FILED" 08-’(24 DEC i- Zl)08 No. OFFICE OF THE C, LEBK ~n~ tBe ~u~p~eme ~u~t eI tBe ~ln/teb ~tate~ KEVIN SMITH, Warden. FRANK G. SPISAK. JR.. Petitioner, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PETITION FOR WRIT OF CERTIORARI NANCY H. ROGERS Attorney General of Ohio BENJAMIN C. MIZER* Solicitor General * Counsel of Record KIMBERLY A. OLSON DAVID M. LIEBERMAN Deputy Solicitors CHARLES WILLE Assistant Attorney General 30 E. Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 614-466-5087 fax Counsel for Petitioner
Transcript
FILED"
08-’(24 DEC i- Zl)08
No.OFFICE OF THE C, LEBK
~n~ tBe ~u~p~eme ~u~t eI tBe ~ln/teb ~tate~
KEVIN SMITH, Warden.
FRANK G. SPISAK. JR..
Petitioner,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TOTHE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
NANCY H. ROGERSAttorney General of Ohio
BENJAMIN C. MIZER*Solicitor General* Counsel of Record
KIMBERLY A. OLSONDAVID M. LIEBERMANDeputy SolicitorsCHARLES WILLEAssistant Attorney General30 E. Broad Street, 17th FloorColumbus, Ohio 43215614-466-8980614-466-5087 fax
Counsel for Petitioner
CAPITAL CASE NO EXECUTION DATE SET
QUESTIONS PRESENTED
1. Did the Sixth Circuit contravene the directivesof the .hLntiterrorism and Effective Death Penalty Actof 1996 ("AEDPA") and Carey v. Musladin, 127 S. Ct.649 (2006), when it applied Mills v. Maryland, 486U.S. 367 (1988), to resolve in a habeas petitioner’sfavor questions that were not decided or addressed inMills?
2. Did the Sixth Circuit exceed its authority underAEDPA when it applied United States v. Cronic.466 U.S. 648 (1984), to presume that a habeaspetitioner suffered prejudice from several allegedlydeficient statements made by his trial counsel duringclosing argument instead of deferring to the OhioSupreme Court’s reasonable rejection of the claimunder Strickland v. Washington, 466 U.S. 668(1984)?
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LIST OF PARTIES
The Petitioner is Kevin Smith, the Warden ofthe Mansfield Correctional Institution. Smith issubstituted for his predecessor, Betty Mitchell. SeeFed, R. Civ. P. 25(d).
The Respondent is Frank Spisak, an inmate atthe Mansfield Correctional Institution.
STATEMENT OF THE CASE ....................................3
A. Spisak killed three people and seriouslyinjured a fourth during a hate-inspiredcampus shooting spree ........................................3
B. A jury convicted Spisak and recommendeda sentence of death, which the state trialcourt accepted ......................................................4
C. The Ohio Supreme Court rejected Spisak’siury instruction and ineffective assistanceof counsel claims on the merits ...........................9
D. The federal district court denied Spisak’shabeas petition ..................................................10
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E. The Sixth Circuit reversed the districtcourt and vacated Spisak’s sentence .................11
Fo After this Court granted the Warden’spetition, vacated the Sixth Circuit’sjudgment, and remanded the cm,~e, theSixth Circuit reinstated its original opinion ....12
REASONS FOR GRANTING THE WRIT ................13
no The Sixth Circuit applied its owninterpretation of Mills--rather than clearlyestablished federal law--and failed toapply AEDPA deference to the state courtdecisions, contributing to a divi~,~ion ofauthority on the jury instruction issue ............14
1. The Sixth Circuit extended Mills to asituation that Mills did not address ............15
Given the lack of clear guidance fromthis Court, the lower courts are dividedon the jury instruction issue ........................20
So The Sixth Circuit misapplied settled lawand ignored AEDPA when it appliedCronic, and not Strickland, to Spisak’sineffective assistance claim ...............................23
Allegations of ineffective assistance atspecific points in the trial proceedingare governed by Strickland .........................24
The Sixth Circuit’s contrary conclusionwas not based on clearly establishedfederal law in effect at the time of thestate court decision ......................................28
The Ohio Supreme Court’s rejection ofSpisak’s ineffective assistance claimwas not contrary to or an unreasonableapplication of Strickland .............................30
a. Spisak cannot establish deficientperformance ............................................30
Petitio~a for Writ of Certiorari, Beard v. Abu-Jamal, No. 08-652 (U.S. Nov. 14, 2008) ...............21
Anti-Terrorism and Effective Death Penalty Actof 1996 ("AEDPA") ......................................... passim
PETITION FOR WRIT OF CERTIORARI
The Attorney General of Ohio, on behalf ofKevin Smith, the Warden of the MansfieldCorrectional Institution, respectfully petitions for awrit of certiorari to review the order of the UnitedStates Court of Appeals for the Sixth Circuit in thiscase.
OPINIONS BELOW
The Sixth Circuit’s opinions and orders arereproduced at App. la-20a, 22a-94a. The UnitedStates District Court for the Northern District ofOhio’s opinion and order is reproduced at App. 95a-300a.
JURISDICTIONAL STATEMENT
The United States Court of Appeals for theSixth Circuit issued its order denying the State’spetition for rehearing on July 28, 2008. JusticeStevens extended the time period to file a petition forwrit of certiorari to December 10, 2008. The Wardennow files this petition and invokes the Court’sjurisdiction under 28 U.S.C. 1254(1) (2003).
INTRODUCTION
This Court has seen this case before. Just lastTerm, the Court granted the Warden’s ipetition forcertiorari, vacated the Sixth Circuit’s opiniongranting the writ, and remanded for reconsiderationin light of Carey v. Musladin, 127 S. Ct. 649 (2006),and Schriro v. Landrigan, 127 S. Ct. 1933 (2007).The implication of the Court’s remand order wasunmistakable: The Court directed the Sixth Circuitto observe carefully the limitations of theAntiterrorism and Effective Death Penalty Act of
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1996 ("AEDPA"), 110 Stat. 1219, when considering aclaim for habeas relief.
O~a remand, the Sixth Circuit again ignoredAEDPA’s constraints on the court’s habeas powerwhen it reinstated its earlier grant of the writ. TheWarden accordingly asks the Court to review thiscase for two reasons.
First, the Sixth Circuit exceeded its authority bygranting habeas relief based on its finding that so-called "unanimity" and "acquittal-first" instructionsviolate Mills v. Maryland, 486 U.S. 367 (1988).Contrary to both AEDPA and this Court’s directivein Musladin, the Sixth Circuit applied its owninterpretation of Mills to resolve questions that werenot decided or addressed in Mills, and on which thisCourt has provided no clear guidance. Numerousdecisions of other circuits and even of the SixthCircuit itself--have rejected claims similar toSpisak’s precisely because Mills did not address suchclaims.
