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Smith v. Spisak
Argued October 13, 2009.
Authorship: Jonathan Vukicevich of Washington
College of Law
Docket: 08-724
Issue: Did the Sixth Circuit contravene
AEDPA by improperly extending Mills v. Maryland?
Briefs and Documents
Decision
REVERSED in an opinion by Justice Breyer (January 12, 2010)
Oral Argument
Transcript (October 12, 2009)
Merits Briefs
Amicus Briefs
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Brief for the States of Pennsylvania, Alabama, Arizona,
California, Colorado, Deleware, Idaho, Illinois, Kansas,
Kentucky, Montana, Nevada, Oklahoma, South Carolina, South
Dakota, Texas, Utah, Virginia, Wyoming in Support of Petitioner
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Brief for Steven Lubet, Thomas A. Mauet, James W. McElhaney,
John B. Mitchell, Laurence M. Rose, Faust F. Rossi, Jacob A.
Stein, Herbert J. Stern, and Michael E. Tigar in Support of
Respondent
Certiorari-Stage Documents
Opinion Recap
On January 12, the Court issued its decision in
No. 08-724, Smith v. Spisak. Justice Breyer wrote the opinion,
which seven other Justices joined in full; Justice Stevens
concurred in part and concurred in the judgment. Reversing the
Sixth Circuit, the Court held that Ohio’s denial of Spisak’s
habeas petition – in which he had argued that (1) the jury
instructions used at his trial unconstitutionally required the
jury to consider mitigating factors only if the existence of each
factor was unanimously found; and (2) his attorney was
constitutionally ineffective, particularly during his closing
argument – was not contrary to, or an unreasonable application of,
clearly established federal law.
With respect to the first issue, the Court held
that, although the instructions required the jury to find
unanimously that each of the aggravating factors outweighed any
mitigating circumstances, the instructions did not require jury
unanimity in finding the existence of any individual mitigating
factor. Assuming without deciding that the Court’s decision in
Mills v. Maryland was clearly established law when Spisak’s
conviction became final, Justice Breyer distinguished these
instructions from those that the Court struck down in Mills, which
had provided that the jurors could only consider those mitigating
factors that they had unanimously found. Justice Breyer reasoned
that, because the instructions in Spisak’s case did not preclude
the jurors from considering mitigating evidence, but merely
required unanimity in the overall balance of aggravating and
mitigating factors, the instructions given to Spisak’s jury
differed from those in Mills, and were, therefore, not contrary to,
or an unreasonable application of, clearly established Court
precedent.
Regarding the ineffective
assistance of counsel claim, the Court held that, even assuming
the closing argument was inadequate, there was no reasonable
probability that a better closing would have altered the result.
Justice Breyer devoted several paragraphs of his opinion to
detailing Spisak’s own damaging testimony in which he admitted to
committing the murders, stated that he was motivated to kill by
his admiration for Adolf Hitler, and indicated that he would kill
again if given the chance. In the face of such damning testimony,
the closing could have been a tactical attempt to highlight
Spisak’s mental instability, even if he was not unstable enough
for the jury to find him not guilty by reason of insanity. Because
the sentencing phase took place immediately after the guilt phase,
the Court concluded, his counsel’s strategy to highlight Spisak’s
mental state was reasonable insofar as the government’s strong
evidence, Spisak’s unrepentant confessions, and his threat to
murder again were all fresh in the jurors’ minds. Finally, the
Court found that counsel’s appeals to the jurors’ “humanity”
during the closing argument sufficiently pleaded for mercy and
that a different closing would thus have had no effect on the
jury’s finding.
In his concurring opinion, Justice Stevens
wrote that the Sixth Circuit correctly found errors in both the
jury instructions and Spisak’s closing argument, and that both of
these errors did in fact violate clearly established federal law.
In his view, however, these errors did not prejudice Spisak. First,
although the instructions used in Spisak’s trial did not violate
Mills, they did violate the Court’s decision in Beck v. Alabama
insofar as they required the jury to unanimously reject death
before considering life. Given the overwhelming evidence against
Spisak, however, Justice Stevens found that the instructional
error did not have a substantial effect on Spisak’s case. Second,
in contrast to the majority’s focus on whether Spisak was
prejudiced by his counsel’s ineffectiveness, Justice Stevens
focused on the adequacy prong, concluding that his counsel’s
argument clearly fell below norms of professional conduct. That
said, Justice Stevens agreed with the majority that there was no
reasonable probability that a different closing would have changed
the result.
