellee's contention, disallowed Markey from testifying further, and struck from the record the testimony that had already been given. (Tr. 2017, 2022). The court did state that it was willing to hear any further testimony relevant to the issue of legal insanity. (Tr. 2017).

In addition to the appellant and Markey, the only other defense witnesses who were called to testify were the appellant's sister and his ex-wife. At the conclusion of the trial, the court ruled that the defense had not sufficiently met its burden of going forward with evidence of legal insanity. Therefore, the court refused to instruct the jury on the insanity defense. (Tr. 2400).

I.

In this appeal, we are asked to address a single assignment of error: WHETHER OR NOT THE TRIAL COURT ERRED BY RULING THAT BEFORE AN EXPERT DOCTOR COULD TESTIFY BEFORE THE JURY THAT THE EXPERT DOCTOR MUST HAVE FOUND THE DEFENDANT-APPELLANT TO BE “LEGALLY INSANE.”

At no point in this case did the trial court rule that a defense expert must find the appellant legally insane before he or she would be permitted to testify. The trial court did rule that Dr. Oscar Markey's testimony was irrelevant to the insanity defense and thus struck Markey's testimony from the record. We will direct our analysis to two main points; whether the court erred in striking the testimony of of Markey, and whether the appellant met his burden of going forward with evidence of legal insanity.

We must initially determine whether Markey's testimony met the basic requirements set forth in the Rules of Evidence. Evidence Rule 403 states: (A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. (B) Exclusion Discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.

Further, Evidence Rule 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

According to the appellant, Markey's testimony was supportive of the proposition that he was legally insane. However, our review of the testimony leads us to conclude that it did little, if anything, to alter the presumption that the appellant was sane. Moreover, there was a high probability that the testimony would have confused the issues in the minds of the jurors and would not have aided the jury in understanding the evidence or in reaching a determination on legal insanity.

The test for legal insanity in Ohio is that: One accused of criminal conduct is not responsible for such criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he does not have the capacity either to know the wrongfulness of his conduct or to conform his conduct to the requirements of law. State v. Staten (1969), 18 Ohio St.2d 13; State v. Brown (1983), 5 Ohio St.3d 133. Markey's testimony was, at best, ambiguous, and far more often than not made a strong case for the fact that the appellant was legally sane at the time of committing the acts.

For instance, the following exchange took place between the court and Markey: THE COURT: Doctor, in your opinion, obviously, it is based on reasonable medical certainty, does Mr. Spisak have a mental disease, actively, presently? THE WITNESS: Actively, no. THE COURT: Presently, does he have a mental disease? THE WITNESS: No. THE COURT: Okay. At the time these various crimes were committed, February 1, 1982 through August 3, 1982, is it your opinion based on reasonable medical certainty that Mr. Spisak had a mental disease at that time? THE WITNESS: On the basis of what I know, no. THE COURT: Okay. (Tr. 1978-1979). Markey went on to repeat that the appellant was not suffering from a mental disease and also stated that the appellant was not suffering from a mental defect. (Tr. 1988-1989). At one point, Markey testified that the appellant was unable to conform his conduct to the requirements of the law because he lacked the ability to control his impulse to assault. (Tr. 1980-1981). At a later point, however, Markey admitted that the appellant did have the ability to resist the impulse to assault and could conform his conduct to the requirements of the law. (Tr. 1992-1993). Finally, Markey and the prosecuting attorney entered into this exchange during cross-examination: Q All I'm indicating to you, doctor, and asking for your opinion is that he made a conscious decision to shoot, or not to shoot on each case that we have in this indictment? *6 A Yes, he was not in a frenzy where he didn't know what he was doing. He had a conception of what he was doing and he realized that he could have- Q He could have refrained from pulling the trigger on any of those five, had he chosen to do so? A Yes. (Tr. 1995).

It is difficult, if not impossible, to see how Markey's testimony would, in any fashion, have assisted the jury in reaching a conclusion on the legal insanity of the appellant. Primarily, the testimony reinforced the argument that the appellant was sane at the time of the acts.

We agree with the appellant that an expert should not have to conclusively state that a defendant is legally insane before he should be allowed to testify, or before the jury should be permitted to consider his testimony. It is the role of the jury to determine the issue of legal insanity. However, when a defendant calls an expert to testify on the issue of legal insanity, that expert's testimony must still meet the basic requirements of the Rules of Evidence. Because those requirements were not met in the case sub judice, it was not error for the trial court to strike Markey's testimony from the record.

Even if the court had allowed Markey to complete his testimony, we are unconvinced that the appellant met his burden of going forward with evidence of legal insanity. The defense of not guilty by reason of insanity is an affirmative defense. State v. Humphries (1977), 51 Ohio St.2d 95. As such, “a defendant who pleads not guilty by reason of insanity has the burden of going forward with evidence of a nature and quality sufficient to raise the defense before the jury.” State v. Chase (1978), 55 Ohio St.2d 237; R.C. 2901.05(A). In deciding exactly what quality of evidence is sufficient to raise an affirmative defense, the Ohio Supreme Court has held:

The proper standard for determining in a criminal case whether a defendant has successfully raised an affirmative defense under R.C. 2901.05 is to inquire whether the defendant has introduced sufficient evidence, which, if believed, would raise a question in the minds of reasonable men concerning the existence of such issue. State v. Robbins (1979), 58 Ohio St.2d 74; State v. Melchior (1978), 56 Ohio St.2d 15. There was little, if any, evidence presented by the appellant, which, if believed, would have raised a question in the minds of the jurors regarding the issue of legal insanity.

The testimony of the appellant, of his sister, and of his ex-wife, like the testimony of Markey, did nothing but reaffirm the presumption that the appellant was legally sane at the time of the acts. The appellant's sister and ex-wife testified in a general fashion about bizarre behavior exhibited by the appellant on various occasions, but nothing in their testimony sufficiently raised a question of legal insanity. The appellant's own testimony, filled with examples of how he attempted to cover his tracks, demonstrated beyond doubt that he knew what he was doing was wrong and could have conformed to the requirements of the law had he so chosen. Further, four doctors, in addition to Markey, examined the appellant and concluded that he was legally sane at the time he committed the offenses for which he was indicted. Thus, there was not sufficient evidence for the jury to even begin determining the question of legal insanity.

