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January 12, 2010

Supreme Court reverses Sixth Circuit reversal of death sentence in Spisak

The Supreme Court has released this morning an opinion Smith v. Spisak, No. 08-724 (Jan. 12, 2010) (available here), which reverses the Sixth Circuit reversal of a death sentence for a notorious murderer. Here is a snippet from Justice Breyer's opinion from a section of the opinion in which the Court was unanimous:

[I]n light of counsel’s several appeals to the jurors’ sense of humanity — he used the words “humane people” and “humane society” 10 times at various points in the argument — we cannot find that a more explicit or more elaborate appeal for mercy could have changed the result, either alone or together with the other circum-stances just discussed. Thus, we conclude that there is not a reasonable probability that a more adequate closing argument would have changed the result, and that the Ohio Supreme Court’s rejection of Spisak’s claim was not “contrary to, or . . . an unreasonable application of” Strickland. 28 U. S. C. §2254(d)(1).

Justice Stevens files a separate concurrence that concludes by spotlighting why anyone other than the most ardent death penalty abolitionist should be pleased with this ruling:

Notwithstanding these two serious constitutional errors,I agree with the Court that these errors do not entitle Spisak to relief. As JUSTICE BREYER’s discussion in Part III makes vividly clear, see ante, at 11–14, Spisak’s own conduct alienated and ostracized the jury, and his crimes were monstrous. In my judgment 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. Similarly, in light of Spisak’s conduct before the jury and the gravity of the aggravating circumstances of the offense, the instructional error was also harmless because it did not have a substantial and injurious effect on this record, Brecht v. Abrahamson, 507 U. S. 619, 623 (1993).

January 12, 2010 at 10:21 AM | Permalink

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Comments

And guess who the author of the opinion below was--none other than Judge Clay. Judge Clay also (in the face of a persuasive dissent by Judge Sutton) was the author of the Sixth Circuit's opinion in Bies v. Bobby. So that's two unanimous reversals in capital habeas cases in the space of less than a year. I get in trouble for calling people hacks in here--so, pray tell, what is an accurate descriptor of the learned Clinton appointee?

Posted by: federalist | Jan 12, 2010 10:42:10 AM

The most striking thing here by far is that Justice Stevens concurred in the operative part of the majority opinion, making it unanimous, and did so notwithstanding what he described as two serious constitutional errors. He also did not add the note, which was routine with Marshall and Brennan, that he rejects the death penalty in all circumstances. This casts into doubt what I had believed up to today, namely, that Stevens had taken the view that the DP was a per se Eighth Amendment violation. Today's concurrence could not exist if that were the case.

When the anti-DP side is losing Stevens, coming off a year when the number of executions spiked, and support for capital punishment remains at two-thirds, with the most liberal President in US history going along with it -- then claudio's (and others') pronouncement that the "death penalty is dying" is exposed for what it is, namely, arid nonsense.

Still, I expect to see Mark # 1 and other similar "minds" brand Justice Stevens a "Gestapo wannabee" -- which is what you get called if you're brazen enough to support the death penalty or any other aspect of our law not in keeping with the America Stinks agenda.

Posted by: Bill Otis | Jan 12, 2010 11:09:41 AM

No; and as you fully realize, your well-earned title of "Gestapo wannabee" is because you ardently admire the tactics of torture that were refined and utilized by--wait for it--the Gestapo.

Posted by: Mark # 1 | Jan 12, 2010 2:38:39 PM

Well the death penalty isn't dying in the comments sections, that's for sure. Elsewhere, however, maybe.

Posted by: David in NY | Jan 12, 2010 2:40:55 PM

Bill, I dont think the death penalty is dying, but it certainly isn't as vigorously living as we'd like. AEDPA hasn't gotten the job done, and the anti-capital punishment side has been effective on many fronts. It is remarkable that it has taken such a beating and still enjoys substantial support.

Posted by: federalist | Jan 12, 2010 2:43:27 PM

I just got through reading the syllabus, for some reason it doesn't feel the same as past syllabi that have attached to SCOTUS opinions. I can't really say why it strikes me that way, it's not as if one person has been writing them for the last twenty years and just got replaced, right?

