Spisak v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0388p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant, -

FRANK G. SPISAK, JR.,

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No. 03-4034

v.

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BETTY MITCHELL, Warden, -

Respondent-Appellee. -

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 95-02675—Solomon Oliver, Jr., District Judge.

Argued: March 14, 2006

Decided and Filed: October 20, 2006

Before: MARTIN, MOORE, and CLAY, Circuit Judges.

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COUNSEL

ARGUED: Alan C. Rossman, Cleveland, Ohio, for Appellant. Carol Ann Ellensohn, ATTORNEY

GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for Appellee.

ON BRIEF: Alan C. Rossman, Cleveland, Ohio, Kreig J. Brusnahan, LAW OFFICES OF KREIG

J. BRUSNAHAN, Avon Lake, Ohio, for Appellant. Carol Ann Ellensohn, Charles L. Wille,

ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio,

for Appellee.

CLAY, J., delivered the opinion of the court, in which MARTIN, J., joined. MOORE, J. (pp.

28-30), delivered a separate opinion concurring in part and dissenting in part.

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OPINION

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CLAY, Circuit Judge. This appeal is brought by death-sentenced Ohio prisoner, Frank G.

Spisak, Jr., from the judgment of the district court dismissing Defendant’s application for a § 2254

writ of habeas corpus. Defendant challenges his sentence and convictions on the following grounds:

(I) that the trial court improperly struck the testimony and reports of expert witnesses and refused

to submit Defendant’s insanity defense to the jury; (II) his trial counsel rendered ineffective

assistance during the mitigation phase of his trial; (III) the unanimity and “acquittal-first” jury

instructions infringed Defendant’s constitutional rights; (IV) there was a Clemons violation where

the trial court upheld Defendant’s death sentence after re-weighing the aggravating and mitigating

1

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circumstances; and (V) that there was prosecutorial misconduct during various stages of the

culpability and mitigation phases of the trial.

For the reasons set forth below, we AFFIRM in part and REVERSE in part. We AFFIRM

the judgment of the district court as it relates to issues I, IV, and V, but we REVERSE the district

court’s judgment as to issues II and III, and REMAND with instructions to grant Defendant’s

petition as to these issues.

BACKGROUND

I. Procedural History

On March 29, 1983, the Cuyahoga County Grand Jury indicted Defendant Spisak on four

counts of aggravated murder in violation of Ohio Rev. Code § 2903.01; three counts of aggravated

robbery in violation of Ohio Rev. Code § 2911.01; one count of attempted murder in violation of

Ohio Rev. Code § 2903.02; and one count of receiving stolen property in violation of Ohio Rev.

Code § 2913.51. Pursuant to Ohio Rev. Code § 2929.04(A), the aggravated murder counts contained

nineteen death penalty specifications.

Defendant pled not guilty by reason of insanity, claiming to be a follower of Adolf Hitler,

as to all counts on April 8, 1983. Before trial, the court ordered Defendant to be evaluated by Dr.

Phillip Resnick (“Resnick”), to determine his competency to stand trial. Defendant also requested,

and was granted psychiatric evaluations by four other psychiatrists: Dr. Sandra McPherson

(“McPherson”), Dr. Kurt Bertschinger (“Bertschinger”), Dr. S.M. Samy (“Samy”), and Dr. Oscar

Markey (“Markey”). Thereafter, the trial court held a competency hearing, wherein it was

determined, based on Resnick’s recommendation, that Defendant was competent to stand trial.

A jury convicted Defendant on July 27, 1983 of all counts and specifications, except for one

of the aggravated robbery counts. After the mitigation phase of the trial, the jury recommended a

sentence of death, which was accepted by the trial court, and Defendant was sentenced to death on

August 10, 1983. Defendant was also sentenced to terms of seven to twenty-five years

imprisonment on each attempted murder and aggravated robbery conviction.

Defendant timely appealed his convictions and sentence to the Ohio Court of Appeals for

the Eighth District. The court found that Defendant was improperly convicted of two counts of

aggravated murder for the death of Timothy Sheehan, and vacated one of the two convictions. The

court affirmed the conviction and death sentence on the other aggravated murder charges, as well

as the five specifications attached thereto, leaving Defendant with three aggravated murder

convictions, and fifteen death penalty specifications. State v. Spisak, Nos. 47458, 47459, 1984 WL

13992 (Ohio Ct. App. 1984).

After a number of intervening appeals to the Eighth District Court of Appeals, and requests

for remand to the Ohio Supreme Court, Defendant finally filed his merits brief with the Ohio

Supreme Court on November 24, 1986, in which he raised sixty-four proposed errors of law. The

Ohio Supreme Court issued an abbreviated opinion on April 13, 1988, affirming Defendant’s

convictions and sentence. State v. Spisak, 521 N.E.2d 800 (Ohio 1988).

Defendant then petitioned the U.S. Supreme Court for a writ of certiorari, but the petition

was denied. Spisak v. Ohio, 489 U.S. 1071 (1989). Defendant spent the next six years filing and

appealing denials of countless motions for post-conviction relief.

On December 15, 1995, Defendant filed a Notice of Intent to File a Petition for Writ of

Habeas Corpus with this Court. Subsequent to filing the petition, Defendant filed a motion with this

Court on June 13, 1997 to stay his execution, which was granted.

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Defendant filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on

April 9, 1997, raising thirty-three grounds for relief. The district court issued an Opinion and Order

denying the petition on April 18, 2003, but the court granted Defendant a certificate of appealability

as to thirteen of his claims. Defendant filed a Rule 59 motion to alter or amend judgment on July

29, 2003. In response to that motion, the district court granted an additional certificate of

appealability as to one sub claim. Defendant timely appealed to this Court on July 31, 2003.

II. Factual History

In its rejection of Defendant’s direct appeal, the Ohio Supreme Court set forth binding

factual findings with respect to the overwhelming evidence adduced at Defendant’s trial. Under 28

U.S.C. §2254(e)(1), Defendant has “the burden of rebutting the presumption of correctness by clear

and convincing evidence.” Defendant does not challenge these factual findings, so we adopt them

below.

On February 1, 1982, the body of the Reverend Horace T. Rickerson was discovered

by a fellow student on the floor of a restroom on the Cleveland State University

campus. Rickerson had been shot seven times by an assailant from a distance of

more than eighteen inches. Four spent bullet casings were recovered from the scene.

On the evening of June 4, 1982, John Hardaway was shot seven times while waiting

for an RTA train at the West 117th Rapid Station in Cleveland. He observed a man

walking up the platform steps and had turned away when the man opened fire on

him. Hardaway survived the shooting, and was later able to identify his assailant as

the appellant, Frank G. Spisak. Three pellets and seven shell casings were recovered

from the scene.

At approximately 5:00 p.m. on August 9, 1982, Coletta Dartt, an employee of

Cleveland State University, left her office to use the restroom. Upon exiting the

stall, she encountered the appellant, holding a gun, who ordered her back into the

stall. Instead, Dartt shoved appellant out of the way and ran down the hallway.

Appellant shot at her, but missed. A pellet was later removed from a wall in the

hallway. Dartt identified the appellant as her assailant.

On August 27, 1982, the body of Timothy Sheehan, an employee of Cleveland State

University, was discovered in a restroom at the university by a security guard. The

guard had been searching for Sheehan after his office reported that he had failed to

answer his beeper page. Sheehan had been shot four times, and two pellets were

retrieved from the scene.

On the morning of August 30, 1982, the body of a young student, Brian Warford,

was discovered in a bus shelter on the campus of Cleveland State University.

Warford died from a single gunshot wound to the head, although five spent .22

caliber casings were recovered from the scene.

On September 4, 1982, Cleveland police answered a call that a man was firing shots

from a window at 1367 East 53rd Street. The police were directed to appellant’s

apartment and appellant, after admitting he had fired one shot, invited the officers

inside. A shotgun and a .22 caliber automatic pistol were observed in the room.

Appellant made a suspicious move toward the couch but was stopped by one of the

officers who discovered a loaded .38 caliber handgun and a two-shot derringer under

the couch cushions. Appellant was arrested for possession of unregistered handguns

and discharging firearms within city limits, but was later released on bond. The

weapons, however, were confiscated. Early the next day, an anonymous caller told

No. 03-4034 Spisak v. Mitchell Page 4

police that the confiscated weapons had been used in the Cleveland State University

shootings. Ballistics tests confirmed the tip. A warrant was obtained, and the police

returned to Spisak’s apartment, confiscating several items including newspaper

clippings of the homicides and Nazi-White Power paraphernalia. Appellant was later

arrested, hiding in the basement of a friend’s house. During a brief search of

appellant’s suitcase at the scene, police discovered the beeper pager belonging to

Sheehan.

Appellant later admitted to shooting Rickerson for allegedly making a homosexual

advance toward him; to killing Sheehan as a possible witness to the Rickerson

shooting; to killing Warford while on a “hunting party” looking for a black person

to kill; and finally, to shooting at Dartt and to shooting Hardaway. He also told

police he had replaced the barrel of the .22 caliber handgun in order to conceal the

murder weapon.

Spisak, 521 N.E.2d at 800-01.

STANDARD OF REVIEW

In habeas appeals, we review the district court’s legal conclusions de novo and the factual

findings for clear error. Jordan v. Hurley, 397 F.3d 360, 362 (6th Cir. 2005). However, following

the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State Court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim – resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by the Supreme Court

of the United States.

28 U.S.C. § 2254(d)(1) (2000). The inquiry is “limited to an examination of the legal landscape as

it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time

[the defendant’s] conviction became final.” Onifer v. Tyszkiewicz, 255 F.3d 313, 317-18 (6th Cir.

2001). For purposes of 28 U.S.C. § 2254 (d)(1), “clearly established law . . . ‘refers to the holdings,

as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court

decision.’” Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (quoting Williams v. Taylor, 529

U.S. 362, 412 (2000)).

A state court decision can be “contrary to” “clearly established federal law” if it applies a

rule that contradicts the governing law set forth in Supreme Court cases; or the state court decision

confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court

and nevertheless arrives at a result different from Supreme Court precedent. Williams, 529 U.S. at

405; Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001). The state court decision constitutes an

“unreasonable application” of “clearly established federal law” where the state court identifies the

correct governing legal rule from the Supreme Court’s cases but unreasonably applies it to the facts

of the particular state prisoner’s case; or the state court either unreasonably extends a legal principle

from a Supreme Court precedent to a new context where it should not apply or unreasonably refuses

to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407; Bailey,

271 F.3d at 655. A federal habeas court may not find a state adjudication to be “unreasonable”

“simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at

411. Rather, the issue is whether the state court’s application of clearly established federal law is

“objectively unreasonable.” Id. at 409.

No. 03-4034 Spisak v. Mitchell Page 5

AEDPA requires heightened respect for state court factual findings and legal determinations.

Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by

a state court is presumed to be correct, and the Defendant has the burden of rebutting the

presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

DISCUSSION

I. Not Guilty By Reason of Insanity Defense

Defendant sought to present an insanity defense to the jury during the guilt phase of his trial,

but the trial court disallowed the defense by: (1) striking the testimony of Defendant’s expert,

Markey; (2) refusing to allow any other experts to testify as to Defendant’s sanity; and (3) refusing

to instruct the jury as to an insanity defense. Defendant raised this issue on direct appeal to the Ohio

Eighth District Court of Appeals, which found that the trial court did not err in striking Markey’s

testimony since it did little to alter the presumption that Defendant was sane, and was likely to have

confused the jury on the issue. Spisak, 1984 WL 13992, at *5. The Eighth District Court of

Appeals further found that Defendant was not entitled to a jury instruction on the insanity defense

because Defendant had failed to meet his burden of going forward with evidence of legal insanity.

