Frank G. SPISAK
A.K.A.: "Frankie Ann Spisak"
- Wanted to be Hitler
Number of victims: 3
Date of murders: February-August 1982
Date of birth: June
Victims profile: Rev.
Horace Rickerson, 57 /
Timothy Sheehan, 50 /
Brian Warford, 17
Method of murder:
Shooting (.22 hangun)
Location: Cleveland, Cuyahoga County, Ohio, USA
by lethal injection in Ohio on February 17, 2011
Supreme Court of the United
Smith, Warden v. Spisak
Frank Spisak was a frizzy-haired transvestite who was looking
forward to having a sex-change operation. He eventually decided he
no longer wanted to be a woman, but instead he wanted to be Hitler.
He stopped wearing frocks and make-up, and changed to silly suits,
slicked back hair and a toothbrush moustache.
In February 1982, Spisak launched his
first "seek and destroy mission" in which he was attempting to "clean up
the city." He walked onto the Cleveland State University and shot and
killed a 57 year old black minister, Rev. Horace Rickerson, in a men's
room. Four months later he shot John Hardaway, a 55 year old factory
worker on a transit platform. Hardaway survived and identified Spisak at
trial despite being shot seven times.
In August, Coletta Dartt, an employee
of Cleveland State University, left her office to use the restroom. Upon
exiting the stall, she encountered Spisak, holding a gun, who ordered
her back into the stall. Instead, Coletta shoved Spisak out of the way
and ran down the hallway. Spisak shot at her, but missed. She also later
Three weeks later, the body of 50 year
old Timothy Sheehan was found in a restroom at Cleveland State
University, shot four times. Spisak later claimed that he shot Sheehan
because hye thought that he may have been Jewish.
Three days later, Spisak gunned down
17 year old Brian Warford, a black CSU student at a bus stop near the
campus. Spisak was arrested in September for firing his gun out of his
apartment window, but was released on bail. Police then received an
anonymous phone call telling them to check the gun, a .22-caliber pistol.
The gun was linked to the Warford murder and Spisak admitted to the
At the trial Spisak pled insanity,
saying that the one-man war was launched under direct orders from God.
Tim Sheehan's son Brendan Sheehan grew up to become a prosecutor and was
seated as a trial court judge in Cuyahoga County in 2009. His father was
murdered on Brendan's 15th birthday.
State v. Spisak, Not Reported in N.E.2d, 1984 WL 13992 (Ohio App.
1984). (Direct Appeal)
Smith v. Spisak, 130 S.Ct. 676, 130 S.Ct. 676, 175 L.Ed.2d 595
Spaghetti with tomato sauce, a salad, chocolate cake and coffee.
For his final statement, Spisak recited Biblical verses from the book of
Revelations. In German, he read the first seven verses of the 21st
chapter of Revelations. The passage deals with the end of the world, the
return of Christ and the elevation of everyone to heaven. Interestingly,
Spisak's final statement included the first seven verses of the 21st
chapter of Revelations, but did not include the eighth verse which
mentions "the abominable, and murderers, ... and all liars, shall have
their part in the lake which burneth with fire and brimstone." At the
end of his statement Spisak said, "Heil Herr," which is roughly
translated to English as "Praise God."
Revelation 21 - A New Heaven and a New Earth - 1 Then
I saw "a new heaven and a new earth," for the first heaven and the first
earth had passed away, and there was no longer any sea. 2 I saw the Holy
City, the new Jerusalem, coming down out of heaven from God, prepared as
a bride beautifully dressed for her husband. 3 And I heard a loud voice
from the throne saying, "Look! God's dwelling place is now among the
people, and he will dwell with them. They will be his people, and God
himself will be with them and be their God. 4 'He will wipe every tear
from their eyes. There will be no more death' or mourning or crying or
pain, for the old order of things has passed away." 5 He who was seated
on the throne said, "I am making everything new!" Then he said, "Write
this down, for these words are trustworthy and true." 6 He said to me: "It
is done. I am the Alpha and the Omega, the Beginning and the End. To the
thirsty I will give water without cost from the spring of the water of
life. 7 Those who are victorious will inherit all this, and I will be
their God and they will be my children. (New International Version,
Ohio Department of
Rehabilitation and Correction
Inmate#: OSP #A175-472
Inmate: Frank W. Spisak Jr.
DOB: June 6, 1951
County of Conviction: Cuyahoga County
Date of Offense: 02-01-1993
Case Number: CR181411, CR176651B
Date of Sentencing: February 1, 1982, August 27, 1982, August 30, 1982
Presiding Judge: James J. Sweeney
Prosecuting Attorney: Doinald Nugent
Institution: Ohio State Penetentiary
Convictions: AGG MURDER, ORC: 2903.01; ATT MURDER (7-25 YEARS), AGG
ROBBERY (2 COUNTS) (7-25 YEARS)
Summary of Crime: Between February and August of
1982, Spisak murdered 57-year-old Reverend Horace Rickerson, 50-year-old
Timothy Sheehan and 17-year-old Brian Warford, on three separate
occasions on the Cleveland State University campus. Spisak shot Rev.
Rickerson seven times, shot Mr. Sheehan four times and shot Mr. Warford
once in the head. On 6/4/82 and 8/9/82, Spisak shot at two other people,
but each victim survived. Spisak later admitted to all of the murders.
On 4/13/88, the Ohio Supreme Court affirmed Spisak's
conviction and death sentence on direct appeal. On 4/18/03, the federal
district court denied Spisak's petition for a writ of habeas corpus. On
7/31/03, Spisak filed a notice of appeal to the 6th Circuit. On 3/14/06,
the 6th Circuit held oral argument. On 10/20/06, the 6th Circuit
reversed the district court's decision, vacated Spisak's conviction
based on an improper jury instruction claim and ineffective assistance
of counsel, and remanded to the trial court for re-trial. On 11/17/06,
the State filed a petition for rehearing en banc. On 12/12/06, Spisak
filed a memorandum in opposition.
Ohio executes murderer who 'hunted' blacks
By Alan Johnson - Dispatch.com
February 17, 2011
LUCASVILLE, Ohio -- When Frank Spisak was going on "hunting
parties" targeting blacks in Cleveland, Ronald Reagan was president, a
stamp cost 20 cents and the Cincinnati Bengals played in the Super Bowl
XVI. More than 10,000 days later, Spisak, 59, a triple murderer, was
executed today at the Southern Ohio Correctional Facility near
Lucasville. The time of death was 10:34 a.m. The 27 years between the
murders on the Cleveland State University campus in 1982 and Spisak's
final punishment was the longest gap in Ohio's 42 executions since 1999.
As Spisak's IV's were being hooked up, Jeffrey Duke,
the brother of one of Spisak's victims, said: "They ought to hook him up
to a generator. If I could get to him, that's what I'd do. A person like
him, thinking he could go around killing people because he didn't like
the color of their skin or their religion. I'm sorry, that's just the
way I feel."
Before the lethal chemical began flowing, Spisak
recited -- in German -- the first seven verses from the 21st chapter of
from the Book of Revelation. He had trouble reading the passage, which
had to be moved closer to him. He apparently did not read the eighth
verse, which says: "But the cowardly, the unbelieving, the vile, the
murderers, the sexually immoral, those who practice magic arts, the
idolaters and all liars -- they will be consigned to the fiery lake of
burning sulfur. This is the second death."
In a written statement handed out after the execution,
Cora Warford, the mother of the youngest victim, said: "In memory of my
baby boy, Brian Warford, I can finally say justice has been served. If
one can this brings closure, I can say it is peace of mind for me and my
Among the witnesses was John Hardaway, who survived
despite being shot seven times by Spisak. Spisak, who blamed mental
illness for his hatred of gays, blacks and Jews, was the last person in
Ohio to be lethally injected with sodium thiopental. The state will no
longer use the drug because the sole U.S. manufacturer stopped making it.
Beginning with the execution of Johnnie Baston on March 10, the state
will use pentobarbital, a fast-acting barbiturate that is more readily
Between February and August of 1982, Spisak shot and
killed the Rev. Horace Rickerson, 57; Timothy Sheehan, 50; and Brian
Warford, 18. He said he was going on "hunting parties" and hoped to
spark a race war in Cleveland. He shot Hardaway and shot at but missed a
woman on the urban university campus.
Spisak was an admirer of Nazi leader Adolf Hitler. He
carried a copy of Mein Kampf and grew a Hitler mustache during his 1983
Spisak suffered from bipolar disorder and had a
lifelong struggle over his sexual identity. He referred to himself as
Frances and in 1999 sued the state for "keeping her locked up on Death
Row in an all-male prison environment where she cannot receive
appropriate hormonal and surgical treatment for her physical and mental
Spisak lost all his appeals, including the last one
to the U.S. Supreme Court in which he argued that he should not be
executed because of Ohio Supreme Court Justice Paul E. Pfeiffer's
comments about the unevenness of the death penalty's application.
Gov. John Kasich agreed with the Ohio Parole Board's
unanimous recommendation against granting clemency for Spisak.
Spisak's "last meal" yesterday consisted of spaghetti
with tomato sauce, a salad, chocolate cake and coffee.
