Supreme Court upholds death sentence for neo-Nazi

Lawyer for triple-murderer erred but didn't change outcome, justices say

The Columbus Dispatch/January 13, 2010

Washington - The U.S. Supreme Court yesterday handed Ohio Attorney General Richard Cordray a major legal victory by allowing the state to move closer to executing a self-described neo-Nazi convicted in 1983 of murdering three people in Cleveland.

In a unanimous decision, the high court struck down a ruling last year by the 6th U.S. Circuit Court of Appeals that had set aside the death penalty for Frank Spisak Jr., 58. The federal appeals court in Cincinnati had ruled that Spisak's original defense attorney violated his constitutional rights by providing a poor closing argument during the sentencing phase.

In addition, the federal appeals panel ruled that the trial judge incorrectly told jurors during sentencing that they had to unanimously reject the death penalty before they could consider a life sentence.

The court of appeals concluded that those instructions made it impossible for jurors to decide that Spisak was so insane that he should be sentenced to life in prison rather than face execution.

But Justice Stephen Breyer, writing for the majority, wrote that "there is not a reasonable probability that a more adequate closing argument would have changed the result."

Cordray, who is seeking re-election this year against either former Republican Sen. Mike DeWine or Delaware County Prosecutor David Yost, said the ruling made it unlikely that any future federal post-conviction appeals from Spisak would be successful.

"It's pretty definitive when you get a unanimous opinion from the Supreme Court emphatically upholding the sentence," Cordray said.

Cordray said the Cuyahoga County prosecutor's office in Cleveland would likely request an execution date.

Cordray personally appeared before the justices in October, the seventh time he has argued a case before the high court as either state attorney general or state solicitor. He has won four of those seven cases.

During his trial, Spisak wore a Hitler-style mustache, gave the Nazi salute and bragged about hating African-Americans and Jews.

But what sparked intense controversy were the closing arguments made during the sentencing phase by Spisak's attorney, Tom Shaughnessy, who died in 1997. At one point, Shaughnessy told the jurors that "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."

When Cordray appeared before the justices in October, he acknowledged that Shaughnessy did not make a "perfect" closing argument. But he insisted that the lawyer was trying to spare Spisak from a death sentence.

Shaughnessy's closing argument appalled Justice John Paul Stevens, who in a separate opinion described it as "thoroughly egregious" and "so outrageous that it would have rightly subjected a prosecutor to charges of misconduct."

But Stevens acknowledged that "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."

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