Id. at *6. The Supreme Court of Ohio summarily affirmed the Court of Appeal’s decision. State

v. Spisak, 521 N.E.2d at 800. On habeas review, the district court agreed with the Eighth District

Court of Appeals that Markey’s testimony would not aid Defendant’s insanity defense, and thus, that

Defendant’s constitutional rights were not violated by the exclusion of the testimony. The district

court further found that Defendant was not entitled to a jury instruction on the defense. Defendant

now appeals to this Court claiming that the district court erred in finding that Defendant was not

denied a fair trial by the exclusion expert testimony and evidence related to Defendant’s insanity

defense, and that the trial court did not violate clearly established federal law in refusing to submit

Defendant’s insanity defense to the jury.

A. Exclusion of Expert Testimony and Evidence

Defendant first argues that the district court infringed his fundamental right to a fair trial by

striking the testimony of his expert, Markey, and by excluding testimony and evidence from other

experts related to Defendant’s insanity defense. While it cannot be disputed that Defendant has a

fundamental right to a fair trial, we do not agree that this right was infringed by the state trial court’s

evidentiary ruling excluding what it considered to be irrelevant and potentially prejudicial expert

evidence.

“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a

complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal citations and quotations

omitted). Having the opportunity to be heard is an essential component of procedural fairness. Id.

Being allowed to present “relevant evidence is integral to that right.” Baze v. Parker, 371 F.3d 310,

323 (6th Cir. 2004) (citing Taylor v. Illinois, 484 U.S. 400, 408-09 (1988) for the proposition that

“[t]he need to develop all relevant facts in the adversary system is both fundamental and

comprehensive”).

Federal courts have long recognized, however, that “[a] defendant’s right to present relevant

evidence is not unlimited, but rather is subject to reasonable restrictions.” United States v. Scheffer,

523 U.S. 303, 308 (1998) (citations omitted). A defendant’s interest in relevant evidence “may, in

appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Rock

v. Arkansas, 483 U.S. 44, 55 (1987) (citations omitted) (“In applying its evidentiary rules a State

must evaluate whether the interests served by a rule justify the limitation imposed on the defendant's

constitutional right to testify.”). “As a result, state and federal rulemakers have broad latitude under

the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge

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an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the

purposes they are designed to serve.’” Scheffer, 523 U.S. at 308 (quoting Rock, 483 U.S. at 56).

The Supreme Court has, moreover, “found the exclusion of evidence to be unconstitutionally

arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.”

Id. (citing Rock, 483 U.S. at 56; Chambers, 410 U.S. at 302; Washington v. Texas, 388 U.S. 14, 22-

23 (1967)). “Only if an evidentiary ruling is so egregious that it results in a denial of fundamental

fairness does it violate due process and thus warrant habeas relief.” Baze, 371 F.3d at 323 (internal

citations and quotations omitted); see also Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003)

(“Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless

they offend some principle of justice so rooted in the traditions and conscience of our people as to

be ranked as fundamental.” (internal citations and quotations omitted)).

In Crane, the Supreme Court dealt with this issue of reviewing state evidentiary rules and

explicitly

acknowledge[d] [its] traditional reluctance to impose constitutional constraints on

ordinary evidentiary rulings by state trial courts. In any given case the trial judge is

called upon to make dozens, sometimes hundreds, of decisions concerning the

admissibility of evidence . . . the Constitution leaves the judges who must make these

decisions ‘wide latitude’ to exclude evidence that is ‘repetitive . . . ., only marginally

relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the

issues’

Crane, 476 U.S. at 689-90 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). The Court

further recognized that the States have the power “to exclude evidence through the application of

evidentiary rules that themselves serve the interests of fairness and reliability – even if the defendant

would prefer to see that evidence admitted.”1 Id. at 690 (citations omitted).

i. Markey’s Testimony

After conducting four sessions with Defendant, Dr. Oscar Markey, one of several psychiatric

experts retained by Defendant’s trial counsel, submitted a report in which he diagnosed Defendant

as suffering from a schizotypal personality and latent atypical psychotic disorder. Markey opined

in his report that Defendant would not have been able to control his impulse to assault his victims,

even though he knew that it was considered wrong by society. In light of this report, Defendant’s

trial counsel called Markey to testify at trial in support of the defense’s contention that Defendant

was insane at the time of the shootings.

Prior to allowing Markey to testify before the jury, however, the trial court conducted a fairly

extensive voir dire in which Markey was questioned about his conclusions as to Defendant’s mental

state. During the voir dire, Markey testified that Defendant suffers from a “schizotypal personality

disorder” and “atypical psychotic disorder,” but that he could not say that Defendant was psychotic

at the time of the killings. Markey later stressed that Defendant has a “latent psychotic condition,”

repeatedly emphasizing in response to questions from defense counsel as to whether Defendant

suffered from a mental illness, that Defendant’s mental illness was “latent” and that the “potential

is there,” but that Defendant “cannot be diagnosed as having an active psychotic illness.” (J.A. at

1

The Crane Court held, however, that “without ‘signal[ing] any dimunition in the respect traditionally accorded

to the States in the establishment and implementation of their own criminal trial rules and procedures,’” under those

circumstances, where the trial court had excluded evidence of the surrounding circumstances of a defendant’s confession,

that “the blanket exclusion of the proffered testimony about the circumstances of Defendant’s confession deprived him

of a fair trial.” Id. at 690 (citations omitted).

No. 03-4034 Spisak v. Mitchell Page 7

1990-91.) When asked whether Defendant knew that what he did was wrong, Markey replied, “[i]n

our society . . . I know that he knows that we believe it is wrong, and that in this society in which

he is trying to cure these ills, society thinks what he did was wrong,” but “in his view he did the

right thing and there is nothing to apologize for.” (J.A. at 2000.)

When defense counsel asked whether Defendant could refrain from these acts, Markey gave

a long, rambling, and confusing answer that prompted several more questions from counsel, but he

eventually replied that “certainly, there are times when he would refrain, and I think he must have

refrained in the past from acts like this because the consequences might be uncomfortable for him.”

(J.A. at 2007.) Markey then contradicted himself when asked whether Defendant was unable to

refrain from killing blacks and Jews, and responded that it would seem that Defendant was unable

to refrain from killing blacks and Jews. Markey then read from his report in which he stated that

Defendant was “unable to control his impulses to assault, though he was at the time, aware of its

being socially wrong.” (J.A. at 2009-10.)

On cross examination, the prosecution challenged Markey on his theory that Defendant did

not know the wrongfulness of his conduct.

Q. Do you know what the legal test for insanity is?

A. Yes.

Q. What is that?

A. Did he know right from wrong, was he able to control any impulses which would

have interfered with his knowledge of right from wrong.

Q. And would he be – or was he able to refrain from committing the acts that he

committed.

A. It was obvious, I think he knew the difference, but remember he is changing the

world by this act.

Q. Well, if you believe what he says, that he killed the Reverend because the

Reverend made a homosexual pass, you would agree that has nothing to do with his

Nazi theory?

A. That’s right.

Q. You also agree that he refrained from killing any Jews because as far as we

know, he is not charged with killing any Jews?

A. Because of what?

Q. He has not killed any Jews. Even if he espouses the philosophy of killing Jews,

he has not done so. Therefore, we can conclude that he has refrained from killing the

Jews. Fair enough?

A. Yes.

Q. I don’t think we have any disagreement. You do say in all of the instances he

knew the difference between right and wrong, and you do say in all of the instances

he was able to refrain from committing those acts if he would have decided to refrain

from doing it?

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A. Yes.

(J.A. at 2012-13.) After admitting that Defendant knew the difference between right and wrong,

and was able to refrain from his conduct, Markey later further contradicted his earlier conclusion

that Defendant could not refrain from killing blacks and Jews by conceding on re-cross examination

that he essentially agreed with the conclusion of another expert, Resnick, that “defendant knew the

difference between right and wrong and that he was able to refrain.” (J.A. at 2027-28.) Despite

these damaging and contradictory admissions, however, the trial court ruled that Markey’s

conclusion that defendant could not control his impulse to assault created a question of fact for the

jury, and decided to allow Markey to testify.

Once he was before the jury, Markey repeated his conclusions that Defendant suffered from

a “schizotypal personality disorder” and a “possibility of a breakdown, which could equate mental

illness.” (J.A. at 2074.) Again, however, Markey still would not directly answer “yes” or “no” as

to whether Defendant had a mental disease, but instead kept referring to the “potential,” while

conceding that Defendant did not “have an active mental disease.” (J.A. at 2079.) At this point, the

trial court excused the jury for an extensive sidebar, during which time the judge, in an effort to

ascertain Markey’s actual position on the issue of Defendant’s sanity, asked Markey several direct

questions about his diagnosis of Defendant.

Q. Doctor, in your opinion, obviously, it is based on reasonable medical certainty,

does Mr. Spisak have a mental disease, actively present?

A. Actively, no.

Q. Presently does he have a mental disease?

A. No.

Q. At the time these various crimes were committed, February 1, 1982 through

August 3, 1982, is it your opinion based on reasonable medical certainty that Mr.

Spisak had a mental disease at that time?

A. On the basis of what I know, no.

(J.A. at 2080.) The judge then recalled the jury, and defense counsel was allowed to continue

questioning Markey. On cross examination, the prosecution first got Markey to reaffirm that

Defendant does not have a mental disease, stating “so, we can put that aside, mental disease and

mental defect aside, and we agree that he does not have either one of these at this point, or in the past

that you know of, correct?” (J.A. at 2090.) Markey answered in the affirmative. Later towards the

end of the cross-examination, the following exchange occurred, at which time Markey restated that

Defendant could refrain from killing:

Q. All I’m indicating to you, doctor, and asking for your opinion is that he made a

conscious decision to shoot, or not to shoot on each case that we have in this

indictment?

A. Yes, he was not in a frenzy where he didn’t know what he was doing. He had a

conception of what he was doing and he realized that he could have –

Q. He could have refrained from pulling the trigger on any of those five, had he

chosen to do so?

A. Yes.

No. 03-4034 Spisak v. Mitchell Page 9

(J.A. at 2096.) Although Defendant’s trial counsel then tried to rehabilitate Markey’s testimony, it

only proved to be further damaging when Markey stated on re-direct:

The questions have been asked me before, indicate that in every instance in which

he did assault, whether he killed or not, he was calculating and knew whether or not

he could go ahead, in his view, he was positive in doing it, that he had enough

conscious control over it to do it at a time when it would be to his advantage. . . .

(J.A. at 2097-98.)

The following morning, the prosecution filed an objection to the continuation of Markey’s

testimony on relevancy grounds, since Markey testified that Defendant did not suffer from a mental

disease or defect at the time of the acts, and that Defendant knew the difference between right and

wrong and was able to conform his conduct to the requirements of law. The prosecution moved that

the testimony not continue and that it be stricken because it prejudiced the defense in that it re-

established the presumption of sanity, and because it did not add anything and was not relevant to

the issue since the law already presumes sanity. The prosecution further moved that the defense be

required to withdraw its plea of not guilty by reason of insanity because there was not “one scintilla

of evidence offered that the defendant is anything but sane, and was anything but sane at any of the

times in the five charges or five indictments.” (J.A. at 2103-04.) After hearing arguments from both

sides, the trial court granted the prosecution’s motion, reasoning that when a plea of not guilty by

reason of insanity is entered, the expert offered by the defendant “must meet a certain minimal

standard,” which the court concluded had not been met in this instance. (J.A. at 2118.)

Upon review of the transcript of Markey’s testimony, we agree with the district court that

the exclusion of Markey’s testimony did not violate Defendant’s fundamental right to a fair trial.