Frank Spisak executed for 1982 slayings of three
people at Cleveland State University
By Joe Guillen - Blog.cleveland.com
February 18, 2011
LUCASVILLE, Ohio - Frank Spisak, a self-proclaimed
Nazi who killed three people at Cleveland State University nearly 30
years ago in a racism-fueled rampage, was executed by injection Thursday
Spisak expressed no remorse for his crimes when given
a chance to say his final words. Instead, he read a handwritten note --
in German -- with verses one through seven of Chapter 21 in the Bible's
Book of Revelations.
Spisak, who wore a Hitler-style mustache and saluted
the Nazi leader during his 1983 trial, struggled at times to read the
note clearly, complaining that the words were blurry. "Heil herr,"
He was pronounced dead at the Southern Ohio
Correctional Facility at 10:34 a.m. Spisak, 59, was the 42nd Ohio inmate
executed since 1999 and the first executed this year. He spent more than
27 years on death row.
Over the course of several months in 1982, Spisak,
driven by his Nazi beliefs, killed three people at CSU - the Rev. Horace
Rickerson; CSU student Brian Warford; and Timothy Sheehan, an assistant
superintendent for buildings and grounds at the university. Spisak also
shot John Hardaway, a factory worker, and Coletta Dartt, a CSU employee.
Spisak would go on "hunting parties" and targeted Rickerson, Warford and
Hardaway because they were black, according to his parole records.
Relatives of Sheehan and Warford witnessed the
execution, along with Hardaway, U.S. District Judge Don Nugent, who
prosecuted Spisak, and Jim Oliver, a retired law enforcement officer who
investigated the shootings.
Jeffrey Duke, Warford's brother, became upset as he
waited for Spisak to enter the execution chamber. A monitor in the
witness viewing area -- separated from the execution chamber only by a
window -- showed medical staff in a nearby room preparing Spisak's veins
to receive the injection of sodium thiopental. Duke said he would prefer
that Spisak be connected to a "generator" or "batteries." "A person like
that, thinking he could just kill people because he didn't like the
color of their skin or religion," Duke said.
Spisak -- clean-shaven with dark colored boots on his
feet -- then walked into the chamber and was strapped to a bed. He
looked up and waved to his lawyers, Michael Benza and Alan Rossman, and
Bill Kimberlin, a Lorain Community College psychology professor who
befriended Spisak while researching death row inmates.
Warden Donald Morgan then put a microphone to
Spisak's face and asked him if he would like to say any last words. "Yes,
I would," Spisak said. "I would like to read from the Holy Bible."
A prison staffer held up Spisak's handwritten note as
he recited the Bible verses in German. A spokesman for the Ohio
Department of Rehabilitation and Correction provided reporters with
copies of the note before the execution. But Spisak struggled to read
his own words, drawing some amused chuckles from the victim's relatives.
"It's too far away," Spisak said. "I can't read it. It's blurry."
"Speak English, you fool," said Eric Barnes, another
brother of Warford's. Barnes held a piece of paper with two pictures of
his brother, one as a baby and the other as a young man. Warford was 17
when Spisak shot him.
As Spisak stammered through his statement, Cathy
Sheehan Daly, Timothy Sheehan's daughter, leaned over to Duke and said,
"He's making it up." Spisak finished his five-minute statement and the
injection began to flow. He let out a few deep inhalations, making a
snoring sound. He was pronounced dead 10 minutes later.
Spisak claimed he no longer was sympathetic to the
Nazi movement in an interview with the Ohio Parole Board on Jan. 4, yet
he told the board he was reading a biography of Hitler at the time.
Spisak claimed to be a more tolerant person. The relatives of victims
and others who witnessed the execution declined to be interviewed
In a statement, the Sheehan family said they will
continue to celebrate Timothy Sheehan's life. Brendan Sheehan, Timothy's
son and now a Cuyahoga County Common Pleas judge, and other family
members who did not witness the execution were at a nearby church
Thursday morning. "Today, we chose to celebrate the life of husband and
father, Timothy Sheehan, not the death of Frank Spisak," the statement
said. "We are grateful that the justice system has worked and appreciate
those in the criminal justice system whose diligent efforts have helped
bring this matter to a final resolution."
Cora Warford, Warford's mother, said in a statement:
"In memory of my baby boy Brian Warford, I can finally say justice has
been served. If one can say this brings closure, I can say it is peace
of mind for me and my family. Spisak will have to stand before a higher
court one day as we all will and may God have mercy on his soul."
Spisak's lawyers had tried to delay the execution.
They pleaded with the Ohio Parole Board and Gov. John Kasich to spare
his life because he is mentally ill with a bipolar disorder. But the
board decided, and Kasich agreed, the nature of Spisak's crimes
outweighed concerns about his mental health. An appeal filed with the
U.S. Supreme Court earlier this week also was denied. Last year, the
Supreme Court upheld his death sentence, reversing a previous ruling
that Spisak's sentencing hearing was unconstitutional.
Before his conviction, Spisak experimented with
cross-dressing and was confused about his gender, preferring to be
called Frances Anne. Numerous mental-health professionals evaluated
Spisak, who pleaded not guilty by reason of insanity, before his trial.
He was deemed competent when he killed.
After the execution, Spisak's lawyers lamented the
state's killing of a mentally ill man. "We know what the media is going
to say about Frances Spisak. But the truth is Frances was seriously
mentally ill and committed the crimes because of this mental illness,
not because of hate," Benza and Rossman said in a statement. "Maybe some
day we will see executions of mentally ill people for what it is:
Judge Sheehan, reached after the execution, said
Spisak knew what he was doing when he killed his father. He said
Spisak's final words in German only cemented that belief. "He showed his
true colors in the execution," Sheehan said. Spisak's will be Ohio's
last execution using the drug sodium thiopental. The drug's maker
objected to its use in executions and said it would stop production, so
Ohio will be the first state with a one-drug injection process using
pentobarbital, a sedative used during heart surgery.
As Nazi sympathizer Frank Spisak prepares for
execution, a surviving victim recalls his attack nearly 30 years ago
By Joe Guillen - Cleveland.com
February 16, 2011
COLUMBUS, Ohio — Nearly 30 years ago, John Hardaway
was heading home from work when Frank Spisak, a self-proclaimed modern-day
Nazi, ambushed him at a rapid-transit station and shot him seven times
in his arm and right torso, leaving Hardaway for dead on the platform.
Hardaway survived, but the shooting left him with chronic pain in his
right hand and the vivid memory of an attack that characterized the
senseless and brutal nature of Spisak's 1982 killing spree on Cleveland
State University's campus.
Spisak is set to die Thursday for his rampage, which
claimed the lives of three people at CSU -- the Rev. Horace Rickerson;
CSU student Brian Warford; and Timothy Sheehan, CSU's assistant
superintendent for buildings and grounds. Prosecutors said he targeted
Hardaway, whom Spisak had never met, Rickerson and Warford because they
were black. Sheehan was a potential witness in Rickerson's killing,
"I can still see the night he was shooting me,"
Hardaway, 83, said in a recent interview at his one-bedroom apartment on
Cleveland's East Side. "He was squatting down, pulling that trigger.
That will never go away. It ain't as bad as it was, but it hits me hard
sometimes. Why would he do a person like that?"
Spisak's execution, after he spent more than 27 years
on death row, will be the first of Gov. John Kasich's term. Spisak, 59,
is among the longest-serving Ohio inmates on death row.
But recent comments from an Ohio Supreme Court
justice have given new life to Spisak's attempts to avoid execution.
Justice Paul Pfeifer, a Republican, called this year for an end to the
death penalty law because he said it is not being applied as originally
intended. Based on these comments, Spisak's lawyers have asked to delay
the execution until the constitutionality of Ohio's death penalty is
decided in court. The 6th U.S. Circuit Court of Appeals denied the
request on Tuesday. Alan Rossman, Spisak's federal public defender, said
Tuesday evening that he intends to file the same request with the U.S.
Despite the last-ditch attempt to delay the execution,
Hardaway said he is relieved Spisak is headed for the execution chamber
at the Southern Ohio Correctional Facility in Lucasville. He feared
Spisak would outlive him as the appeals process carried on and on. "I'll
go down on my knees, on the side of my bed every night, to pray and see
if I would be able to live," Hardaway said. "I didn't know if I'd be
living this long after all that happened."
The U.S. Supreme Court denied what was thought to be
Spisak's final legal appeal in January 2010. Earlier this year, Spisak's
lawyers asked the Ohio Parole Board and Kasich to spare their client's
life, saying he is severely mentally ill with a bipolar disorder. The
Parole Board was not convinced the mental illness outweighed the nature
of his crimes. The board unanimously recommended that Kasich, a
Republican, deny Spisak's clemency request. Last week, Kasich followed
"Spisak killed three people, tried to kill at least
one other and shot a fifth in his admitted plan to kill as many African-Americans
as possible and start a race war in Cleveland," the board said in its
report to Kasich. "A recommendation for mercy is not warranted in this
case." Spisak said he committed the killings because he was a follower
of Adolf Hitler and was in a war for survival "of the Aryan people,"
according to court records.