As for the outcome, if you can't get Stevens or Ginsburg to find some way to set aside your death sentence after a cert. grant you must in fact be an unworthy SOB. I'm also not sure that I really agree with Stevens that Beck has any bearing here, it simply isn't stated whether lesser included charges were present during the guilt phase. The jury may simply have already decided the question that Beck poses.

Posted by: Soronel Haetir | Jan 12, 2010 2:52:04 PM

Stevens concurred in the operative part of the majority opinion, [and] did not add the note, which was routine with Marshall and Brennan, that he rejects the death penalty in all circumstances.

I believe Stevens's view is that he feels the D.P. as presently administered is unconstitutional. I think he has also stated that he considers it a bad policy, though he recognizes that the decision is not his to make. Unlike Marshall and Brennan, he does not believe that the D.P. is categorically unconstitutional in all conceivable circumstances, and he does not restate his concerns in every case that comes up.

Posted by: Marc Shepherd | Jan 12, 2010 3:11:36 PM

And guess who the author of the opinion below was--none other than Judge Clay. Judge Clay also (in the face of a persuasive dissent by Judge Sutton) was the author of the Sixth Circuit's opinion in Bies v. Bobby. So that's two unanimous reversals in capital habeas cases in the space of less than a year. I get in trouble for calling people hacks in here--so, pray tell, what is an accurate descriptor of the learned Clinton appointee?

The trouble with the term “hack” is that it’s an awfully blunt instrument. How many of his opinions (there must be hundreds of them out there by now) have you studied? It is also worth noting that unless those two cases were heard before the same panel, there must be at least two other Sixth Circuit judges who agreed with him, and if either of them was circulated for rehearing en banc, then many others must have believed those decisions were at least reasonable.

I am sure one could find Republican-appointed Circuit Court judges who were reversed twice on a similar issue within the space of a year. That doesn’t make them hacks. But as I recall, by Federalist’s definition, even one decision he disagrees with is enough to qualify someone as a “hack.”

Posted by: Marc Shepherd | Jan 12, 2010 3:19:21 PM

Mark # 1 --

"[Y]our well-earned title of 'Gestapo wannabee' is because you ardently admire the tactics of torture that were refined and utilized by--wait for it--the Gestapo."

I suppose I could respond with 'Stasi wannabee,' but it's just too juvenile. I guess the next thing will be something about my mother.

You will, however, quote the post of mine in which I state or imply that I "ardently admire the tactics of torture that were refined and utilized by...the Gestapo." And quoting a post of mine does NOT mean quoting your or someone else's version of what I say or (supposedly) think. It means quoting my words of "ardent admiration" for the "Gestapo" tactics.

I'll wait.

In the meantime, perhaps you could divert yourself from the giddy sandbox pleasures of name-calling long enough to address the subject of Doug's post, that being the Court's opinion today re-instating a death sentence. The opinion was joined by, among others, Justice Sotomayor and, in its operative section, by Justice Stevens, who in earlier writing had seemed to condemn the death penalty per se.

What is your analysis of this opinion? Are the Justices -- all of them -- playing the fascist fool to Your Enlightenment? Do tell.

Posted by: Bill Otis | Jan 12, 2010 3:22:29 PM

federalist --

"It is remarkable that [the DP] has taken such a beating and still enjoys substantial support."

Indeed. I think what keeps it going is that the sadists of the world do enough killing that most people understand that a prison sentence, no matter how long, is, in some cases, nowhere near proportionate justice. John Wayne Gacy has his day but gets forgotten; likewise Bundy, Kenneth McDuff, Timmy McVeigh, John Allen Muhammed, John Couey and on and on.

The problem for abolitionists is that there's always the next one. Merely shouting about the "barbarism" of the American people can't make the next one disappear. The sheer cruelty and horror of some of these for-kicks murders is enough to break through the holier-than-thou din of abolitionism and make people confront what these killers are actually about. That is why DP support stays where it is. My guess is that, as we have more of these terrorist mass murders and video-taped beheadings, support will climb.

