Court considers death sentence for Ohio neo-Nazi

WASHINGTON — The Supreme Court seemed receptive Tuesday to reinstating the death sentence of a flamboyant neo-Nazi convicted of murdering three men in Ohio more than a quarter century ago.

Ohio attorney general Richard Cordray told justices during oral arguments that Frank Spisak had a fair trial and deserves death. Cordray urged the high court to reverse a federal appeals court ruling that found Spisak’s trial lawyer was ineffective and that his jury received faulty sentencing instructions.

Spisak, 58, was convicted of three murders at Cleveland State University over a seven-month period in 1982 — crimes he said were motivated by his hatred of gays, blacks and Jews. At the same time, Spisak claimed his crimes were sparked by mental illness related to confusion about his sexual identity. He wants to have surgery to become a woman.

The 1983 trial became a public spectacle as Spisak celebrated his killings in court and openly discussed his hateful views. He even grew a Hitler-style mustache, carried a copy of Hitler’s book, “Mein Kampf” during the proceedings and gave the Nazi salute to the jury.

The 6th Circuit U.S. Court of Appeals in Cincinnati ruled that Spisak’s trial attorney essentially gave up on his client in closing arguments by conceding that Spisak was “demented” and “undeserving of sympathy.”

Cordray acknowledged the defense lawyer’s argument was far from perfect, but said the attorney — now deceased — did the best he could with an unsavory client. He said the defense lawyer instead appealed to the jury’s sense of humanity to spare from death a defendant who was obviously very troubled.

“I don’t see easily how he could have done better,” Cordray said.

Michael Benza, representing Spisak on appeal, said the former defense lawyer essentially abandoned his client.

“It is the role of a defense counsel to advocate,” Benza said.

But most of the justices were skeptical of Benza’s arguments.

Justice Ruth Bader Ginsburg noted that the Supreme Court had never found a defense lawyer to be ineffective solely on the basis of a closing argument if his conduct during the rest of trial was acceptable.

“You’re asking us to take a new tack,” she told Benza.

Chief Justice John Roberts said Spisak’s lawyer seemed to be trying to make the best out of a difficult situation by admitting to the jury that his client’s behavior was awful.

“It seems to me this disagreement is over different styles of strategy,” Roberts said.

Benza also argued that the instructions to jurors were flawed because they were not told that one juror’s vote against the death penalty would prevent a death sentence. Ohio law now includes such an instruction, although none was required at the time of Spisak’s trial.

It’s the second time the case has come before the high court. The justices reinstated Spisak’s death sentence two years ago in a 6-3 decision that scolded federal appeals courts for second-guessing trial judges in murder cases.

However, the appeals court reached the same conclusion it did the first time and threw out Spisak’s death sentence.

The case is Smith v. Spisak, 08-724.