Second, the Sixth Circuit improperly presumedthat Spisak suffered prejudice from several allegedlydeficient statements made by trial counsel during hisclosing argument. In Bell v. Cone, 535 U.S. 685(2002), this Court directed habeas petitioners toapply Strickland v. Washington, 466 U.S. 668 (1984),when challenging such single, discrete acts of trialcounsel.. And the Ohio courts reasonably rejectedSpisak’s claim of ineffective assistance under theStrickland standard. Trial counsel’s decision toreference the aggravating circumstances of Spisak’scrimes in his closing argument was reasonable andnon-prejudicialgiven the indisputably heinous andunprovoked nature of the murders, Spisak’s lack of
remorse, and Spisak’s on-the-stand descriptions ofhis depraved motives and beliefs.
The Court should again grant the Warden’spetition and reverse the Sixth Circuit’s judgment.
STATEMENT OF THE CASE
A. Spisak killed three people and seriouslyinjured a fourth during a hate-inspiredcampus shooting spree.
Respondent Frank G. Spisak, Jr. killed HoraceT. Rickerson, Timothy Sheehan, and Brian Warfordin a series of shootings at Cleveland State Universityin 1982. App. 29a-31a. During the spree, Spisakalso shot at John Hardaway and Coletta Dartt.Hardaway was shot seven times but survived andidentified Spisak as the shooter. App. 29a.
Spisak’s hatred of African Americans and Jewsmotivated the murders. App. 84a. When the policearrested Spisak, they found a book about AdolfHitler that was hollowed out to conceal a gun, a"white power" tee shirt, and a Nazi fla~l. At trial,Spisak testified that he admired Hitler, and that hewas a member of a splinter group of the AmericanNazi Party. App. 375a-382a. Spisak also told theinvestigating officer that he planned to go to adowntown bar with a machine gun and just "openup" on every black person that was there; that hewas then "going to start on all the Jewish lawyers";and that he wanted to kill all the Jewish lawyers,"one by one." App. 369a-370a.
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B. A jury convicted Spisak and recommendeda sentence of death, which the state trialcourt accepted.
During the guilt phase of Spisak’s trial, thedefense did not contest that Spisak shot the victims;instead, it sought unsuccessfully to establish thatSpisak was legally insane. The defense attempted toexplain Spisak’s Nazi beliefs as a symptom of mentalillness, eliciting lengthy testimony from Spisakregarding the nature of his beliefs. See, e.g., App.371a-388a. The defense also offered the testimony ofDr. Oscar Markey, who gave contradictory testimonyconcer~ing whether Spisak was mentally ill at thetime of the crimes. The trial court ultimately struckDr. Markey’s testimony, App 43a, and refused toinstruct the jury on insanity, App. 53a-54a.
The jury returned a guilty verdict on, amongother charges, four counts of aggravated murder withnineteen death specifications.
At sentencing, Spisak’s counsel presentedadditional expert testimony that Spisak wasmentally ill. A clinical psychologist testified thatSpisak suffered from Schizotypal and BorderlinePersonality Disorders characterized by bizarre andparanoid thinking, gender identification conflict, andemotional instability, and that these defectssubstantially impaired Spisak’s ability to conform tothe law. (Trial Tr. 2429-40; Joint Appendix to SixthCircuit case no. 03-4034 ("J.A.") at 2602-13). Apsychiatrist similarly testified that Spisak sufferedfrom schizotypal personality disorder--a mentalcondition that substantially impaired his ability toconform his conduct to the requirements of the law.(Id. at 2549-54; J.A. at 2722-27). Finally, Dr~
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Markey again testified, stating that he essentiallyagreed with the psychiatric diagnosis. (/d. at 2704-06; J.A. at 2877-79).
In his closing argument, Spisak’s counselacknowledged the brutality of the aggravatingcircumstances and expressed sympathy for thevictims’ families. App. 333a-336a. Counsel thenargued that although Spisak had not led a "good life"and had no "good deeds" to his credit, Spisak’smental illness was a mitigating factor that the juryshould consider. App. 338a-341a. Counsel thenargued extensively that although the defense’sexpert testimony was insufficient to meet the test forlegal insanity, it was more than sufficient for thejury to conclude that Spisak was s~bstantiallyimpaired by mental illness a-nd that this mitigatingfactor outweighed the admittedly strong aggravatingcircumstances. App. 340a-355a. Finally, counselconcluded by telling the jurors that he was proud ofthem for doing their duty. App. 359a-360a.
In its sentencing instructions to the jury, thecourt explained that the State had "the burden ofproving by proof beyond a reasonable doubt that theaggravating circumstances which the defendant,Frank G. Spisak, Jr. was found guilty of committingare sufficient to outweigh the factors in mitigation ofthe imposition of the [sentence] of death." App. 318a.The court further instructed that "to outweigh meansto weigh more than, to be more important than," andthat "[t]he existence of mitigating factors does notpreclude or prevent the death sentence if theaggravating circumstances outweigh the mitigatingfactors." Id.
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The court explained that the aggravating factorswere those death specifications that the jury hadalready returned guilty verdicts on during the guiltphase. App. 319a-323a.
The trial court then stated that "[m]itigatingfactors are those which, while not excusing orjustifying the offense, or offenses, may in fairnessand mercy, be considered by you, as extenuating orreducing the degree of the defendant’s responsibilityor punishment." App. 323a. The court specificallylisted as a mitigating factor that "at the time ofcommitting the offense the defendant because ofmental disease or defect, lacked substantial capacityto appreciate the criminality of his conduct or toconfor:m his conduct to the requirements of the law."Id. T]he court also instructed the jury that it couldconsider "the history, character and background ofthe offender" as a mitigating factor, as well as "anyother factors[] that are relevant to the issue ofwhether the defendant should be sentenced todeath."’ Id. The court did not instruct the jury thatit needed to reach a unanimous conclusion as to thepresenLce or absence of the mitigating factors.
The court then summarized the Ohio statutesetting forth the proper jury sentencing procedure:
[Y]ou, the trial jury, must consider all ofthe relevant evidence raised at trial, theevidence and testimony received in thishearing and the arguments of counsel.From this you must determine whether,beyond a reasonable doubt, theaggravating circumstances which thedefendant, Frank G. Spisak, Jr., has beenfound guilty of committing in the
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separate counts are sufficient to outweighthe mitigating factors present in thiscase.
If all twelve members of the jury find byproof beyond a reasonable doubt that theaggravating circumstances in eachseparate count outweighs the mitigatingfactors, then you must return that findingto the Court.
