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Jury findings in capital cases

Below, Jonathan Vukicevich, an Akin Gump summer associate, analyzes the Court’s decision, handed down on Tuesday, in Smith v. Spisak (08-724).  Check the Smith v. Spisak SCOTUSwiki page for commentary on the briefing and argument stages of the case.

On January 12, the Court issued its decision in No. 08-724, Smith v. Spisak.  Justice Breyer wrote the opinion, which seven other Justices joined in full; Justice Stevens concurred in part and concurred in the judgment.  Reversing the Sixth Circuit, the Court held that Ohio’s denial of Spisak’s habeas petition – in which he had argued that (1) the jury instructions used at his trial unconstitutionally required the jury to consider mitigating factors only if the existence of each factor was unanimously found; and (2) his attorney was constitutionally ineffective, particularly during his closing argument – was not contrary to, or an unreasonable application of, clearly established federal law.

With respect to the first issue, the Court held that, although the instructions required the jury to find unanimously that each of the aggravating factors outweighed any mitigating circumstances, the instructions did not require jury unanimity in finding the existence of any individual mitigating factor.  Assuming without deciding that the Court’s decision in Mills v. Maryland was clearly established law when Spisak’s conviction became final, Justice Breyer distinguished these instructions from those that the Court struck down in Mills, which had provided that the jurors could only consider those mitigating factors that they had unanimously found.  Justice Breyer reasoned that, because the instructions in Spisak’s case did not preclude the jurors from considering mitigating evidence, but merely required unanimity in the overall balance of aggravating and mitigating factors, the instructions given to Spisak’s jury differed from those in Mills, and were, therefore, not contrary to, or an unreasonable application of, clearly established Court precedent.

Regarding the ineffective assistance of counsel claim, the Court held that, even assuming the closing argument was inadequate, there was no reasonable probability that a better closing would have altered the result.  Justice Breyer devoted several paragraphs of his opinion to detailing Spisak’s own damaging testimony in which he admitted to committing the murders, stated that he was motivated to kill by his admiration for Adolf Hitler, and indicated that he would kill again if given the chance.  In the face of such damning testimony, the closing could have been a tactical attempt to highlight Spisak’s mental instability, even if he was not unstable enough for the jury to find him not guilty by reason of insanity.  Because the sentencing phase took place immediately after the guilt phase, the Court concluded, his counsel’s strategy to highlight Spisak’s mental state was reasonable insofar as the government’s strong evidence, Spisak’s unrepentant confessions, and his threat to murder again were all fresh in the jurors’ minds.  Finally, the Court found that counsel’s appeals to the jurors’ “humanity” during the closing argument sufficiently pleaded for mercy and that a different closing would thus have had no effect on the jury’s finding.

In his concurring opinion, Justice Stevens wrote that the Sixth Circuit correctly found errors in both the jury instructions and Spisak’s closing argument, and that both of these errors did in fact violate clearly established federal law.  In his view, however, these errors did not prejudice Spisak.  First, although the instructions used in Spisak’s trial did not violate Mills, they did violate the Court’s decision in Beck v. Alabama insofar as they required the jury to unanimously reject death before considering life.  Given the overwhelming evidence against Spisak, however, Justice Stevens found that the instructional error did not have a substantial effect on Spisak’s case.  Second, in contrast to the majority’s focus on whether Spisak was prejudiced by his counsel’s ineffectiveness, Justice Stevens focused on the adequacy prong, concluding that his counsel’s argument clearly fell below norms of professional conduct.  That said, Justice Stevens agreed with the majority that there was no reasonable probability that a different closing would have changed the result.