The Supreme Court has decided to take up the criminal case of Frank Spisak for a second time. Spisak is a neo-Nazi who was convicted of murdering three men in Ohio and sentenced to death twenty-five years ago. However, the Sixth Circuit threw out the conviction after two sentencing hearings, one demanded by the Supreme Court after reviewing the case in October 2007. The Court has previously reinstated the sentence in disagreeing with the Sixth Circuit, but the appellate court proceeded on remand to again throw out the sentence. The case involved a bizarre argument by the defense counsel that encouraged the jury to consider damaging non-aggravating factors in sentencing, including a rambling and dark description of the “smell of death” surrounding the crimes.

Frank G. Spisak, Jr. set out in what he called his “seek and destroy mission” to killed Blacks and Jews. He killed Horace T. Rickerson, Timothy Sheehan, and Brian Warford in a series of shootings at Cleveland State University in 1982. He also shot John Hardaway seven times but Hardaway survived and identified Spisak.

Spisak’s case began as something of a circus in June 1983. Spisak sported a Hitler mustache for the trial, carried a cop of Mein Kampf, and proclaimed that he was an agent of God put on earth to kill Blacks and Jews. When sentenced to death, he gave the judge a Nazi salute.

This is a rare fight between the Supreme Court and an appellate circuit. The Court has previously reinstated the sentence in disagreeing with the Sixth Circuit, but the appellate court proceeded on remand to again throw out the sentence.

The Sixth Circuit has rejected the sentencing instructions given by the Court because they did not inform jurors that they did not have find mitigating factors
unanimously. It also found ineffective counsel in the closing argument, which it described as rambling and even suggesting that a death sentence would be appropriate in the case and acceptable to the defense.

The statements of trial counsel are remarkable, citing highly prejudicial facts as “aggravating factors” that are not treated as legitimate aggravating factors in federal cases. Trial counsel in the closing argument virtually denied any mitigating factors:

You are here, and the issue is to weigh the aggravating circumstances and the mitigating factors, and before the prosecution rushes to point out, if any, let me add a coma, and say, if any. That’s probably the first thing you have to find. Let’s talk first about the aggravating factors.

Counsel then addresses non-statutory aggravating circumstances that the jury is not supposed to rely upon for sentencing:

… And we can feel that, or see the cold marble, and will forever, and undoubtedly we are going to see the photographs, we are going to see
Horace Rickerson dead on the cold floor. Aggravating circumstances, indeed it is . . . And, ladies and gentlemen, the reality of what happened on February 1st, such that you can smell almost the blood. You can smell, if you will, the urine. You are in the bathroom, and it is death, and you can smell the death.

and we can all know the terror that John Hardaway felt when he turned and looked into those thick glasses [worn by Spisak] and looked into the muzzle of a gun that kept spitting out bullets.. . . And we all went through the surgery, and we were all kind of with John Hardaway when he came in here and he still got some physical problems, and we can all feel those, and we are not going to forget.

. . . and we all know the terror [of Coletta Dartt], or we can feel that right in the pit of our stomach.

. . .on the 27th of August we were in another lavatory, and we were all there because we could smell the death. And we could smell the latrine smells, and we could feel the cold floor. 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, and we certainly can feel all of the things that they felt, because ladies and gentlemen we participated, and we were there.

. . . .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. Coletta Dartt and John Hardaway. We call them lucky [because they survived]. Lucky, if you have a nightmare that will never go away. That’s lucky, it may be, but its an aggravating circumstance.

If this were not bad enough, counsel then get the jury to consider Spisak’s political views:

And. Ladies and gentlemen, that’s what you have got to weigh, the aggravating circumstances against the mitigating factors. And you heard the hate, and you heard the misguided philosophy, and if you live another ten years, or twenty years, or fifteen years, or fifty years, you are always going to be another Spisak juror, among other things, because isn’t what you heard kind of a microcosm, and some of us, not all of us, are old enough to remember. Isn’t what you heard just a microcosm of a twelve year reign of terror that was unparalleled in history, the Third Reich, and it was going to last for a thousand years.

. . . And those clown couldn’t buy 12 or 13.

. . . And listen to this sick distorted mind, and you will hear once again kind of a muffled dissent, but those hobnail boots on the cobblestone streets, but ladies and gentlemen, one thing you won’t hear, and one thing even the sick distorted minds don’t admit, you won’t hear the gas at Buchenwald, and you won’t hear the gas in Auschwitz, because ladies and gentlemen, it never made any noise in killing six million.

The end of that presentation, it is unclear why the prosecution had to address the jury at all.

The case is a test of the exceptionally high tolerance of the courts for poor trial decisions as “legal strategy.” It takes a great deal to make out a case for ineffective counsel but the Sixth Circuit is refusing to yield on this case under pressure from the Supreme Court. In its last decision, the judges took a principled stand on the issue of ineffective counsel, writing:

Certainly, it is one thing not to introduce mitigating evidence as in Landrigan, but it is quite another to lendcredence to the aggravating evidence presented by the prosecution by essentially describing one’s own client as a monster. We remain convinced that had Spisak’s counsel not demonized Spisak in his arguments to the jury, there is a reasonable probability that at least one juror would have had adifferent opinion of the proper outcome in this case.

Notably, one of the children of Spisak’s victims was made a judge this month.

The case is Smith v. Spisak, 08-724.

For the cert. petition, click here. For the opposition to the cert. petition, click here.