At the outset, we would like to note that this Court addressed a similar issue in the pre-AEDPA case,

Matlock v. Rose, 731 F.2d 1236 (6th Cir. 1984). The defendant in Matlock appealed the district

court’s denial of his habeas petition, challenging the trial court’s exclusion of a psychologist who

testified that defendant Matlock knew right from wrong only on the intellectual level of an eight or

nine year old. Id. at 1238. We rejected defendant’s argument that “the exclusion of this testimony

deprived him of his only defense, that of insanity,” finding instead that the testimony proferred

would not have supported an insanity defense under Tennessee law, and would in fact have probably

undercut one. Id. at 1243 (“The evidence excluded . . . would not have made out a case of insanity

. . . . At best, it would have shown that Matlock was retarded with some brain damage.”).

We find the situation in Matlock to be somewhat analogous to the present case, and therefore

conduct a similar analysis, beginning with Ohio’s legal definition of insanity, and proceeding to

consideration of whether the evidence proferred by Dr. Markey would have established that

Defendant met this standard. We conclude that it would not have.

Under Ohio law, as it stood at the time of Defendant’s trial, a person accused of a crime

could be found to be “not guilty by reason of insanity” if “at the time of such conduct as a result of

mental disease or defect, he does not have the capacity either2to know the wrongfulness of his

conduct or to conform his conduct to the requirements of law.” State v. Staten, 247 N.E.2d 293,

2

Defendant correctly argues that the district court applied the wrong standard for an insanity defense under Ohio

law at the time of his convictions. The district court utilized the standard for insanity set forth at Ohio Rev. Code

§ 2901.01(a)(14), which provides that “a person is ‘not guilty by reason of insanity’ relative to a charge of an offense

only if he proves . . . that at the time of the commission of the offense, he did not know, as a result of a severe mental

disease or defect, the wrongfulness of his conduct.” This was the incorrect standard because this definition of insanity

did not take effect until 1990, seven years after Defendant’s trial in 1983. Although this was the wrong standard, the

district court’s analysis of the issue of the admissibility of Markey’s testimony and ultimate conclusion is still correct.

No. 03-4034 Spisak v. Mitchell Page 10

296 (Ohio 1969). As illustrated by the above-recounted excerpts, far from establishing that

Defendant “had a mental disease or defect” and “did not know the wrongfulness of his conduct,”

Markey repeatedly stated that Defendant did not have a “present” mental defect or disease, and that

Defendant knew the wrongfulness of his conduct. Thus, Markey’s testimony could not have

supported Defendant’s insanity defense, and in fact, even more so than was the case in Matlock,

would likely have severely undercut such a defense since Markey explicitly diagnosed Defendant

as not meeting the necessary elements of the insanity defense under Ohio law.

We also agree with the Eighth District Court of Appeal’s conclusion that “there was a high

probability that [Markey’s] testimony would have confused the issue in the minds of the jurors and

would not have aided the jury in understanding the evidence or in reaching a determination an legal

sanity.” Spisak, 1984 WL 13992, at *5 (“[W]hen a defendant calls an expert to testify on the issue

of legal insanity, that expert’s testimony must still meet the basic requirements of the Rules of

Evidence.”).3 Markey’s testimony was often contradictory and inconsistent. He opined that

Defendant did not consider his actions to be wrong because he was ridding the world of bad persons,

but that Defendant knew that society considered his actions to be wrong. Markey first stated that

Defendant could not refrain from killing blacks and Jews, but then contradicted himself on cross

examination, admitting that Defendant could and did in fact refrain at times from engaging in such

conduct. Markey also thought the Defendant was a schizotypal personality, but that Defendant had

only a “latent” mental disease or defect, not one that was “actively present.” For the most part, it

is difficult for this Court, let alone a jury, to discern whether Markey actually believed that there was

a clinical diagnosis for what was wrong with Defendant. It does seem blatantly apparent from his

testimony, however, that Markey did not believe that Defendant met the legal definition of insanity

under Ohio law. Therefore, Defendant’s fundamental rights were not infringed by the trial court’s

decision to exclude Markey’s testimony.

ii. Other Expert Reports and Evidence

We similarly agree with the district court that the trial court properly excluded the other

expert reports where all of the experts opined that Defendant knew the wrongfulness of his conduct

when he carried out the shootings. After the district court excluded Markey’s testimony, the defense

proffered Exhibits D through K, which included expert reports from doctors Markey, Resnick,

McPherson, Bertschinger, Samy, Williger, and Althof, contending that these doctors would testify

to Defendant’s sanity and “would give a better profile of the characteristics and personality of the

defendant Frank Spisak such that the Court would at that time charge on the issue of sanity to the

jury.” (J.A. at 2121.) A detailed review of the proffered reports show, however, that none of the

doctors concluded that Defendant met the standard for insanity under Ohio law. Resnick concluded,

first, that Defendant did not have a mental disease or defect at the time of the crimes, and second,

that he “knew the wrongfulness and was able to refrain from each of the acts . . . charged.” (J.A. at

3204.) McPherson made the following diagnosis:

3

In deciding the issues on appeal, the Ohio Eighth District Court of Appeals cited to the following rules of

evidence:

Rule 403:

(A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading

the jury.

(B) Exclusion Discretionary. Although relevant, evidence may be excluded if its probative value is

substantially outweighed by considerations of undue delay, or needless presentation of cumulative

evidence.

Rule 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an opinion or otherwise.

No. 03-4034 Spisak v. Mitchell Page 11

Mr. Spisak’s functioning at this time is nonpsychotic, although he has potential for

deterioration under condition of minimal stress of [sic] even in situations where there

is lacking adequate external control . . . his accounts of the incidents do not meet the

criteria for an insanity defense. Nonetheless, he is a significantly disturbed

individual whose defect of mental state is pervasive, and was the general cause of his

acts.”

(J.A. at 3214-15.) Bertschinger also diagnosed Defendant as having a schizotypal personality and

stated the following:

The defendant, Frank Spisak, demonstrates severe defects in his personality structure

. . . He has severe conflicts regarding his sexual identity and his sexual impulses are

fused and intermingled with aggressive impulses . . . Generally speaking, personality

disorders are not considered to be mental disease or mental illness when being used

in an insanity defense. However, it is my opinion that Mr. Spisak’s personality

deficits are of such severity that he can be considered to have a mental illness or

mental disease. However, in carefully reviewing his mental state at the time of the

alleged crimes, it is my opinion that he knew the wrongfulness of his acts and had

the ability to refrain from the acts.

(J.A. at 3217.) Samy’s report from the Ohio Department of Mental Health stated in pertinent part

that Defendant was sane at the time of all the shootings, and that Defendant “was found to be not

mentally ill as defined by the Ohio Revised Code,” although “he has a personality disorder and

identity disorder.” (J.A. at 3225.) Lastly,4 Althof concluded that:

While one could make a case for a chronic psychotic process, his ego dysfunctions

are neither so pervasive nor profound, as to warrant such a severe diagnosis . . . A

personality disorder diagnosis does not do justice to the severity of the patient’s

psychological condition and yet his record is not consistent with that of an overt

psychotic disorder.

(J.A. at 3239.)

The partial dissent argues that Defendant had some right “to present evidence of his insanity

cumulatively.” Criminal defendants in Ohio do not have a right to cobble together an insanity

defense by selectively relying upon favorable portions of psychiatric expert reports when no single

report supports a finding of insanity. Nor do criminal defendants have an incontrovertible right to

offer psychiatric testimony in all circumstances where they believe it might conceivably advance

their defense. See State v. Wilcox, 436 N.E.2d 523 (Ohio 1982) (barring criminal defendants from

“offer[ing] expert psychiatric testimony, unrelated to the insanity defense” to negate mens rea); State

v. Taylor, 781 N.E.2d 72, 84 (Ohio 2002) (upholding a trial court decision to exclude expert

testimony which “did not support [the defendant’s] insanity defense, since all three experts

concluded he was not insane”). Further, criminal defendants certainly do not have a right to present

the sort of irrelevant and confusing testimony proffered by the experts in Defendant’s case. As

previously discussed, Markey’s testimony was riddled with contradictions: his statements on cross

examination often directly countered those on direct. The single point of agreement among all of

Defendant’s other experts was that Defendant had a personality disorder. Finally, even if the trial

court had admitted these reports, taken as a whole, they still would not have provided support for

a “not guilty by reason of insanity defense.” With the exception of Markey’s internally inconsistent

testimony, none of Defendant’s experts found that “at the time of the criminal act with which he

4

Williger’s report provides a detailed account of various interviews with Defendant and his family members,

but does not evaluate the information to reach independent conclusions about Defendant’s mental health.

No. 03-4034 Spisak v. Mitchell Page 12

[was] charged, either he did not know that such act was wrong or he did not have the ability to

refrain from doing that act.” See Staten, 247 N.E.2d at 299.

It was therefore consistent with Defendant’s rights for the trial court to exclude this evidence.

The Supreme Court has held that, under these circumstances, judges in the position of having to

make these decisions must have “wide latitude” to exclude evidence that they think is irrelevant,

potentially harmful or confusing to the jury. Crane, 467 U.S. at 689-90. While a defendant is

entitled to strong latitude in presenting his defense, we are not willing to substitute our judgment for

that of the state trial court in this instance, where the record shows that the trial court’s decision was

not objectively unreasonable, taking into consideration the language of the Supreme Court in Crane.

Although the partial dissent likens this case to Chambers and Crane, clear distinctions lie between

those cases and Defendant’s case. In Chambers, the trial court applied state evidentiary rules to

prevent the defendant from adversely examining his witness, a third party who previously confessed

to the crime charged against the defendant, and also excluded as hearsay the testimony of three

witnesses that the third party confessed to the crime. Chambers, 410 U.S. at 291-92. The testimony

excluded in Chambers was mutually reinforcing, and wholly exculpatory if credited by the jury. In

Defendant’s case, the psychiatric testimony and reports were contradictory – sometimes even

internally inconsistent, as with Markey’s stricken testimony at trial. Additionally, even if the jury

credited these inconsistent reports, they did not necessarily exculpate Defendant. Finally, while the

evidentiary rulings in Chambers were destructive of the trial court’s truth-finding purpose, see id.

at 297 n.8 (“The ‘voucher’ rule has been condemned as archaic, irrational, and potentially

destructive of the truth-gathering process.”), the trial court’s rulings here were consistent with the

goal of truth-seeking since Defendant’s contradictory and inconsistent expert testimony would only

engender confusion and speculation.

In Crane, the Supreme Court found that a “meaningful opportunity to present a complete

defense” included the right to present “competent, reliable evidence bearing on the credibility of a

confession when such evidence is central to the defendant’s claim of innocence.” 476 U.S. at 690

(internal citations omitted). There, the defendant confessed to the crime charged under coercive

circumstances and, pursuant to a pretrial ruling on a motion to suppress, the court excluded all

testimony at trial bearing on the circumstances of that confession. Id. at 690. Unlike the

“potentially exculpatory” and “indispensable” evidence in Crane, the expert testimony in

Defendant’s case merely established mental problems and not insanity. Thus, it cannot be said that

such testimony rose to the level of “indispensable” or “potentially exculpatory.” Without question,

as the partial dissent asserts, Defendant’s experts were “competent” and “reliable” in their field.

Indeed, these experts so reliably discharged their function that they did not bend their findings or

shade their words to find insanity where it did not exist. Their testimony, however reliable their

reputations, could not be taken to establish Defendant’s legal insanity under Ohio law.