Clearly, anyone who murders three people and attempts to murder two others is suffering from extremely severe emotional and/or mental problems. However, the existence of such problems does not necessarily mean that a defendant can meet the very strict test for legal insanity. Because the appellant in the instant case failed to meet his burden of going forward with evidence of legal insanity, it was not error for the trial court to refuse to instruct the jury on the insanity defense. Accordingly, the appellant's assignment of error is overruled.

II.

Pursuant to R.C. 2929.05(A), in any case where the sentence of death is imposed, the court of appeals and supreme court must: [I]ndependently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate. In determining whether the sentence of death is appropriate, the court of appeals and the supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. They shall also review all of the facts and other evidence to determine if the evidence supports the finding of the aggravating circumstances the trial jury or the panel of three judges found the offender guilty of committing, and shall determine whether the sentencing court properly weighed the aggravating circumstances the offender was found guilty of committing, and the mitigating factors. The court of appeals or the supreme court shall affirm a sentence of death only if the particular court is persuaded from the record that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors present in the case and that the sentence of death is the appropriate sentence in the case.

Before turning our attention to the aggravating circumstances and mitigating factors in the case before us, we must address an issue regarding the appellant's indictment and subsequent convictions. The appellant was indicted on four counts of aggravated murder for the murders of three people. Two counts of aggravated murder, the fifth and sixth counts of the indictment, were for the murder of one individual, Timothy Sheehan. The appellant was subsequently convicted or and sentenced on all four counts of aggravated murder.

R.C. 2941.25(A) provides: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

Accordingly, while it was proper for the appellant to have been indicted on two separate counts of aggravated murder for the murder of Timothy Sheehan, he could only be convicted on one of those counts. State v. Osborne (1976), 49 Ohio St.2d 135; State v. Morningstar (1980), 19 Ohio Op.3d 283. Therefore, the appellant's conviction for aggravated murder on the fifth count of the indictment, as well as the five specifications attached thereto, must be vacated.

The appellant's three convictions for aggravated murder specify fourteen separate aggravating circumstances. R.C. 2929.04. At no time has there been the contention by the appellant that he did not commit the offenses or the aggravating circumstances for which he was indicted. In fact, he freely admitted that he was responsible for the acts. Furthermore, the appellant was positively identified by John Hardaway and Coletta Dartt. The bullet casings and pellets recovered by the police in connection with the Cleveland State homicides corresponded to the firearms that were confiscated from the appellant. The appellant stated to the police that he killed Thomas Sheehan because he was afraid that Sheehan recognized him from the day of the Rickerson murder. (Tr. 1115-1116, 1155). Additionally, Sheehan's paging beeper was discovered in one of the appellant's suitcases. Thus, our review of the facts and evidence leads us to conclude that the offenses and the aggravating circumstances which the appellant was found guilty of committing were proven beyond a reasonable doubt.

In mitigation, the appellant's sole argument was directed to his allegation that he was suffering from diminished capacity at the time he committed the acts. R.C. 2929.04(B)(3). Dr. Sandra McPherson, Dr. Kurt Bertschinger, and Dr. Oscar Markey testified on the appellant's behalf. They detailed a variety of personality disorders from which they believed the appellant to be suffering which allegedly caused him to lack “substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” R.C. 2929.04(B)(3). Even if we accept as true the appellant's argument regarding diminished capacity, we are not persuaded that that mitigating factor, standing alone, is of sufficient magnitude to counterbalance the aggravating circumstances that the appellant was found guilty of committing. Further, our independent review of the other six mitigating factors outlined in R.C. 2929.04(B) does not reveal additional factors which are relevant to the instant case. The appellant murdered three people and attempted to murder two others. The aggravating circumstances which were the by-product of that conduct clearly outweigh any mitigating factors which may exist in this case.

We reach this determination after our own independent analysis of the facts and evidence in this case. We also determine, after reviewing the evidence and the opinion of the trial court, that the court properly weighed the aggravating circumstances and mitigating factors. The opinion indicates that the court carefully considered the testimony during the sentencing hearing, as well as any other factors in mitigation of the imposition of the death sentence, and correctly concluded that the aggravating circumstances outweigh the mitigating factors.

It is this Court's conclusion that the sentence of death is appropriate in the instant case, and that such sentence is neither excessive nor disproportionate to the penalty imposed in similar cases. See State v. Jenkins (Ct.App., Cuy. Cty., 1984), unreported No. 45231.

Accordingly, for the reasons adduced herein, the judgment and sentence of the trial court, as modified, are affirmed.

It is ordered that appellee(s) recover of appellant(s) its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

MARKUS, J., CONCURS; JACKSON, J., CONCURS (See Concurring Opinion attached)

Smith v. Spisak, 130 S.Ct. 676, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010). (Habeas)

Background: Following affirmance of state court convictions for three counts of murder and two counts of attempted murder and affirmance of death sentence, 36 Ohio St.3d 80, 521 N.E.2d 800, petitioner sought writ of habeas corpus. The United States District Court for the Northern District of Ohio, Solomon Oliver, Jr., J., denied the petition. Petitioner appealed. The United States Court of Appeals for the Sixth Circuit, Clay, Circuit Judge, 465 F.3d 684, affirmed in part and reversed in part, granting partial habeas relief. The Supreme Court, 552 U.S. 945, 128 S.Ct. 373, 169 L.Ed.2d 257, granted certiorari, vacated, and remanded for further consideration. On remand, the Court of Appeals, 512 F.3d 852, reinstated its prior opinion, and remanded. Certiorari was granted.

Holdings: The Supreme Court, Justice Breyer, held that: (1) instructions and jury forms at penalty phase did not unconstitutionally require jury to consider in mitigation only those factors that jury unanimously found to be mitigating, and (2) assuming counsel performed deficiently in making a penalty-phase closing argument that allegedly understated the facts upon which defense experts based their mental illness conclusions, defendant was not prejudiced, as element of ineffective assistance of counsel.