I instruct you, as a matter of law, that ifyou make such a finding, then you mustrecommend to the Court that a sentenceof death be imposed upon the defendant,Frank G. Spisak, Jr.
A jury recommendation to the Court thatthe death penalty be imposed is just that,a recommendation. The final decision isplaced by law upon the Court.
On the other hand, if after considering allof the relevant evidence raised at trial,the evidence and the testimony receivedat this hearing and the arguments ofcounsel, you find that the State failed toprove beyond a reasonable doubt that theaggravating circumstances which thedefendant, Frank G. Spisak, Jr., has beenfound guilty of committing in theseparate counts outweigh the mitigatingfactors, you will then proceed todetermine which of two possible lifeimprisonment sentences to recomme~Ld tothe Court.
App. 323a-324a.
The court then described in detail the verdictforms that the jury would be required to complete.The first stated.
We the jury in this case, being dulyimpaneled and sworn, do find beyond areasonable doubt that the aggravatingc~Lrcumstances which the defendant,Frank G. Spisak, Jr., was found guilty ofcommitting was sufficient to outweigh themitigating factors present in this case.
We the jury recommend that the sentenceo:[ death be imposed ....
App. 325a. The court noted that "there [wa]s a spotfor twelve signatures" at the bottom of the form, andthat "[a]ll twelve of [the jurors would] sign it if that[wa]s [their] verdict." Id.
The second form, similarly, stated,
We the jury, being duly impaneled andsworn, do find that the aggravatingcircumstances which the defendant,Frank G. Spisak, Jr., was found guilty ofcommitting are not sufficient to outweighthe mitigating factors present in thiscase.
We the jury recommend that thedefendant Frank G. Spisak be sentencedto life imprisonment with paroleeligibility after serving [the life sentenceselected by the jury].
App. 325a-326a. The court noted that "again, alltwelve of [the jurors] must sign whatever verdict it isyou arrive at." App. 326a.
The jury recommended a sentence of death,which the trial court accepted. App. 27a.
C. The Ohio Supreme Court rejected Spisak’sjury instruction and ineffective assistanceof counsel claims on the merits.
On direct review, the Ohio court ,of appealsvacated one of the four aggravated murderconvictions and the accompanying specifications, andaffirmed the remainder of Spisak’s convictions. App.97a. Spisak obtained new counsel and moved for asecond round of review before the Ohio court ofappeals, which the Ohio Supreme Court granted.The Ohio appeals court again affirmed Spisak’sconvictions. App. 98a-99a.
On appeal, the Ohio Supreme Cour~ reviewedand rejected all of Spisak’s sixty-four assignments oferror, including his claim that "[j]ury instructionsrequiring unanimity for a life verdict at tlhe penaltyphase deny the accused his right to a fair trial andfreedom from cruel and unusual punishment" underthe U.S. and Ohio Constitutions, and his claim thathe was denied effective assistance of cou~Lsel duringthe mitigation phase of his trial. App. 113a-l14a,306a. As to Spisak’s jury-instruction claim., the courtfound that it had already rejected the sameargument in earlier cases. App. 306a. The courtthen concluded that Spisak’s ineffective assistanceclaim was not well taken in light of numerousauthorities, including Strickland v. Washington, 466U.S. 668 (1984). App. 307a.
Spisak’s convictions became final on March 6,1989, when this Court denied certiorari re~iew of the
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Ohio ~~upreme Court’s decision. See Spisak v. Ohio,489 U.S. 1071 (1989).
D. The federal district court denied Spisak’shabeas petition.
After unsuccessfully seeking state post-conviction relief, App. 116a, 130a, Spisak filed apetitic, n for writ of habeas corpus. The district courtdenied Spisak relief on all of his thirty-threegrounds, including his challenges to the sentencing-phase jury instructions and counsel’s performanceduring sentencing. App. 299a.
The district court first rejected Spisak’schallenge to the sentencing-phase jury instructions.Spisak argued that the trial court erred byinstructing the jury that its sentence must beunanimous but failing to explain the consequences ofthe jury’s inability to reach unanimity. App. 183a-188a. But the district court found that argumentprecluded by Jones v. United States, 527 U.S. 373,381-82’, (1999), which held that a trial court’s failureto instruct on the consequence of jury deadlock doesnot give rise to a cognizable constitutional claim.App. 187a.
The district court further noted the possibleapplicability of the Sixth Circuit’s decision in Davisv. Mitchell, 318 F.3d 682 (6th Cir. 2003), whichapplied Mills v. Maryland, 486 U.S. 367 (1988), andMcKoy v. North Carolina, 494 U.S. 433 (1990), togrant habeas relief. In Davis, the Sixth Circuit heldthat an instruction requiring a capital jury to "firstunanimously reject the death penalty before it canconsider a life sentence.., precludes the individualjuror f~om giving effect to mitigating evidence and
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runs afoul of Mills." 318 F.3d at 689. Observing thatDavis conflicted with other Sixth Circui~ decisionsholding that similar instructions did not violate theEighth Amendment, the district court declined toaddress whether Spisak’s sentence wasunconstitutional in light of Davis, in view of Spisak’sfailure to allege specifically that the instructions inhis case precluded the jury from consideringmitigating evidence. App. 188a-189a.
The district court next rejected Spis~ak’s claimthat counsel’s closing argument was constitutionallyineffective, finding that counsel’s alleged errors "caneasily be attributed to a trial strategy." .App. 199a.Specifically, the court found that defense counsel’schallenged statements were part of a strategy toingratiate himself with the jury, to blunt theprosecutor’s depiction of the murders, arLd to showthat Spisak’s mental defect was a mitigating factor.App. 199a-201a. Finally, the district court concludedthat "[e]ven assuming counsel’s performance wasdeficient, Spisak cannot claim that he was prejudicedby counsel’s behavior," because there is noreasonable probability that the jury would havereached a different sentence had counsel portrayedSpisak with more sympathy, given the "heinousnature of the murders, Spisak’s self-admitted lack ofremorse, and the totality of the evidence." App.203a-204a.
E. The Sixth Circuit reversed the districtcourt and vacated Spisak’s sente~Lce.
The Sixth Circuit reversed the district court andgranted habeas corpus relief, vacating Spisak’s deathsentence. The court first concluded that the jury’ssentencing instructions were improper ur.Lder Davis,
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318 F.3d at 689-90, because they did not explicitlytell jurors that they need not find mitigating factorsunanimously, they required that all twelve jurorssign the sentencing verdict form, and they did notinform jurors that the jurors need not unanimouslyreject a death sentence before imposing a lifesentence. App. 71a-76a.
