Killer Frank Spisak, not his attorney, brought on death penalty, justices rule

As jurors prepared to decide whether Ohio killer Frank G. Spisak Jr. should live or die, a lawyer told them this:

"Ladies and gentlemen, when you turn and look at Frank Spisak, don't look for good deeds, because he has done none. Don't look for good thoughts, because he has none. He is sick, he is twisted. He is demented, and he is never going to be any different."

That was Spisak's attorney talking. His unorthodox closing argument asked only that jurors take "pride" in their own "humanity" in making their decision.

But the Supreme Court essentially said Tuesday that when your client grows a mustache like Adolf Hitler's, admits to killing three people and wounding two, expresses remorse only about a victim who "wasn't Jewish like I thought he was," and says he would like to kill again, even a sterling closing argument is not likely to save him.

The court overturned a decision from the U.S. Court of Appeals for the 6th Circuit and ruled that it was not ineffectiveness of counsel that earned Spisak a death sentence.

After jurors heard "Spisak's boastful and unrepentant confessions and his threats to commit further acts of violence," Justice Stephen G. Breyer wrote, "we . . . do not see how a less descriptive closing argument with fewer disparaging comments about Spisak could have made a significant difference."

He said there was no "reasonable probability that, but for the deficient closing, the result of the proceeding would have been different."

Spisak, who committed his crimes in and around Cleveland State University in the early 1980s, has bounced through a series of courts since, and his case was making its second appearance at the Supreme Court. The justices also rejected an argument that jury instructions were inadequate.

The closing argument by attorney Tom Shaughnessy, now deceased, caused a lively debate when the justices considered it earlier in the term. Justice Antonin Scalia called it "brilliant," saying there was nothing the lawyer could have done but urge the jurors to consider their own humanity. Others were less generous.

Justice John Paul Stevens, who agreed with the outcome of the case, nevertheless wrote separately to emphasize the "catastrophe of counsel's failed strategy," and said it was difficult to demonstrate how egregious it was "without reproducing it in its entirety."

Stevens added: "Indeed, the argument was so outrageous that it would have rightly subjected a prosecutor to charges of misconduct."

Even so, Stevens said, he had to agree with the rest of the court: "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."

The case is Smith v. Spisak.