Court of Appeals reversed. Justice Stevens filed an opinion concurring in part and concurring in the judgment.

Justice BREYER delivered the opinion of the Court.

Frank G. Spisak, Jr., the respondent, was convicted in an Ohio trial court of three murders and two attempted murders. He was sentenced to death. He filed a habeas corpus petition in federal court, claiming that constitutional errors occurred at his trial. First, Spisak claimed that the jury instructions at the penalty phase unconstitutionally required the jury to consider in mitigation only those factors that the jury unanimously found to be mitigating. See Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Second, Spisak claimed that he suffered significant harm as a result of his counsel's inadequate closing argument at the penalty phase of the proceeding. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Federal Court of Appeals accepted these arguments and ordered habeas relief. We now reverse the Court of Appeals.

I

In 1983, an Ohio jury convicted Spisak of three murders and two attempted murders at Cleveland State University in 1982. The jury recommended, and the judge imposed, a death sentence. The Ohio courts denied Spisak's claims, both on direct appeal and on collateral review. State v. Spisak, 36 Ohio St.3d 80, 521 N.E.2d 800 (1988) (per curiam); State v. Spisak, No. 67229, 1995 WL 229108 (Ohio App., 8th Dist., Cuyahoga Cty., Apr. 13, 1995); State v. Spisak, 73 Ohio St.3d 151, 652 N.E.2d 719 (1995) (per curiam).

Spisak then sought a federal writ of habeas corpus. Among other claims, he argued that the sentencing phase of his trial violated the U.S. Constitution for the *681 two reasons we consider here. The District Court denied his petition. Spisak v. Coyle, Case No. 1:95CV2675 (ND Ohio, Apr. 18, 2003), App. to Pet. for Cert. 95a. But the Court of Appeals accepted Spisak's two claims, namely, his mitigation instruction claim and his ineffective-assistance-of-counsel claim. Spisak v. Mitchell, 465 F.3d 684, 703-706, 708-711 (C.A.6 2006). The Court of Appeals consequently ordered the District Court to issue a conditional writ of habeas corpus forbidding Spisak's execution. Id., at 715-716.

The State of Ohio then sought certiorari in this Court. We granted the petition and vacated the Court of Appeals' judgment. Hudson v. Spisak, 552 U.S. 945, 128 S.Ct. 373, 169 L.Ed.2d 257 (2007). We remanded the case for further consideration in light of two recent cases in which this Court had held that lower federal courts had not properly taken account of the deference federal law grants state-court determinations on federal habeas review. Ibid.; see 28 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). On remand, the Sixth Circuit reinstated its earlier opinion. Spisak v. Hudson, 512 F.3d 852, 853-854 (2008). The State again sought certiorari. We again granted the petition. And we now reverse.

II

Spisak's first claim concerns the instructions and verdict forms that the jury received at the sentencing phase of his trial. The Court of Appeals held the sentencing instructions unconstitutional because, in its view, the instructions, taken together with the forms, “require[d]” juror “unanimity as to the presence of a mitigating factor”-contrary to this Court's holding in Mills v. Maryland, supra. 465 F.3d, at 708. Since the parties do not dispute that the Ohio courts “adjudicated” this claim, i.e., they considered and rejected it “on the merits,” the law permits a federal court to reach a contrary decision only if the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Unlike the Court of Appeals, we conclude that Spisak's claim does not satisfy this standard.

The parties, like the Court of Appeals, assume that Mills sets forth the pertinent “clearly established Federal law.” While recognizing some uncertainty as to whether Mills was “clearly established Federal law” for the purpose of reviewing the Ohio Supreme Court's opinion, we shall assume the same. Compare Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (STEVENS, J., for the Court) (applicable date for purposes of determining whether “Federal law” is “established” is when the “state-court conviction became final”), with id., at 412, 120 S.Ct. 1495 (O'Connor, J., for the Court) (applicable date is “the time of the relevant state-court decision”); see State v. Spisak, 36 Ohio St.3d 80, 521 N.E.2d 800 (decided Apr. 13, 1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (decided Mar. 6, 1989); Mills v. Maryland, supra (decided June 6, 1988).

A

The rule the Court set forth in Mills is based on two well-established principles. First, the Constitution forbids imposition of the death penalty if the sentencing judge or jury is “ ‘ “precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis*682 for a sentence less than death.” ’ ” 486 U.S., at 374, 108 S.Ct. 1860 (quoting Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), in turn quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion)). Second, the sentencing judge or jury “ ‘may not refuse to consider or be precluded from considering “any relevant mitigating evidence.” ’ ” Mills, 486 U.S., at 374-375, 108 S.Ct. 1860 (quoting Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), in turn quoting Eddings, supra, at 114, 102 S.Ct. 869).

Applying these principles, the Court held that the jury instructions and verdict forms at issue in the case violated the Constitution because, read naturally, they told the jury that it could not find a particular circumstance to be mitigating unless all 12 jurors agreed that the mitigating circumstance had been proved to exist. Mills, 486 U.S., at 380-381, 384, 108 S.Ct. 1860. If, for example, the defense presents evidence of three potentially mitigating considerations, some jurors may believe that only the first is mitigating, some only the second, and some only the third. But if even one of the jurors believes that one of the three mitigating considerations exists, but that he is barred from considering it because the other jurors disagree, the Court held, the Constitution forbids imposition of the death penalty. See id., at 380, 384, 108 S.Ct. 1860; see also McKoy v. North Carolina, 494 U.S. 433, 442-443, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (“ Mills requires that each juror be permitted to consider and give effect to ... all mitigating evidence in deciding ... whether aggravating circumstances outweigh mitigating circumstances ...”). Because the instructions in Mills would have led a reasonable juror to believe the contrary, the Court held that the sentencing proceeding violated the Constitution. 486 U.S., at 374-375, 108 S.Ct. 1860.