The Sixth Circuit also found that counsel wasconstitutionally ineffective during closing argumentbecause he abandoned his duty of loyalty to Spisakby making only a "limited effort" to argue for a lifesentence, by "rambling" on irrelevant matters, bysuggesting that a verdict of death would beacceptable to the defense, and by going "so far as totell tlhe jury that [Spisak] was undeserving ofmitigation." App. 62a-64a. The Sixth Circuit alsostated, in one sentence, that counsel’s closingstatements were prejudicial: "Absent trial counsel’sbehavior during the closing argument of themitigation phase of the trial, we find that areasonable probability exists that at least one jurorwould have reached a different conclusion about theappropriateness of death .... " App. 67a.
F. After this Court granted the Warden’spetition, vacated the Sixth Circuit’sjudgment, and remanded the case, theSixth Circuit reinstated its originalopinion.
The Warden filed a petition for writ ofcertiorari. The Court granted the petition, vacatedthe Sixth Circuit’s judgment, and remanded the casefor further consideration in light of Musladin andLandrigan. Hudson v. Spisak, 128 S. Ct. 373 (2007).Without further briefing by the parties, the Sixth
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Circuit issued a four-page order reinstating itsprevious opinion. App. 12a. After the Warden filed apetition for rehearing and suggestion for rehearingen banc, the court issued an amended order thatagain reinstated its original opinion. App. 2a. TheSixth Circuit later denied en banc review. App. la.
REASONS FOR GRANTING THE WRIT
The Court should grant the Warden’s petitionand reverse the Sixth Circuit’s judgment for tworeasons. First, the Sixth Circuit ignored. AEDPA’sconstraints, as well as this Court’s instruction toapply Musladin on remand, when it granted habeasrelief based on allegedly defective jury instructionsthat were not addressed or even presented in Mills v.Maryland. That error further amplified the existingdivision of authority on the question of proper juryinstructions under Mills. Second, the Sixth Circuitimproperly indulged a presumption of prejudicewhen it accepted Spisak’s allegation that trialcounsel was constitutionally ineffective during hisclosing argument, disregarding clear directives fromthis Court that habeas petitioners show actualprejudice when challenging a discrete decision or actof counsel. In doing so, the Sixth Circuit failed toafford proper deference to the Ohio Supreme Court’sreasonable rejection of Spisak’s claim underStrickland.
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A. The Sixth Circuit applied its owninterpretation of Mills--rather thanclearly established federal law--and failedto apply AEDPA deference to the statecourt decisions, contributing to a divisionof authority on the jury instruction issue.
AEDPA dictates that an application for a writ ofhabeas corpus shall not be granted "unless theadjudication of the claim.., resulted in a decisionthat was contrary to, or involved an unreasonableappli[cation of, clearly established Federal law." 28U.S.C. § 2254(d)(1). The phrase "clearly establishedFederal law" "refers to the holdings, as opposed tothe dicta, of this Court’s decisions as of the time ofthe relevant state-court decision." Williams v.Taylor, 529 U.S. 362, 412 (2000). In Musladin, theCourt explained that a state court’s adjudication isnot contrary to or an unreasonable application ofclearly established federal law where this Court hasnever addressed the type of claim presented and thelower courts have diverged in their treatment of theclaim. See 127 S. Ct. at 654; see also Landigran, 127S. Ct. at 1942 (reversing the Ninth Circuit’sappliication of AEDPA because the Court had "neveraddressed a situation like this"). Where this Court’scases give no clear answer to the question presented,"it cannot be said that the state court ’unreasonabl[y]appli[ed] clearly established Federal law."’Musladin, 127 S. Ct. 649 (quoting 28 U.S.C.§ 2254(d)(1)).
After this Court vacated the Sixth Circuit’sjudgment and remanded the case for furtherconsideration in light of Musladin and Landigran,App. 21a, the Sixth Circuit ignored the Court’s
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directive and again misapplied Mills to grant habeasrelief on Spisak’s "unanimity" and "acquittal-first"instruction claims. See App. 4a. This decision wasincorrect for two reasons: First, the court failed toapply clearly established federal law and insteadexpanded this Court’s holding in Mills. Second, thecourts are divided on the application olF Mills--indeed, even the Sixth Circuit itself has issuedconflicting rulings and this division demonstratesnot only that the Sixth Circuit’s application of Millsis not "clearly established Federal law," but also thatthe issue warrants this Court’s review.
1. The Sixth Circuit extended Mills to asituation that Mills did not address.
Mills v. Maryland does not apply to juryinstructions that require unanimity in the ultimatedetermination of whether aggravating factorsoutweigh mitigating factors. In Mills, the Courtestablished that a jury sentencing instruction in acapital case is unconstitutional if it leads areasonable juror to believe that any mitigatingfactors not found unanimously must be ignored whenthe individual juror casts his or her ultimatesentencing vote. 486 U.S. at 384. The Court furthernoted that a unanimity-in-mitigation-findingsrequirement could result in. an absurd and troublingoutcome if, for example, all the jurors agree thatsome mitigating factors exist and that a life sentenceis appropriate, but fail to agree on any specificmitigating factor. In such a case, twel~e jurorsfavoring a life sentence would have to ignore all themitigating factors in their final vote, and th~s returna death sentence, simply because they disagreed on
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preciisely which mitigating factors were present. Id.at 374.
This case differs starkly from the Mills scenario.The jury instructions at Spisak’s penalty phasesimply required juror unanimity in the ultimatedetermination of whether aggravating factors foundbeyond a reasonable doubt outweighed anymitigating factors. The trial court instructed thejury that if "all twelve members of the jury [found] byproof beyond a reasonable doubt that theaggravating circumstances in each separate countoutweigh[ed] the mitigating factors," then it wasrequired to "recommend to the Court that a sentenceof death be imposed upon the defendant," but that ifthe jury found "that the State failed to prove beyonda reasonable doubt that the aggravatingcircumstances which [Spisak] ha[d] been found guiltyof committing in the separate counts outweigh[ed]the mitigating factors," then it should impose one oftwo life sentences. App. 324a. Unlike the Mills jury,see 486 U.S. at 378, Spisak’s jury was neverinstructed that it must determine unanimouslywhether or not a particular mitigating factor hadbe.en shown. The Sixth Circuit thus failed torecognize the significant distinction between a juryinstruction that requires unanimity in specificmitigation findings and an instruction that simplyrequi[res unanimity in the ultimate outcome.
Ignoring this critical distinction, the SixthCircuit attempted to wedge Spisak’s case into theMills paradigm based on three theories, none ofwhich Mills addressed. First, the court found thatan instruction requiring unanimity on the ultimatebalance of aggravating versus mitigating factors
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improperly implies a unanimity requirement as tothe presence or absence of specific individualmitigating factors. The instruction here, however,required only that the jury agree unanimously thatthe aggravating factors outweighed the mitigatingfactors, see App. 323a--a requirement fullyconsistent with this Court’s case law. The SixthCircuit contorted that straightforward instruction,citing its fear that the jury misunderstood theinstruction to require unanimous agreement onspecific mitigating factors. But no reasonable jurywould understand the sentencing instruction here tomean that a jury must unanimously agree on amitigating factor before a juror could consider it.More to the point, Mills did not cast doubt on theappropriateness of such an instruction.
