On January 11, 2008, the Sixth Circuit (Martin, Moore and Clay) issued an order reinstating its prior decision granting habeas relief to Frank Spisak, Jr., as to his death sentence. Spisak v. Hudson, ___ F.3d ___, 2008 WL 104956 (6th Cir. Jan. 11, 2008). In Spisak v. Mitchell, 465 F.3d 684 (6th Cir.2006), the panel had ruled that Spisak was prejudiced by his counsel´s deficient performance at the sentencing phase of the trial. Specifically, the panel condemned trial counsel’s closing argument which focused almost entirely on the heinous nature of Spisak’s crimes, as well as his deficient nature as a person. After the Sixth Circuit issued its decision, the Supreme Court granted the warden’s petition for writ of certiorari, vacated the judgment, and remanded for consideration of Carey v. Musladin and Schriro v. Landrigan.

Looking first to Musladin, the panel found it readily distinguishable from the case at hand. “[U]nlike Musladin, [the panel’s] holding in Spisak did not address an undeveloped area of the law.” Instead, the panel’s holding “relied on well-settled Supreme Court precedent regarding ineffective assistance of counsel, i.e., Strickland v. Washington, 466 U.S. 668 (1984) and Wiggins v. Smith, 539 U.S. 510 (2003).” That the Supreme Court had not squarely addressed a situation involving deficient performance during closing arguments at the sentencing phase of a capital trial did not prevent the court of appeals from finding that the state court unreasonably applied federal law as announced in Strickland. The panel pointed out that the Supreme Court has recognized that a state court’s application of a principle of federal law may be deemed unreasonable even though the facts in the case at hand differ from the case where the principle was announced.

Turning to Landrigan, the panel again found the case readily distinguishable. “Unlike Landrigan, Defense counsel in Spisak was clearly deficient inasmuch as he described Petitioner as ‘undeserving of sympathy’ and ‘demented.’” Further, unlike Landrigan, there was no evidence that Spisak prevented counsel from presenting a more persuasive case for leniency or that he had consented to what counsel did argue. Regarding prejudice, the panel found “it is one thing not to introduce mitigating evidence as in Landrigan, but it is quite another to lend credence to the aggravating evidence presented by the prosecution by essentially describing one´s own client as a monster.” The panel “remain[ed] convinced that had Spisak´s counsel not demonized Spisak in his arguments to the jury, there is a reasonable probability that at least one juror would have had a different opinion of the proper outcome in this case.”

The Georgia Supreme Court has unanimously ruled that when Richard Scott Harper’s case goes to trial, the Floyd County jury will not hear evidence of items seized during an illegal search of his desk. The State is seeking the death penalty against Harper for the murder of Thad John Glenn Reynolds.

The State will attempt to prove that Harper was a part-time pastor who had an affair with Reynolds’ wife and that the couple conspired to murder Reynolds, a close friend of Harper’s and a deacon at the church. The State alleges that Harper attacked Reynolds while he was at work, stabbing him 19 times. Both Harper and Reynolds’ wife were arrested and charged with murder and related crimes.

Harper applied for interim review by the Supreme Court to address several issues. His attorneys argued that one of the grand jurors was not the same person listed on the grand jury list. Although William A. Conner, Sr. served, William A. Conner, Jr., born 22 years later, was the person who should have served. As a result, they argued, the indictment must be thrown out. But the Supreme Court has upheld the trial court’s refusal to dismiss the indictment because the motion to do so was untimely.

However, the Supreme Court has reversed the trial court’s denial of Harper’s motion to suppress items seized from his desk at work on the grounds that the search warrant was invalid. Justice George Carley wrote for the Court. “Because a warrant was required for the search of Harper’s desk at work, because the warrant authorizing the search was issued without a showing of probable cause, because no exception to the warrant requirement has been shown, and because Georgia does not have a good faith exception to the search warrant requirement, the fruits of the search of the desk must be suppressed,” the opinion says.

