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Stephen Keim
5 February, 2010  
The constitutional right to have a lousy lawyer

Incredibly awful address to the jury by defence counsel in a capital case does not move the US Supreme Court to lift a protective finger … Let death prevail … Stephen Keim reports

The United States Supreme Court handed down a decision last month in Smith v Spisak.

It found that the courts of Ohio had applied the principles in capital sentencing cases correctly and decided unanimously, that Frank G. Spisak’s appeal against his sentence of death should be dismissed.

imageEight of the justices joined in the opinion of Justice Stephen Breyer that neither the trial judge’s summing up nor any deficiency in the performance of Spisak’s trial counsel in the sentence hearing had violated his Constitutional rights.

In rejecting the arguments on behalf of Spisak (pic) and overturning the decision of the Sixth Appeals Circuit, the Supreme Court applied the principles governing occasions when Federal Courts may interfere with State decision-making.

This was laid down in Strickland v Washington – namely, that an unreasonable or incorrect application of the law laid down by the Supreme Court must be “clearly established” on the record.

In considering the directions given by the trial judge in the sentencing hearing, the court applied the criteria from Mills v Maryland.

That case was decided after Spisak’s trial which took place in 1983.

It held that in considering whether mitigating circumstances outweighed the aggravating circumstances of the offending conduct, each juror was permitted to consider such matters as he or she considered to be mitigating factors, even though none of the other jurors were in agreement on that point.

Further, Mills required that the jury’s finding that the aggravating factors outweighed the mitigating factors (so as to make the death penalty appropriate) must be unanimous.

imageJustice Breyer’s opinion, with which seven other members of the court joined, was that the trial judge’s directions did not offend the the principles of Mills.

In a similar vein, Breyer (pic) and his colleagues considered that the address of counsel did not give rise to “a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different” (also, applying Strickland).

Justice Breyer addressed this test by assuming, for the purpose of the point, that the closing address of counsel in the sentence hearing fell below an “objective standard of reasonableness” (also from Strickland).

Spisak was convicted of murdering three people and attempting to murder two others in 1982 (in separate incidents spread over some months).

He gave evidence (in support of a not guilty plea) that he had shot the people because he believed in the teachings of Adolf Hitler and that it was a good thing to rid the world of people who were not Aryans.

imageA number of the victims were Afro-American and one was suspected by Spisak to be Jewish.

Justice John Paul Stevens, the senior Associate Justice on the Court (having been appointed by President Gerald Ford [seen here] in 1975) agreed with the result of the majority, although he made no bones in finding that counsel’s closing address fell below the objective standard of reasonableness.

Apart from the fact that the court, unanimously removed one of the last barriers to Frank Spisak’s execution, the decision is notable for the scathing manner in which Justice Stevens describes counsel’s address:

”[The State of Ohio] 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 (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 … 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 with a criminal defense attorney’s. Indeed, the argument was so outrageous that it would have rightly subjected a prosecutor to charges of misconduct… A few examples are in order.

Presumably to take the ‘sting’ out of the prosecution’s case … 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 …’

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. On the contrary, counsel concluded by telling the jury that ‘whatever you do, we are going to be proud of you,’ which I take to mean that, in counsel’s view, ‘either outcome, death or life, would be a valid conclusion’.”

Most practising advocates live with the fear that an unintended slip will result in a lifetime of negative consequences for their client.

To have a Supreme Court justice describe one’s address in such a manner is more than most counsel could bear.

More seriously than that, the description by Justice Stevens raises and, at least in this instance, confirms the frequently expressed concerns about the standard of representation of defendants in capital cases in the United States.

Despite Stevens’ caustic criticism, neither he nor anyone else on the Supreme Court was prepared to accept that a proper address and proper representation might have made the jury come to a different conclusion.

A man may go to his death knowing that he had outrageously bad representation, but that was not enough to make the courts of the land think again.

Stephen Keim SC
Angourie, NSW