Posted by: Bill Otis | Jan 12, 2010 3:47:28 PM

Marc, some observations on your post:

1) I don't think I've ever remotely said or implied that simply because a judge disagrees with me that he/she is a hack.

2) The issue is not whether Judge Clay was reversed twice, as you imply. The issue is that he was unanimously reversed twice. And while this case didn't make Clay look as bad as McDaniel v. Brown made Judge Wardlaw, Bobby v. Bies did. I doubt you'll find a GOP appeals court appointee with a similar record. And I am passingly familiar with Clay's record--it ain't so hot.

3) I notice you cannot answer my question--so I'll put it to you again--what's the proper adjective for this learned Clinton moderate?
3)

Posted by: federalist | Jan 12, 2010 3:51:30 PM

Marc Shepherd --

I couldn't recall exactly what Stevens had said, or the opinion in which he said it. You may well be right. My memory was that he said he couldn't imagine that the DP served any legitimate penological purpose, which would suggest his belief that it's unconstitutional per se. I'll have to go back and check. Thanks.

Posted by: Bill Otis | Jan 12, 2010 3:58:07 PM

I'll tell you what, I'm liberal on lots and lots of issues. I voted for President Obama and have almost always voted for Democrats. However, having said that, there are some folks that, to my mind, are so evil and/or dangerous that they simply need to be executed. I've never understood how certain liberals can be liberal about something as basic as murder and other violent crime. Perhaps I should start an advocacy group: Liberals for the Death Penalty.

Posted by: Alpino | Jan 12, 2010 4:00:59 PM

I notice you cannot answer my question--so I'll put it to you again--what's the proper adjective for this learned Clinton moderate?

I don’t think we need an insulting adjective for every Clinton-appointed judge. Unanimous Supreme Court rulings aren’t terribly uncommon; for every one of them, there was an issue upon which at least two, and often more than two, lower-court judges had reached the opposite result. I cannot think of a good adjective for that phenomenon, except perhaps “unremarkable.” I have not looked at the calendar, but I suspect that both of these opinions were written before either one was decided in the Supreme Court, so it is not as he decided the second case with the benefit of knowing that he’d already been reversed once on the same issue.

Posted by: Marc Shepherd | Jan 12, 2010 4:09:29 PM

Soronel --

"As for the outcome, if you can't get Stevens or Ginsburg to find some way to set aside your death sentence after a cert. grant you must in fact be an unworthy SOB."

That just about sums it up. And shows why people like Alpino are where they are.

Posted by: Bill Otis | Jan 12, 2010 4:12:17 PM

I found the case in which Justice Stevens announced his opposition to the Death Penalty. It was Baze v. Rees However, even in that case, he concurred in the judgment. Here is the money quote:

The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by The Chief Justice or Justice Ginsburg, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky's lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court's judgment.

Posted by: Marc Shepherd | Jan 12, 2010 4:17:14 PM

marc, nice job shilling--the issues werent the same--other than the aedpa standard--and two unanimous reversals?? come on.

Posted by: federalist | Jan 12, 2010 4:21:42 PM

Alpino --

You are not alone. According to a Gallup poll posted by, of all things, the DPIC, Democrats favor the DP 58-36 and liberals favor it 54-42. See http://www.deathpenaltyinfo.org/gallup-poll-who-supports-death-penalty.

This is not all that surprising. A guy by the name of John Couey kidnapped a nine year-old girl, raped her a couple of times, then killed her. He did so by burying her alive. The sentencing judge said the murder was "cold and calculated," and intended to cause a "slow, suffering and conscious death."

No normal person could think that a sentence of ten trillion years is adequate for something like that. But if you stick around this blog long enough, I guarantee you'll get called a barbarian for supporting the DP, even for the John Couey's of the world.

Posted by: Bill Otis | Jan 12, 2010 4:44:59 PM

Marc Shepherd --

Interesting. I guess this leaves open the question whether Stevens would vote to overturn the DP on a straight Eighth Amendment challenge. Ironically, he might have tied his own hands. He says in Baze that he must respect precedent, and the reigning predcedent is Gregg, in which he voted in the main opinion to sustain the DP.

