U.S. Supreme Court
Death Sentence Reinstated Despite ‘Smell of Death’ Defense
Posted Oct 9, 2007 1:19 PM CDT
By Debra Cassens Weiss
The U.S. Supreme Court has vacated a federal appeals court ruling that granted a new sentencing hearing for an Ohio neo-Nazi convicted of murdering three men at Cleveland State University.
The Cincinnati-based 6th U.S. Circuit Court of Appeals had ordered a new sentencing hearing for Frank Spisak partly on the ground that he received ineffective assistance of counsel, the Associated Press reports. The appeals court noted unusual closing arguments by defense counsel that acknowledged jurors could "smell the death" and "know the terror" of the victims.
The Supreme Court referred to recent decisions telling appeals courts they shouldn’t second guess decisions of trial judges in its order (PDF posted by SCOTUSblog) vacating the ruling and remanding the case for reconsideration.
The 6th Circuit’s opinion (PDF) issued last Oct. 20 had said Spisak’s lawyer was ineffective because he referred to aggravating circumstances and the brutality of his client’s crimes during closing arguments. It quoted this argument by the lawyer:
"Every one of us who went through this trial, we know we can feel that cold day … or see that cold marble, and will forever … see Horace Rickerson dead on the cold floor. Aggravating circumstances, indeed it is. … The reality of what happened there … you can smell almost the blood. You can smell, if you will, the urine. You are in a bathroom, and it is death, and you can smell the death . . . and you can feel, the loneliness of that railroad platform. … And we can all appreciate, and you can understand, and we can all know the terror that John Hardaway 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 remember his widow, and we certainly can remember looking at his children. … You and I and everyone one of us, we were sitting in that bus shelter, and you can see the kid, the kid that was asleep, the kid that never [sic] what hit him, and we can feel that bullet hitting, and that’s an aggravating circumstance.”
The district court had said the argument was part of trial counsel’s strategy to confront the heinousness of the crimes before the prosecution did, and then to explain the jurors’ horror was misplaced because Spisak was mentally ill.