Sixth Circuit Finds Ineffective Assistance of Counsel for Anti-Defendant Closing Argument (Rejecting the “Wind of Opposing Counsel’s Sails” Defense)

On October 20, 2006, a panel of the United States Court of Appeals for the Sixth Circuit granted habeas corpus relief to a death row inmate on two grounds: his attorney was constitutionally ineffective during the mitigation phase, and the trial court gave improper jury instructions. Spisak v. Mitchell, 03-4034 (6th Cir., Oct. 20, 2006)
This decision is worth a read to see just how ineffective a death penalty attorney can be. When I first reviewed the decision, I confused defense counsel’s closing argument with the prosecutor’s.

In this trial, defense counsel told the jury:

“Sympathy, of course, is not part of your consideration. And even if it was, certainly, don’t look to [the defendant] for sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at [the defendant], 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.”

The district court agreed with the state courts that these statements by defense counsel were a strategic effort to take the wind out of the prosecution’s sails. The theory is that a party should acknowledge the worst aspects of its case and then try to put it in context for the jury. But the Sixth Circuit disagreed holding that these hostile and over-the-top statements were “legitimate strategy,” as defense counsel focused exclusively on the negative and did nothing to try to contextualize it. Thus, the petitioner will get a new penalty phase trial.

The Sixth Circuit’s decision in this case is a good example of how a court has a duty to look at the totality of the circumstances to determine whether trial counsel’s actions are trial strategy rather than simply attributing and post-hoc explanation as “strategic.”