Second, the Sixth Circuit found that a verdictform requiring twelve signatures unanimity, inother words on the ultimate sentence alsoimproperly implies that the jurors must unanimouslyagree on mitigating factors. But the sentencingverdict form in this case differs markedly from theproblematic verdict form in Mills. In Mills, thejurors were required to render a yes-or-no answer asto each potential mitigating factor, and all twelvejurors were required to sign the form. Mills, 486U.S. at 378-79. Here, by contrast, the jurors weresimply required to indicate by signature whether theaggravating factors ultimatelyoutweighed anymitigating factors. App. 325a.Given that aunanimous sentencing verdictis in no wayerroneous, it follows that the verdict form mayrequire the signatures of the twelve jurors to reflecta unanimous verdict.
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Third, the Sixth Circuit created a new rule notcontemplated by Mills when it found constitutionalerror in so-called "acquittal-first" sentencinginstructions--that is, sentencing instructions thatsuggest a jury must unanimously acquit thedefendant of death before it may impose a lifesentence. The court’s reasoning rested on the SixthCircuit’s earlier decision in Davis v. Mitchell, 318F.3d 682 (6th Cir. 2003), In Davis, the courtobserved that, under Ohio law, a deadlocked juryneed not reach unanimity on the death penalty, butinstead may proceed to return a unanimousnoncapital sentence. Id. at 689 (citing Ohio v.Brooks, 661 N.E.2d 1030 (Ohio 1996)). The courtthen stated, without citation, that such a "non-unanimous mechanism" for preventing a deathsentence was "constitutionally required," Davis, 318F.3d at 689. The Davis court next stated, againwith,out citation or explanation, that an "instructionrequiring that a jury must first unanimously rejectthe death penalty before it can consider a lifesentence.., precludes the individual juror fromgiving effect to mitigating evidence and runs afoul ofMill,~." Id. The Sixth Circuit panel in this caseechoed Davis’s unsupported conclusion, stating thatSpisak’s so-called "acquittal-first" instruction"impermissibly imposed a unanimity requirement onthe jury’s ability to find mitigating factors inviolation of... Mills and McKoy." App. 4a.1
~ The Sixth Circuit further erred under AEDPA by relying onMcKoy v. North Carolina, 494 U.S. 433 (1990), because thisCourt decided McKoy after Spisak’s conviction became final.See Williams v. Taylor, 529 U.S. 362 (2000) ("The thresholdquest~on under AEDPA is whether [the petitioner] seeks to
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Two fundamental flaws inhere in thatreasoning. First, even if the Sixth Circuit correctlyread Spisak’s jury instruction as an "acquittal-first"instruction--a doubtful proposition--its reading wasbased solely on Ohio law (Davis’s interpretation ofBrooks), not federal constitutional law. In otherwords, even if an instruction requiring the jury toaccept or reject the death penalty before moving onto other possible sentences were improper underOhio law, "the fact that [an] instruction wasallegedly incorrect under state law is not a basis forhabeas relief." Estelle v. McGuire, 502 U.S. 62, 71-72(1991).
Moreover, regardless of what Ohio law says onthe matter, an "acquittal-first" instruction does notfall within the contours of Mills, and thus the SixthCircuit extended, rather than applied, this Court’scase law. Mills applies "fairly narrowllg" to itsunusual circumstances. Beard v. Banks, 542 U.S.406, 420 (2004). The jurors in Mills were required tomake what amounted to unanimous special findingsthat a particular mitigating factor existed beforethey weighed, in a second stage, the aggravatingfactors against the mitigating factors that they hadfound. That unique procedure was all the moreproblematic because it apparently resulted in thejurors’ complete failure to conduct the requiredweighing process. Mills, 486 U.S. at 380 n.13. Here,by contrast, the jurors were instructed to deliberateon the balance of mitigating and aggravatingcircumstances to reach a consensus on the outcomeof that balance. In that weighing process, each juror
apply a rule of law that was clearly established at the time hisstate-court conviction became final.").
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by definition gave weight to mitigating evidence andperformed the very type of individual analysis thatMill,~ is designed to protect.
2. Given the lack of clear guidance fromthis Court, the lower courts aredivided on the jury instruction issue.
The Sixth Circuit should not have grantedhabeas relief on Spisak’s jury instruction claim,becalase this Court has never spoken clearly on theissue. Indeed, that lack of clear guidance is why thisCourt vacated and remanded the Sixth Circuit’soriginal opinion in light of Musladin. See 127 S. Ct.at C;54 ("Given the lack of holdings from thisCourt... it cannot be said that the state court’unreasonabl[y] appli[ed] clearly established Federallaw.’") (citing § 2254(d)(1) (alteration .in original)).The courts of appeals are now divided on the issue,and that division of authority further warrants thisCourt’s review.
Other circuits and even other Sixth Circuitpanelshave reached the opposite outcome bydeclining to interpret or apply Mills to prohibit thetype of instructions that the court below foundconstitutionally defective. The Tenth Circuit, forinstance, examined a claim nearly identical toSpisak’s: The petitioner argued that an instructionthat expressly required unanimity in some respectsbut remained silent on the need for unanimity whenconsidering mitigating factors ’"erroneously impliedthat the jury was required to find a mitigatingcircumstance unanimously before each juror couldconsider the mitigating circumstance."’ LaFevers v.Gibson, 182 F.3d 705, 719 (10th Cir. 1999) (quotingDuw~ll v. Reynolds, 139 F.3d 768, 791-92 (10th Cir.
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1998)). In rejecting the petitioner’s claim, the TenthCircuit reaffirmed that "a trial co~.rt neednot.., expressly instruct a capital sentencing jurythat unanimity is not required before each juror canconsider a particular mitigating circumstance." Id.Other courts have reached the same conclu~ion. SeePowell v. Bowersox, 112 F.3d 966, 970-71 (8th Cir.1997) (finding no Mills violation where "challengedinstructions deal with balancing mitigatingcircumstances against aggravating factors, not withdetermining what mitigating circumstances exist");Arnold v. Evatt, 113 F.3d 1352, 1363 (4th Cir. 1997)(finding no Mills violation where instruction requiredunanimous finding on aggravating factor,s but nounanimous instruction on mitigating factor,s); Jamesv. Whitley, 926 F.2d 1433, 1448-49 (5th Cir. 1991)(same).