B

In evaluating the Court of Appeals' determination here, we have examined the jury instructions and verdict forms at issue in Mills and compared them with those used in the present case. In the Mills sentencing phase, the trial judge instructed the jury to fill out a verdict form that had three distinct parts. Section I set forth a list of 10 specific aggravating circumstances next to which were spaces where the jury was to mark “yes” or “no.” Just above the list, the form said: “Based upon the evidence we unanimously find that each of the following aggravating circumstances which is marked ‘yes' has been proven ... and each aggravating circumstance which is marked ‘no’ has not been proven ....” 486 U.S., at 384-385 [, 108 S.Ct. 1860] (emphasis added; internal quotation marks omitted).

Section II set forth a list of eight potentially mitigating circumstances (seven specific circumstances and the eighth designated as “other”) next to which were spaces where the jury was to mark “yes” or “no.” Just above the list the form said: “Based upon the evidence we unanimously find that each of the following mitigating circumstances which is marked ‘yes' has been proven to exist ... and each mitigating circumstance marked ‘no’ has not been proven ....” Id., at 387 [, 108 S.Ct. 1860] (emphasis added; internal quotation marks omitted).

Section III set forth the overall balancing question, along with spaces for the jury to mark “yes” or “no.” It said: “Based on the evidence we unanimously find that it has been proven ... that the mitigating circumstances *683 marked ‘yes' in Section II outweigh the aggravating circumstances marked ‘yes' in Section I.” Id., at 388-389 [, 108 S.Ct. 1860] (emphasis added; internal quotation marks omitted).

Explaining the forms, the judge instructed the jury with an example. He told the jury that it should mark “ ‘yes' ” on the jury form if it “ ‘unanimously’ ” concluded that an aggravating circumstance had been proved. Id., at 378, 108 S.Ct. 1860. Otherwise, he said, “ ‘of course you must answer no.’ ” Ibid. (emphasis deleted). These instructions, together with the forms, told the jury to mark “yes” on Section II's list of mitigating factors only if the jury unanimously concluded that the particular mitigating factor had been proved, and to consider in its weighing analysis in Section III only those mitigating factors marked “yes” in Section II. Thus, as this Court found, the jury was instructed that it could consider in the ultimate weighing of the aggravating and mitigating evidence only the mitigating factors that the jury had unanimously found to exist. See id., at 380-381, 108 S.Ct. 1860.

The instructions and jury forms in this case differ significantly from those in Mills. The trial judge instructed the jury that the aggravating factors they would consider were the specifications that the jury had found proved beyond a reasonable doubt at the guilt phase of the trial-essentially, that each murder was committed in a course of conduct including the other crimes, and, for two of the murders, that the murder was committed with the intent to evade apprehension or punishment for another offense. 8 Tr. 2967-2972 (July 19, 1983).

He then explained the concept of a “mitigating factor.” After doing so, he listed examples, including that “the defendant because of a mental disease or defect ... lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Id., at 2972-2973. The court also told the jury that it could take account of “any other” mitigating consideration it found “relevant to the issue of whether the defendant should be sentenced to death.” Id., at 2973. And he instructed the jury that the State bore the burden of proving beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. Id., at 2965.

With respect to “the procedure” by which the jury should reach its verdict, the judge told the jury only the following: “[Y]ou, the trial jury, must consider all of the relevant evidence raised at trial, the evidence and testimony received in this hearing and the arguments of counsel. From this you must determine whether, beyond a reasonable doubt, the aggravating circumstances, which [Spisak] has been found guilty of committing in the separate counts are sufficient to outweigh the mitigating factors present in this case. “If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstance in each separate count outweighs the mitigating factors, then you must return that finding to the Court. ..... “On the other hand, if after considering all of the relevant evidence raised at trial, the evidence and the testimony received at this hearing and the arguments of counsel, you find that the State failed to prove beyond a reasonable doubt that the aggravating circumstances which [Spisak] has been found guilty of committing in the separate counts outweigh the mitigating factors, you will then proceed to determine *684 which of two possible life imprisonment sentences to recommend to the Court.” Id., at 2973-2975.

The judge gave the jury two verdict forms for each aggravating factor. The first of the two forms said: “ ‘We the jury in this case ... do find beyond a reasonable doubt that the aggravating circumstance ... was sufficient to outweigh the mitigating factors present in this case. “ ‘We the jury recommend that the sentence of death be imposed ....’ ” Id., at 2975-2976. The other verdict form read: “ ‘We the jury ... do find that the aggravating circumstances ... are not sufficient to outweigh the mitigation factors present in this case. “ ‘We the jury recommend that the defendant ... be sentenced to life imprisonment ....’ ” Id., at 2976.

The instructions and forms made clear that, to recommend a death sentence, the jury had to find, unanimously and beyond a reasonable doubt, that each of the aggravating factors outweighed any mitigating circumstances. But the instructions did not say that the jury must determine the existence of each individual mitigating factor unanimously. Neither the instructions nor the forms said anything about how-or even whether-the jury should make individual determinations that each particular mitigating circumstance existed. They focused only on the overall balancing question. And the instructions repeatedly told the jury to “conside[r] all of the relevant evidence.” Id., at 2974. In our view the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, the circumstance that Mills found critical, namely, “a substantial possibility that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.” 486 U.S., at 384, 108 S.Ct. 1860.

We consequently conclude that the state court's decision upholding these forms and instructions was not “contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” in Mills. 28 U.S.C. § 2254(d)(1). We add that the Court of Appeals found the jury instructions unconstitutional for an additional reason, that the instructions “require[d] the jury to unanimously reject a death sentence before considering other sentencing alternatives.” 465 F.3d, at 709 (citing Mapes v. Coyle, 171 F.3d 408, 416-417 (C.A.6 1999)). We have not, however, previously held jury instructions unconstitutional for this reason. Mills says nothing about the matter. Neither the parties nor the courts below referred to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), or identified any other precedent from this Court setting forth this rule. Cf. Jones v. United States, 527 U.S. 373, 379-384, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (rejecting an arguably analogous claim). But see post, at 3-5 (STEVENS, J., concurring in part and concurring in judgment). Whatever the legal merits of the rule or the underlying verdict forms in this case were we to consider them on direct appeal, the jury instructions at Spisak's trial were not contrary to “clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

III

Spisak's second claim is that his counsel's closing argument at the sentencing*685 phase of his trial was so inadequate as to violate the Sixth Amendment. To prevail, Spisak must show both that “counsel's representation fell below an objective standard of reasonableness,” Strickland, 466 U.S., at 688, 104 S.Ct. 2052, and that there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” id., at 694, 104 S.Ct. 2052.

