Smith v. Spisak

The United States Court of Appeals for the Sixth Circuit granted Respondent Frank Spisak’s petition for habeas corpus relief on two grounds. See Spisak v. Mitchell, 465 F.3d 684, 687 (6th Cir. 2006), reinstated on remand by Spisak v. Hudson, 512 F.3d 852, 852 (6th Cir. 2008). First, the court held that the jury instructions during sentencing violated the Eighth Amendment under Mills v. Maryland. See Id. at 710-711; see also Mills v. Maryland, 486 U.S. 367 (1988). Second, the court held that Spisak’s attorney failed to provide the effective assistance of counsel guaranteed by the Sixth Amendment. See Id. at 708. Petitioner Keith Smith, Warden for the State of Ohio (“Ohio”), contests both rulings by the Sixth Circuit.

Were the sentencing phase jury instructions unconstitutional?

Spisak argues that the jury instructions during the sentencing phase of his trial were impermissible “acquittal-first” instructions. See Brief for Respondent, Frank Spisak at 20–23. Acquittal-first instructions direct the jury that they must unanimously reject a death sentence before considering a life sentence. See id. at 22-24. Spisak argues that the way the jury instructions were delivered at trial could have been understood by a reasonable juror to require that the jury unanimously agree on the existence of a mitigating factor before the factor was considered as mitigating evidence that could bode in favor of a life sentence. See Id. at 25. According to Spisak, these type of instructions are unconstitutional under the U.S. Supreme Court’s interpretation of the Eighth Amendment in Mills because the instructions “command that the jury unanimously reject the death penalty before considering a life sentence.” See Id. at 21, n.1.

Ohio argues that the jury instructions were not acquittal-first instructions, and even if they were, they are still permissible under Mills and the Eighth Amendment protections afforded to those charged with the death penalty. See Brief for Petitioner, Keith Smith, Warden at 26, 27-28. According to Ohio, the jury instructions were silent on the issue of unanimity about mitigating circumstances, and therefore, a reasonable jury would not interpret silence to require unanimity. See Id. at 23. Ohio argues that the instructions in Spisak’s case did not violate the Eighth Amendment, which Mills only held to require that jurors be allowed “to consider and give effect to all relevant mitigating evidence.” See Id. at 17 (citing Mills, 486 U.S. at 374-75). Ohio argues that, unlike Mills, the instructions here allowed for consideration of mitigating evidence—the jury was not told to make a specific finding on any of the mitigating facts, the trial court never suggested the jury could consider only those factors on which they agreed unanimously, and the instructions indicated that the jurors should consider all relevant mitigating evidence. See Id. at 20.

Did the defense counsel provide competent assistance during the mitigation phase of Spisak’s trial?

Spisak argues that his death penalty sentence should be vacated because he did not receive effective assistance from his lawyer, as guaranteed by the Sixth Amendment, during the mitigation phase of his trial. See Brief for Respondent at 44-45. Both parties agree that the ineffective-assistance claim is subject to the two-prong analysis laid out in Strickland v. Washington. See Id. at 33; Brief for Petitioner at 31 (citing Strickland v. Washington, 466 U.S. 668 (1984)). The first prong considers “whether ‘counsel’s performance was deficient,’ and, if so, the second is whether ‘the deficient performance prejudiced the defense.’” Brief for Petitioner at 31.

A. Was defense counsel’s assistance deficient?

Spisak asserts that his lawyer’s performance during the mitigation phase of the trial was inconsistent with professional standards of conduct. See Brief for Respondent at 59. He claims that his attorney went far beyond candidly acknowledging the weakness in his case and, instead, took up the mantle of prosecutor, emphasizing aggravating factors at closing argument, rather than advocating for mitigation. See Id. at 54-55. Furthermore, Spisak argues that his attorney repeatedly disparaged and demonized him, even going so far as to suggest to the jurors they could be proud of themselves if they returned a recommendation for death. See Id. at 53, 62.

Ohio argues that the defense counsel’s strategy was objectively reasonable given the “strong presumption of reasonableness” that the federal courts should assume under the Strickland standard of review. See Brief for Petitioner at 31 (citing Strickland, 466 U.S. at 688). Additionally,Ohio argues that defense counsel’s strategy must be viewed from his perspective at the time of trial, rather than through the clarifying lens of hindsight. See Id. at 31-32. Faced with overwhelming evidence of guilt, and horrific details of the crimes already before the jury, Ohio argues that defense counsel chose to candidly admit the lurid details and depravity of his client’s mind in order to establish credibility with the jury and align himself with them. See id. at 36–37. Ohio cites numerous trial advocacy texts that support admitting theweaknesses in your case before the opposition points them out in order to gain credibility with the jury and undermine an opponent’s ability to use your weaknesses against you. See id. at 37.