Far from “mechanistically appl[ying] the evidentiary relevancy standard” here – a result

strongly disfavored where a defendant’s right to present a defense is involved – the trial court gave

Defendant’s expert every opportunity to meet the court’s evidentiary requirements. The trial judge

allowed Defendant’s expert to testify before the jury notwithstanding his persistent tendency to

contradict himself during voir dire, entertained his internally inconsistent testimony before the jury,

dismissed the jury for a sidebar during which the judge himself questioned Markey to clarify the

expert’s position, recalled the jury and allowed Markey to continue testifying, and ultimately

entertained the arguments of both the prosecution and defense on the relevance of Markey’s

testimony. This cannot be offhandedly equated with the type of “mechanistic” application of

evidentiary rules or “blanket exclusion” of evidence that so clearly deprives a criminal defendant

of his right to present a defense.

The evidence in the record simply does not support a conclusion that Defendant’s

fundamental right to a fair trial has been infringed by the exclusion of the expert evidence, where

No. 03-4034 Spisak v. Mitchell Page 13

the experts did not diagnose Defendant as being insane within the legal definition under Ohio law.

It was conceivably within the discretion of the trial court to have admitted this evidence, and

perhaps, were we in the position of the trial judge, we might have permitted Defendant to present

the testimony of his experts. Under the AEDPA standard, however, we cannot overturn the

discretionary evidentiary rulings of a state trial court in the absence of evidence that the trial court

acted in a manner that was contrary to, or a violation of, clearly established federal law.

The partial dissent draws support for the opposite conclusion from Ake v. Oklahoma, 470

U.S. 68, 81 (1985). Respectfully, such reliance is misplaced. As the partial dissent correctly

observes, Ake held that “due process requires that indigent defendants be afforded the assistance of

a psychiatrist in preparing a defense.” In this case, Defendant benefitted from the assistance of not

one, but seven experts in his attempt to demonstrate insanity. Those experts evaluated Defendant,

diagnosed him, and prepared reports detailing their diagnoses. Not one of those seven experts could

testify honestly and unequivocally that Defendant met Ohio’s legal definition of insanity. Nor could

their conclusions “cumulatively” justify that result. The holding in Ake does not require a trial court

to permit such irrelevant testimony.

B. Refusal To Instruct The Jury As To The Insanity Defense

Defendant also charges that the trial court improperly refused to instruct the jury on the

insanity defense. We disagree. The “not guilty by reason of insanity” defense is an affirmative

defense under Ohio law, and the defendant has the burden of going forward with the evidence of an

affirmative defense.5 Ohio Rev. Code 2901.05(A); see also State v. Humphries, 364 N.E.2d 1354,

1356 (Ohio 1977); State v. Chase, 378 N.E. 1064, 1068 (Ohio 1978) (“Under the statute, a defendant

who pleads not guilty by reason of insanity has the burden of going forward with evidence of a

nature and quality sufficient to raise the defense before the jury.”); State v. Robbins, 388 N.E.2d 755,

758 (Ohio 1979) (“The proper standard for determining in a criminal case whether a defendant has

successfully raised an affirmative defense under R.C. 2901.05 is to inquire whether the defendant

has introduced sufficient evidence, which, if believed, would raise a question in the minds of

reasonable men concerning the existence of such issue.”).

Even though the burden of going forward is on the defendant, “[w]hen from the evidence

reasonable minds may reach different conclusions upon the question of insanity, such question of

fact is for the jury.” State v. Reynolds, 550 N.E.2d 490, 495 (Ohio Ct. App. 1988); State v. Filiaggi,

714 N.E.2d 867, 889 (Ohio 1999) (quoting State v. Thomas, 434 N.E.2d 1356, syllabus (Ohio 1982))

(“The weight to be given the evidence and the credibility of the witnesses concerning the

establishment of the defense of insanity in a criminal proceeding are primarily for the trier of the

facts.”) “If however, after giving the evidence the most favorable interpretation in favor of the

defendant, reasonable minds can come to but one conclusion and that conclusion is adverse to the

defendant, it is the trial court’s duty to rule on the issue as a matter of law.” Id. (citations omitted)

(holding that there was enough evidence to permit a reasonable jury to find that Reynolds was

legally insane at the time the crime was committed; therefore, it was error for the trial court to

withdraw the insanity defense from the jury and refuse to instruct the jury concerning the insanity

defense).

We have already discussed what we believe to be the insufficiency of Defendant’s proffered

expert testimony and evidence for establishing an insanity defense. In addition to proffering the

reports of the mental health experts, Defendant also called his sister and ex-wife to testify as to his

5

Ohio Rev. Code 2901.05(a) provides: “Every person accused of an offense is presumed innocent until proven

guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The

burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of

the evidence, for an affirmative defense, is upon the accused.”

No. 03-4034 Spisak v. Mitchell Page 14

mental state. Defendant’s sister, Nadine, testified that Defendant once told her about an incident in

which he killed somebody and that he seemed to take delight in the killing. “I thought he was crazy.

He had that wild look in his eyes.” (J.A. at 2131.) She also testified that she had often told

Defendant that “he was crazy” and that there was “something wrong with [him].” (J.A. at 2131.)

Nadine further testified about Defendant’s involvement with Nazi groups and teachings, and said

that she thought Defendant was insane for being a Nazi. She described incidents in which Defendant

would dress in a Nazi uniform, but at other times wear the Star of David while listening to Hitler

tapes. She also spoke about Defendant’s cross-dressing. Nadine told the court that she thought that

there was something dominating or possessing Defendant.

Defendant’s ex-wife, Laverne Spisak, also testified about Defendant’s listening to Hitler

records, and his cross-dressing. (J.A. at 2174-76.) Laverne testified that Defendant started cross-

dressing after a car accident in 1976 that “messed his mind up . . . he was a little sick . . . it affected

his mind very bad.” (J.A. at 2176-77.) She said that she told him that he was “sick in the head” and

needed help. (J.A. at 2178.) Laverne described one incident in which Defendant brought home a

man dressed as a woman, and went to bed with the man, leaving her on the couch. Laverne testified

that she left Defendant at that point because she thought he was “sick in the head,” but later tried to

reconcile a couple of years later. (J.A. at 2180-82.)

Defendant seeks to rely upon the decision from the Ohio Second District Court of Appeals,

State v. Reynolds, 550 N.E.2d 490 (Ohio Ct. App. 1988), where the court ruled that lay witness

testimony could establish an insanity defense. In Reynolds, the trial court refused to instruct the jury

on the insanity defense because the expert had concluded that defendant Reynolds was

“psychologically troubled but not insane.” Id. at 495. The Second District Court of Appeals

reversed on the ground that Defendant had provided competent lay witness testimony from his sister,

that went to the issue of Defendant’s sanity. Id at 496. (“Where the jury has competent testimony

from lay witnesses that would permit the jury to conclude that a defendant’s reason was so impaired

by disease or other defect of the mind at the time of the criminal act that he either did not know that

such act was wrong, or did not have the ability to refrain from doing that act, a jury is permitted to

so find.”).

The Court found that the testimony provided by Reynold’s sister was enough to create a jury

question on the issue of insanity where the sister testified “concerning Reynolds’ extensive history

of hospitalization for mental illness, and his use of antipsychotic drugs.” Id at 494. The sister

provided information about Reynolds’ erratic behavior when he is off his medication, and further

testified that to her knowledge, Reynolds was not on his medication at the time of the assault that

was the subject of the trial. Id. The court found that this testimony was enough “from which a

reasonable juror might conclude that Reynolds’ reason was so impaired at the time of the criminal

act that he either did not know that such act was wrong, or did not have the ability to refrain from

doing the act.” Id. at 495.

In contrast to the lay witness testimony provided by the sister in Reynolds, the testimony of

the lay witnesses in the present case was not of a nature or quality sufficient to create a jury question

on the issue of Defendant’s sanity. Defendant’s ex-wife and sister described unusual, perhaps even

bizarre behavior that certainly may have been questionable and alarming for Defendant’s family,

but this type of behavior does not raise a question of legal insanity. Our society is rife with cross-

dressers, latent homosexuals, bisexuals and even Hitler-supporting Nazis. While this type of

behavior may be considered socially unacceptable by many, it by no means is determinative of legal

insanity.

Furthermore, juxtaposed against the testimony from Laverne and Nadine that Defendant was

crazy or that “there was something wrong with him,” there was also a great deal of evidence and

testimony about the fact that Defendant selectively chose his victims and the times he would kill,

No. 03-4034 Spisak v. Mitchell Page 15

in an effort to avoid being caught. This evidence suggests that Defendant was not unaware of the

wrongfulness of his conduct or unable to refrain from committing the murders. Dr. Resnick testified

and read extensive extracts from his report of his interviews with Defendant, and Defendant’s

account of the various incidents. For instance, after his first encounter with the victim Timothy

Sheehan, in which Defendant attempted to engage Sheehan sexually in the men’s room at Cleveland

State University, Defendant reported to Resnick that “he left the men’s room because he was unsure

if Mr. Sheehan might call the police, and spent 45 to 60 minutes in the library nearby.” (J.A. at

2278.) Defendant also reported that he shot Reverend Rickerson because Rickerson was in “his

stall,” he was in a bad mood, and also because Rickerson persisted in making homosexual advances

toward him. (J.A. at 2279.) Afterward, Defendant “ran out quickly because he was scared.”

Defendant admitted to Resnick that “he would not have shot him if others had been in the bathroom

for fear of being caught.” (J.A. at 2279.)

Defendant told Resnick that he tried to kill Coletta Dartt because he became angry when he

heard people making fun of the “White People’s Party.” He decided to teach her a lesson and

intended to “slap the shit out of her and rob her” when she came out of the ladies’ room at Cleveland

State. (J.A. at 2280.) Defendant also said that robbery was in part the motivation for the shooting

of Timothy Sheehan. He said that he needed money and “he thought in his mind that it was not fair

that this man had money and he did not” and “[h]e knew that if he did take money from him and let

him live, the victim might identify him in the future.” (J.A. at 2282.) Defendant then shot Sheehan

four times, and afterward, he reported that he searched Sheehan for cash and left “real quick because

he did not want to get caught.” (J.A. at 2282.) Defendant also reported that the Friday after the

shootings in the bathroom, he and a friend went out “looking for black people to shoot,” but did not

manage to shoot any. (J.A. at 2283.) They tried again the following Sunday, but again abandoned

their plan “rather than risk getting caught.” (J.A. at 2283-84.) According to Defendant, his friend

“was more conservative and discouraged him from shooting unless the situation was safe.” (J.A.

at 2284.)

Defendant’s own testimony at trial also contradicts the idea that he was insane at the time

of the killings. When asked why he killed Reverend Rickerson, Defendant responded that he killed

Rickerson “because he was bothering me. He was making obscene lewd gestures at me . . . He

wasn’t leaving me alone.” (J.A. at 1447.) Defendant himself testified that after shooting Sheehan,

he picked up the brass casings from his gun because the brass is worth money and also because “it’s

sloppy to leave it laying around.” (J.A. at 1602.) Defendant further testified that he shot Hardaway

on the other side of town away from Cleveland State, where the other shootings had taken place,

because “he didn’t want the police to link the two shootings together and link it to [him],” and he

“didn’t want to get caught.” (J.A. at 1791.) After testifying that he shot the victim Brian Warford

sitting in the bus shelter eight times in the head because Warford was “one of the enemies,”

Defendant then said that he felt good about the shooting, but “was just worried about getting back

across to the other side of the campus to where I put the car because I figured in the early morning

hours it was so quiet somebody was bound to hear all the shots.” (J.A. at 1573.) In further efforts

to avoid being linked to the murders, Defendant cut off the barrel and rubbed off the serial numbers

of the gun he used. (J.A. at 1767.) After police discovered that Defendant was the shooter, they

found Defendant hiding out in the cellar of a friend’s basement until he could leave town to avoid

capture. (J.A. at 1801.)