The Ohio Supreme Court held that Spisak's claim was “not well-taken on the basis of our review of the record.” State v. Spisak, 36 Ohio St.3d, at 82, 521 N.E.2d, at 802 (citing, inter alia, Strickland, supra). The District Court concluded that counsel did a constitutionally adequate job and that “[t]here simply is not a reasonable probability that, absent counsel's alleged errors, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Spisak v. Coyle, App. to Pet. for Cert. 204a. The Court of Appeals, however, reached a contrary conclusion. It held that counsel's closing argument, measured by “ ‘an objective standard of reasonableness,’ ” was inadequate, and it asserted that “a reasonable probability exists” that adequate representation would have led to a different result. 465 F.3d, at 703, 706 (quoting Strickland, supra, at 688, 104 S.Ct. 2052). Responding to the State's petition for certiorari, we agreed to review the Court of Appeals' terse finding of a “reasonable probability” that a more adequate argument would have changed a juror's vote.

In his closing argument at the penalty phase, Spisak's counsel described Spisak's killings in some detail. He acknowledged that Spisak's admiration for Hitler inspired his crimes. He portrayed Spisak as “sick,” “twisted,” and “demented.” 8 Tr. 2896 (July 19, 1983). And he said that Spisak was “never going to be any different.” Ibid. He then pointed out that all the experts had testified that Spisak suffered from some degree of mental illness. And, after a fairly lengthy and rambling disquisition about his own decisions about calling expert witnesses and preparing them, counsel argued that, even if Spisak was not legally insane so as to warrant a verdict of not guilty by reason of insanity, he nonetheless was sufficiently mentally ill to lessen his culpability to the point where he should not be executed. Counsel also told the jury that, when weighing Spisak's mental illness against the “substantial” aggravating factors present in the case, id., at 2924, the jurors should draw on their own sense of “pride” for living in “a humane society” made up of “a humane people,” id., at 2897-2900, 2926-2928. That humanity, he said, required the jury to weigh the evidence “fairly” and to be “loyal to that oath” the jurors had taken to uphold the law. Id., at 2926.

Spisak and his supporting amici say that this argument was constitutionally inadequate because: (1) It overly emphasized the gruesome nature of the killings; (2) it overly emphasized Spisak's threats to continue his crimes; (3) it understated the facts upon which the experts based their mental illness conclusions; (4) it said little or nothing about any other possible mitigating circumstance; and (5) it made no explicit request that the jury return a verdict against death.

We assume for present purposes that Spisak is correct that the closing argument was inadequate. We nevertheless find no “reasonable probability” that a better closing argument without these defects would have made a significant difference.

Any different, more adequate closing argument would have taken place in the following context: Spisak admitted that he had committed three murders and two other shootings. Spisak's defense at the guilt *686 phase of the trial consisted of an effort by counsel to show that Spisak was not guilty by reason of insanity. And counsel, apparently hoping to demonstrate Spisak's mentally defective condition, called him to the stand.

Spisak testified that he had shot and killed Horace Rickerson, Timothy Sheehan, and Brian Warford. He also admitted that he had shot and tried to kill John Hardaway, and shot at Coletta Dartt. He committed these crimes, he said, because he was a follower of Adolf Hitler, who was Spisak's “spiritual leader” in a “war” for “survival” of “the Aryan people.” 4 id., at 1343-1344, 1396 (July 5, 1983). He said that he had purchased guns and stockpiled ammunition to further this war. Id., at 1406-1408. And he had hoped to “create terror” at Cleveland State University, because it was “one of the prime targets” where the “Jews and the system ... are brainwashing the youth.” Id., at 1426-1428.

Spisak then said that in February 1982 he had shot Rickerson, who was black, because Rickerson had made a sexual advance on Spisak in a university bathroom. He expressed satisfaction at having “eliminated that particular threat ... to me and to the white race.” 5 id., at 1511 (July 7, 1983). In June he saw a stranger, John Hardaway, on a train platform and shot him seven times because he had been looking for a black person to kill as “blood atonement” for a recent crime against two white women. 4 id., at 1416 (July 5, 1983). He added that he felt “good” after shooting Hardaway because he had “accomplished something,” but later felt “[k]ind of bad” when he learned that Hardaway had survived. Id., at 1424-1425. In August 1982, Spisak shot at Coletta Dartt because, he said, he heard her “making some derisive remarks about us,” meaning the Nazi Party. Id., at 1432-1435. Later that August, he shot and killed Timothy Sheehan because he “thought he was one of those Jewish professors ... that liked to hang around in the men's room and seduce and pervert and subvert the young people that go there.” 5 id., at 1465-1466 (July 7, 1983). Spisak added that he was “sorry about that” murder because he later learned Sheehan “wasn't Jewish like I thought he was.” Ibid. And three days later, while on a “search and destroy mission,” he shot and killed Brian Warford, a young black man who “looked like he was almost asleep” in a bus shelter, to fulfill his “duty” to “inflict the maximum amount of casualties on the enemies.” Id., at 1454-1455, 1478.

Spisak also testified that he would continue to commit similar crimes if he had the chance. He said about Warford's murder that he “didn't want to get caught that time because I wanted to be able to do it again and again and again and again.” Id., at 1699 (July 8, 1983). In a letter written to a friend, he called the murders of Rickerson and Warford “the finest thing I ever did in my whole life” and expressed a wish that he “had a human submachine gun right now so I could exterminate” black men “and watch them scream and twitch in agony.” Id., at 1724-1725. And he testified that, if he still had his guns, he would escape from jail, “go out and continue the war I started,” and “continue to inflict the maximum amount of damage on the enemies as I am able to do.” Id., at 1780-1781.