On January 10, 2008, the Florida Supreme Court held that Ronald Williams was entitled to sentencing phase relief due to his trial attorney’s failure to present a mental health expert’s report that contained abundant mitigating information. Williams v. State, ___ So.2d ____, 2008 WL 90003 (Fla. Jan. 10, 2008). At the sentencing phase, the only evidence defense counsel had presented was about the help Williams provided to his loved ones. Despite this minimal presentation, the jury recommended a life sentence by a vote of eleven to one. The judge overrode the life recommendation, as he had the life recommendations in the prior trials of three of Williams’s codefendants. In light of the slim case in mitigation presented by defense counsel, the Florida Supreme Court upheld the override on direct appeal. During the post-conviction proceedings, the trial judge presided. He ruled, among other things, that Williams could not establish prejudice from the failure of defense counsel to present the mental health report. The judge reasoned that assessment of the possible impact of the report on the jurors was unnecessary given that the jury had already recommended a life sentence absent the report. Therefore, in the judge’s view, the only question was whether he would have declined to override the life recommendation had the report been presented to him. Finding that it would not have affected his decision, the judge ruled that Williams failed to establish prejudice.

The Florida Supreme Court first found that “[t]he personal and subjective analysis applied by the trial judge is legally flawed.” Rather, “the proper standard for prejudice is whether the omitted evidence would have provided a reasonable basis for a life recommendation and sentence.” Williams had presented two separate claims – that counsel was ineffective in failing to present the additional mitigation to the jury and that counsel was ineffective in failing to present the evidence to the trial judge at the final sentencing hearing. Given the jury’s life recommendation, Williams was unable to establish prejudice from any deficiency by counsel as it related to the jury. The Florida Supreme Court then turned to counsel’s failure to present the evidence to the trial court. It noted that “defense counsel was well aware, at the time of Williams´ sentencing, that he needed to ensure that there was sufficient mitigating evidence in the record to support a jury´s recommendation of life due to this trial judge´s practice of overriding jury life recommendations.” Despite counsel’s knowledge about the judge’s proclivity to impose death sentences irrespective of a life recommendation, “defense counsel failed to present the significant mitigation evidence contained in Dr. Larson´s report.” After looking to trial counsel’s confusing attempt to justify the omission, the Florida Supreme Court stated: “It appears counsel´s decision to withhold Dr. Larson´s evidence was based upon counsel´s overconfidence that a life sentence would be imposed and his erroneous belief that it was not necessary since his research seemed to show that this Court generally did not approve of overrides. However, counsel clearly missed the mark in overlooking our extensive case law that consistently requires some reasonable evidentiary basis for a life sentence in order to bar an override. Under Florida law, a trial judge is prohibited from rejecting a jury´s recommendation of life imprisonment if there is competent evidence of mitigation supporting a life recommendation at the time of sentencing.” On this record, deficient performance is found. Turning to prejudice, the Florida Supreme Court noted that “the omitted mental health report would have provided additional mitigation relating to at least three significant categories of mitigation: (1) evidence concerning Williams´ childhood, including information that he was raised in an impoverished and abusive home, where his mother would beat him with an extension cord when ‘the belt didn´t do no good’; (2) he had a lengthy drug and substance abuse history; and (3) the mental health expert´s opinion that Williams´ IQ was 75 and that he operates on the mental level of a thirteen-and-a-half-year-old male.” Importantly, the court’s “case law has consistently recognized the importance and significance of this kind of mitigation evidence.” The court therefore “conclude[d] that the important mitigation evidence that was available but was not presented by defense counsel would have provided an objective and reasonable basis for the jury´s recommendation and a sentence of life.” The existence of such evidence of mitigation in the record “operates to provide a basis for a life recommendation and, hence, preclude a trial judge´s override of the jury´s decision.” Williams was therefore prejudiced by trial counsel’s failure to present the evidence.

The Florida Supreme Court affirmed the denial of Williams’s other claims.