Smith v. Spisak

PETITIONER:Kevin Smith, Warden
RESPONDENT:Frank G. Spisak, Jr.

DOCKET NO.: 08-724
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 558 US 139 (2010)
GRANTED: Feb 23, 2009
ARGUED: Oct 13, 2009
DECIDED: Jan 12, 2010

Michael J. Benza – argued the cause for the respondent (appointed by the Court)
Richard Cordray – argued the cause for the petitioner

Facts of the case

Frank Spisak was convicted of murder in an Ohio state court and sentenced to death. Subsequently, he was granted partial habeas corpus relief by the U.S. Court of Appeals for the Sixth Circuit. The court held that Mr. Spisak received ineffective counsel at sentencing and the jury instructions at this phase unconstitutionally required the jury to be unanimous when finding mitigating evidence to his sentence. The court ordered a new sentencing trial. The Supreme Court granted certiorari, vacated the judgment, and remanded the case for reconsideration in light ofMusladin andLandrigan.

On remand, the Sixth Circuit reinstated its original holding. It reasoned thatMusladin andLandrigan were readily distinguishable from Mr. Spisak’s case and therefore he was still entitled to habeas corpus relief. Moreover, the court noted that although the Supreme Court had not ruled on a set of facts identical to those in Mr. Spisak’s case, the court of appeals was not precluded from finding that the Ohio state court had unreasonably applied federal law.


1) Did the Sixth Circuit disobey the directives of the Antiterrorism and Effective Death Penalty Act and the Supreme Court’s decision inMusladin when it resolved questions in Mr. Spisak’s favor that were not decided inMusladin?

2) Did the Sixth Circuit exceed its authority when it presumed that Mr. Spisak suffered prejudice by allegedly deficient statements made by his counsel at sentencing and ignored the Ohio Supreme Court’s standard for prejudice?

Media for Smith v. Spisak

Audio Transcription for Oral Argument – October 13, 2009 in Smith v. Spisak

Audio Transcription for Opinion Announcement – January 12, 2010 in Smith v. Spisak

John G. Roberts, Jr.:

Justice Breyer has the opinion of the Court this morning in case 08724, Smith versus the Spisak.

Stephen G. Breyer:

The respondent in this case, Frank Spisak, was convicted in an Ohio court of three murders and two attempted murders.

He was sentenced to death.

The Ohio Court rejected his appeals.

The Federal District Court denied his habeas corpus request, but then when he appealed that habeas corpus denial, the Court of Appeals for the Sixth Circuit accepted two of his constitutional claims.

On the request of the state we have reviewed the Court of Appeals’ decision insofar as it accepted those two claims.

Now his first claim, the first thing he argued was that the jury instructions at the sentencing phase of his trial, instructions that had to do with how the juries should treat the factors that arguably were mitigating, he argued that those instructions were unconstitutional under this Court’s holding in a case called Mills v. Maryland.

Now Mills focused upon instances where defendant points to several different potentially mitigating factors.

I mean, imagine he had a difficult childhood, he had horrific war service and he was also mentally disturbed and what Mills says is that the judge, when he tells the jury that they have to balance the mitigating factors against the aggravating factors, the judge should not leave the jury with the impression that it has to decide unanimously that a particular factor is mitigating.

Suppose some jurors think that the childhood is mitigating, others might think the war service is mitigating, the judge cannot forbid the first group from considering childhood as mitigating, simply because other jurors disagreed about that one, they may think some other one.

So after we read the, and I read the instructions in this case, we’ve compared them with those that were at issue in Mills and bottom line is we think the judge here did not commit the error that was at issue in Mills.

So the Court of Appeals shouldn’t have accepted that claim in our view and this is spelled out in the opinion.

Spisak’s second claim is that his lawyer provided constitutionally inadequate assistance of counsel when he made his closing defense argument to the sentencing jury.

Again this is a matter reviewing the record and after doing it we don’t express any view on the quality of counsel’s argument, but we do conclude that there was no reasonable probability that a better argument would have made a difference, that is to say legally speaking the argument’s deficiencies couldn’t have changed the result if they did better.

Now we spell out all this in our opinion.

We reverse the Court of Appeals’ determination.

Justice Stevens has filed an opinion concurring in part and concurring in the result.