Consider the following excerpts from a penalty phase closing argument in a capital case:
- “[D]on’t look to [the defendant] for sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at [the defendant], don’t look for good deeds, because he has done none. Don’t look for good thoughts, because he has none.”
- “[Y]ou can smell almost the blood. You can smell, if you will, the urine. You are in a bathroom [where one of the victims was killed], 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 re-member his widow, and we certainly can remember looking at his children . . . There are too many family albums. There are too many family portraits . . . that have too many empty spaces.”
- “[D]on’t look to [the defendant] with the hope that he can be rehabilitated, because he can’t be. . . . [H]e is never going to be any different.”
- The case has “all the aggravating circumstances you [could] ever want.”
You might wonder whether such a closing argument is proper, and particularly, whether the prosecutor’s use of the “you can smell the blood” passage improperly invites the jurors to put themselves in the victims’ place. But the above excerpts are from the closing argument for the defendant in Smith v. Spisak, decided today by the Supreme Court. You can read the full transcript of the closing argument here.
Spisak is a case from Ohio. The defendant, Frank Spisak, is a white supremacist who killed three people, and tried to kill two more, in Cleveland over the course of several months. He admitted the killings at trial, proudly describing them as part of a war for the survival of the Aryan race, and indicated that if he were able to escape from jail, he would “continue to inflict the maximum amount of damage on the enemies” as he could. Media accounts indicate that he also wore a Hitler-style mustache and shouted “Heil Hitler!” during trial.
He was convicted and sentenced to death, and eventually filed a habeas petition in federal court, alleging inter alia that his lawyer’s closing argument at the penalty phase was so bad that it violated his Sixth Amendment right to the assistance of counsel. The district court disagreed, but the Sixth Circuit reversed. Spisak v. Mitchell, 465 F.3d 684 (6th Cir. 2008). The appellate court said that “trial counsel did very little to offset the negative feelings that his own hostility and disgust for Defendant may have evoked in the jury. Instead . . . counsel further denigrated Defendant and even went so far as to tell the jury that Defendant was undeserving of mitigation.” It found that this breached counsel’s duty of loyalty to Spisak, a breach that was compounded when the lawyer effectively told the jury that either life or death would be appropriate verdicts.
The Supreme Court unanimously reversed. In order for a lawyer’s performance to constitute ineffective assistance of counsel, it must (1) be deficient, and (2) prejudice the defendant, in that there is a reasonable probability that it affected the outcome of the trial. The Court “assume[d]” that the closing argument was deficient, but held that the heinousness of the crimes, Spisak’s own inflammatory testimony, and the lack of any real mitigating evidence beyond the mental illness that counsel did reference at times in the closing argument, a better closing would not have changed the outcome. Justice Stevens concurred, stating that the argument was “thoroughly egregious,” a “catastrophe,” and “shares far more in common with a prosecutor’s closing than with a criminal defense attorney.” But he agreed that “even the most skillful of closing arguments—even one befitting Clarence Darrow—would not have created a reasonable probability of a different outcome in this case.”
For those interested in further reading about the facts of this unusual case, a somewhat tawdry story about the case is here; what purports to be a letter from Spisak about his transsexualism is here.