B. Did defense counsel’s performance unfairly prejudice Spisak?

Both parties agree that under the proper Strickland analysis, the defendant must show that actual prejudice occurred because of the deficient performance of counsel. See Brief for Petitioner at 41; see Brief for Respondent at 60. However, Ohio alleges that the Sixth Circuit merely paid lip service to Strickland, citing it without actually performing the detailed analysis that it requires before finding prejudice. See Reply Brief for Petitioner at 10. According to Ohio, Strickland requires the court to reweigh the total aggravating evidence against the total mitigating evidence from the case anew. See id. at 10 (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)). Ohio argues that because the court’s opinion fails to discuss reweighing, it is more consistent with the “presumption of prejudice” standard of United States v. Cronic, rather than the appropriate standard from Strickland. See Brief for Petitioner at 41 (citing Cronic, 466 U.S. 648 (1984)). Ohio cites the Sixth Circuit’s repeated invocation of Rickman v. Bell, an earlier circuit decision applying Cronic, as evidence that the court was applying the wrong standard. See Id. (citing Rickman, 131 F.3d 1150 (6th Cir. 1997)).

On the other hand, Spisak asserts that the Sixth Circuit neither improperly applied Cronic nor applied the incorrect “presumption of prejudice” standard.See Brief for Respondent at 33-34. Furthermore, Spisak argues that the court properly cited Strickland as the controlling law, and “[w]hen a court cites the correct legal standard it is presumed that the court actually applied that standard.” Id. at 34. Lastly, Spisak argues that the Sixth Circuit only cited Rickman with regards to the performance prong of Strickland, rather than Rickman’s application of the Cronic presumption of prejudice standard. See id. at 35-36.

In response, Ohio argues that the even if Spisak’s attorney performed deficiently during the closing, there was no prejudice that resulted. See Brief for Petitioner at 12. The State asserts that Spisak’s crimes were so heinous, and his own cold-blooded testimony about his victims so damning, that there is no likelihood the jury would have reached a different conclusion, even with competent assistance. See Id. at 15; Reply Brief for Petitioner at 22.

Did the Sixth Circuit contravene the Antiterrorism and Effective Death Penalty Act of 1996?

The issue underlying both questions presented to the Court in Smith v. Spisak is how deferentially federal courts should evaluate a state court’s application of federal law when considering a petition for habeas corpus. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prohibits federal courts from granting a petition for habeas corpus unless the state court reached a “decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

Ohio argues that AEDPA requires the federal courts to exercise deference to the Ohio state courts’ rejection of Spisak’s jury-instruction and ineffective-assistance claims on direct review. See Brief for Petitioner at 15. Ohio argues that Spisak is not entitled to habeas relief because the Ohio Supreme Court reasonably applied federal law when it affirmed Spisak’s death sentence. See Id. at 22, 31. According to Ohio, the Sixth Circuit adopted an expansive reading of Mills to overturn the Ohio Supreme Court’s denial of Spisak’s habeas claims. See Id. at 17. This is inappropriate under AEDPA, because federal courts are only supposed to overturn unreasonable determinations by state courts. See Id.; 28 U.S.C. § 2254(d)(1). Ohio argues that not only does the “Sixth Circuit’s affirmative-instruction requirement [find] no basis in Mills,” but other circuits have decided contrarily on this issue, establishing a circuit split on the issue, at the very least. See Id. at 24-25. As such, Ohio argues that the Ohio Supreme Court most certainly did not violate clearly established law, which would be necessary for the Sixth Circuit to overturn the conviction. See Id.

Spisak counters by pointing out that the Supreme Court of Ohio dismissed his ineffective-assistance claim summarily, without any analysis. Brief for Respondent at 38. Spisak argues that this type of summary disposition is not the careful analysis to which the AEDPA intended the federal courts to defer. See Id. at 41-42. He argues that, because the Ohio Supreme Court offered no analysis or explanation of its decision, the Sixth Circuit had no way to decipher what the court’s conclusion was on each individual prong of the Strickland analysis, and that the Sixth Circuit therefore did not necessarily owe deference to the Ohio Supreme Court’s conclusions under AEDPA. See Id.