Numerous mental-health professionals evaluated Spisak,
who pleaded not guilty by reason of insanity, before his 1983 trial. He
was deemed competent when he killed. Aside from the violence he carried
out, Spisak's life also was marked by socially bizarre behavior. He
experimented with cross-dressing and was confused about his gender,
preferring to be called Frances Anne. During his trial, he wore a Hitler-style
mustache and saluted the Nazi leader in court. His lawyers still refer
to him as Frances.
The lawyers, Rossman and Michael Benza, are among
those scheduled to witness Spisak's death by injection. Other witnesses
include Warford's brother and sister, Sheehan's daughter and Judge
Donald Nugent, who prosecuted the case.
Cuyahoga County Common Pleas Judge Brendan Sheehan,
whose legal career was inspired by his father's murder, said neither he
nor his family would comment before Thursday's execution.
Hardaway said he would like to see Spisak die but
does not have the means to travel to Lucasville. A former Georgia
sharecropper who arrived in Cleveland at age 26, Hardaway was a factory
worker at Production Finishing Co. on Cleveland's West Side the night he
It was about 11 p.m. when Hardaway walked up the
transit station's stairs to catch his train. He had just cashed his
paycheck, and about $40 fell to the ground as he was shot. Yet Spisak
never said anything to him and didn't take the money, Hardaway said.
Hardaway was losing consciousness as he lay on the
station's platform. A train operator soon found him and called for help.
He was hospitalized for about a month, then returned to work. "He was
shot seven times and was back a month later," said Jim Kelly, whose
uncle supervised Hardaway. "He's a survivor. He got to see this guy's
face while he was putting bullets through him and live through it."
In 1984, Hardaway sued Spisak and his accomplice,
Ronald Reddish, who assisted Spisak before the shooting. Hardaway sought
$1 million, citing emotional distress due to the attack. A judge granted
a default judgment in Hardaway's favor, but Spisak and Reddish, who was
convicted of the attempted murder of Hardaway, already had been
convicted and had no assets to satisfy the judgment, Hardaway's lawyer,
William White, said on Tuesday. "It's very frustrating -- you can't make
a recovery," White said. "It's not unusual, it's just painful."
Hardaway expressed hope that the publicity
surrounding Spisak's execution would somehow help him recover some of
the money he asked for in the lawsuit. He said he needs a new hearing
In some respects, Hardaway, who has two grown
children, has come to terms with the assault at the rapid station. He no
longer carries in his wallet the old newspaper clipping of Spisak's face,
complete with Hitler mustache. He said putting the shooting behind him
has allowed him to keep a level head. "White people was always good to
me. Even in the country, in the South, there were some good ones and
some bad ones," Hardaway said. "I never had no hard feelings toward
white people at all, even after the shooting happened to me. I can't
live with no hate."
Killed in shootings
• Tim Sheehan, 50, CSU employee
• The Rev. Horace Rickerson, 57, pastor
• Brian Warford, 17, CSU student
• John Hardaway, factory worker
• Coletta Dartt, CSU employee
Frank G. Spisak Jr.
"My aim was pretty good."
Spisak states the obvious.
VICTIMS : 3
Frank Spisak's neighbours knew him as 'Frankie Ann
Spisak.' He was a frizzy-haired transvestite who was looking forward to
having a sex-change operation. They didn't know about Spisak's other
side, a side that eventually took over his personality. Spisak
eventually decided he no longer wanted to be a woman, but instead he
wanted to be Hitler. He stopped wearing frocks and make-up, and changed
to silly suits, slicked back hair and a toothbrush moustache. I'm not
sure which gathered the most amount of laughs, but either way Spisak was
serious about this new style.
In February 1982, Spisak launched his first "seek
and destroy mission" in which he was attempting to "clean up
the city". He walked onto the Cleveland State University and shot a
black minister, Rev. Horace Rickerson, in a men's room. The Reverend
Four months later he shot another black, John Hardaway,
55, only wounding this one.
During August Spisak struck three times. The first was
Timothy Sheehan, 50, also at Cleveland State University. Sheehan was
caucasian but Spisak suspected that he may have been Jewish. He then
gunned down 17-year-old Brian Warford, another black, at a bus stop near
the campus. His next attack failed, narrowly missing another CSU
Spisak was arrested in September for firing his gun
out of his apartment window, but was released on bail. Police then
received an anonymous phone call telling them to check the gun, a .22-caliber
pistol. The gun was linked to the Warford murder and Spisak admitted to
At the trial Spisak pled insanity, saying that the one-man
war was launched under direct orders from God, his "immediate
superior." He also blamed his transvestite period on the Jews
saying that they "seized control of my mind when I wasn't looking".
No one fell for this crap and Spisak was sentenced to death on August
"Even though this court may pronounce me guilty a
thousand times, the higher court of our great Aryan warrior God
pronounces me innocent.
Or so Spisak thought after the trial.
After Spisak was sentenced to death the Social
Nationalist Aryan Peoples Party stepped forward to claim him as a dues-paying
lieutenant. The party's leader, ex-con Keith Gilbert, announced that
Spisak was "acting under direct orders of the party" when he
murdered the three victims in Cleveland. The orders, according to
Gilbert: "Kill niggers until the last one is dead."
The Wacky World of Murder
Killer used his 1983 trial ‘to spout his Nazi
By Tom Beyerlein - Journal-News.com
February 14, 2011
The first victim was the Rev. Horace T. Rickerson,
found dead with seven gunshot wounds on a restroom floor at Cleveland
State University on Feb. 1, 1982. Four months later, John Hardaway was
waiting for a train when he saw a man walk onto the platform. The man
shot Hardaway seven times, but he survived.
Coletta Dartt left a restroom stall at Cleveland
State on Aug. 9, 1982, only to encounter a gunman, who ordered her back
into the stall. She shoved him aside and ran away as he shot at her.
Like Rickerson, Timothy Sheehan, a Cleveland State employee, was found
dead on a campus restroom floor on Aug. 27. Three days later, CSU
student Brian Warford was shot to death while waiting for a bus.
For months, the Cleveland State shootings horrified a
city. The terror ended on Sept. 4, 1982, when Cleveland police
responding to a report of a man firing shots out of a window arrested
Frank G. Spisak Jr. At his apartment, police found newspaper clippings
of the murders and Nazi and white-supremacist paraphernalia. Ballistics
confirmed Spisak’s weapons were used in the shootings, and Sheehan’s
pager was found in Spisak’s suitcase.
More than 28 years later, his appeals exhausted,
Spisak is to die by lethal injection Thursday at the Lucasville prison.
“We’re happy the law is being followed,” said Brendan
Sheehan, who was to celebrate his 15th birthday the day that Spisak
killed his father. Brendan Sheehan went on to become an assistant
Cuyahoga County prosecutor and is now a Cuyahoga County common pleas
judge. He said his family is reserving further comment until after the
Spisak unsuccessfully pleaded not guilty by reason of
insanity. At his 1983 trial, he sported a Hitler mustache and, in the
words of a clemency report, “used his trial to spout his Nazi beliefs, (and)
blamed African-Americans, Jews and homosexuals for his own shortcomings
in life.” Interviewed by the Ohio Parole Board on Jan. 4, Spisak said
that at the time, he and a co-defendant “thought they would create a
better world by eliminating the people that were not like them. He
stated they thought it would be a safer world if it were all white.”
Spisak’s victims were black, except for Sheehan.
Spisak told the parole board he killed Sheehan because he was a possible
witness to Rickerson’s shooting and because Spisak thought he was “a
Jewish professor perverting youth.” Sheehan was an Irish-born Catholic.
Spisak was sentenced to death after a jury convicted
him of aggravated murder, attempted murder and aggravated robbery.
During his 27 years in prison, he has chalked up a significant
disciplinary record for infractions including spitting at a chaplain,
performing oral sex on another inmate, indecent exposure, possession of
intoxicating substances, and possession of weapons or contraband. He
unsuccessfully has sued the state for a sex-change operation and now
calls himself “Frances.”
In its clemency report, the parole board wasn’t moved
by Spisak’s insanity claims, noting that he planned the killings and
tried to avoid detection. The board’s unanimous decision: “Spisak’s
contention that he is not the ‘worst of the worst’ is not well taken.”
But Spisak’s attorney, federal Public Defender Alan
Rossman, who has requested a stay of execution in federal court, said it’s
inhumane to put a mentally ill killer to death. “The failure of
leadership to move the state of Ohio past the point where it is
acceptable to execute the severely mentally ill is another opportunity
lost,” Rossman said. “Maybe someday we will have a better alternative to
dealing with mentally ill defendants than killing them.”
Frank G. Spisak Jr.
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. Horace 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 Frank G.
Spisak, Jr. Three pellets and seven shell casings were recovered from
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 Spisak, holding a
gun, who ordered her back into the stall. Instead, Coletta shoved Spisak
out of the way and ran down the hallway. Spisak shot at her, but missed.
A pellet was later removed from a wall in the hallway. Coletta Dartt
identified Spisak 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. Timothy 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. Brian 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 Spisak's apartment and Spisak, after
admitting he had fired one shot, invited the officers inside. A shotgun
and a .22 caliber automatic pistol were observed in the room. Spisak
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. Spisak 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 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. Spisak was later arrested, hiding in the basement
of a friend's house. During a brief search of Spisak's suitcase at the
scene, police discovered the beeper pager belonging to Timothy Sheehan.
