Ineffectiveness of Counsel: 4 Capital Cases - Coherence or Incoherence?

Four capital cases - each a gruesome crime - presenting ineffective assistance of counsel claims - have been decided (three without without argument)  by the U.S. Supreme Court. In two the death penalty is reinstated - in the third it is vacated.


Looking at the cases through the narrow lens it set in the landmark case Strickland v. Washington, 466 U.S. 668 (1984) the Court uses the harmless error approach.  The Court asks not whether the sentence is just - but whether the defense lawyers did enough to meet the constitutional minimum required by its understanding of the 6th Amendment.  It then asks whether an "error by counsel, even if professionally unreasonable" had an "effect on the judgment", that is the defendant must "affirmatively prove prejudice".  

In a larger frame questions arise:

What principle, if any, unites the three decisions?

Or do they reflect the biases, passions, and prejudices of the nine?
Is the Court improperly denying the right to a fair trial with a competent defense lawyer, interposing its own judgment for that of a jury?

Are the practice guidelines of the American Bar Association entitled to any particular weight - or do they reflect the views of an excessively protective minority as Justice Alito's concurrence in Van Hook seems to suggest?

Does service in combat really warrant decisive consideration as a mitigating factor when 40 years later a gruesome crime is committed, as the Court's opinion in Porter says it does?

In the first, Van Hook, the killer was the alcoholic child of abusive parents, who had been expelled from the military. The Court reversed the 6th Circuit Court of Appeals and reinstated the death penalty.

Is the court right to disregard the ABA's much more stringent practice guidelines developed after Van Hook's conviction? Is Van Hook's waiver of a jury trial irrelevant here?

In Wong v. Belmontes the killer experienced a religious conversion after the offense and made positive contributions to a youth rehabilitation program - but at the time of trial only evidence that mitigated the severity of the crime could be considered by the jury under California law. The Court reversed the 9th Circuit and reinstated the death sentence.

Is Justice Stevens right that since the evidence was inadmissible at the time in California there was no prejudice?

In Porter v. McCollum the court was moved to vacate the 11th Circuit decision which upheld the death sentence because George Porter, who shot his ex-girlfriend and her boyfriend,

is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

Is the fact that Porter's "horrible" family life - which led him to join the Army at 17 - was compounded by the ordeal of combat so important that it should be given decisive weight in mitigation of a crime that occurred 35 years later - as the Supreme Court does?

Are there really any consistent standards at work here?


Smith, Warden v. Spisak
Decided January 12, 2009
Merits Briefs


The Supreme Court unanimously reversed the 6th Circuit and reinstated the death sentence of Frank G. Spisak, Jr. (who has been in jail over a quarter century for three murders committed at Cleveland State University).  Spisak's attorney had argued at closing, according to Justice Stevens's concurring opinion:

“Sympathy, of course, is not part of your consideration. And even if it was, certainly, don’t look to himfor sympathy, because he demands none. And, 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.

And then the strategy really broke down: At no point did counsel endeavor to direct his negative statementsabout his client toward an express appeal for leniency. On the contrary, counsel concluded by telling the jury that “whatever you do, we are going to be proud of you,” which I take to mean that, in counsel’s view, “either outcome, death or life, would be a valid conclusion”.

Leading trial lawyers and teachers of trial advocacy (including Steven Lubet, Michael Tigar, and Herbert J. Stern) wrote as amicus curiae:

Amici are unsurprised that the Sixth Circuit commented that the same argument, if made by a prosecutor, “would likely have been grounds for a successful prosecutorial misconduct claim.” Spisak v. Mitchell, 465 F.3d 684, 706 (6th Cir. 2006)... See generally JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT §§ 9.14-9.15, 9.19, 9.21 (3d ed. 2003) (typical prosecutorial abuses in a closing argument include “appeals to the * * * prejudices of the jury,” “[a]ttacking the defendant—name calling,” and “express[ing] his personal opinion as to the * * * guilt of the defendant”).

If a fair trial requires the effective assistance of counsel, which includes zealous advocacy for one's client, not being a "friend of the court" and Spisak didn't get such a defense, wasn't the 6th Circuit right - and the Supreme Court wrong - that the courts have failed in their constitutional duty to assure a fair trial?