The Third Circuit, for its part, is internallydivided on the issue. One panel found no Millsviolation when it considered instructions nearlyidentical to those here. See Zettlemoyer v. Fulcomer,923 F.2d 284, 307-08 (3d Cir. 1991). A differentpanel, however, recently departed from Zettlemoyerand found that an instruction must affirmativelyclarify that the jury must be unanimous as toaggravating, but not mitigating, factors. ,See Abu-Jamal v. Horn, 520 F.3d 272, 303-04 (3d Cir. 2008).The Commonwealth of Pennsylvania has filed apetition for certiorari with this Court seeking reviewof that decision. See Petition for Writ of Certiorari,Beard v. Abu-Jamal, No. 08-652 (U.S. Nov. ].4, 2008).
Even the Sixth Circuit’s application of its ownprecedent has been inconsistent. Jury instructionslike those at issue here were originally upheld by in
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cases such as Coe v. Bell, 161 F.3d 320, 337-38 (6thCir. 1998), and Henderson v. Collins, 262 F.3d 615,621-22 (6th Cir. 2001), before more recent precedentcreated inconsistency and obscurity in the governinglaw. See, e.g., Scott v. Mitchell, 209 F.3d 854, 876-77(6th Cir. 2000), The Sixth Circuit has acknowledgedthe confusion among its own opinions, see, e.g., id.;Williams v. Anderson, 460 F.3d 789, 810-13 (2006),as did the district court in this case, see App. 189a.
Additionally, the Sixth Circuit’s prohibition ofso-called "acquittal-first" sentencing instructions isunparalleled in any other circuit. Indeed, the onlyfederal courts outside the Sixth Circuit to use thephrase have applied it to guilt-phase instructionsthat require rejection of a greater offense beforeconsiideration of a lesser-included offense, and thesecourts have found that a trial court may give anacquittal-first guilt-phase instruction withoutrunning afoul of the Constitution, particularly if thedefendant does not object. See United States v.Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984);Catc.hes v. United States, 582 F.2d 453, 459 (8th Cir.1978); United States v. Tsanas, 572 F.2d 340, 346 (2dCir. 1978). To the extent that Spisak’s "acquittal-first" complaint is actually a request for affirmativeinstructions regarding the consequence of a jury’sfailure to agree on the death penalty, the opinionbelow conflicts with numerous other circuits thatproperly apply the Court’s decision in Jones v.United States, 527 U.S. 373, 381-82 (1999), whichprohibits habeas relief based on the absence of ajuror-deadlock instruction. See, e.g., Lyons v. Lee,316 F.3d 528, 535 n.8 (4th Cir. 2003); United Statesv. Ci~andler, 996 F.2d 1073, 1089 (11th Cir. 1993);
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Zettlemoyer, 923 F.2d at 309. In light of this conflict,this Court should grant review.
B. The Sixth Circuit misapplied set~led lawand ignored AEDPA when it appliedCronic, and not Strickland, to Spisak’sineffective assistance claim.
Allegations of ineffective assistance of counselare reviewed under the familiar two-part testenunciated in Strickland v. Washington, 466 U.S.668 (1984). First, the habeas petitioner must showthat counsel’s performance "fell below an objectivestandard of reasonableness." Id. at 688. Second, hemust demonstrate "a reasonable probability that, butfor counsel’s unprofessional errors, the result of theproceeding would have been different." I~!. at 694.In rare circumstances, where "counsel entirely failsto subject the prosecution’s case to meaningfuladversarial testing," courts will presume that thepetitioner has suffered prejudice and excuse himfrom the second requirement. United States v.Cronic, 466 U.S. 648, 659 (1984).
Spisak’s allegations of ineffective assistancefocus not on the totality of trial counsel’s preparationand performance, but on one discrete portion of thetrial--statements made by trial counsel during hisclosing argument. Although this Court has affirmed,in no uncertain terms, that Strickland’s two..part testgoverns review of such claims, the Sixth Circuitinstead applied its own circuit precedent (which inturn rested squarely on Cronic) to presume Chat trialcounsel’s performance prejudiced Spisak. When thecorrect standard is applied, it is clear that the OhioSupreme Court’s rejection of Spisak’s claim wasreasonable under AEDPA. This Court should grant
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review to correct the Sixth Circuit’s unwarrantedexpansion of Cronic.
1. Allegations of ineffective assistance atspecific points in the trial proceedingare governed by Strickland.
Although the Sixth Circuit paid lip service toStrickland, the court in fact indulged in apresumption ofprejudice that contradicts thisCourt’s case law.The appeals court first held thattrial counsel’s closing argument was deficient:Counsel offered an "extremely graphic and overlydescriptive recounting of Defendant’s crimes," toldthe jury of Spisak’s "’sick twisted mind" and hisassociations with Nazis, reminded the jury thatSpisak had no good deeds or thoughts, andundertook only a "limited effort" to stress evidence ofSpisak’s mental illness. App. 64a-65a. The courtthen found that "trial counsel’s hostility toward[Spisak] aligned counsel with the prosecution againsthis client." App. 66a. Finally, the court analogizedSpisak’s case to Rickman v. Bell, 131 F.3d 1150, 1156(6th Cir. 1997), where the Sixth Circuit applied "theCronic presumption of prejudice" after determiningthat trial counsel’s "performance was so egregious asto amount to the virtual or constructive denial of theassistance of counsel." Id. at 1156. Without anyanalysis of Strickland’s prejudice prong, the courtconcl.uded: "Absent trial counsel’s behavior duringthe closing argument of the mitigating phase of thetrial, we find that a reasonable probability existsthat at least one iuror would have reached a differentconclusion about the appropriateness of death ...."App. 67a.
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The Sixth Circuit’s analysis disregards Cronic’sclear holding. The Cronic Court identified threeexceptions to Strickland’s prejudice reql~irement:(1) where a "complete denial of counsel" occurs at "acritical stage of [the] trial," 466 U.S. at 659;(2) where "counsel entirely fails to subject theprosecution’s case to meaningful adversarial[ testing,"id.; or (3)where "the surrounding circumstancesma[k]e it . . . unlikely that any lawyer could provideeffective assistance." Id. at 661. The first and thirdexceptions are not relevant here; counsel was presentfor the entire proceeding and no externalcircumstances constrained his advocacy. Thequestion, then, is whether counsel’s performance--even assuming it was deficient--triggered Cronic’ssecond exception.