On the balance of the evidence presented at trial, we conclude that the trial court did not err

in refusing to instruct the jury on the insanity defense. Defendant did not present sufficient evidence

to make it an issue for the jury. The experts all concluded that Defendant was sane and knew the

wrongfulness of his conduct. The evidence of decisions that were made by Defendant to not act at

certain times or to take measures to avoid getting caught weigh heavily against a finding that

Defendant was legally insane. Also, the mere fact that Defendant was engaged in Nazi activities and

considered himself to be part of a race war does not create an inference that he was legally insane.

No. 03-4034 Spisak v. Mitchell Page 16

Defendant testified that he wanted to “get as many [black people] as I could before I got caught, one

thousand, a million, the more the better.” (J.A. at 1449.) Defendant said he armed himself “for the

race war.” (J.A. at 1451.) Again, while these views are anti-social and probably evidence of a

serious personality disorder, we are not prepared to hold that Neo-Nazi, racist and anti-Semitic

views establish a lack of guilt by reason of insanity, where the evidence clearly suggests that

Defendant did not have a mental disease or defect, and knew the wrongfulness of his conduct.

II. Ineffective Assistance of Counsel During Mitigation Phase

The Supreme Court first articulated the now familiar two-part test for determining whether

counsel is ineffective in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a

defendant seeking to establish that his counsel’s assistance was ineffective must show: (1) that his

counsel’s performance was deficient, in other words, that it “fell below an objective standard of

reasonableness;” and (2) that the defense was prejudiced by the attorney’s deficient performance.

Strickland, 466 U.S. at 687-88. Although trial counsel’s performance here is subject to de novo

review, the reviewing Court’s scrutiny of counsel’s performance is highly deferential, and counsel

is “strongly presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir.

1996) (overruled on other grounds). The reviewing Court must “evaluate the reasonableness of

counsel’s performance within the context of the circumstances at the time of the alleged errors.”

Id. (citations omitted). “Trial counsel’s tactical decisions are particularly difficult to attack, and a

defendant’s challenge to such decisions must overcome a presumption that the challenged action

might be considered sound trial strategy.” Id. (internal citations and quotations omitted).

In order to establish deficiency under Strickland, Defendant must show that counsel “made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed [Defendant] by the

Sixth Amendment.” Strickland, 466 U.S. at 687. To satisfy the prejudice prong of the Strickland,

“[t]he defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The

inquiry, when a defendant challenges a conviction, is whether “there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Id. at 695; see also Wiggins v. Smith, 539 U.S.

510, 537 (2003) (Defendant demonstrates prejudice if he can show that there is a reasonable

probability that “at least one juror would have struck a different balance”).

The Strickland Court explained that while strategic choices made after a thorough

investigation

are virtually unchallengeable . . . strategic choices made after a less than complete

investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words, counsel has a

duty to make reasonable investigation or to make a reasonable decision that a

particular investigation is unnecessary.

Id. at 690-91. Thus it follows that any decision to forego mitigation evidence is unreasonable if not

made after a reasonable decision to cease further investigation. See id.

A. Hostile Remarks During The Closing Argument Of The Mitigation Phase

Defendant first argues that his counsel rendered ineffective assistance during his closing

argument at sentencing by repeatedly stressing the brutality of the crimes and demeaning Defendant.

We agree. The transcript reveals that in the early part of the closing, trial counsel did focus rather

heavily on what he called the aggravating circumstances and the heinousness of the crimes.

Defendant’s trial counsel addressed the jury, telling them that “so little really needs to be said about

No. 03-4034 Spisak v. Mitchell Page 17

the degree of aggravating factors, clearly horrendous,” and pointed out that no one involved in the

trial was ever going to forget it or Defendant. (J.A. at 3061.) Trial counsel went on to make the

following disturbing remarks:

[E]veryone of us who went through this trial, we know we can feel that cold day

. . . or see that cold marble, and will forever . . . see Horace Rickerson dead on the

cold floor. Aggravating circumstances, indeed it is . . . the reality of what happened

there . . . you can smell almost the blood. You can smell, if you will, the urine. You

are in a bathroom, and it is death, and you can smell the death . . . and you can feel,

the loneliness of that railroad platform . . . And we can all appreciate, and you can

understand, and we can all know the terror that John Hardaway felt when he turned

and looked into those thick glasses and looked into the muzzle of a gun that kept

spitting out bullets . . . And we can see a relatively young man cut down with so

many years to live, and we could remember his widow, and we certainly can

remember looking at his children . . . you and I and everyone one of us, we were

sitting in that bus shelter, and you can see the kid, the kid that was asleep, the kid

that never [sic] what hit him, and we can feel that bullet hitting, and that’s an

aggravating circumstance . . . There are too many family albums. There are too

many family portraits dated 1982 that have too many empty spaces. And there is too

much terror left in the hearts of those that we call lucky.

(Id. at 3062-65.) The district court concluded that this extremely graphic and overly descriptive

recounting of Defendant’s crimes were an appropriate part of trial counsel’s strategy to confront the

heinousness of the murders before the prosecution had the opportunity to do so. The district court

reasoned that once counsel identified with their emotions towards Defendant, he could then explain

to them that their feelings were misplaced because Defendant was mentally ill. Had Defendant’s

trial counsel actually done the latter, and spent a substantial amount of the time humanizing and

rehabilitating Defendant in the eyes of the jury by arguing that Defendant was misguided or mentally

ill and deserved to have his life spared, then the district court might be correct that this was

permissible trial strategy. The record reveals, however, that trial counsel did very little to offset the

negative feelings that his own hostility and disgust for Defendant may have evoked in the jury.

Instead, as Defendant argues, trial counsel further denigrated Defendant and even went so far as to

tell the jury that Defendant was undeserving of mitigation.

Trial counsel’s efforts at presenting mitigating evidence consisted of telling the jury about

what he described as Defendant’s “sick twisted mind” and his association with the Third Reich and

the Nazis, and what counsel perceived it was like to be inside Defendant’s mind, based on

Defendant’s testimony about the murders. While trial counsel did then try to stress that Defendant

was mentally ill, even if not legally insane, trial counsel proceeded to undermine this limited effort

by making the following inexplicable remarks:

Sympathy, of course, is not part of your consideration. And even if it was, certainly,

don’t look to him for 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.

(J.A. at 3069.) Trial counsel’s performance did not improve after this, but rather counsel continued

to do further harm to Defendant by rambling incoherently towards the end of the closing statement

about integrity in the legal system. Trial counsel’s final moments were not devoted to a discussion

of the reasons why Defendant’s mental illness made him deserving of mitigation, but rather to

discussing all the other participants in the trial. Namely, trial counsel discussed the jurors, lawyers,

the judge, policemen, and the victims’ families, and focused on the importance of the jury’s decision

No. 03-4034 Spisak v. Mitchell Page 18

to all of these various individuals, instead of arguing how and why the mitigating factors outweighed

the aggravating factors. Most shocking of all, however, trial counsel suggested to the jury that either

outcome, death or life, would be a valid conclusion, by stating to the jury that “whatever you do, we

are going to be proud of you.” (J.A. 3101.)

We find persuasive Defendant’s argument that in pursuing this course, trial counsel

abandoned the duty of loyalty owed to Defendant, as was the case in Rickman v. Bell, 131 F.3d 1150

(6th Cir. 1997). In Rickman, counsel pursued a similar strategy of attempting to portray his client

as a “sick” and “twisted” individual which should mitigate the death sentence. Trial counsel’s

strategy in Rickman involved repeated attacks on his client’s character, eliciting damaging character

evidence about his client, making disparaging comments to any witness who spoke favorably about

his client, and apologizing to the prosecutors for his client’s crime. Id. at 1157. This court

concluded that counsel’s performance was “outrageous” because his attacks on Rickman equaled

or exceeded those of the prosecution. Id. The court found that the defendant was effectively

deprived of assistance of counsel in light of the severity of counsel’s conduct. Id. at 1160.

We believe that trial counsel’s actions discussed above are so egregious that they are

equivalent to those in Rickman, and similarly deprived Defendant of effective assistance of counsel,

in violation of the Sixth Amendment. Here, as in Rickman, trial counsel’s hostility toward

Defendant aligned counsel with the prosecution against his own client. Much of Defendant’s

counsel’s argument during the closing of mitigation could have been made by the prosecution, and

if it had, would likely have been grounds for a successful prosecutorial misconduct claim. As was

the case in Rickman, “[th]e effect [counsel] created was not one of pity for a pathetic [Defendant],

but one of hostility toward the hated and violent freak.” Id. at 1160. In light of all the circumstances

of this case, and even conceding that counsel faced some unique challenges, we still find that

Defendant has rebutted the “strong presumption” that counsel’s actions constituted “sound trial

strategy.” Strickland, 466 U.S. at 689. Defendant is correct that “there cannot be any objectively

reasonable tactical reason to argue to the jury in a mitigation phase that one’s client has no

redeeming qualities, will never be rehabilitated, has never done a good deed, is not deserving of no

(sic) sympathy, and is entitled to no mitigation.” (Def.’s Br. at 64.) Absent trial counsel’s behavior

during the closing argument of the mitigation phase of the trial, we find that a reasonable probability

exists that at least one juror would have reached a different conclusion about the appropriateness of

death, and may have voted for life instead. Therefore, we reverse the district court’s denial of

habeas on this claim.

B. Failure To Adequately Investigate Defendant’s Background

We find unpersuasive, however, Defendant’s claim that trial counsel should have presented

more evidence to the jury during the mitigation phase of the trial. The Supreme Court has now

applied Strickland in the AEDPA context at least three times to hold that a defense attorney’s failure

to adequately investigate and present mitigating evidence at the sentencing phase of a death penalty

trial constitutes ineffective assistance of counsel. See Rompilla v. Beard, 545 U.S. 374, 383 ( 2005);

Wiggins, 539 U.S. at 537-38; Williams, 529 U.S. at 390. In those cases, the Court cautioned that

trial counsel has an “obligation to conduct a thorough investigation of the defendant’s background”

in death penalty cases. Wiggins, 539 U.S. at 522 (citing ABA guidelines advising attorneys to

conduct through investigations); Williams, 529 U.S. at 396. In this context, the Supreme Court has

warned against a tendency to invoke “strategy” as a “post-hoc rationalization of counsel’s conduct

[rather] than an accurate description of their deliberations prior to sentencing” to explain counsel’s

decisions. Id. at 527.

This Court has to first determine whether counsel conducted a reasonable investigation of

Defendant’s background. Prior to trial, an extensive social history was obtained on Defendant,

based on interviews with Defendant, his father, mother, and two sisters as well as various medical

No. 03-4034 Spisak v. Mitchell Page 19

records. The report contained information about the family dynamics, including the fact that

Defendant’s father was emotionally distant and that his mother was a strict disciplinarian.

Defendant argues that this information should have led to further investigation into his background,

and that trial counsel should have presented various childhood experiences as mitigating evidence.

However, the only relevant background that Defendant argues should have been put forth is the fact

that he had an extremely strict mother who humiliated and hit him when he displayed sexual

behavior, and who also taught him to hate people of color and others whom she deemed to be

“undesirable” or “repulsive.” (Def.’s Br. at 68-72.) Defendant argues that this information would

have helped the jury understand his troubled history and would have provided some explanation for

his behavior.

Despite Defendant’s claim that more information should have been presented, the record

shows that the various mental health experts retained by defense counsel to establish an insanity

defense all testified and talked about Defendant’s childhood, and the fact that it was marked by

social isolation and a lack of ability to form inter-group relationships. The experts also discussed

Defendant’s gender confusion, and how that was tied to violent tendencies and the urge to kill.

During Dr. Bertschinger’s testimony, counsel inquired into, and Bertschinger discussed, Defendant’s

pursuit of a sex change operation.

