Argument Preview: Smith v. Spisak
Below, Jonathan Vukicevich previews Smith v. Spisak, one of the three cases to be heard by the Supreme Court on Tuesday, October 13. Jon is a rising third year at Washington College of Law and a summer associate at Akin Gump. Check the Smith v. Spisak SCOTUSwiki page throughout the summer for additional updates and newly filed briefs.
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.
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.
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.
Spisak’s brief is due on August 7, 2009.
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.