Cronic’s second exception does not applybecause the allegedly deficient performance occurredat a single point--during the penalty-phase closingargument--not throughout the entire trialproceeding. Bell v. Cone, 535 U.S. 685 (2002), isillustrative. There, defense counsel completed fourtasks on behalf of his client, Gary BradfGrd Cone,during the penalty phase of a capital murder trial:(1) he asked the jury for mercy during his briefopening statement; (2)he referenced evidence thatCone suffered from Vietnam Veterans S:~ndrome;(3) during cross examination, he elicited the fact thatCone had received the Bronze Star; and (4) hesuccessfully objected to the introduction of twophotographs of the murder victims. Id. at 708(Stevens, Jo, dissenting). Counsel did not interview anumber of character witnesses who would havetestified that Cone did not engage in any criminalbehavior before leaving for Vietnam. Id. Nor did
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counsel present the mitigation evidence he didhave---testimony from Cone’s family members andmedical experts, the facts and circumstances ofCone’s Bronze Star, or a letter of forgiveness fromthe victim’s sister, Id. at 709-10. Rather, he restedwithout .any mitigation presentation or closingargument. Id. at 713.
When assessing Cone’s claim of ineffectiveassistance,the Court rejected calls to presumepreju~dice: "When we spoke in Cronic of thepossibilityof presuming prejudice based on anattorney’s failure to test the prosecutor’s case, weindicated that the attorney’s failure must becomplete. We said, ’if counsel entirely fails to subjectthe prosecution’s case to meaningful adversarialtesting."’ Id. at 696-97 (quoting Cronic, 466 U.S. at659). It then observed that Cone had argued "notthat his counsel failed to oppose the prosecutionthroughout the sentencing proceeding as a whole,but that his counsel failed to do so at specific points."Id. at 697. The Court therefore concluded thatCone’s claim of ineffective assistance was governedby Strickland. Id. at 697-98.
.After Bell, the courts of appeals, including theSixth Circuit, have recognized that Cronic cannot beapplied to discrete acts of alleged ineffectiveness bytrial counsel. See, e.g., Miller v. Martin, 481 F.3d468, 473 (7th Cir. 2007) ("In the wake of Bell, courtshave rarely applied Cronic, emphasizing that onlynon-representation, not poor representation, triggersa presumption of prejudice."); Benge v. Johnson, 474F.3d 236, 247 (6th Cir. 2007) ("[T]he Cronicpresumption applies only where defense counselcompletely or entirely fails to oppose the prosecution
27
throughout the guilt or penalty phase as a whole.");United States v. Theodore, 468 F.3d 52, 57 (1st Cir,2006) (noting that trial counsel’s limited efforts--hiscross examination of government witnesses,suggestion of some defense themes, and introductionof several exhibits--was "minimal performance . . .
sufficient to remove this case from Cronic’s ambit");Freeman v. Graves, 317 F.3d 898, 900 (8th Cir. 2003)("The defendant must assert counsel failed to opposethe prosecution throughout the proceeding as awhole, rather than at specific points."); Haynes v.Cain, 298 F.3d 375, 381 (5th Cir. 2002) ("Cronic isreserved only for those extreme cases in whichcounsel fails to present any defense.").
Under this established framework, Spisakcannot claim a presumption of prejudice from hiscounsel’s allegedly deficient performance. Nodispute exists as to the adequacy of counsel’srepresentation aside from the closing argument. TheSixth Circuit rejected Spisak’s argument thatcounsel performed an inadequate mitigationinvestigation, finding that counsel had collected "anextensive social history." App. 68a. Further, counselpresented that history--Spisak’s difficult andisolated childhood, his gender confusion, and hispursuit of a sex change operation--to the jury. App.68a-69a. Finally, counsel could not realisticallychallenge the aggravating circumstances of Spisak’sthree murders and two attempted murde~s at thepenalty-phase hearing. His client confessed to them,admitting that they were unprovoked acts ofviolence. App. 364a-368a, 388a-396a. BecauseSpisak’s claim turns, entirely on what "his counselfailed to do . at specific points" in tl~Le trial--specifically, during the closing argument--Spisak
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must establish an entitlement to relief underStrickland. Bell, 535 U.S. at 697.
2. The Sixth Circuit’s contraryconclusion was not based on clearlyestablished federal law in effect at thetime of the state court decision.
In granting relief to Spisak, the Sixth Circuitjettisoned Strickland, invoking its earlier decision inRickman v. Bell to presume prejudice and grantrelief. This approach was flawed for several reasons.
.As a threshold matter, the court ignoredAEDPA. Under 28 U.S.C. § 2254(d)(1), habeas reliefcan be granted based only on "the holdings.., of thisCourt’s decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. Rickmanwas :neither a decision of this Court nor establishedlaw when the Ohio Supreme Court rejected Spisak’sineffective-assistance claim. In 1988, the onlyrelevant cases on the books were Cronic andStric.kland. And the Ohio Supreme Court’s decisionto de.ny relief under Strickland, see App. 307a, wasneitbLer contrary to nor an unreasonable applicationof those precedents. As explained above, Spisak didnot allege, nor did the Sixth Circuit find, that his"counsel entirely fail[ed] to subject the prosecution’scase to meaningful adversarial testing" during thepenalty phase. Cronic, 466 U.So at 659 (emphasisaddend).
iMoreover, the facts of Rickman" distinguish itfrom Spisak’s case. In Rickman, trial counsel did notundertake any investigation or meaningfulpreparation for the guilt phase of the trial. 131 F.3dat 1157. Then, at the penalty phase, counsel elicited
29
damaging testimony from his own witnesses--suggestions that his client planned the murderdespite contrary evidence in the record, informationthat his client possessed a hand grenade detonator,and statements that his client expressed an. intent tocommit unrelated crimes. Id. at 1158. Further,during his witness examinations, trial counselportrayed his client as crazed and dangerous--thathe was "nuts," that he had "a wild, glassy look in hiseyes," and that he "iust got out of somebody’s insaneasylum." !d. at 1158-59. Finally, during closingargument, counsel indicated that he personallysuffered "guilt by association" with his cli[ent, thathis client was as "wild as a March hare," and that"[h]e may take off after me in a minute." Id.. at 1159.
The Sixth Circuit presumed prejudice underCronic, noting that "these outrageous tactics wereintroduced by [trial counsel] himself," that theportrayal was "even more frightening ~han theprosecution could paint," that these tacti[cs "wereemployed during both the guilt and the sentencingphases," and that counsel had "express[ed] personalsympathy for the prosecution and shame fromrepresenting Rickman" during his closing argument.Id. at 1159-60. In sum, defense counsel had "alignedhimself with the prosecution" throughout the entireproceeding, ld. at 1159.
The claimed deficiencies in trial counsel’sperformance here are different in kind. The SixthCircuit held that counsel’s investigation wasadequate, and Spisak does not challenge a~Ly part ofcounsel’s advocacy during the guilt phase. Withrespect to the closing argument, the allegedlydamaging content cited by the Sixth C, ircuit is
3O
confined to a nine-page section of the forty-five-pagetranscript. See App. 334a-339a. Unlike Rickman, itis undisputed that the vast majority of Spisak’s trialproceedings retained an adversarial nature.