Oral Argument
Recap
In Smith v. Spisak, the first capital
case of the Term, the Court heard arguments regarding the level of
deference a federal court must give to a state court’s death
penalty conviction under AEDPA. At issue in the case was the Sixth
Circuit’s application of the Supreme Court’s rulings in Mills
v. Maryland and Strickland v. Washington to reverse the
Ohio Supreme Court’s decision affirming Spisak’s death penalty
conviction.
Ohio Attorney General Richard
Cordray argued that the Sixth Circuit improperly extended Mills
v. Maryland to invalidate the instructions given to Spisak’s
jury, which—as is common—required unanimity in the ultimate
finding that the aggravating factors outweigh the mitigating
factors. According to Mr. Cordray, this application of Mills
does not deserve deference under AEDPA because it is not clearly
established federal law. In addition, trial counsel’s closing
argument, in which he disparaged Spisak’s character, was an
objectively reasonable trial tactic acceptable under Strickland,
and the Sixth Circuit’s requirement that the Ohio Supreme Court
expressly articulate its prejudice analysis exceeds the scope of
AEDPA deference.
While most of the Justices’ questions focused
on the Strickland issue, Justices Sotomayor and Ginsburg
seemed concerned that Spisak’s interpretation of the jury
instructions could cause a single hold-out juror to vote for death
out of a concern that, if he did not, the defendant would go free.
The Justices devoted several of their questions to the substance
of Spisak’s lawyer’s closing argument. Mr. Cordray argued that,
because Spisak had openly discussed his neo-Nazi beliefs and
admitted his guilt on the stand, even stating he would kill again
if given the chance, any comments by trial counsel could not have
been prejudicial. Noting the extraordinary nature of the trial,
several of the Justices, including Justices Breyer and Scalia,
opined that the trial counsel’s closing argument seemed reasonable
under the circumstances.
Michael Benza, who argued on behalf of Spisak,
contended that the Sixth Circuit was correct in requiring the Ohio
Supreme Court to articulate the reasoning for its conclusion that
there was no prejudice under Strickland. The Justices
seemed uncomfortable, however, with the argument that summary
decisions could be attacked because they failed to articulate the
state court’s reasoning, especially when the court cited the
correct standard in its opinion. Justice Scalia noted that, under
AEDPA, the burden is on the defendant to show that the state court
unreasonably applied clearly established federal law; where there
is doubt, the defendant loses.
Regarding the Mills claim, Mr. Benza
described the trial court as having instructed the jury that it
must be unanimous in all of its decisions. Mills prohibits
this instruction, he argued, because it extended to all disputes
of fact, including the existence of mitigating factors. While
Mills was not decided until after Spisak’s trial, under the
Court’s decision in Teague v. Lane, “clearly established
federal law” is federal law that is decided before a defendant’s
direct appeals are exhausted, as is the case here.
This case is one of several the
Court will hear this Term regarding the application of
Strickland v. Washington.
Pre-Argument
Articles
The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) provides that a federal court may grant a
state prisoner’s habeas petition if the state court adjudication
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law.” In
Smith v. Spisak, the Court will consider whether the Sixth
Circuit exceeded the limitations of AEDPA when it concluded that
the Ohio Supreme Court had incorrectly rejected Spisak’s jury
instruction and ineffective assistance of counsel claims.
Argument Preview
Petitioner's brief
In its brief, the State argued that the jury
instructions were valid under Mills. First, the
instructions did not, as Spisak contends, imply that unanimity was
required as to the existence of mitigating factors, but only to
the balance of aggravating factors and mitigating factors overall.
Moreover, the instructions did not require a unanimous finding
that the death penalty was appropriate before considering life.
The State also argued that trial counsel’s comments during the
mitigation phase of Spisak’s trial were an objectively reasonable
trial tactic, and not prejudicial under Strickland. Because
the state court properly applied both Mills and
Strickland, it therefore did not violate AEDPA, and the Sixth
Circuit erroneously granted Spisak’s habeas petition.
Respondent's brief
In his brief, Spisak reiterated many of the
arguments he made in his opposition to certiorari. First, he
argued that regardless of how the State interprets the jury
instructions in this case, a reasonable juror might interpret the
instructions to mean that the jury must unanimously reject death
before considering life. Under this interpretation, a single juror
in favor of death could make it impossible for the remaining
jurors to discuss any mitigating factors because such deliberation
is not permissible until the death penalty is unanimously rejected.
Because Mills is clearly established law that prohibits any
instruction that prevents jurors from considering mitigating
factors, the Sixth Circuit correctly applied Mills to
invalidate the jury instructions.