Spisak later admitted to shooting Horace Rickerson for allegedly making
a homosexual advance toward him; to killing Tim Sheehan as a possible
witness to the Horace Rickerson shooting. The prosecution suggested it
was the other way around, with Spisak making the overture and being
rejected. Spisak also admitted to killing Brian Warford while on a "hunting
party" looking for a black person to kill; and finally, to shooting at
Coletta Dartt and to shooting John Hardaway. He also told police he had
replaced the barrel of the .22 caliber handgun in order to conceal the
More information on the victims in this case can be
found here. Tim Sheehan's son Brendan Sheehan grew up to become a
prosecutor and was seated as a trial court judge in Cuyahoga County in
2009. His father was murdered on Brendan's 15th birthday.
"The Long Goodbye"
All his victims were people who had changed courses
in life, seeking a second chance. Now, 25 years after Frank Spisak’s
serial murders terrified Cleveland State University, the death-row
inmate gets a second chance at avoiding execution. In a courtroom,
survivors and lawyers will return to 1982 and confront his crimes. A
jury will decide his fate. John Hyduk
He attacked five people, killing three. He would have
killed more if his aim were better. Their bodies and lives were torn by
the tumbling slugs from a .22-caliber automatic.
Now, 25 years after Frank Spisak wandered the city
streets with a pistol popping like the devil snapping his bubble gum, he
will walk again in the minds of his victims and their families. Old case
files will be reopened. Healed wounds will be torn apart. Spisak,
convicted of a series of 1982 murders and sentenced to death, has fought
hard to live. The state of Ohio - navigating a gauntlet of court appeals
- has tried just as hard to kill him.
Last October, three federal appeals court judges
struck down Spisak’s death sentence and ordered him resentenced. The
judges said Spisak’s lawyer had been ineffective and that the judge had
given the jury improper instructions during his 1983 sentencing.
Although Spisak’s guilty verdict still stands, a new jury may deliver a
sentence as early as this summer. Spisak’s lawyer plans to argue that he
killed because he was insane and should be spared from death.
Raised by emotionally distant parents, Frank Spisak
was beset by gender issues from childhood. He blamed “an extremely
strict mother who humiliated and hit him when he displayed sexual
behavior,” says one court document. She “taught him to hate people of
color and others whom she deemed to be ‘undesirable’ or ‘repulsive.’ ”
Even as Spisak married, he took female hormones,
anticipating a sex-change operation that would never happen. He used his
quick and inquisitive mind to mentally rebuild the Third Reich, joining
the National Socialist White People’s Party and fancying himself a storm
trooper. He collected guns.
Today Spisak’s world is a prison cell at the
Mansfield Correctional Institution. Inside it he lives as a woman,
corresponding through prison pen-pal Web sites, trolling for “very
special girlfriends.” He signs his letters Frances Ann, under “With love”
or “Every best wish.” And no one - not even his psychiatrists - can say
with certainty where the invented Frank ends and the real Frank Spisak
The story of Spisak and those he killed and tried to
kill is a morality play with the moral still to be written. At first,
the victims seem like random choices. Separated by age and race and
gender and class, they would not have found themselves side by side on
the same city bus. But what they had in common was this: They were all
strivers after something better, people who had changed courses in life,
seeking another chance. And Cleveland is a city built on second chances.
The city we live in was born that summer. Four years
after default, and after 13 years of burning river jokes, we declared
ourselves back on track. As The Cleveland Press closed and Halle’s
department store faded, Time magazine pronounced us one of the country’s
most desirable cities and the “CBS Evening News” reported we were on the
road to recovery.
We did not feel like a city under siege. As crime
scene investigators were pulling slugs from a campus wall, Duran Duran
was opening for Blondie a few blocks away at the Agora. As another
victim lay bleeding, moving vans emptied the Williamson and Cuyahoga
buildings on Public Square for demolition before the building of the new
Standard Oil Tower. Everywhere, the 19th century was making way for the
Second chances seemed very real then. Now, Frank
Spisak has a simple request: Give me a second chance. Twelve jurors will
decide how far second chances extend. On one side of the courtroom,
those who hope that justice will finally be done and a verdict carried
out will gather. On the other side will stand a man who believes that
true mercy cannot be strained, even if is stretched thin over a quarter
A gavel will bang like a pistol shot. Suddenly it
will be 1982 all over again. “I’m on death row for killing three men. …
Although I’ve been locked up a long time, I still feel like I am young
and have a lot of life left in me to live; I don’t want to have to waste
it rotting in some prison! … I devote all my energies toward trying to
win my appeal and get me out of here before it is too late for me to
have a real second chance in succeeding in life.” Frank Spisak, in
prison letters posted on the Web site mansonfamilypicnic.com.
After the cops and the coroners finish their work,
the flattened slugs and photographs of spent bodies go into a fat manila
folder in the Cuyahoga County Prosecutor’s Office. The folder lands on
the desk of a young assistant prosecutor named Donald Nugent. He is an
ice pick in a nice suit. He is 34, with a diploma from Xavier University
and a Cleveland Marshall law degree folded neatly around a stint in the
Marine Corps. He is halfway through a career that would see him try 50
murder cases and prosecute at least that many rapes. The graying
prosecutors in the office have dubbed him “Jack Armstrong,” like the
“All-American Boy” of old radio shows, and he is golden.
It is 1983, and Nugent reaches into a manila folder.
He looks at pictures of what seems like half of Cleveland, bleeding.
Here is the Rev. Horace T. Rickerson, dead, shot
seven times on Feb. 1, 1982. “Four spent bullet casings were recovered
from the scene,” a court document reads in the same flat prose that
lists ingredients on a cereal box. The pastor of the Open Door
Missionary Baptist Church, Rickerson had looked at its cramped home on
East 83rd Street and dreamed, because dreams not only turned into
classrooms and towers, but into spires and pulpits, too. In December
1975, a ground-breaking ceremony was held, and in March 1977, Rickerson
dedicated the brand-new church on Woodland Avenue, just up the street
from the borrowed room above a laundromat where the congregation had
started 50 years before.
A weekly radio show called “Heart to Heart” on WJMO
carried Rickerson’s sermons. His last broadcast, aired the night before
he died, was titled “How to Know You Are Saved.” Rickerson left to
research a sermon at Cleveland State’s library and never returned. He
went home. That’s the way church people say it: He went home. That
August, Rickerson’s congregation gathered without him for a ceremony to
burn the paid-off mortgage.
Here is John Hardaway, a working man. He had spent
his young life looking at the world from inside a bottle. He battled
alcohol’s demons and wrestled them to a draw, remaining sober for 17
years. “It was really a tribute to John that he stayed with it,” Nugent
says now, remembering. “Every Friday night he’d go to the Black Horse
Tavern and have two little cans of orange juice, cash his paycheck, and
walk over and take the Rapid home.”
Hardaway was shot seven times on the evening of June
4, 1982, while waiting for an RTA train at the West 117th Street Rapid
station. His one quirk, for jewelry, saved his life: A medallion he wore
on his chest deflected the killing bullet aimed at his heart. “Three
pellets and seven shell casings were recovered,” the court document
reads. “Just imagine the Rapid driver,” says Nugent. “She pulls up to
the stop at 11:30 at night and she sees Hardaway there, bleeding. And
then she calls police.”
Here is Coletta Dartt, a Cleveland State University
employee, who at 5 p.m. on Aug. 9, 1982, left her office to use the
restroom. Exiting the stall, she encountered Spisak, holding a gun, who
ordered her back into the stall. Dartt - a black belt in karate - shoved
him out of the way and ran down the hallway. Spisak fired a shot as she
fled. “A pellet was later removed from a wall in the hallway.”
Here are Timothy Sheehan, Cleveland State University’s
assistant superintendent of buildings and grounds, and CSU student Brian
Warford. Sheehan had crossed an ocean and Warford had ridden a city bus
to end up at the school. There they ran afoul of a man on a different
career path, and both died.
Sheehan, dead at 50, was discovered by a campus
security guard on Aug. 27, 1982. He had been “shot four times, and two
pellets were retrieved from the scene.” Warford was found three days
later at a Euclid Avenue bus stop, dead at 17 of a “single gunshot wound
to the head, although five spent .22-caliber casings were recovered from
the scene.” “This was not some random spree,” Nugent says now. “Here was
a guy who was a pervert right from the beginning. And who had a gun. And
the gun gave him power.”
It’s June 1983, the day of trial. The court-appointed
defense team huddles at the table across the aisle from Nugent. The
accused squints through Coke-bottle glasses from behind a belly-warmer
tie. The Sheehan family survivors watch from the back. And here comes
Judge James Sweeney in his black robe. As the bailiff calls, “All rise,”
the courtroom stirs.
The people in the folder do not move. “
The Brendan I saw was a frightened, devastated young
man surrounded by his three sisters and his mom, not knowing what to
make of the fact his dad, his best friend, was gone. And then trying to
take his dad’s place and not knowing really how to do it.”