:Because Spisak challenges a single, discrete actof trial counsel’s conduct during the proceedings, hecannot claim a presumption of prejudice underCronic. Instead he must show actual prejudice. Andon that score, the Ohio Supreme Court’s decision toapply Strickland to Spisak’s claim warrantsdeference.
.3. The Ohio Supreme Court’s rejection ofSpisak’s ineffective assistance claimwas not contrary to or anunreasonable application ofStrickland.
Under 28 U.S.C. § 2254(d)(1)~ "it is not enoughto convince a federal habeas court that, in itsindependent judgment, the state court decisionapplied Strickland incorrectly. Rather, he mustshow that [the state court] applied Strickland to thefacts of his case in an objectively unreasonablemanner." Bell, 535 U.S. at 699 (internal citationomitted). Had the Sixth Circuit applied Stricklandinstead of Cronic to this case, it would haverecognized that the Ohio Supreme Court actedreasonably when it rejected Spisak’s claim ofineffective assistance.
a. Spisak cannot establish deficientperformance.
In finding that counsel was constitutionallydeficient during closing argument, the Sixth Circuitfocused on four of his decisions: (1) his overly
31
graphic description of Spisak’s crimes; (2) hisrecounting of Spisak’s philosophical association withthe Nazi party and his "sick twisted min,~"; (3)hisconcession tha~ Spisak did not deserve sympathybased on his "good deeds" or "good thought,s" becausehe had none; and (4)his failure to make an expressplea that the jury return a verdict of life..App. 64a-65a. None of these decisions was an objectivelyunreasonable trial tactic. As this Court hasexplained, "counsel has wide latitude in deciding howbest to represent a client, and deference to counsel’stactical decisions in his closing presentation isparticularly important because of the broad range oflegitimate defense strategy at that stage."Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (percuriam).
With respect to the first three allegeddeficiencies, counsel made a strategic decision toconcede certain facts about his client’s character, hisbackground, and the brutality of his criminal acts.The jury had heard testimony from the investigatingpolice officer that Spisak readily volunteeredinformation about his role in the murders andattempted murders. App. 364a-368a. And whenSpisak took the stand, he proudly testified to hisassociation with the American Nazi Party and hisspiritual identification with Hitler. App. 374a-380a.Spisak then blamed Jews for "control[ling] all thethoughts of public opinion" and blacks for %reedingat a rate that will soon make the white peopleextinct," App. 383a-384a, and commented that "It]heforce of God" motivated him to "take up arms." App.386a.
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:Finally, Spisak openly described his thoughts,actiol]s, and motives in committing each of themurders and attempted murders. App. 388a-396a.Without any hint of remorse, he expressed personalpride in giving this testimony: "We need somebodyto get up here and take the stand and give areasonable logical concise explanation for thosethings which must be done and this has not beendone until now." App. 393a. Spisak also testifiedthat, given the chance, he would "continue the war[he] ~,~tarted" by "inflict[ing] the maximum amount ofdamage on the enemies"--specifically, "Blacks andJews." App. 397a.
During his closing argument, trial counsel couldneither challenge nor ignore his client’s damagingadmissions or self-portrayal before the jury. Hisdecision to recognize and concede certainaggravating factors was not, given thesecircu:mstances, an unreasonablechoice. SeeYarborough, 540 U.S. at 9 ("By candidlyacknowledginghis client’s shortcomings, counselmight havebuilt credibility with the jury andpersuaded itto focus on the relevant issues in thecase.").
With respect to the fourth alleged deficiency,the Sixth Circuit found that counsel’s failure to askthe jury to return a life sentence was "[m]ostshocking of all." App. 65a. Yet, in Yarborough, thedefe~se attorney also failed to request a life sentenceduring his closing argument. This Court found nodeficient performance, emphasizing that "a low-keystrategy that stresses the jury’s autonomy is notunreasonable." 540 U.S. at 10.
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b. Spisak cannot establish prejudice.
Even if trial counsel’s closing argument wereconstitutionally deficient, Spisak can~.ot showprejudice--that is, he cannot establish "a reasonableprobability that, but for counsel’s unprofessionalerrors, the result of the proceeding would have beendifferent." Strickland, 466 U.S. at 694. Nor canSpisak show that it was objectively unreasonable forthe Ohio Supreme Court to reach that conclusion.
As discussed above, the depraved ~ature ofSpisak’s crimes and thoughts was graphicallydisplayed to the jury through the guilt-phaseevidence, the investigating officer’s testimony, andSpisak’s own unvarnished statements while on thestand. That trial counsel lent his credence to thisaggravating evidence during his closing argumentdoes not establish prejudice, because the jury wouldhave accepted the evidence anyway. It was neithercontested nor, given Spisak’s own testimony,contestable.
Moreover, the Sixth Circuit recognized that thelist of promising mitigation themes for Spisak wasshort: "The best chance of mitigation available wasin fact the evidence that Defendant was, to somedegree, mentally ill." App. 69a. It then found thattrial counsel’s investigation and presentation of themental-illness theme during the penalty phase wasadequate; he offered "extensive evi~[ence ofDefendant’s severe personality disorder, flirtationwith the idea of having a sex change, sexualconfusion, and social isolation." Id.
Trial counsel’s closing argument further pressedthe mental-illness theme. Using the mel~aphor of
34
three, different-sized jars, counsel argued that,although insufficient to establish legal incompetenceor insanity, the defense’s evidence was sufficient forthe jury to conclude that Spisak was impaired bymental illness and that this illness outweighed theadmittedly strong aggravating circumstances. App.341a-.354a. Counsel supported this argument withreferences to his medical experts’ testimony. App.342a-343a, 353a-354a.
All told, Spisak’s "best chance of mitigation"his claim of mental illness--was adequatelyprese.nted and argued to the jury. Whether or nottrial counsel was wise to recite the aggravatingcircumstances of the murders or the tortured beliefsof his client during closing argument is of littlemoment. Those facts were already in the record, andthey would have been burned into the memory of anyreasonable juror regardless of what trial counselsaid. Accordingly, Spisak cannot show a reasonableprobability that, but for his trial counsel’s closingargument, the result of the proceeding would havebeen different.
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CONCLUSION
For the above reasons, the Court should grantthe petition for a writ of certiorari.
Respectfully submitted,
NANCY H. ROGERSAttorney General of Ohio
BENJAMIN C. MIZER*Solicitor General*Counsel of Record
KIMBERLY A. OLSONDAVID M. LIEBERMANDeputy SolicitorsCHARLES WILLEAssistant Attorney General30 E. Broad Street, 17th F1.Columbus, Ohio 43215614-466-8980614-466-5087 fax