With respect to the ineffective assistance of
counsel claim, Spisak argued first that the state court’s summary
decision should be subjected to de novo review, and the
Sixth Circuit’s analysis showed that he is entitled to habeas
relief. Alternatively, Spisak contended, the Sixth Circuit
correctly determined that the state court’s summary rejection of
Spisak’s ineffective assistance claim was an unreasonable
application of Strickland because the state court did not
articulate the appropriate legal analysis. The closing argument
made by Spisak’s trial counsel constituted ineffective assistance
under Strickland because (1) his performance fell below
professional norms insofar as his closing argument both provided
support for the State’s case and limited the jury’s consideration
of mitigating factors, and (2) his actions were prejudicial: if he
had focused his closing argument on Spisak’s diagnosed mental
illnesses, there is a reasonable probability that one juror would
have voted for a life sentence.
Amicus brief
A number of states joined an amicus brief in
support of Ohio. The amici argued that the Sixth Circuit
improperly expanded the scope of Mills, and that such a new
interpretation should not be considered “clearly established”
federal law for AEDPA purposes. The Sixth Circuit’s decision thus
highlights the need for the Court to clarify the proper meaning of
“clearly established” under AEDPA. This is especially important
because the Sixth Circuit’s improper interpretation of Mills
potentially invalidates other states’ jury instructions in capital
cases.
Grant Write-up
Background
In 1983, a jury convicted Frank Spisak of
murdering three people. At the sentencing phase of Spisak’s trial,
the jury was instructed (among other things) that “[i]f all twelve
members of the jury find by proof beyond a reasonable doubt that
the aggravating circumstances in each separate count outweighs the
mitigating factors, then you must return that finding to the court.”
The jury recommended a sentence of death, which the trial court
accepted.
Spisak’s direct appeals were unsuccessful. In
1997, Spisak sought federal habeas relief, which the district
court denied. On appeal, the Sixth Circuit reversed and vacated
Spisak’s death sentence on the grounds that (1) Spisak’s trial
counsel rendered ineffective assistance, and (2) the jury
instructions violated Mills v. Maryland by requiring
unanimity in the finding that the aggravating circumstances
outweighed the mitigating factors present in Spisak’s case.
The State filed a petition for certiorari in
which it argued that the Sixth Circuit’s decision contravened
AEDPA. The Court granted cert., vacated the decision below, and
remanded the case to the Sixth Circuit for reconsideration in
light of two recent Supreme Court cases interpreting the scope of
AEDPA, Carey v. Musladin and Schriro v. Landrigan.
On remand, the Sixth Circuit held that neither case required
reversal of its prior decision and reinstated its original opinion.
The State filed a second
petition for certiorari, which the Supreme Court granted on
February 23, 2009.
Second petition for certiorari
The State argued that the Court should grant
cert. for two reasons. First, the Sixth Circuit ignored AEDPA’s
limitations when it relied on Mills to invalidate the jury
instructions in Spisak’s case. The prohibited Mills
instructions required unanimity as to the existence of specific
mitigating factors, whereas the instructions at issue here only
required unanimity in the ultimate finding that, on the whole, the
mitigating factors did or did not outweigh the aggravating factors.
Because the Court has never specifically addressed instructions
like these, the Sixth Circuit incorrectly found that the Ohio
Supreme Court unreasonably applied clearly established federal law
in violation of AEDPA. The divergent lower court interpretations
of similar jury instructions show both that the law in this area
is not clearly established for AEDPA purposes, and that the Court
should grant cert. to clarify the law.
Second, the Sixth Circuit improperly granted
relief on Spisak’s ineffective assistance of counsel claim.
Although the lower court articulated the proper standard for
ineffective assistance of counsel under Strickland v.
Washington, it actually applied the less demanding standard of
United States v. Cronic.
Spisak made four arguments in opposition to
certiorari. First, the Ohio Supreme Court’s opinion does not
warrant deference because it disposed of Spisak’s Mills
claim in a summary fashion, providing no explanation for its
rejection of the claim. Second, Mills applies to the jury
instructions in this case because a reasonable juror could have
interpreted the instructions to require unanimity in finding the
existence of mitigating factors. Third, on remand the Sixth
Circuit properly applied the Strickland standard to
Spisak’s ineffective assistance of counsel claim. Finally,
comments by Spisak’s trial counsel during closing arguments that
disparaged Spisak’s character amounted to ineffective assistance
of counsel because the comments were not part of a legitimate
trial strategy, and could have persuaded at least one juror to
vote for death.
In its reply, the State countered that AEDPA
deference applies even when the state court’s opinion did not
include detailed reasons for its analysis. Further, other circuits
and other panels within the Sixth Circuit have reached opposite
conclusions when applying Mills. With respect to the
ineffective assistance claim, the Sixth Circuit failed to even
complete the prejudice analysis required by Strickland.
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