“He loved his yard, his garden,” says Brendan Sheehan,
Timothy’s son. “It’s funny: A few weeks prior to my dad’s death, my
sister had graduated high school. For a graduation present, my sister
wanted to go to Ireland, and she and my dad went. He had said, ‘Brendan,
you stay home and make sure the lawn is cut,’ stuff like that. “He came
back, and it was, ‘OK, here’s the thing - you didn’t cut the lawn right;
here’s how you work the hedger.’ It’s kind of ironic, like he was
Tim’s own college career had been full of bicycle
rides across ancient lawns with professors. Born in County Cork, Sheehan
attended Maynooth College, west of Dublin. Now Sheehan was an American,
with a mortgage to prove it. He got up at 5 or 6 in the morning to catch
the bus to work and returned at 6 in the evening. Nothing ever happened
on his shady street in Fairview Park, and people worked themselves woozy
to keep it that way.
The day someone decided to kill Tim Sheehan, the
family planned to celebrate Brendan’s 15th birthday with dinner at a
restaurant. At 2 p.m., Sheehan left his briefcase, glasses and coat at
his desk, hustled off to check a report of a faulty door lock and
vanished. Beeper pages went unanswered. Four hours later and a city away,
a Fairview police cruiser pulled into the Sheehan driveway.
Bad news flooded the family room. “It was surreal,”
Brendan remembers. “You’re looking at your mom. You’re thinking, ‘He
died? How’d he die?’ He was murdered. Who would do that?” “I like
classical music and games like chess. I used to enjoy collecting stamps
- ‘the quiet hobby’ it is called.”- Frank Spisak “He is a coward. When
you hide in darkness and in-wait for an unsuspecting person, and you
have a gun and they don’t know what’s happening, and you ambush them -
which is what he did to everybody - that shows he’s a coward.” Donald
“Slayings end myth of CSU as urban oasis” (Plain
Dealer headline, Sunday, Sept. 5, 1982)
He was a little man in search of a soapbox. Frank
Spisak dressed sharp, drove a candy-apple-red Mustang and considered
himself a self-taught student of history. At Midpark High School, Class
of ’69, he had been a scrawny library aide, singing in the choir and
glee club. He liked to talk race hate and fascist politics, using words
that hit like fists.
“After graduation from high school I had planned to
study history in college,” Spisak wrote from his cell, “but went to work
in a factory instead because I wanted money to buy myself a car and do
other things.” He entered Cleveland State in 1969 but dropped out after
40 credit hours. By 1972, he was working at a factory on Cleveland’s
East Side. Spisak courted a co-worker, Laverne Lampert, with flowers and
Elvis Presley records. They married within a year and had a daughter.
By 1977 or 1978, after a car accident that Laverne
thought had “messed his mind up,” Frank started wearing dresses during
neighborhood strolls. He listened to albums of Hitler speeches. After he
brought home another cross-dressing man and slept with him, Laverne
walked out. They briefly reconciled two years later, but then he
confided that he had always wanted to become a woman. Hormone treatments
would be great, he said. Be a man, she said. She left again.
Spisak took a job that year as a machinist at the
Edward Daniel Co. on St. Clair, with a Teamsters Local 507 card in his
wallet and $220 every payday. He collected guns, dressed as a woman on
weekends and discussed the finer points of Nazism and gay porn with any
co-worker who’d listen. He took home men and partied with a black
prostitute, substituting firearms for payment when he was short of cash.
“Hunting parties,” Spisak called his forays out to rob and kill. Spisak
stalked his victims in the city’s lonely corners. He hunted where he
felt most comfortable. He returned to Cleveland State to wander the
campus and study Nazi history in the university library.
And there was Brian Warford, waiting.
If good luck were pocket change, Warford would not
have had bus fare. Two years before, in 1980, he had dropped out of
Collinwood High as a sophomore. He’d been kicked out of the house after
he stole his father’s van and his credit cards. “A loner who lacked
discipline,” his father growled. Brian went to live with a sister.
But at 17, Warford saw that his life needed to come
around, or he would die on the streets. Warford enrolled in an
alternative education program offered at CSU, and suddenly his GED was
not just a pretty thought. After late classes, he waited at a bus stop
on Euclid Avenue. A pistol barked and Brian Warford fell to the sidewalk.
They found him sprawled on the cold pavement, on his
right side. A single bullet rested in Warford’s head. In his trouser
pockets were two lottery tickets; both tickets were losers.
“Instead of defending the mentally ill and standing
up for their civil rights (rights to which they are entitled as American
citizens), the lawyers in our communities have joined prosecutors and
tough minded ‘hard-on-crime’ judges in sending mentally ill persons to
prison and death row - treating us like we are habitual criminals!”
Frank Spisak “First he’s trying to say he didn’t do it. And when he came
to the point when he realized the gig was up, that’s when - for the
first time - he turns to this White Power BS, this Nazi stuff. Which he
had an interest in. But that wasn’t why he was killing. The reason he
was doing these killings was that he was a pervert and was looking for
his own self-gratification.” Donald Nugent
On Sept. 4, 1982, two Cleveland patrolmen climbed the
stairs to a second-story walk-up at 1367 E. 53rd St. Labor Day weekend
had just begun, and here was a call about shots fired from an apartment
window, proof that when you mix alcohol and gunpowder, you get handcuffs.
The resident said he had nothing to hide. Which was true: A shotgun and
a 22-caliber pistol were clearly visible. The cops found a loaded .38
revolver and a two-shot Derringer buried under the sofa cushions. Frank
Spisak was booked for possession of unregistered handguns and for
discharging firearms within city limits. He posted bond and walked.
Two days later, the street swarmed with bulletproof
vests. Two tips had told police that the gun used in the CSU murders was
already in their possession. Ballistics tests linked Spisak’s .22 to
Sheehan’s and Warford’s murders. Inside the apartment police found
newspaper clippings detailing the killings, but no Spisak. He was pulled
later that day from a friend’s basement, crouching next to a getaway
suitcase. Detectives pawed through the contents: Inside was Tim Sheehan’s
Reporters barreled down I-71 to Midpark High, where
old yearbooks were mined. One ex-classmate remembered the argumentative
glee clubber, the library geek who talked himself into trouble and
thought he could talk his way out again. He didn’t know why Spisak would
murder, but “I suspect Frank has a logical explanation.”
Spisak told court-appointed psychiatrists “he tried
to kill Coletta Dartt because he became angry when he heard people
making fun of the White People’s Party,” a court document reads. “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.”
He said he “felt good” about shooting Warford. His
biggest worry was “getting back across to the other side of the campus”
to his car, according to one psychiatrist. “I figured in the early
morning hours it was so quiet, somebody was bound to hear all the shots.”
He admitted he was worried about getting caught after the first murder.
“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.’ ”
After murdering Sheehan, he said, 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.’ ” “Spisak has come to a
deep and intelligent understanding of the mental illness and gender
identity disorders that drove his unfortunate and painful actions. The
understanding underlies his deep remorse. ” defense attorney Alan C.
“Twenty-five years later, to somehow say, ‘Well, he’s
got some mental problems …’ The jury heard all that. And the jury said
he was responsible.”
At the trial, Fank Spisak never said he was sorry. To
the families, he offered no apology. The monthlong trial began on Monday,
June 13, 1983, in the common pleas courtroom of Judge James J. Sweeney.
“Part of the job that you’ve undertaken is going to be sitting in
judgment of a sick and demented mind that spews forth a philosophy that
will offend each and every one of you,” defense lawyer Thomas M.
Shaughnessy told the jury. “Make no mistake about that, you will be
Spisak grew a Hitler mustache for the trial. He
greeted his lawyers with a Nazi salute. He answered Judge Sweeney’s
questions with a German “jawohl” instead of “yes.” On the stand, he
spoke of race war and of killing “the enemy” - Rickerson, Warford and
Hardaway were black, and Sheehan “looked like a Jew professor,” Spisak
Faced with ballistics evidence linking Spisak to the
murders and eyewitness identification from the survivors, Shaughnessy
bet his client’s life on an insanity defense. But on July 11, Dr. Oscar
B. Markey, the only psychiatrist called by the defense, testified that
Spisak was the victim of several known mental disorders - none of which
could be characterized as mental illness. Judge Sweeney asked Markey for
clarification. Was Spisak mentally ill when he committed the crimes he
was accused of? Was Spisak mentally ill now? “No,” Markey said. “No.”
Sweeney then instructed the jury not to consider
Markey’s testimony in its deliberations. Two days later, he ruled that
Spisak knew right from wrong and understood the consequences of his
actions, so he could not plead “not guilty by reason of insanity.”
Resigned to a guilty verdict, Spisak’s defense looked
ahead toward finding mercy in the sentencing part of the trial. “In this
segment of the trial, the defense has no defense,” Shaughnessy told the
jury in summation. He would see them again, he promised, during the
penalty phase. After 60 witnesses and 250 exhibits, the jurors concluded,
beyond a reasonable doubt, that Frank Spisak did murder and rob,
propelling bullets into the bodies of his victims. This took just over
A reporter asked Spisak if he could think of any
reason he shouldn’t be electrocuted. “Not offhand; can you?” Spisak said.