As a practical matter, it won't make any difference. I believe the speculation that he's retiring after this term; and it would seem that Sotomayor is not going to be a strident DP opponent, certainly judging from her vote in today's case.

Posted by: Bill Otis | Jan 12, 2010 4:54:56 PM

I do not think the D.P. will be found categorically unconstitutional in our lifetimes, and I do not think it ought to be.

Posted by: Marc Shepherd | Jan 12, 2010 5:15:11 PM


I am not an attorney, but what does this decision mean for the Mumia case for you lawyers. I believe I read that it appeared Pennsylvania's appeal was being held over, I'd love to see that one reversed.

Posted by: Brooklyn | Jan 12, 2010 8:14:59 PM

Marc:

The DP will cease to effectively exist as a punishment in the United States with the next 20 years. The record low number of new death sentences, legislative changes in various states (such as LWOP & repeal), as well as increasing international pressure assures that proposition.

The death penalty is withering & dying on the vine. In addition to fewer people entering death row the number of executions has continued to drop year over year (save for the brief moratorium period caused by Baze v. Rees). Indeed, but for the backlogged executions caused by Baze we likely would have seen a drop in 2009.

I've been tracking virtually every capital appellate decision in the US for the last 12+ years. The numbers of new opinions I'm now reporting is brutally low most weeks. Assuming the Baze backlog is effectively worked through by mid-year executions should start dropping back to their downward pre-Baze trajectory by the 3rd quarter 2010.

As for Spisak, the best thing that can be said as an advocate is that Justice Breyer wrote the opinion and it is unusually narrow for an argued opinion. I suspect, however, it will cause some remands in light of its Mills analysis.

Posted by: karl | Jan 12, 2010 8:20:36 PM

I think Mumia's case will be GVR in light of Spisak. Would be nice to see Mumia get the big jab. Maureen Faulkner deserves justice.

By the way, Marc, I forgot, in my earlier post, to respond to this bit of disingenuousness: "I don’t think we need an insulting adjective for every Clinton-appointed judge."

I never suggested that. Is that how you attempt to argue--putting words in people's mouth. I know it's tough to shill for judges who get told the right answer, and in the face of that, pen an additional opinion stating how easy the case is (Bobby v. Bies) only to have the "easy case" tossed back in their face by SCOTUS, which catalogs numerous errors in its opinion. And then, on top of that, don't learn their lesson and eat a unanimous reversal from SCOTUS on the same type of case. I mean really--how hard is that AEDPA standard? But just because you have chosen to do the impossible, i.e., make the remarkable unremarkable, I dont think resort to dishonest argument is justified.

Posted by: federalist | Jan 12, 2010 8:27:03 PM

"Would be nice to see Mumia get the big jab."

Have you ever considered a career in the greeting card industry? Or perhaps children's books, you might be good at that, too.

Posted by: JC | Jan 12, 2010 8:34:13 PM

fedie:

Not sure of Mr. Abu-Jamal's case and a few others won't get GVR'd, however, he is a long way from getting executed even if returned to the 3rd Circuit. Bad cases make bad law. I think I've made my opinions known in private emails (assuming I am correctly recalling your real name) so won' rehash them here.

Posted by: karl | Jan 12, 2010 8:36:52 PM

karl --

"The DP will cease to effectively exist as a punishment in the United States with the next 20 years."

If you'd said that in 1950, you would have been correct.

And then a few years later you would have been incorrect. The country saw what it was getting and didn't like it.

When you read a case like Spisak, you can understand why all nine Justices voted to reinstate the DP in that instance. As long as there are cases like that -- which means forever -- it won't just be a unamimous Supreme Court that backs the DP.

Posted by: Bill Otis | Jan 12, 2010 10:16:33 PM

Neither I--nor anyone else with the capability of reasoned thought--need any "direct quotes" to determine where your admiration lies. When you enthusiastically advocate for torture, you don't get to pick whose posse you signed up for. Look around at your fellow travelers; amongst them you will recognize the Gestapo.