The State replied by attempting to show that Spisak was lying in his testimony about the Nazi-related motives for these crimes. The State contended instead that the shootings were motivated by less unusual purposes, such as robbery. See id., at 1680, 1816-1818.

The defense effort to show that Spisak was not guilty by reason of insanity foundered*687 when the trial judge refused to instruct the jury to consider that question and excluded expert testimony regarding Spisak's mental state. The defense's expert witness, Dr. Oscar Markey, had written a report diagnosing Spisak as suffering from a “schizotypal personality disorder” and an “atypical psychotic disorder,” and as, at times, “unable to control his impulses to assault.” 6 id., at 1882-1883, 1992 (July 11, 1983). His testimony was somewhat more ambiguous during a voir dire, however. On cross-examination, he conceded that he could not say Spisak failed Ohio's sanity standard at the time of the murders. After Markey made the same concession before the jury, the court granted the prosecution's renewed motion to exclude Markey's testimony and instructed the jury to disregard the testimony that it heard. And the court excluded the defense's proffered reports from other psychologists and psychiatrists who examined Spisak, because none of the reports said that Spisak met the Ohio insanity standard at the time of the crimes. Id., at 1898-1899, 1911-1912, 1995; id., at 2017, 2022 (July 12, 1983).

During the sentencing phase of the proceedings, defense counsel called three expert witnesses, all of whom testified that Spisak suffered from some degree of mental illness. Dr. Sandra McPherson, a clinical psychologist, said that Spisak suffered from schizotypal and borderline personality disorders characterized by bizarre and paranoid thinking, gender identification conflict, and emotional instability. She added that these defects “substantially impair his ability to conform himself” to the law's requirements. 8 id., at 2428-2429, 2430-2441 (July 16, 1983). Dr. Kurt Bertschinger, a psychiatrist, testified that Spisak suffered from a schizotypal personality disorder and that “mental illness does impair his reason to the extent that he has substantial inability to know wrongfulness, or substantial inability to refrain.” Id., at 2552-2556. Dr. Markey, whose testimony had been stricken at the guilt phase, again testified and agreed with the other experts' diagnoses. Id., at 2692-2693, 2712-2713 (July 18, 1983).

In light of this background and for the following reasons, we do not find that the assumed deficiencies in defense counsel's closing argument raise “a reasonable probability that,” but for the deficient closing, “the result of the proceeding would have been different.” Strickland, 466 U.S., at 694, 104 S.Ct. 2052. We therefore cannot find the Ohio Supreme Court's decision rejecting Spisak's ineffective-assistance-of-counsel claim to be an “unreasonable application” of the law “clearly established” in Strickland. § 2254(d)(1).

First, since the sentencing phase took place immediately following the conclusion of the guilt phase, the jurors had fresh in their minds the government's evidence regarding the killings-which included photographs of the dead bodies, images that formed the basis of defense counsel's vivid descriptions of the crimes-as well as Spisak's boastful and unrepentant confessions and his threats to commit further acts of violence. We therefore do not see how a less descriptive closing argument with fewer disparaging comments about Spisak could have made a significant difference.

Similarly fresh in the jurors' minds was the three defense experts' testimony that Spisak suffered from mental illness. The jury had heard the experts explain the specific facts upon which they had based their conclusions, as well as what they had learned of his family background and his struggles with gender identity. And the jury had heard the experts draw connections between his mental illness and the crimes. We do not see how it could have *688 made a significant difference had counsel gone beyond his actual argument-which emphasized mental illness as a mitigating factor and referred the jury to the experts' testimony-by repeating the facts or connections that the experts had just described.

Nor does Spisak tell us what other mitigating factors counsel might have mentioned. All those he proposes essentially consist of aspects of the “mental defect” factor that the defense experts described.

Finally, in light of counsel's several appeals to the jurors' sense of humanity-he used the words “humane people” and “humane society” 10 times at various points in the argument-we cannot find that a more explicit or more elaborate appeal for mercy could have changed the result, either alone or together with the other circumstances just discussed. Thus, we conclude that there is not a reasonable probability that a more adequate closing argument would have changed the result, and that the Ohio Supreme Court's rejection of Spisak's claim was not “contrary to, or ... an unreasonable application of” Strickland. 28 U.S.C. § 2254(d)(1).

Spisak contends that the deferential standard of review under § 2254(d)(1) should not apply to this claim because the Ohio Supreme Court may not have reached the question whether counsel's closing argument caused Spisak prejudice. That is, the Ohio Supreme Court's summary rejection of this claim did not indicate whether that court rested its conclusion upon a finding (1) that counsel was not ineffective, or (2) that a better argument would not have made a difference, or (3) both. See State v. Spisak, 36 Ohio St.3d, at 82, 521 N.E.2d, at 802. Spisak argues that, under these circumstances, a federal court should not defer to a state court that may not have decided a question, but instead should decide the matter afresh. Lower federal courts have rejected arguments similar to Spisak's. See, e.g., Hennon v. Cooper, 109 F.3d 330, 334-335 (C.A.7 1997); see also Weeks v. Angelone, 528 U.S. 225, 231, 237, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (applying the § 2254(d) standard in case involving a state court's summary denial of a claim, though not a Strickland claim, and without full briefing regarding whether or how § 2254(d) applied to a summary decision); Chadwick v. Janecka, 312 F.3d 597, 605-606 (C.A.3 2002) (Alito, J.) (relying on Weeks in holding that § 2254(d) applies where a state court denies a claim on the merits without giving any indication how it reached its decision); see generally 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure § 32.2, pp. 1574-1579 (5th ed.2005 and 2008 Supp.). However, we need not decide whether deference under § 2254(d)(1) is required here. With or without such deference, our conclusion is the same.

For these reasons, the judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.

Justice STEVENS, concurring in part and concurring in the judgment.

