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U.S. Supreme Court

Lawyer who Badmouthed His Client Gave a ‘Brilliant’ Argument, Scalia Says

Posted Oct 14, 2009 8:04 AM CST
By Debra Cassens Weiss

U.S. Supreme Court justices differed Tuesday over the trial strategy of a criminal defense lawyer who called his neo-Nazi client “demented” and invited jurors to “smell the death” of the murder scene.

The defendant, Frank Spisak, “celebrated his killings in court and openly discussed his hateful views,” the Associated Press reports. “He even grew a Hitler-style mustache, carried a copy of Hitler's book, Mein Kampf, during the proceedings and gave the Nazi salute to the jury.” He was convicted of three murders, but a federal appeals court reversed, partly on the ground that Spisak’s lawyer provided ineffective assistance.

Ohio Attorney General Richard Cordray told the justices that the lawyer’s argument in 1983 on behalf of defendant Spisak was part of a “coherent strategy,” the National Law Journal reports. The idea was to appeal to jurors’ humanity and to argue they could spare Spisak’s life even if he was demented, according to the stories.

Justice Antonin Scalia appeared to agree. "I thought it was a brilliant closing argument,” he said. "The technique that counsel used to try to get mercy for this fellow was the best that could have been done."

But Justice Ruth Bader Ginsburg expressed qualms, according to the Cleveland Plain Dealer. She said the closing argument of the lawyer, who has since died, was "disjointed," went "off on tangents," and appeared to be "stream of consciousness," the Plain Dealer reports.

Comments

1.

Esq.
Oct 14, 2009 9:24 AM CST

What on earth is wrong with Scalia?

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2.

Tom Caddell
Oct 16, 2009 5:28 AM CST

What in Hades is wrong with Ginsburg.  A closing argment is a trial tactic designed to go with the flow of the case, calculated risks.  Bleeding heart liberals will grasp at anything in an appeal setting.

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3.

Cowdog
Oct 16, 2009 6:09 AM CST

Justice Scalia is fully correct-this was brilliant.
Justice Ginsburg, her general liberal prejudice aside, may also have let historical prejudices get in the way of clear analysis.  Time to retire?

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4.

chuck
Oct 16, 2009 6:11 AM CST

Funny Ginsburg is mostly disjointing and off on tangents.  Frankly, I am not sure she is conscious most times.

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5.

Greg
Oct 16, 2009 6:15 AM CST

I’m a “bleeding heart liberal” to use the frequently and mindlessly regurgitated blustering of Rush Limbaugh.  And I’m skeptical of the rationality of anyone dedicated to self-flagellation.

Nonetheless, being somewhat familiar with the Spisak case, I’d have to agree that, while certainly not “brilliant”, attempting to in some way humanize his client was one of the few options open to defense counsel.

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6.

brock
Oct 16, 2009 6:20 AM CST

I am neither a Scalia apologist or defamer.  But enough Scalia already! Can’t the ABA Journal come up with enough news to avoid a weekly story about Scalia?  There is another article today about the Supreme Court that extensively quotes Justice Breyer, but it is not entitled “Breyer sys no Very, Very High Legal Fees.”  Nor is the title of this Article “Ginsburg Troubled by Defense Arguments.”  Can we leave Scalia alone a little bit and can the ABA Journal stop using headlines the New York Post would be proud of.

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7.

Hadley V. Baxendale
Oct 16, 2009 6:42 AM CST

The lawyer died in the interim.  I wonder if Justicer Scalia thinks a defendant can get effective representation from a dead lawyer.

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8.

JD_Jonny
Oct 16, 2009 6:46 AM CST

None of these SCOTUS justices were ever even trial lawyers.  What the heck do they know?

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9.

Joe Momma
Oct 16, 2009 6:51 AM CST

Those criticizing Scalia, please read the article again.  Scalia was stating the defense was brilliant in order to reinstate the original guilty finding because some dumb federal appeals court had reversed the verdict based on this ineffective counsel concept.  Ginsburg has the explaining to do in this case, not Scalia.

The fact that this idiot went out of his way to flaunt these killings and his views to the jury/court and the verdict was still overturned tells me everything I need to know about our system. 

I wonder if there is not some defense counsel ploy to do a really bizarre or crappy job with really guilty and evil people so some idiot appeals court justices will “feel sorry” for the defendant and pollute our system with the re-trial.

This guy should be getting the express ticket to death row, not another trial where he will act just as offensively and be found guilty again with all of the cost going to us.

Respectfully submitted…

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10.