In light of the evidence that was presented, we do not agree that trial counsel was ineffective

in failing to properly investigate Defendant’s background. Moreover, even if there should have been

more investigation, Defendant must demonstrate that he suffered prejudice as a result of counsel’s

omission, and that at least one juror would have reached a different result had this additional

evidence been presented. See Wiggins, 539 U.S. at 536; Hamblin v. Mitchell, 354 F.3d 482, 493

(6th Cir. 2003). Defendant has not shown that a reasonable probability exists that one juror would

have reached a different conclusion given additional evidence. The best chance of mitigation

available was in fact the evidence that Defendant was, to some degree, mentally ill. If the extensive

evidence of Defendant’s severe personality disorder, flirtation with the idea of having a sex change,

sexual confusion, and social isolation was not enough to sway jurors, then we do not believe that

evidence that Defendant’s mother was a strict disciplinarian would have changed the mind of at least

one juror.

Furthermore, this additional evidence does not rise to the level that this court generally has

required to demonstrate prejudice. See Hamblin, 354 F.3d at 490-91 (where counsel failed to

discover evidence of extreme poverty, neglect, violence, and instability, as well as a mental

disorder); Coleman v. Mitchell, 268 F.3d 417, 450-51 (6th Cir. 2001) (where counsel did not

discover defendant’s history of abandonment, physical and psychological abuse, and pedophilia, as

well as personality disorder and probable psychosis); Greer v. Mitchell, 264 F.3d 663, 678 (6th Cir.

2001) (counsel did not follow-up on knowledge of family history which included violence, foster

care, incarceration, and alcoholism); Carter v. Bell, 218 F.3d 581, 596-97 (6th Cir. 2000) (counsel

did not investigate childhood history of violence and instability). Defendant’s only additional

evidence is that his mother was a strict disciplinarian, his father was often absent, that his mother

would hit him for expressing sexual behavior, and that his mother taught him to distrust black

people. Taken together, this is not enough to establish prejudice. Indeed, Defendant’s childhood

appears to have been relatively stable, with no poverty, and an absence of physical abuse, other than

corporal punishment.

We should also note that we find unpersuasive Defendant’s argument that it was

unreasonable for trial counsel to utilize the same experts who were retained to testify as to

Defendant’s sanity. This argument has no merit where the record establishes that these experts did

in fact testify during mitigation about the effects that Defendant’s childhood, sexual confusion,

racism, and “personality disorders” may have had on his behavior. There was no need for counsel

No. 03-4034 Spisak v. Mitchell Page 20

to retain a new battery of experts to essentially reproduce what had been done by doctors Markey,

McPherson, and Bertschinger.

Lastly, we do not believe that it was unreasonable for trial counsel to push to have the

mitigation phase of the trial begin the day after the jury rendered the verdict. Several of the experts

were leaving town, and trial counsel decided not to seek a continuance. While Defendant argues that

this expeditious push to mitigation meant that trial counsel had not had time to prepare the strongest

possible mitigation case, we have no way to determine from the record below how or when trial

counsel prepared for mitigation. As far as we know, trial counsel may have had, and certainly

should have had, a team working on mitigation for weeks beforehand, thereby making it unnecessary

to seek a continuance. We are not in a position to say that trial counsel’s failure to seek a

continuance constituted a deficiency that caused Defendant prejudice.

In conclusion, we grant Defendant habeas relief on his ineffective assistance of counsel claim

on the basis of counsel’s hostile and inept statements and lack of advocacy during the closing

argument of the mitigation phase of the trial.

III. Acquittal First Jury Instruction

Defendant next claims that the trial court unconstitutionally instructed the jury that its

sentencing decision had to be unanimous and gave an improper “acquittal-first” jury instruction.

The district court concluded, and we agree, that Defendant’s argument has merit under this Court’s

prior holding in Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003). In Davis, this Court granted habeas

relief to a death sentenced defendant because it determined that the acquittal-first jury instruction,

combined with a verdict form that required the signature of all twelve jurors, likely led the jurors

to conclude that mitigation factors also had to be found by all twelve jurors, thereby precluding an

individual juror from giving effect to mitigation evidence not found by the others. Id. at 689.

While a trial court’s sentencing phase instructions may require juror unanimity as to the

results of the process of weighing aggravating circumstances and mitigating factors, the instructions

cannot require unanimity as to the presence of a mitigating factor. Mills v. Maryland, 486 U.S. 367

(1988); see also Roe v. Baker, 316 F.3d 557, 563-64 (6th Cir. 2002); Williams v. Coyle, 260 F.3d

684, 702 (6th Cir. 2001); Coe v. Bell, 161 F.3d 320, 337-39 (6th Cir. 1998). Further, an “acquittal-

first” instruction, which requires the jury to unanimously reject a death sentence before considering

other sentencing alternatives, is unconstitutional. Mapes v. Coyle, 171 F.3d 408, 416-17 (6th Cir.

1999). In McKoy v. North Carolina, 494 U.S. 433, 435 (1990), the Supreme Court ruled

unconstitutional any requirement that “prevents the jury from considering, in deciding whether to

impose the death penalty, any mitigating factor that the jury does not unanimously find.” Under

McKoy, each juror must be permitted to consider and give effect to mitigating evidence when

deciding the ultimate question whether to vote for a sentence of death. Id. at 443; Mills, 486 U.S.

at 374-75. Aggravating factors must be found unanimously because they are the elements of the

murder offense that make the defendant death eligible. Davis, 318 F.3d at 687. “Mitigating factors,

on the other hand, are not viewed as elements of the crime but rather as evidence relevant to a

defendant’s character or record or other circumstances of the offense that might lead a sentencer to

decline to impose the death sentence.” Id. at 688. Therefore, a state may not require unanimity in

finding mitigating factors because such a requirement “impermissibly limits jurors’ consideration

of mitigating evidence.” Id. (citing McKoy, 494 U.S. at 444). “In fact, as Mills and McKoy hold,

any requirement that mitigating factors must be found unanimously is incoherent.” Id. In other

words, “in order for Eighth Amendment law on mitigating factors to be coherent and capable of

judicial administration without serious confusion, a capital jury must understand that . . . a finding

with respect to a mitigating factor may be made by one or more members of the jury.” Id. (internal

citations and quotations omitted).

No. 03-4034 Spisak v. Mitchell Page 21

In light of the case law discussed above, this Court’s inquiry in the present case is, “whether

there is a reasonable likelihood that the jury has applied the challenged instruction in a way that

violates the Constitution.” Id. (quoting Jones v. United States, 527 U.S. 373, 390 (1999); Boyde v.

California, 494 U.S. 370, 380 (1990)). We think that the answer is “yes.” During the mitigation

phase, the trial court read the following instructions to the jury:

[T]he procedure which you must follow in arriving at your verdict in this sentencing

hearing is set forth in Section 2929.03 of the Revised Code of the State of Ohio . .

. you must determine whether, beyond a reasonable doubt, the aggravating

circumstances, which the defendant, Frank G. Spisak, Jr., has been found guilty of

committing in the separate counts are sufficient to outweigh the mitigating factors

present in this case. If all twelve members of the jury find by proof beyond a

reasonable doubt that the aggravating circumstances in each separate count

outweighs the mitigating factors, then you must return that finding to the Court. I

instruct you, as a matter of law, that if you make such a finding, then you must

recommend to the Court that a sentence of death be imposed upon the defendant,

Frank G. Spisak, Jr.

A jury recommendation to the Court that the death penalty be imposed is just that,

a recommendation. The final decision is placed by law upon the Court.

On the other hand, if after considering all of the relevant evidence raised at trial, the

evidence and the testimony received at this hearing and the arguments of counsel,

you find that the State failed to prove beyond a reasonable doubt that the aggravating

circumstances which the defendant, Frank G. Spisak, Jr., has been found guilty of

committing in the separate counts outweigh the mitigating factors, you will then

proceed to determine which of two possible life imprisonment sentences to

recommend to the Court . . . .

(J.A. at 3146-47.) These instructions are virtually identical to those given in Davis, which this Court

determined are “acquittal-first” jury instructions that failed to instruct the jury “that it need not be

unanimous in rejecting the death penalty.” Davis, 318 F.3d at 689. The Davis Court found that not

only did these instructions reflect a unanimity requirement, but the verdict form itself also reflected

one, in that it had a spot for all twelve signatures under a statement professing that the jury found

beyond a reasonable doubt that the aggravating factors did not outweigh the mitigating factors.

Davis, 318 F.3d at 689.

Similarly, in the present case, the verdict form also reflected a unanimity requirement for a

finding that the mitigating factors outweighed the aggravating factors. The trial court told the jury

that in order to impose a sentence of death, all twelve had to sign under the statement on the verdict

form stating that “we the jury, in this case, being duly impaneled and sworn, do find beyond a

reasonable doubt that the aggravating circumstance . . . was sufficient to outweigh the mitigating

factors . . . we the jury recommend that the sentence of death be imposed . . . .” (J.A. at 3149.) The

trial court further explained the method for using the verdict forms in the following manner:

There are four separate jury forms for counts five, six and . . . eight. Now, there is

also a set of verdict forms, same count numbers, read [sic] as follows:

‘We the jury, being duly impaneled and sworn, do find that the aggravating

circumstances which the defendant, Frank G. Spisak, Jr., was found guilty of

committing are not sufficient to outweigh the mitigating factors present in this case.

We the jury recommend that the defendant Frank G. Spisak be sentenced to life

imprisonment with parol eligibility after serving’ – there is an asterisk for a spot on

No. 03-4034 Spisak v. Mitchell Page 22

the verdict form for you to fill in either 20 or 30 years of imprisonment. And again,

all twelve of you must sign whatever verdict it is you arrive at [sic] must be signed

in ink.

(J.A. at 3149.) The instructions as to how to acquit for death and impose a life sentence did not

differ at all from the instructions as to how to impose death. In explaining the forms, the trial court

indicated that all twelve signatures were required to impose a sentence of death, and to acquit for

death and impose a life sentence. As we stated in Davis, this instruction,

combined with the jury verdict form, not only ‘could’ but by its plain language

‘would’ lead a reasonable juror to conclude that the only way to get a life verdict is

if the jury unanimously finds that the aggravating circumstances do not outweigh the

mitigating circumstances, an entirely different instruction from one that clearly

informs the jurors that a life verdict can be rendered by a jury that has not first

unanimously rejected the death penalty. Further adding to the confusion, the jury

was never told, either expressly or impliedly, that individual jurors may consider

mitigating factors in the weighing process regardless of the lack of agreement with

other jurors as to the presence of that factor.

Davis, 318 F.3d at 689-90.

In conclusion, we find that the silence on the lack of unanimity required to find mitigating

circumstances, the improper “acquittal-first” jury instruction, and the misleading verdict form and

instruction as to how to use the verdict form, would have led a jury to apply an unconstitutional

unanimity standard at all stages of the deliberative process. See id at 690.

IV. Clemons Violation

Defendant next argues that the trial court improperly instructed the jury on multiple

aggravating circumstances for each aggravated murder charge. While we agree with Defendant that

the jury was improperly instructed, the error was later remedied by the Ohio Supreme Court.

In Clemons v. Mississippi, 494 U.S. 738, 741 (1990), the Supreme Court held that the

“[f]ederal Constitution does not prevent a state appellate court from upholding a death sentence that

is based in part on an invalid or improperly defined aggravating circumstance either by reweighing

of the aggravating and mitigating evidence or by harmless-error review.” According to the Court,

Nothing in the Sixth Amendment as construed by our prior decisions indicates that

a defendant’s right to a jury trial would be infringed where an appellate court

invalidates one of two aggravating circumstances found by the jury, but affirms the

death sentence after itself finding that the one or more remaining aggravating factors

outweigh the mitigating evidence.