Then he grinned. During the penalty phase, a line of psychiatrists took
the stand for the defense. “Mentally unwell,” Dr. Oscar B. Markey called
Spisak. “He lacks finer feelings. He is governed by fear, by anger, by
circumstance, and not by remorse, by tenderness, or feelings of modesty.”
Dr. Sandra B. McPherson, a clinical psychologist,
said Spisak detailed the killings to her matter-of-factly, showing no
remorse. “It was like,” she testified, “discussing what I had for
breakfast.” She was visibly shaken as she recalled Spisak’s inkblot test
- Spisak, she said, saw only bloodstains and body parts. But none of the
experts could pronounce Spisak legally insane. “Troubled” and “unwell”
would not save his life.
The back of the courtroom had already reached a
decision. “He’s a cold-blooded killer, and he’s no good,” a recovering
John Hardaway told reporters. “He was killing people for no good reason,
and he should be electrocuted.” Even Spisak’s defense attorney seemed
eager to help throw the switch. As his client’s life hung in the
balance, Shaughnessy’s summation murdered each victim again. “Every one
of us who went through this trial, we know we can feel that cold day [and]
see Horace Rickerson dead on the cold floor,” Shaughnessy said. “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.”
Shaughnessy did argue that Spisak was mentally ill,
but soon undermined his own argument. “Don’t look to him for sympathy,
because he demands none,” Shaughnessy said. “He is sick, he is twisted.
He is demented, and he is never going to be any different.” Summing up,
Shaughnessy told the jury, “Whatever you do, we are going to be proud of
After five hours of weighing testimony and balancing
death against life with the possibility of parole, the jury voted with
John Hardaway, for a death sentence. Judge James J. Sweeney thanked the
jury. Spisak rocked in his chair.
Spisak’s final address to the court was the soapbox
he’d lusted after for 32 years. “Even though this court may pronounce me
guilty a thousand times, the higher court of our great Aryan warrior god
pronounces me innocent,” he shouted. “Heil Hitler!”
Asked about his victims’ families afterward, Spisak
was bitter. “If it makes them happy, if it makes the whole city of
Cleveland happy, if they’re going to dance and celebrate my death, then
let them dance and celebrate because today I die and tomorrow it will be
them.” But he would not run to the electric chair. “Now [my lawyers] are
going through the appeals process … until they no doubt exhaust all the
different options open to them.”
He expected to buy time, but not a second chance. The
appeals might win him “a year, two years, or maybe 10.” Then, Spisak
said, it would be time to ride “old blunderbolt.” Instead, Frank Spisak
would outlive his lawyer and the memory of most of the city.
For 25 years, Spisak has lived on prison food and
court appeals. In a series of colorful filings, Spisak has argued that
since transsexualism is considered a “mental defect” under Ohio case law,
the state of Ohio should pay for a sex-change operation for him. He has
also asked to be allowed to resume collecting stamps and corresponding
with other collectors - a request denied when he mentioned, “My
specialty is collecting old German postage stamps, especially those from
Last year a three-judge panel of the U.S. Sixth
Circuit Court of Appeals went into the fat folder filled with bodies and
shells and balled-up crime scene tape, and hope sprung again in a cell
in the Mansfield Correctional Institution. The judges upheld Spisak’s
conviction, but ordered the case back for a new sentencing proceeding.
They cited improper instructions given to the jury that suggested they
needed to decide between life and death unanimously. Actually, only a
death sentence must be unanimous. One dissenting juror can spare a
defendant and force a life sentence instead.
The judges also hammered the late Thomas Shaughnessy
for representing Spisak ineffectively. They criticized him for
graphically recounting the crimes in his closing argument, expressing
hostility and disgust for his own client and saying very little to
offset either. Much of his argument “could have been made by the
prosecution,” noted one judge dryly, “and if it had, would likely have
been grounds for a successful prosecutorial misconduct claim.”
A new jury has to resentence Spisak - weighing
“mitigating factors” such as his mental state. The Ohio Attorney
General’s Office is considering an appeal to the U.S. Supreme Court, but
it’s a long shot. Most likely, Cuyahoga County Prosecutor Bill Mason
will have to argue all over again that Spisak deserves to die. Attorney
Alan C. Rossman now represents Spisak. For Rossman, the “mitigating
factors” are clear: We should not execute the mentally ill, and Frank
Spisak is mentally ill. “The Nazism was very much a part of the identity
disorder,” says Rossman. “What attracted him to the White People’s Party
was the uniform and the structure - and the identity. It was a symptom
of his illness as opposed to a driving force.”
Rossman calls the first trial “a circus,” in part
because Shaughnessy let Spisak portray himself as a Nazi. “When
reviewing the trial record, there was no question in my mind that his
trial counsel had nothing but contempt for him,” Rossman says.
Rossman passed the bar in 1981. He was still hanging
his law degree during that summer of 1982. He’s worked on several
capital punishment cases. Each is a mental challenge for him. “You never
divorce yourself from the victims,” he says. But when he tries to
“understand the human side” of his clients, he realizes “how broken they
are.” “The difficult thing is to suspend judgment and get beyond the
fangs and talons that are being portrayed, and find out how they got to
where they are. Which is not to condone anything that’s happened.”
The girl’s feet do not touch the floor. She’s wearing
Dora the Explorer socks in SpongeBob tennis shoes and sitting in a too-big
chair. The littlest victim stares past the framed photos in the Cuyahoga
County Prosecutor’s Office lobby - full of old men in stiff collars and
Herbert Hoover haircuts - to the TV. A cartoon aardvark named Arthur
soars over his troubles in a magic plane. She and her mother have come
to see Brendan Sheehan.
An assistant county prosecutor, Sheehan is director
of the Internet Crimes Against Children division. When the investigators
are through, everything - the pedophiles and abuse and monsters that
swallow childhood - goes into a fat folder that lands on his desk.
“Right now I have 40 pending cases on my docket,” he says, motioning at
an office the size of a generous chimney.
A small man can cross a courtroom in a few steps. It
took Brendan Sheehan 25 years to do it. After Sheehan graduated from
Baldwin-Wallace College, Don Nugent pointed him toward a bailiff job and
law school. Being a prosecutor, Sheehan says, is “my dream job.”
Frank Spisak is an almost-forgotten nightmare. “I’ve
always prided myself on the fact our family doesn’t talk about Frank
Spisak, doesn’t think about Frank Spisak,” Sheehan says. Now he will.
It will be left to Sheehan’s co-workers, his fellow
prosecutors, to try this case. But he plans to be there, “sitting in the
back of the courtroom, like I did 25 years ago.” As the surviving head
of the Sheehan clan, sworn to protect his mother and sisters, how can he
He believes that keeping Spisak on death row is not
impossible, but resentencing him will be tricky. “How do you recapture
what was said 20-some years ago to a jury on how this guy deserves the
death penalty?” Sheehan asks. “Times have changed.”
Donald Nugent is now U.S. District Judge Nugent,
presiding over a courtroom in the federal courthouse on Huron Road and
an office the size of the 14th green at Firestone Country Club. Spisak’s
name comes up, and suddenly we are talking about marriage chapels. “I’ve
gone to every one of Brendan’s sisters’ weddings and his wedding,”
Nugent says, “and in the Irish tradition they have a father’s prayer.
Well, he’s not there. And they always have someone say the father’s
prayer in place of Tim. That comes home to Kathleen and the kids. In the
happiest moment of their lives, the Sheehans are reminded of the
butchering of Spisak and the loss of their father.”
No matter how the case ends, Nugent says, “All of the
victims’ families will know that the police, the prosecutors and
everyone who was charged of representing them did everything that was
legal and proper and appropriate to see that justice was done. And the
fact that someone, maybe, didn’t was not something they had control over.”
If he weren’t a judge, would Nugent like another
crack at prosecuting Spisak? You do not ask a barber if you need a
haircut. “In a minute,” Nugent says. “And I would be his worst nightmare.”
Sometime soon, perhaps this summer, another jury will be handed a fat
folder filled with spent slugs and bleeding bodies and crime scene tape.
They will weigh whether a damaged man deserves a second chance, though
he took such chances away from three others.
Cuyahoga County Prosecutor William Mason will seek
another death penalty for Frank Spisak. He has promised to deliver his
office’s lead arguments himself.
A gavel will bang like a pistol shot, and Spisak will
live or die. Another judge will enter a courtroom as the bailiff calls,
“All rise.” Regardless, the people in the folder will not move.
A cross-dressing Nazi murdered a prosecutor's dad 25
years ago. He's back
By Jared Klaus
"The buses kept coming. As each slowed to a stop,
Brendan Sheehan scanned the glowing windows for his father. But he only
saw strangers. His dad, the maintenance supervisor at Cleveland State,
was never late. And he surely wouldn't be tonight. It was Brendan's 15th
birthday, and Tim Sheehan was taking the family to dinner.
Brendan, his worried mother at his side, thought
about this as he choked back diesel fumes. Another bus came, emptied,
grumbled away. Then another. "The buses kept coming," remembers Brendan.
"My dad never got off."
Then a police car rolled around the corner into the
Sheehans' quiet, flag-waving Fairview Park neighborhood, and into the
driveway of their two-story home. The officer sat his mother down in the
family room. Your husband's been killed. "Every time I walk into that
room in my mom's house," says Sheehan, "I remember that conversation."