Jeff
Oct 16, 2009 7:11 AM CST

Transcript of the closing is in the pdf link from this post at the Volokh Conspiracy:

http://volokh.com/2009/10/13/good-luck-mike/

Decide for yourselves.

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11.

Chris
Oct 16, 2009 8:11 AM CST

If I were a juror and had a defendant groomed to look like Hitler, greet me with the Nazi salute and glow in the thinkings and rationalizations of Hitler and Nazi Germany, I would convict but not give the death penalty. 

To me, putting a defendant’s total irrationality on display seemed to be the right play.  As a lawyer, your play in this case would be to save your client from the death penalty.  Jurors tend not to want to give the death penalty to those that have some level of mental incapacitation, which Spisak obviously did.

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12.

anon
Oct 16, 2009 9:03 AM CST

#5 - Since when does the term “bleeding heart liberal” originate from the “mindlessly regurgitated blustering of Rush Limbaugh?”  Please try to stay on point in these blogs. 

PS- Where is B. McLEOD when we need him to mock these incoherent posts?

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13.

jchanse
Oct 16, 2009 9:58 AM CST

No one is more cynical than I—I hold the record in California and Ohio—but I truly cannot believe the persistent and cavalier level of rudeness reflected in many of the comments posted in this forum.

It is—they are—unprofessional.

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14.

anon
Oct 16, 2009 10:11 AM CST

Thanks for the link #10. It is an interesting case. Ginsburg may need to hang up her spurs. If I had a nickle for every closing I heard that went off on tangents and was disjointed I’d have a lot of nickles.

Watch out #12, #5 is now going to call you a racist.

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15.

Adamius
Oct 16, 2009 1:43 PM CST

Calling this argument “brilliant” is ridiculous!  First of all, given the posture of the case the argument apparently didn’t work!  What’s so brilliant about that?  That aside, I don’t really think the quality of closing argument alone can be grounds to declare ineffective assistance.  There really are not many rules or clear-cut obligations regarding “argument” so it’s really difficult to legally declare that someone has stepped outside those.  I have argued that my client is a terrible person and they should be sentenced to the hilt, but that the law must be followed and the charged offense is too great and a lesser included offense is the actual correct verdict, and this tactic has worked many times.I guess if he badmouthed his client WITHOUT ASKING for any concession at all from the jury, one could hold he didn’t meet even the most minimal requirements of argument on a client’s behalf.  If he DID ask for some concession though, his tactic may have been inadvisable, but shouldn’t qualify as “ineffective”.  By the way, all you people saying Ginsburg needs to retire…where are your cries when Thomas says your 13 yr old daughters principal should be allowed to paw through her panties for ibuprofen, or when Scalia says your town can knock your family home down to build a WalMart?

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16.

Kory
Oct 16, 2009 2:22 PM CST

For those of us in the trenches, we see evil people all the time who have no remorse for their crimes, but insist on going to trial. To have appellate courts playing Monday morning QB over the quality of the defense attorney’s trial strategy is simple horrendous….Why not simply have Ginsberg come down the trial courts and let her argue the case! Maybe she should issue her separate opinion and include a script for the next defense attorney.

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17.

Olga Boatski
Oct 18, 2009 5:42 AM CST

Comment removed by moderator.

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18.

Tony
Oct 18, 2009 10:17 AM CST

This case is not that uncommon.  Too many criminal defense attorneys can’t stand their clients and want them convicted (and even executed) where they did something awful and show no remorse.  It comes across to jurors, usually more subtly than in this case.  Those defense attorneys are in the wrong line of work.  Granted, 100 years ago the constitution wasn’t even thought to give the right to an attorney, so what constitutes effective assistance is a fluid concept that means whatever five justices can agree it means.  Scallia would have it mean nothing more than the physical presence of a person licensed to practice law.  That isn’t right.  But the REAL problem is defense attorneys who don’t believe in what they are doing.

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19.

ned
Oct 19, 2009 8:04 PM CST

I think I agree with No. 17, whatever she or he wrote.  But I guess no one will ever read this because it now has to be removed by the moderator because it agrees with something s/he said.. Why is the ABA practicing; censorship?  We readers are big boys and girls and not easily offended.

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20.

Joe Momma
Oct 20, 2009 9:15 AM CST

No. 19, I agree.  I note that B. McLeod in the Lawyer fined $100 article above indicates Olga is someone else…evidently who is disfavored by the ABA in posting things.  So I suspect B. McLeod can give us an answer, or perhaps Olga B., Ellen or whatever her name is can…

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