Id. at 745. “We see no reason to believe that careful appellate weighing of aggravating . . .

circumstances in cases such as this would not produce ‘measured consistent application’ of the death

penalty or in any way be unfair to the defendant.” Id. at 748. During the reweighing process, the

state appellate court may not automatically affirm the defendant’s death sentence. Id. at 752.

Rather, the court must give the defendant “an individualized and reliable sentencing determination

based on the defendant’s circumstances, his background, and the crime.” Id.at 749. Recently, in

Brown v. Sanders, 126 S.Ct. 884, 892 (2006), the Supreme Court announced the new rule that:

An invalidated sentencing factor (whether an eligibility factor or not) will render the

sentence unconstitutional by reason of its adding an improper element to the

No. 03-4034 Spisak v. Mitchell Page 23

aggravation scale in the weighing process unless one of the other sentencing factors

enables the sentencer to give aggravating weight to the same facts and circumstances.

The Court’s concern in Brown was “the skewing that could result from the jury’s considering as

aggravation properly admitted evidence that should not have been weighed in favor of the death

penalty,” but “such skewing will occur, and give rise to constitutional error, only where the jury

could not have given aggravating weight to the same facts and circumstances under the rubric of

some other, valid sentencing factor.” Id. (emphasis in original).

Defendant was indicted on four separate counts of aggravated murder, with a total of

nineteen specifications. On appeal, the Eighth District Court of Appeals determined that Defendant

was improperly convicted of two counts of aggravated murder for the death of Timothy Sheehan,

stating that:

The appellant was indicted on four counts of aggravated murder for the murders of

three people. Two counts of aggravated murder, the fifth and sixth counts of the

indictment, were for the murder of one individual, Timothy Sheehan. The appellant

was subsequently convicted for and sentenced on all four counts of aggravated

murder . . . Accordingly while it was proper for the appellant to have been indicted

on two separate counts of aggravated murder for the murder of Timothy Sheehan he

could only be convicted on one of those counts.

Spisak, 1984 WL 13992, at *7. The Eighth District Court of Appeals thus vacated Defendant’s

conviction on the fifth count of aggravated murder, relating to Sheehan’s death, as well as the

specifications attached thereto. Id. The court of appeals then reweighed the aggravating and

mitigating circumstances as they related to the remaining counts and specifications, and upheld the

convictions and sentences on those counts. Id. at *8. Subsequently, the Ohio Supreme Court noted

that the trial court had also failed to merge certain specifications, and held the following:

Proceeding to our independent weighing of the aggravating circumstances and

mitigating factors presented herein, we note that appellant’s three aggravated murder

convictions specify fifteen separate aggravating circumstances under R.C. 2929.04.

However, as pointed out by appellant in his first proposition of law, for purposes of

sentencing the doctrine of merger herein applies. Each aggravated murder count

should thus contain only one specification that appellant’s acts were part of a course

of conduct involving the purposeful killing of or attempt to kill two or more persons.

R.C. 2929.04(A)(5). Similarly, specifications pursuant to R.C. 2929.04(A)(3)

(escaping detection, apprehension, trial or punishment) and R.C. 2929.04(A)(7)

(felony murder) are duplicative of and thus merge with R.C. 2929.04(A)(5), since

these aggravating circumstances arise from the same indivisible course of conduct.

Although the court of appeals did not apply the merger doctrine below, we have

determined that the jury’s consideration of the duplicative aggravating circumstances

during sentencing did not affect their verdict. Furthermore, we have independently

determined that the remaining aggravating circumstances outweigh the mitigating

factors beyond a reasonable doubt.

Spisak, 521 N.E.2d at 803.

After reviewing the state court proceedings, the district court held, and we agree, that the

Ohio Supreme Court did not unreasonably apply federal law in independently reweighing the

aggravating and mitigating factors, and upholding Defendant’s convictions and sentence. While it

is undisputed that the trial court committed error in not merging the death penalty specifications, the

Ohio Supreme Court’s independent reweighing was sufficient to remedy any error.

No. 03-4034 Spisak v. Mitchell Page 24

It is also clear that after merging the duplicative aggravating circumstances, the Ohio

Supreme Court gave the required individualized sentencing determination, see Clemons, 494 U.S.

at 749, in reweighing Defendant’s death sentence:

Of the mitigating factors specified in R.C. 2929.04(b) appellant relied solely on his

allegations that he lacked, due to a mental disease or defect, substantial capacity to

appreciate the criminality of his conduct or to conform his conduct to the law at the

time of committing the offense. Although there was testimony that appellant had

characteristics of borderline and schizotypal personality disorders, the bulk of the

testimony, from both defense and rebuttal expert witnesses, established that appellant

was sane at the time of the acts, that he could have refrained from committing them,

had he so chosen, and that he understood the nature of his acts but elected to carry

them out anyway.

Appellant admitted to being the principal offender in three murders and two

attempted murders. He did not have a significant history of prior criminal

convictions or juvenile adjudications, nor was his age a factor. He was not under

duress, coercion or strong provocation at the time of the crimes. His victims neither

facilitated nor induced the offense. Nothing in the nature and circumstances of these

deliberate murders tempers the gravity of the offenses. We concur with the jury and

lower courts that the balance of these factors lies heavily, and beyond reasonable

doubts, on the side of the aggravating circumstances of which the appellant was

convicted.

State v. Spisak, 521 N.E.2d at 803-04 (internal citations omitted). Unlike the case in Clemons, this

Court can clearly discern that the Ohio Supreme Court did in fact employ the proper method of

reweighing the aggravating and mitigating factors before upholding the death sentence. Clemons,

494 U.S. at 741.

Moreover, under the recently-decided Brown decision, which states that the sentence is

unconstitutional unless the jury could give aggravating weight to the same facts and circumstances

under one of the other sentencing factors, the reweighing was still sufficient to cure the error where

the Ohio Supreme Court merely invalidated some of the specifications because they were duplicative

of other specifications that were also considered by the jury. Brown, 126 S.Ct. at 892. The jury was

able to give aggravating weight to the same facts and circumstances in the remaining murder

convictions and death penalty specifications that were properly submitted to the jury.

We thus find that any error related the weighing of aggravating and mitigating factors during

the sentencing phase of Defendant’s trial was cured by the Ohio Supreme Court’s reweighing of the

factors, and therefore the Ohio Supreme Court did not violate clearly established federal law in

upholding Defendant’s death sentence.

V. Prosecutorial Misconduct

We lastly turn to Defendant’s prosecutorial misconduct claim. “In deciding whether

prosecutorial misconduct mandates that habeas relief be granted, the Court must apply the harmless

error standard.” Macias v. Makowski, 291 F.3d 447, 451 (6th Cir. 2002) (quoting Pritchett v.

Pitcher, 117 F.3d 959, 964 (6th Cir. 1997)). The relevant question is whether the prosecutor’s

remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due

process.” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Post-AEDPA, this

Court has adopted a two-step test to determine whether prosecutorial misconduct violates a

Defendant’s due process rights. First, we consider whether the prosecutor’s remarks were improper.

Id. at 452. If we determine that the remarks were improper, then we must “apply the four-factor test

No. 03-4034 Spisak v. Mitchell Page 25

set forth in United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994), to determine ‘whether the

impropriety was flagrant’ and thus violated the defendant’s due process rights.” Id. (quoting United

States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001)). The four factors to consider are: “(1) whether

the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant;

(2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks were

deliberately or accidentally made; (4) whether the evidence against the defendant was strong.” Id.

We must first consider Defendant’s allegations of prosecutorial misconduct and determine

whether the statements were improper before proceeding to an analysis under the four factors. The

district court found that while some of the prosecutor’s remarks may have been “repugnant, they did

not deny Spisak due process or inject any fundamental unfairness into the trial.” (J.A. at 238.)

Overall, we agree.

A. Beverly Murphy as a Rebuttal Witness

First of all, we do not believe that it was improper for the prosecution to call Murphy as a

rebuttal witness, but even if it was, none of the testimony elicited from Murphy was at all prejudicial

to Defendant. The prosecution called Murphy, over the objection of the defense, to rebut the

testimony of Dr. Bertschinger. The district court ruled that Murphy’s testimony did not rebut

Bertschinger’s testimony and that the “trial court erred when it permitted Murphy to testify,” but that

Defendant was not prejudiced by anything that Murphy said. (J.A. at 236.) We disagree with the

district court’s conclusion that Murphy’s testimony did not constitute rebuttal testimony.

The trial court allowed Murphy to be called as a rebuttal witness over the defense’s

objection because the prosecution had asked Bertschinger questions about the relationship that

Defendant, a self-professed Nazi supporter and white supremacist, claims to have had with Murphy,

an African-American prostitute. Bertschinger opined that Defendant had a romantic relationship

with Murphy, which reflected his personality disorder, given his alleged hatred of African-

Americans. In response, the prosecution called Murphy who contradicted this characterization of

her relationship with Defendant, testifying that the relationship was nothing more than a business

relationship. Murphy testified extensively about the frequency and manner in which Defendant

compensated her for sexual services, which included giving her guns. This testimony was

appropriate to rebut Bertschinger’s contention that Defendant had a romantic relationship with

Murphy.

Regardless, however, of whether the testimony was in fact rebuttal, we agree with the district

court that even if the testimony was inappropriate, it was not, under the first of the four Carter

factors, prejudicial to Defendant. Murphy did not reveal anything new that the jury had not heard

before, and her testimony was not inflammatory or damaging to Defendant. She merely recounted

facts that the jury had already heard, and offered her perspective that she and Defendant’s

relationship was nothing more than a business arrangement. Further, much of the testimony that

Defendant challenges, was actually given in response to defense counsel’s questioning on cross-

examination. We therefore conclude that Murphy’s testimony did not render Defendant’s trial

fundamentally unfair.

B. Improper Remarks During The Mitigation Phase

Defendant next claims that the prosecutor made improper comments during its cross-

examination of Bertschinger during the mitigation phase of the trial. Again, we find this claim to

be without merit. First Defendant argues that the prosecutor improperly described him as a whore,

but the record reveals that while the prosecutor did refer to Defendant’s homosexual prostitution,

he did not use the term whore. Moreover, these remarks were in reference to Bertschinger’s

testimony that Defendant admitted engaging in homosexual prostitution, and that these activities

No. 03-4034 Spisak v. Mitchell Page 26

contributed to the dissolution of Defendant’s marriage. These comments were therefore not

improper.

It was also not improper for the prosecution to make reference to Dr. Markey’s stricken

testimony where defense counsel “opened the door” to this questioning by addressing Markey’s

report on direct examination. Defendant also claims that the prosecution improperly stated that

Defendant “wanted to be a pimp,” but the record reveals that the question was posed to Bertschinger

as part of a discussion of Defendant’s tendency to date black prostitutes and have them live in his

home. Again, we do not believe that the remark was improper since it was only a passing reference

and was posed as a legitimate question; but even if it was improper, we still find that any potential

prejudice would have been minimal and would not have impacted the fundamental fairness of the

trial.

We also do not believe that Defendant was prejudiced by any of the prosecutor’s remarks

during the prosecution’s closing arguments of the mitigation phase of the trial. The prosecutor’s

argument was devoted to demonstrating that Defendant’s personality disorder did not outweigh his

culpability for the murders he had committed, and that Defendant’s actions were voluntary and he

knew what he was doing when he committed the crimes. Out of thirty-three pages of argument,

Defendant points to a few isolated comments to try to establish that his due process rights were

violated. Defendant points out that the prosecution accused him of fabricating testimony; of being

unwilling to support his wife; characterized Defendant as having no remorse; characterized the

expert testimony as insulting and being mumbo jumbo; likened Defendant to a rat who hides in the

basement; commented that Defendant would not have pled not guilty by reason of insanity if two

of the witnesses had not survived; and asked the jury “how many people does he have to kill before

we say enough is enough.” None of these minimal, isolated remarks, even if improper, prejudiced

Defendant or rendered his trial fundamentally unfair.