His next vivid memory is sitting in court -- "the
green, ugly cloth chairs" -- looking into the eyes of the man who
murdered his father. He was a puny loser named Frank Spisak, who dressed
as a woman and fantasized he was a Nazi, killing black men in the name
of Hitler. Tim Sheehan, an Irish immigrant, had simply gotten in the way.
Spisak sat proudly on the stand wearing a Hitler
mustache, presenting an odd visage of the master race, cavalierly
chatting about his killings as acts of God. But he found a superior
nemesis in bad-ass prosecutor Don Nugent. Nugent patiently baited Spisak
with his own vanity, spun him into a corner, then exposed him as nothing
more than a punk, a coward, a Nazi wannabe, and dime-store thief.
Spisak was sentenced to death. The prosecutor became
Sheehan's hero, justice personified.
Twenty-five years later, Sheehan has taken Nugent's
place. He's now the toast of the Cuyahoga County Prosecutor's Office,
handling more than twice the caseload of the average prosecutor and
trying murder cases of his own. It's as if that moment in court more
than two decades ago never left him.
"It's almost like he's on a mission," says Assistant
Prosecutor Dan Kasaris. "He's a bulldog."
The walls of Sheehan's closet-like office are papered
with mementos from his cases -- exhibits, crayon drawings from young
victims of molestation, and pictures of his three young children.
Strangely absent are any pictures of his father. He's never really
talked about his dad's murder. Not even his wife Michelle knows the
But now Tim Sheehan's brutal killing is about to be
splashed across front .ages again. Frank Spisak, still alive 25 years
after his death sentence, finally found a sympathetic ear last month. A
federal appeals court ruled that his lawyer had committed misconduct and
struck down his death sentence. He'll likely be returning to the Justice
Center, right by Sheehan's office, where the whole charade will play out
Now the prosecutor must do something he never
prepared for: explain to his daughters, ages six and eight, that their
grandpa was killed by a piece of shit. His eight-year-old is already so
paranoid from overhearing her parents talk about the real-life monsters
of Sheehan's work that she locks all the doors and windows in the
family's home at eight o'clock every night.
But Sheehan says the hardest part was telling his
mother and sisters "that this nightmare is creeping its way back."
Frank Spisak Jr. was a nobody until he started
In high school, he was just an awkward dork who liked
to draw swastikas. His dad, a factory worker who played the trumpet in a
polka band, had packed up his family and fled their neighborhood near
Buckeye Road to escape black migration, moving to Middleburg Heights
when Frank was young. Spisak, a member of the chess club, was just a
nerd looking for attention.
He enrolled at Cleveland State, but dropped out the
following year when he could no longer afford tuition. So he made a
curriculum of his own at a downtown bookstore, where he worked the stock
room, mostly feeding his bizarre appetite for everything Hitler. He read
so much that he eventually wore his eyes out, requiring thick, jar-bottom
At 22, he married a woman named Laverne. They had a
daughter, Sally Ann, and Spisak found work at a string of dead-end
factory jobs, once making casket parts at a shop on Madison Avenue.
Laverne found the whole Nazi thing a bit off-putting, but it wasn't
enough to make her leave. Even when her husband blasted taped speeches
by Rudolf Hess, Hitler's deputy, Laverne just tried to shut her ears.
But after three years of marriage, things started
getting really weird. Spisak suffered a head injury in a car accident
that "messed his mind up," Laverne would later testify. Her husband
started expressing dark desires and dressing like a woman. At night,
he'd go out on the corner and get paid to turn tricks for guys looking
for a lady with a little extra equipment.
Laverne told her husband he was "sick in the head"
and that he needed help. Spisak ignored her pleas. Then things got even
more bizarre. One night, Spisak came through the door of their East 53rd
Street home with a transvestite, walked by his wife, who was sleeping on
the couch, and went into the bedroom to have sex with the man. "I told
Frank it's either me or that thing," Laverne said later. Her husband
picked the latter.
Laverne packed up their daughter and left, taking
everything -- even the refrigerator and stove. Spisak was left with
little more than a hot plate and a coffeepot.
He started dressing like a woman full-time, and had
the license bureau change his name to Frankie Ann. He saw a psychologist
about getting a sex change, and even began taking hormone treatments.
But he couldn't afford the surgery, and he made an ugly woman. With his
bad makeup and frizzed-out hair, he looked like Little Orphan Annie gone
disco. The guys in the neighborhood would whistle caustically from their
porches as Spisak walked by.
Frank, too, seemed to loathe Frankie Ann, and his
fascination with Hitler grew into an obsession. He started collecting
Nazi memorabilia, swords, framed pictures of Hitler. Neighbors would
hear him blasting the Führer's speeches in German on his stereo, as
Spisak marched back and forth across his living room, dressed in
military garb. He developed an obsession with guns and ammunition, and
Strangely, he also began dating a black female
prostitute. Even as a Nazi, Spisak failed. Then God saved him, he would
later recall for a jury.
On the morning of February 1, 1982, he was at the
Cleveland State library on the first floor of Rhodes Tower, reading a
1930s book of Nazi propaganda, when he got up to go to the bathroom.
Inside, Spisak saw two feet underneath the door of
one of the stalls. He went to the next toilet and put his eye up to a
hole bored in the wall -- it was a black man, the Reverend Horace
Rickerson. Accounts of what happened next are fuzzy, but the prosecution
later claimed that Spisak had asked the reverend for sex but was
Spisak then pulled a pistol from his pocket, stuck
the nose through the hole, aimed at Rickerson's torso, and squeezed
until there were no more bullets.
As the preacher slumped to the floor, Spisak fled to
the library snack bar. He felt "pretty good" about the killing, he would
say later. So good, he sat down and enjoyed a cup of coffee. But
curiosity got the better of him, and he returned downstairs to watch a
crowd gathering around the bathroom. There, he locked eyes with the
campus maintenance man. Something in his eyes spooked Spisak, some hint
of recognition -- as if the man knew he was looking at the killer. Tim
Sheehan had no idea that his life had just been set on a timer.
Love brought Tim Sheehan across the Atlantic. He was
working as a policeman in England when he met his wife, Kathleen, an
Irish ex-pat living in America. He followed her back, and they started a
family in the melting-pot suburb of Fairview Park.
He got work where he could, first managing the
warehouse at Higbee's, eventually working his way up to overseeing
maintenance at CSU. Every night, neighbors would see him walking home
from the bus stop, briefcase in hand, young Brendan clipping at his
heels. "I think they were very, very close," says longtime neighbor
Stephanie Gamery. "All the girls were good, but Brendan was kind of
The Sheehans were true Irish. Gamery remembers
Kathleen sending over warm soda bread, and Brendan and his sister
performing a traditional dance at one of her ladies' club meetings. "They
were just charming," says Gamery, in a crackly grandmother's voice. "They
literally stole our hearts."
Yet not far from Fairview Park, Cleveland had become
gripped by violence. The summer of '82 was a bloody one. The city was
averaging four dead bodies a week. Gang killings were rampant. People
fled downtown each night, afraid to be caught there after dark. Police
didn't know yet that a serial killer was in their midst. Murdering the
preacher had put a taste in Spisak's mouth. It felt as if he had "accomplished
something," he would claim.
He'd also befriended another loner and Nazi wannabe,
Ron Reddish. Together, they'd cruise the streets in Reddish's Buick
LeSabre, looking for black men. "Hunting parties" is what Spisak called
them. He found his second victim late one hot June night. John Hardaway
walked into the Black Horse Café on Madison and West 117th, just as he
had every payday for 17 years. The bartender cashed his check as he
drank a glass of tomato juice. Then he left to catch the Rapid at the
station across the street.
As Hardaway waited for the train, he glanced over to
see a man standing with his legs spread apart, arms extended, squeezing
the trigger of a .22-caliber semi-automatic pistol. Five bullets riddled
Hardaway's body. He crumpled to the ground, crawling away on numb limbs
as he faded out of consciousness. Four days later, he awoke in a
hospital bed. One of the bullets had struck a gold medallion hanging
from his neck, saving his life.
A couple months later, Spisak returned to CSU.
Coletta Dartt, who worked in the chemistry lab, was just getting off
work at five o'clock when she stopped to use the bathroom. When she
opened the stall door, she was staring down the barrel of a gun. "Get
back!" Spisak demanded. Dartt pushed him away and ran into the hallway.
Spisak chased after her and fired a round down the hallway, but missed.
A frantic crowd poured from the classrooms. But Spisak was gone. Panic
gripped the campus. Rewards were offered for information on the bathroom
shooter. But police were without a solid lead. The attacks seemed so
Still, Spisak was paranoid. He kept thinking of the
maintenance man outside the bathroom the day he killed Rickerson. So he
began to follow the man around campus, prosecutors would later speculate.
One day he walked past Tim Sheehan intentionally, just to see if he
could notice a look of recognition on the man's face. He was sure that
On the morning of August 27, 1982, Kathleen Sheehan
gave her husband $10 and waved goodbye. Tim was cutting out of work
early that day to play golf, then coming home for Brendan's birthday.