In my judgment the Court of Appeals correctly concluded that two errors that occurred during Spisak's trial violated clearly established federal law. First, the jury instructions impermissibly required that the jury unanimously reject a death sentence before considering other sentencing options. Second, the closing argument of Spisak's counsel was so egregious that it was constitutionally deficient under any standard. Nevertheless, for the reasons set forth in Part III of the Court's opinion, ante, at 685-88, I agree that these errors *689 did not prejudice Spisak and thus he is not entitled to relief.

I

The jury instructions given during Spisak's penalty phase, described in the Court's opinion, ante, at 683-84, are fairly read to require the jury first to consider whether the death penalty is warranted- i.e., whether the aggravating factors outweigh the mitigating factors-before moving on to consider whether instead a lesser penalty- i.e., one of two available life sentences-is appropriate. Consistent with Ohio law at the time of Spisak's trial,FN1 the jury was told that it must reach its decision unanimously. The jury was not instructed on the consequence of their failure to agree unanimously that Spisak should be sentenced to death. Spisak and the Court of Appeals both described these instructions as “acquittal first” because they would have led a reasonable jury to believe that it first had to “acquit” the defendant of death-unanimously-before it could give effect to a lesser penalty.

FN1. Ohio no longer uses the type of jury instructions at issue in this case. In 1996 the Ohio Supreme Court instructed that “[i]n Ohio, a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors. Jurors from this point forward should be so instructed.” State v. Brooks, 75 Ohio St.3d 148, 162, 661 N.E.2d 1030, 1042. Although the Brooks decision signaled a change in Ohio's capital jury instructions, it was not a change in state law: One juror had the power to prevent a death penalty recommendation before Brooks. See State v. Springer, 63 Ohio St.3d 167, 172, 586 N.E.2d 96, 100 (1992) (holding that an offender must be sentenced to life if the penalty-phase jury deadlocks). Thus, consistent with our view that “accurate sentencing information is an indispensable prerequisite to a [jury's] determination of whether a defendant shall live or die,” Gregg v. Georgia, 428 U.S. 153, 190, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.), the Ohio high court laudably improved upon the accuracy of Ohio capital jury instructions in Brooks.

Following its prior decision in Davis v. Mitchell, 318 F.3d 682 (C.A.6 2003), in which it struck down “virtually identical” jury instructions, Spisak v. Mitchell, 465 F.3d 684, 710 (C.A.6 2006), the Court of Appeals concluded that the instructions given during Spisak's penalty phase were impermissible because they “require[d] the jury to unanimously reject a death sentence before considering other sentencing alternatives,” id., at 709. In Davis, the court had explained that an instruction that requires a capital jury to “first unanimously reject the death penalty before it can consider a life sentence ... precludes the individual jury from giving effect to mitigating evidence....” 318 F.3d, at 689. The source of this constitutional infirmity, the court decided, was our decision in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). For the reasons cogently examined in Justice BREYER's opinion, ante, at 682-85, I agree that Mills does not clearly establish that the instructions at issue were unconstitutional. But, in my view, our decision in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), does.FN2

FN2. Notably, Beck substantially predates Spisak's trial and thus my application of Beck obviates any discussion on when federal law is established for Antiterrorism and Effective Death Penalty Act of 1996 purposes, see ante, at 681. Regardless, in accordance with the view I expressed in Williams v. Taylor, 529 U.S. 362, 379-380, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion of STEVENS, J.), I would conclude that our decision in Mills, decided before Spisak's conviction became final, is also available to him.

In Beck we held that the death penalty may not be imposed “when the jury was not permitted to consider a verdict of guilt *690 of a lesser included non-capital offense, and when the evidence would have supported such a verdict.” Id., at 627, 100 S.Ct. 2382 (internal quotation marks omitted). At that time, the Alabama death penalty statute had been “consistently construed to preclude any lesser included offense instructions in capital cases.” Id., at 629, n. 3, 100 S.Ct. 2382. Thus, the Alabama jury was “given the choice of either convicting the defendant of the capital crime, in which case it [was] required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged participation in the crime.” Id., at 628-629, 100 S.Ct. 2382. Because of the unique features of Alabama's capital punishment system,FN3 Beck's jury believed that either it had to convict Beck, thus sending him to his death, or acquit him, thus setting him free. The jury was not presented with the “third option” of convicting him of a noncapital offense, thus ensuring that he would receive a substantial punishment but not receive the death penalty. Id., at 642, 100 S.Ct. 2382. We concluded that the false choice before the jury-death or acquit-“introduce[d] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.” Id., at 643, 100 S.Ct. 2382. In other words,

FN3. Under Alabama law, the judge conducts a separate penalty-phase proceeding after the jury has returned a conviction on a capital offense. Beck, 447 U.S., at 629, 100 S.Ct. 2382. Thus, the jury reasonably believed that its verdict would set the defendant's punishment at death. “the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason-its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason-that, whatever his crime, the defendant does not deserve death.” Id., at 642-643, 100 S.Ct. 2382.

Although Beck dealt with guilt-phase instructions, the reach of its holding is not so limited. The “third option” we discussed in Beck was, plainly, a life sentence. Moreover, the unusual features of the Alabama capital sentencing scheme collapsed the guilt and penalty phases before the jury (but not before the judge). Our concern in Beck was that presenting the jury with only two options-death or no punishment-introduced a risk of arbitrariness and error into the deliberative process that the Constitution could not abide in the capital context. See Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (“The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence”). We held, therefore, that the jury must be given a meaningful opportunity to consider and embrace the equivalent of a life-sentence when the evidence supports such an option.

The acquittal-first jury instructions used during Spisak's penalty phase interposed before the jury the same false choice that our holding in Beck prohibits. By requiring Spisak's jury to decide first whether the State had met its burden with respect to the death sentence, and to reach that decision unanimously, the instructions deprived the jury of a meaningful opportunity to consider the third option that was before it, namely, a life sentence. Indeed, these instructions are every bit as pernicious as those at issue in Beck because they would have led individual jurors (falsely) to believe that their failure to agree might have resulted in a new trial and that, in any event, they could not give effect to their determination that a life sentence was appropriate unless and until they had first convinced each of their peers on the jury to reject the death sentence.