Posted by: Mark # 1 | Jan 12, 2010 10:18:31 PM

Bill:

Are you saying NY, NJ & NM didn't have horrendous crimes when they repealed the death penalty? At least four other states in the last few years have come within a vote or two of abolishing the death penalty. Add to that the tremendous drop in new death sentences in recent years (less than a third of the new death sentences that were given out a few years ago). Add to that the most psychopathic serial killers know how to plead and regularly avoid getting death (BTK, Cullen, the Green River killer, etc). Add to that you couldn't get death for the 20th hijacker. Add to that 100+ d.r. exonerations. And when you sum it all up, death is dying.

Posted by: karl | Jan 12, 2010 10:48:54 PM

Mark # 1 --

Well I predicted the sandbox from you and that's what I got.

I asked you to quote the post of mine in which I state OR IMPLY that I, as you put it, "ardently admire the tactics of torture that were refined and utilized by...the Gestapo."

Producing that quotation is what you utterly fail to do, as I knew you would. This is not because you're lazy. It's because I have authored no such post. If I had, you'd trot it out in a New York minute, as we both know.

"When you enthusiastically advocate for torture, you don't get to pick whose posse you signed up for."

Dada, dada, dada. Where's the beef? But I'll grant you this: When you enthusiastically advocate for the supposed right of murderous al Qaeda operatives to keep their plans secret, you DO get to pick whose posse you sign up for.

Are you pleased with the posse you have chosen? A real pleasant bunch these al Quada types are, what with their chopping off fingers and ears and heads, dontcha know.

Anyway, in yet another (probably futile) effort to invite you away from the sandbox and toward the subject of this post, that being the Supreme Court's opinion today re-instating a death sentence: The opinion was joined by, among others, Justice Sotomayor and, in its operative section, by Justice Stevens, who in earlier writing had seemed to condemn the death penalty per se.

Many commenters here, of varying ideological stripes, have examined the opinion and have made known their insights into it. Amazingly, no one except you has found it necessary to call anyone else a Gestapo sympathizer. You might pause a second to contemplate why that is. But pause or not, what is your analysis of this opinion? Are the Justices -- all of them -- playing the fascist fool to Your Superior Enlightenment? Surely inflicting a cold and calculated death on a "helpless" (your word) person must be worse, indeed a great deal worse, than just torture. So do Sotomayor (and Stevens and Ginsburg and Breyer and all the rest) get to join me in the Fans of Gestapo Club?

Do tell!

Posted by: Bill Otis | Jan 12, 2010 11:38:39 PM

karl --

This is the day you lost Stevens, who sure looked like he was headed your way in Baze. You talk about all manner of stuff except the opinion this post is about. But you can't make it go away by not talking about it.

You have your points, I grant you that (which I guess is at least a little surprising since I am supposedly a "Gestapo wannabee"). The interesting thing is that you had even better indices of the death of capital punishment decades ago. And you were right.

For a while.

But the Court and the electorate brought it back. With all respect, that is not because America is a nation of neanderthals and barbarians; it is no such thing. It's because we are not going to tolerate the John Couey's and Beltway snipers of this world, not now and not ever.

The indices on your side are not as strong now as they were those many years ago, and the indices on my side are stonger. Public support for the DP has been high and stable for years. Today's opinion and the Justices subscribing to it don't amount to much over the long haul, but they amount to something. And it is not something the abolitionist side can welcome.

Posted by: Bill Otis | Jan 13, 2010 12:08:21 AM

Bill:

Spisak rolled the dice and lost. He did himself no favors. He is a hideous murderer and will have to pay for his crime, we simply disagree on the costs he should pay. The Court's opinion reflects that simple reality and reflects that it will not use his case to narrow the death penalty, nor did any rational observer reasonably expect it to reach anything other than today's result. We've repeatedly seen 9-0 in favor of life this term and in favor of death, and today is not the last one for the term, simply just the latest.

With that said the tide has turned. The courts and the electorates are doing away with it, jury by jury, state by state. We are at roughly half the execution rate we were a decade ago. Juries are simply refusing even to send multiple murderers and cop killers to death row (indeed, the dice throw nature of the death penalty in recent years has increased, rather than decreased on the trail level). State courts appear to be reversing at greater rates than they were just a few years ago (save of course Texas and California). This is not 1976 or even 1996. Despite your efforts, this is not even a culture war issue. Were capital punishment still a culture war issue we would have seen a much more deeply divided court, but today, like several times this term, we haven't.