C. Cross-Examination of Defendant

Lastly, Defendant argues that the prosecution committed misconduct during his cross-

examination by questioning Defendant about his bizarre political and religious beliefs, his receipt

of public assistance, his failure to support his family, his homosexuality, his activities as a male

prostitute, and treatment of his wife. Again, we find this argument to be without merit where the

record reveals that the majority of these issues were in fact raised by Defendant’s trial counsel

during direct examination. Trial counsel’s direct examination of Defendant focused on Defendant’s

political and religious beliefs, associations with Nazis, hatred of blacks and Jews, and how those

hatreds drove him to the killings. Defendant also testified on direct about his homosexual activity,

cross-dressing, and consideration of a sex change operation. Defendant further testified that he

could not recall the reasons for his divorce, but that he continued to support his wife and daughter

afterward. As these matters were addressed on direct, they were the proper subject of cross-

examination.

We therefore conclude that the district court properly found that there was no prosecutorial

misconduct that denied Defendant due process or injected any fundamental unfairness into

Defendant’s trial.

CONCLUSION

For the foregoing reasons, we AFFIRM in part and REVERSE in part. We AFFIRM the

judgment of the district court as it relates to issues I, IV, and V, but we REVERSE the district

court’s judgment as to issues II and III, and REMAND with instructions to grant the Writ as to

issues II and III. Accordingly, we deny habeas relief with respect to the determination of

Defendant’s guilt, but remand for a new mitigation phase trial.

No. 03-4034 Spisak v. Mitchell Page 27

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CONCURRING IN PART, DISSENTING IN PART

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KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part. I

concur in the majority opinion, except for its treatment of Issue 1, Spisak’s insanity defense. I

believe that the trial court’s exclusion of expert testimony and evidence regarding Spisak’s insanity

defense and the trial court’s refusal to submit the insanity defense to the jury violated Spisak’s rights

to a fair trial and to present a complete defense, rights long recognized by the Supreme Court.

Therefore I would remand this case to the district court with instructions to grant a conditional writ

of habeas corpus, giving the State of Ohio 180 days to retry Spisak or release him from custody.

Spisak claims that he was legally insane because of a severe personality disorder (which

manifested itself with the bizarre and seemingly inconsistent beliefs and behaviors including racial

and ethnic hatred and sexual deviance) and that he was entitled to present evidence of his insanity

cumulatively, rather than needing to produce a singular expert who could testify to both prongs of

the Ohio insanity standard.

In order to succeed on his affirmative insanity defense, Spisak needed to “establish by a

preponderance of the evidence that disease or other defect of his mind had so impaired his reason

that, at the time of the criminal act with which he is charged, either he did not know that such act

was wrong or he did not have the ability to refrain from doing that act.” State v. Staten, 247 N.E.2d

293, 299 (Ohio 1969) (footnote omitted). When insanity is pleaded as a defense, and the evidence

is such that “reasonable minds may reach different conclusions upon the question of insanity, such

question of fact is for the jury.” State v. Gaines, 318 N.E.2d 857, 864 (Ohio Ct. App. 1974) (internal

quotation marks omitted). “If, however, after giving the evidence the most favorable interpretation

in favor of the defendant, reasonable minds can come to but one conclusion and that conclusion [is]

adverse to defendant, it is the court’s duty to rule on the issue as a matter of law.” Id. (internal

quotation marks omitted).

Spisak argues that “although none of the defense experts were prepared to specifically

conclude that Spisak was legally insane, their testimony was being presented as relevant and

material to specific elements of the insanity defense, from which the defense thereby hoped to meet

the burden of proof supporting an insanity defense.”1 Appellant Br. at 20. Spisak is correct that

cumulatively, his psychiatric experts did provide support for the necessary insanity elements. In his

report on the issue of sanity at the time of the act, Dr. Bertschinger stated that it was his opinion that

“Mr. Spisak’s personality deficits are of such severity that he can be considered to have a mental

illness or mental disease.” J.A. at 3217 (Bertschinger Rep. at 2). Dr. Markey’s report and proffered

testimony supported Spisak’s claim that he was unable to refrain from committing the criminal acts.

J.A. at 3192 (Markey Rep. at 3) (“I believe Spisak is in a latent psychosis (grandiose, paranoid,

lacking in finer feelings, etc.) and that he was unable to control his impulses to assault, though he

was at the time, aware of it’s being socially wrong.”); J.A. at 2082 (“I would say that [Spisak] was

aware [that his actions broke the law], and he was unable to change his actions even though he knew

that he was doing something that was against the law.”); J.A. at 2083 (agreeing that Spisak’s

personality disorder was of such gravity that he would not be able to conform his conduct to the

requirements of the law). Markey wavered on cross examination on his opinion that Spisak could

1

I have been unable to find any Ohio cases that address this cumulative approach to establishing an insanity

defense. It appears that the Ohio courts have neither recognized nor rejected this method of meeting the defendant’s

evidentiary burden.

No. 03-4034 Spisak v. Mitchell Page 28

not control his actions, but then on redirect restated that he believed Spisak was unable to control

his impulse to assault. J.A. at 2093-97 (Trial Tr. at 1992-96).

Under the Gaines standard above, when giving Spisak’s expert evidence the interpretation

most favorable to Spisak, I conclude that reasonable minds could reach different conclusions about

his sanity. Therefore, the issue of Spisak’s insanity should have been submitted to the jury to allow

it to consider his insanity defense. See Mathews v. United States, 485 U.S. 58, 63 (1988) (“As a

general proposition a defendant is entitled to an instruction as to any recognized defense for which

there exists evidence sufficient for a reasonable jury to find in his favor.”). I also believe that

Spisak’s argument that the Supreme Court of Ohio’s perfunctory dismissal of this claim was an

unreasonable application of federal constitutional law has merit. The Supreme Court has recognized

the essential nature of expert testimony in presenting an insanity defense, holding that due process

requires that indigent defendants be afforded the assistance of a psychiatrist in preparing a defense.

Ake v. Oklahoma, 470 U.S. 68, 81 (1985) (stating that “the testimony of psychiatrists can be crucial

and ‘a virtual necessity if an insanity plea is to have any chance of success.’”) (footnote omitted).

Furthermore, while most violations of state law are not sufficient to justify habeas relief, “[w]hen

an evidentiary ruling is so egregious that it results in a denial of fundamental fairness, it may violate

due process and thus warrant habeas relief.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).

Adverse evidentiary rulings by state courts do not harm a defendant’s due process rights unless they

“offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be

ranked as fundamental.” Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (internal quotation marks

omitted). The Supreme Court has repeatedly held, however, that a criminal defendant’s right to

present a defense, including presenting witnesses on his behalf, is a fundamental right. See

Washington v. Texas, 388 U.S. 14, 19 (1967) (“Just as an accused has the right to confront the

prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present

his own witnesses to establish a defense. This right is a fundamental element of due process of

law.”) (emphasis added); California v. Trombetta, 467 U.S. 479, 485 (1984) (“We have long

interpreted this standard of [fundamental] fairness to require that criminal defendants be afforded

a meaningful opportunity to present a complete defense.”) (emphasis added); Chambers v.

Mississippi, 410 U.S. 284, 302 (1973) (“Few rights are more fundamental than that of an accused

to present witnesses in his own defense.”). In this case, Spisak argues he was unable to present

expert evidence about his significant mental health problems, thereby limiting his fundamental right

to present a complete defense.

In addition, clearly established Supreme Court precedent holds that a state violates a

defendant’s right to a fair trial when it prevents him from introducing evidence essential to his

defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (concluding that the state court’s refusal to

allow the defendant to introduce testimony regarding the circumstances in which he confessed to

the police deprived him of a fair trial); Chambers, 410 U.S. at 302 (holding that the state court’s

exclusion of evidence critical to defendant’s defense, coupled with the refusal of the state to let the

defendant cross examine a witness, denied him due process). In Chambers, the defendant argued

that the state court violated his constitutional rights when it rejected potentially exculpatory witness

testimony because it was hearsay not meeting any recognized exceptions. The Chambers Court

acknowledged the need for defendants wishing to present evidence to comply with a state’s

“established rules of procedure and evidence,” and stated that “perhaps no rule of evidence has been

more respected or more frequently applied in jury trials” than the hearsay rule. Id. at 302.

Nevertheless, because the evidence proffered by the defense “bore persuasive assurances of

trustworthiness” and “also was critical to [the defendant’s] defense,” the Court concluded that the

defendant’s constitutional rights required its admission. Id. The Court stated, “[i]n these

circumstances, where constitutional rights directly affecting the ascertainment of guilt are

implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id.

No. 03-4034 Spisak v. Mitchell Page 29

In Crane, the Supreme Court also held that state evidentiary rules must sometimes give way

to a defendant’s constitutional rights. The Court stated that a defendant’s constitutional right to be

heard “is an empty one if the State were permitted to exclude competent, reliable evidence . . . when

such evidence is central to the defendant’s claim of innocence.” Crane, 476 U.S. at 690. The Crane

Court recognized the traditional respect afforded to the states in determining their own criminal trial

procedures and rules. Notwithstanding the Court’s “traditional reluctance to impose constitutional

constraints on ordinary evidentiary rulings by state trial courts,” the Court held, “we have little

trouble concluding on the facts of this case that the blanket exclusion of the proffered testimony

about the circumstances of petitioner’s confession deprived him of a fair trial.” Id. at 689-90

(emphasis added). The Court stated, the “[p]etitioner’s entire defense was that there was no physical

evidence to link him to the crime and that, for a variety of reasons, his earlier admission of guilt was

not to be believed.” Id. at 691 (emphasis added). The Court noted that it was not passing judgment

“on the strength or merits of that defense,” but that it thought “it plain that introducing evidence of

the physical circumstances that yielded the confession was all but indispensable to any chance of

[the defense] succeeding.” Id. (emphasis added).

Here, Spisak’s expert evidence (including Markey’s testimony and the reports prepared by

Bertschinger and the other experts) was as integral to Spisak’s entire defense as was the hearsay

evidence in Chambers and the confession evidence in Crane. Here the trial court mechanistically

applied the evidentiary relevancy standard, resulting in the “blanket exclusion of the proffered

testimony” of experts relating to his mental health. Crane, 476 U.S. at 690. Spisak’s “entire

defense” was that he was legally insane and therefore did not possess the culpability necessary to

commit the murders, and it is “plain” that his ability to introduce expert evidence of his mental

problems was “indispensable” if his insanity defense was going to have any chance of succeeding.

Id. at 691. The proffered expert evidence also appears to meet the levels of reliability that the Court

demanded in Chambers and Crane. Spisak’s expert testimony came from “competent, reliable”

psychiatric and psychological experts repeatedly relied upon by the Ohio courts, Crane, 476 U.S.

at 690, and it “bore persuasive assurances of trustworthiness.” Chambers, 476 U.S. at 302. The

evidence would have been subject to cross examination by prosecutors, allowing them ample

opportunity to point out the numerous conclusions contrary to Spisak’s insanity defense. Yet

without this evidence, the question of Spisak’s sanity never even reached the jury. In light of these

Supreme Court precedents holding that a defendant must be allowed to present evidence critical to

his defense, I would conclude that the Supreme Court of Ohio’s summary rejection of Spisak’s claim

was an unreasonable application of clearly established Supreme Court precedent. I would remand

this case to the district court with instructions to grant a conditional writ of habeas corpus, giving

the State of Ohio 180 days to retry Spisak or release him from custody.