Admittedly, Spisak has never identified Beck as the source of the constitutional infirmity at issue in this case, nor did the courts below cite or rely upon it. But Spisak has consistently pressed his argument in terms that are wholly consistent with Beck. On direct appeal he contended, for example, that he: “was severely prejudiced by the erroneous jury forms because the jurors were never informed of what would happen if they were unable to reach a unanimous decision. That may have led to irreparable speculation that if they failed to agree, Frank Spisak would be freed or have a new trial or sentencing hearing. Such improper speculation may have led those not in agreement with death to go along with a majority. The jury should have been instructed that if they were unable to unanimously agree to death they must return a verdict of one of the life sentences or in the alternative, the court would impose a life sentence.” Exh. 28D, 16 Record 391 (Brief for Supreme Court of Ohio).

The untenable choice Spisak describes is perfectly analogous to the quandary, discussed above, that we described in Beck. See also 447 U.S., at 644, 100 S.Ct. 2382 (“It is extremely doubtful that juries will understand the full implications of a mistrial or will have any confidence that their choice of the mistrial option will ultimately lead to the right result. Thus, they could have no assurance that a second trial would end in the conviction of the defendant on a lesser included offense” (footnote omitted)). Spisak and the Court of Appeals both correctly assailed the jury instructions at issue in this case, but in my view Beck provides the proper basis in clearly established federal law to conclude the instructions were unconstitutional.

II

Petitioner defends Spisak's counsel's closing argument as a reasonable strategic decision “to draw the sting out of the prosecution's argument and gain credibility with the jury by conceding the weaknesses of his own case.” Brief for Petitioner 37. I agree that such a strategy is generally a reasonable one and, indeed, was a reasonable strategy under the difficult circumstances of this case. Even Spisak concedes that his counsel “faced an admittedly difficult case in closing argument in the penalty phase.” Brief for Respondent 43. But, surely, a strategy can be executed so poorly as to render even the most reasonable of trial tactics constitutionally deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). And this is such a case.

It is difficult to convey how thoroughly egregious counsel's closing argument was without reproducing it in its entirety. The Court's assessment of the closing as “lengthy and rambling” and its brief description of its content, see ante, at 685, does not accurately capture the catastrophe of counsel's failed strategy. Suffice it to say that the argument shares far more in common with a prosecutor's closing than *692 with a criminal defense attorney's. Indeed, the argument was so outrageous that it would have rightly subjected a prosecutor to charges of misconduct. See Brief for Steven Lubet et al. as Amici Curiae 15-16 (observing that counsel's closing argument “would have been improper even coming from the prosecutor”). A few examples are in order.

Presumably to take the “sting” out of the prosecution's case, Brief for Petitioner 37, counsel described his client's acts in vivid detail to the jury: “[Y]ou can smell almost the blood. You can smell, if you will, the urine. You are in a bathroom, and it is death, and you can smell the death ... and you can feel, the loneliness of that railroad platform ... and we can all know the terror that [the victim] felt when he turned and looked into those thick glasses and looked into the muzzle of a gun that kept spitting out bullets ... And we can see a relatively young man cut down with so many years to live, and we could remember his widow, and we certainly can remember looking at his children ... There are too many family albums. There are too many family portraits dated 1982 that have too many empty spaces. And there is too much terror left in the hearts of those that we call lucky.” FN4 465 F.3d, at 704-705 (internal quotation marks omitted).

FN4. To make matters worse, these graphic and emotionally charged descriptions of Spisak's crimes were irrelevant under state law even for purposes of the State's case for aggravating circumstances. See State v. Wogenstahl, 75 Ohio St.3d 344, 356, 662 N.E.2d 311, 322 (1996) (“[T]he nature and circumstances of the offense may only enter into the statutory weighing process on the side of mitigation”); see also State v. Johnson, 24 Ohio St.3d 87, 93, 494 N.E.2d 1061, 1066 (1986) (explaining that statutory aggravating circumstances should be narrowly construed); Ohio Rev.Code Ann. § 2929.04(A) (2006) (identifying 10 aggravating circumstances but not including heinous circumstances of offense). Presumably to “gain credibility” with the jury, Brief of Petitioner 37, counsel argued that his client deserved no sympathy for his actions: “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.” 465 F.3d, at 705 (internal quotation marks omitted).

And then the strategy really broke down: At no point did counsel endeavor to direct his negative statements about his client toward an express appeal for leniency.FN5 On the contrary, counsel concluded by telling the jury that “whatever you do, we are going to be proud of you,” ibid. (internal quotation marks omitted), which I take to mean that, in counsel's view, “either outcome, death or life, would be a valid conclusion,” ibid.

FN5. Counsel did attempt to appeal to the jury's sense of humanity, perhaps implicitly suggesting that humane people do not condemn others, especially those with mental illness, to death. App. to Pet. for Cert. 339a-341a. But counsel never requested a life sentence on behalf of his client. Spisak's crimes, and the seemingly unmitigated hatred motivating their commission, were truly awful. But that does not excuse a lawyer's duty to represent his client within the bounds of prevailing professional norms. The mere fact that counsel, laudably, may have had a “strategy” to build rapport with the jury and lessen the *693 impact of the prosecution's case, does not excuse counsel's utter failure to achieve either of these objectives through his closing argument. In short, counsel's argument grossly transgressed the bounds of what constitutionally competent counsel would have done in a similar situation.

III

Notwithstanding these two serious constitutional errors, I agree with the Court that these errors do not entitle Spisak to relief. As Justice BREYER's discussion in Part III makes vividly clear, see ante, at 685-87, Spisak's own conduct alienated and ostracized the jury, and his crimes were monstrous. In my judgment even the most skillful of closing arguments-even one befitting Clarence Darrow-would not have created a reasonable probability of a different outcome in this case. Similarly, in light of Spisak's conduct before the jury and the gravity of the aggravating circumstances of the offense, the instructional error was also harmless because it did not have a substantial and injurious effect on this record, Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

Accordingly, I concur in the judgment and concur in the Court's discussion of prejudice in Part III of its opinion.