If your ever up in this neck of the woods (behind God's along the northern Delaware River), shoot an email & I'll buy the coffee.

Posted by: karl | Jan 13, 2010 12:41:30 AM

Before the grammarians kill me, that should have been "if you're." It is late here on the East Coast, my apologies.

Posted by: karl | Jan 13, 2010 12:52:13 AM

Before the grammarians kill me, that should have been "if you're." It is late here on the East Coast, my apologies.

Posted by: karl | Jan 13, 2010 1:05:01 AM

The Death Penalty Information Center, despite its deceptively
neutral-sounding name, is a fiercely anti-death penalty organization
(a cursory examination of the DPIC website will bear this out). Its
director, Richard Dieter, has, for years now, been extremely
successful in publicizing his list of more than 130 former death-row
inmates who he claims have been "exonerated". The plain
meaning of the word "exonerated" is to be totally cleared of
any involvement in a crime. Much of the mass media as well as
politicians (such as New Mexico's governor, Bill Richardson) have
uncritically and unquestioningly accepted as fact that upwards of 130
people have been sent to death row who had nothing to do with the
underlying crime.

Ward Campbell, the Deputy Supervising Attorney General for the State of
California, has written a well-researched and documented debunking of
Dieter's list of the "exonerated":
http://www.cjlf.org/files/CampbellExonerationInflation2008.pdf
Dieter's "exonerated" list is, at the very least,
debatable and, at worst, is part of a cynical disinformation campaign
which has as its ultimate aim the abolition of the death penalty.

As for the death of the death penalty, I'm not sure I buy it. Remember that the murder rate has gone down remarkably since the early 90s due, in large part, to truth-in-sentencing laws. So, one logical explanation for the decrease in death sentences, aside from the current prevalence of LWOP, is that there are simply fewer capital murders being committed.

Another thing: we may well see a tremendous spike in executions over the next couple of years. Bear in mind that California, Arkansas, Nebraska, Maryland, North Carolina, the federal government, Delaware, Washington, and Missouri have yet to totally wrap up their lethal-injection litigation. Missouri has at least ten inmates who've otherwise exhausted their appeals, the feds have six, California at least six and North Carolina might have upwards of 15. Pennsylvania also has a huge backlog (unrelated to 8th Amendment lethal-injection issues) and could well turn into a new Ohio. Moreover, Florida's got plenty of inmates whose appeals have been exhausted and whose death warrants Governor Crist has been inexplicably reluctant to sign.

What's more, wherever the death penalty has been abolished in the US (and Europe for that matter) it's been done by courts and legislatures in defiance of the will of the people as borne out by poll after poll. At least in the States, polls usually show in the neighborhood of 65% support for the death penalty. However, when people are asked whether they support capital punishment for particularly notorious murderers such as Timothy McVeigh or the Beltway Sniper, support often rises above 80%. Clearly, at the very least, Americans want to have a death penalty in place for the so-called "worst of the worst".

Posted by: Alpino | Jan 13, 2010 2:09:12 AM

not to make light of violence in prisons or anything, but i do have to wonder if mr. "adolf hitler told me to kill black people" would have lived over 20 years in prison had he not received a death sentence. maybe that was the defense attorney's strategy - this guy is more likely to live if given death than life and sent into the general population.

still, stevens opinion just makes no sense - if the defense attorney was really so bad that even a prosecutor would have commited misconduct if he gave that closing, how can you say its harmless error? special rule for defense attorneys stuck representing ineffective clients like mr. "one man aryan race war"?

Posted by: virginia | Jan 13, 2010 9:20:35 AM

As for your yet again straw man argument; I don't recall seeing any of the Supremes enthusiastically cheerleading for torture. So trying to drag them down onto your level doesn't work. Be proud of your contempt for the Constitution.

Posted by: Mark # 1 | Jan 13, 2010 10:05:34 AM

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