With the summer session concluded, Rhodes Tower was eerily empty. As Tim
stood at the urinal, feet shuffled in behind him. He turned around to
see Spisak pointing a pistol at his forehead. The two men locked eyes in
silence. Then two bullets blew out the side of Tim's face. One pierced
his neck. Another hammered into his chest. Tim fell face down in a pool
of blood and urine. As the last twitches of life left Sheehan's body,
Spisak rustled around in the man's pants and took out his wallet, which
held the $10 Sheehan's wife had given him. Spisak went home and waited
for the hysteria to hit TV news.
He would claim he felt that God had made him
invisible, "stuffing the ears of everybody." So he went hunting again
the next night. Seventeen-year-old Brian Warford, waiting at a bus
shelter on Euclid outside campus, died instantly from a perfectly placed
shot to the head.
A week later, police actually had Spisak in custody.
He was arrested after getting drunk and shooting his gun out the window
of his house. But the cops had no idea he was the Cleveland State killer,
and Spisak was allowed to post bond.
For the moment, he was invisible. But God couldn't
protect Spisak from his own mouth. He'd bragged about the murders not
only to his ex-wife, but also to his girlfriend. Then police received an
anonymous call, telling them to take a second look at the guns they'd
confiscated from Spisak's house. The weapons matched those used in the
Spisak was driving home one day when he saw squad
cars lining his street. He drove to Reddish's house, but a neighbor
tipped police. They found Spisak crouched in a basement crawl space. The
CSU killer was behind bars. For the first time in months, the city could
Spisak proudly admitted to the murders, even
autographing his swastika T-shirt for detectives. He came to court with
his head held high, sporting the Hitler mustache he'd grown in jail,
carrying a copy of Mein Kampf, and greeting Judge James Sweeney with a "Heil
Hitler" salute. Yet he didn't seem to grasp the contradiction that a
member of the master race was pleading insanity.
Defense attorney Tom Shaughnessy could do little
except paint his client as crazy as he seemed. He put Spisak on the
stand, egging him into casually admitting to killing in the name of God
and Hitler, whom he regarded as a Jesus figure. Blacks were
overpopulating the world, Spisak argued, and he was helping cull the
herd. "There's a lot of work to be done. Unfortunately, there's not
enough people to get it done," he announced, his chin up in the air like
Lying in wait was Assistant Prosecutor Don Nugent, a
lady-killer with the jurors, with piercing eyes and a poker-room swagger.
"Nugent presents a very strong image, where lightning's going to flash
from the heavens if you do wrong," says longtime defense attorney
Richard Drucker. Nugent asked Brendan's mom to take the stand and do the
unthinkable: stare down the man who gunned down her husband. Kathleen
refused, terrified. Brendan pleaded with Nugent not to force her. "He
was trying to be strong and take his dad's place," says Nugent.
But the prosecutor was stronger. Kathleen tearfully
testified to the morning she said goodbye to her husband for the last
time. In exchange, Nugent promised an eye for an eye. "That's a big
responsibility," says Nugent. "If they put their trust in you, you
better live up to it."
Brendan had envisioned his father's killer as a
frightening monster. But what he found in court was a skinny, effeminate
creep. "I think, 'Who is this punk, this squirrelly-looking punk guy?'"
Spisak coldly recalled how he shot Tim Sheehan. "When
I saw him go down, I knew I hit him," he testified. Shaughnessy showed
him a crime-scene photo of Tim's body. "I thought I did a good job,"
Spisak said. Then Nugent came in for the cross-examine.
When Spisak proudly claimed he shot Hardaway at the
Rapid station as "blood of atonement" for the recent Flats slaying of a
white woman by a black man, Nugent pointed out that the killing hadn't
been made public until a day after Hardaway was shot. Spisak had
committed the crime for no more noble purpose than his own sick pleasure,
Nugent told the jury. "Like your hero, Adolf Hitler, you got a yellow
streak all the way down your back," Nugent taunted the enraged Nazi.
The prosecutor found Spisak's weaknesses and used
them to humiliate him, calling him by his female name, Frankie. "The
name is Frank to you, buddy," Spisak shot back. "The name is whatever I
want to call you," Nugent replied. "I was overwhelmed by what [Nugent]
was doing," Brendan remembers. He was "aggressive, prepared."
Not even the defense's own psychiatrist could help
Spisak. In a shocking moment, the doctor testified that Spisak suffered
a personality disorder -- not legal insanity.
Spisak was convicted for all the murders, and was as
good as sitting in the electric chair. Asked by a reporter afterward if
he could think of any reason why he shouldn't be fried, Spisak smiled
and responded, "Not offhand, can you?" The jury agreed, sentencing
Spisak to die. He left the courtroom with a rousing "Heil Hitler!"
Sheehan never forgot the cowboy prosecutor. In his
junior year of high school, he volunteered by passing out yard signs for
Nugent's judicial campaign. Nugent, who won, was used to keeping in
touch with the victims, but Sheehan would regularly call for advice.
Nugent became his mentor, even steering him toward his alma mater, the
Cleveland Marshall College of Law.
For Sheehan, life fell into place fast. He proposed
to his girlfriend from law school, and they had two daughters and, later,
a son -- whom he named Tim, after his father. After graduation, he
clerked for Nugent, who had been appointed by President Clinton as a
federal judge. Sheehan was making a cool $80,000 salary, which rose
higher when he went to practice civil law.
It was the normal path for a budding lawyer -- follow
the money. Sheehan, however, had another agenda. When Bill Mason became
prosecutor in 1999, he started noticing the bright-eyed attorney
following him. "Wherever I was, he showed up," says Mason. Then one day,
Sheehan gathered his nerve and asked Mason for a job on the steps of the
courthouse. The prosecutor wanted to make sure Sheehan knew what he was
getting himself into. He'd start out making a measly $34,000, busting
deadbeat dads in child-support court. "It doesn't matter," Mason
remembers the kid saying. "I just want to do it."
Telling his wife about his latest career move was a
more delicate conversation. But Michelle stood by him. "We tightened our
belts, and we figured out a way to get it done," she says. "You live for
what you want, and that's what he wanted, so we supported him." Sheehan
got what he asked for. He scratched his way through child-support court,
then juvie, then moved up to trying small-time felony cases and parole
violations. In 2001, he was putting together a case against a loner
named Timothy Moulder for robbing a roofing company when he got his
chance to go big.
A year after the robbery, Moulder had been called in
by prosecutors as a suspect in a gangland-style slaying in Bay Village,
but he was dismissed after his girlfriend backed up his alibi. But
Sheehan knew the murdered man -- roofer Robert Cutler -- was the cops'
main witness to Moulder's robbery.
Sheehan urged Bay Village police to collect
surveillance tapes from businesses near the murder scene. On the morning
of the murder, Moulder was videotaped at a nearby gas station. It
destroyed his alibi. His girlfriend quickly ratted him. The boy prodigy
had cracked a murder case. "It was Brendan Sheehan, because of him, why
that case went to trial," says Judge Ron Suster.
Sheehan earned his way to a sidekick job on bigger
and bigger cases. He was a darling of the old-time prosecutors, tipping
verdicts with a baby face and Eddie Haskell politeness that the veterans
had lost to cold eyes and stomach-turning pauses. "He's the kind of guy
I think most people like their daughter to bring home," says attorney
Drucker. "He's got an all-American type of appeal."
He was taking his game to new heights -- as well as
new lows. During the trial of a Warrensville Heights bar owner, accused
of holding an after-hours strip show at his bar, Sheehan wanted to paint
the scene to jurors. So he brought in the stripper, a 50-year-old
grandmother in skin-tight leather pants, to dance in the courtroom. He
cranked up a boombox playing the bump-and-grind song "My Neck, My Back,"
as the over-the-hill temptress rolled around on the floor.
Judge Carolyn Friedland, wearing a prudish strand of
Barbara Bush pearls, watched the show as if she might vomit. She
dismissed the case midtrial. Today, Sheehan looks at a newspaper
clipping tacked to his office wall, where he's pictured holding a pair
of extra-large stripper panties. He's still proud of that case. "I was
trained by the best," he says of Nugent, "not afraid to fail."
Something had possessed Sheehan. In 2003, he took 28
cases to trial, winning 24 -- a number unheard of in the prosecutor's
office. "Nobody's ever tried that many cases," says Mason. That year he
was given the Carmen Marino Award. Usually bestowed as recognition for
the lifers in Mason's office, Sheehan had captured it in just four years.
"I think we caught everybody off guard when we gave it to Brendan," says
Mason. "But it was an easy call."
Mason then tapped Sheehan to run the internet crimes
division, busting online sex predators and kiddie-porn peddlers. Today,
he has 43 cases on his plate; the average prosecutor has less than half
that. Michelle says her husband often works until 2 a.m. preparing for
the next day.
She doesn't know much about her husband's father,
just bits and pieces recounted by Sheehan and his sister. "He's always
kept that quiet," she says. "I always wondered: If [Spisak] gets put to
death, are you gonna go watch?" But to her husband, Spisak was already
dead and buried. "We moved on," he says. "The fact that Frank Spisak is
in a jail cell, and is not talked about, and is not even mentioned, is
almost as satisfying."
Yet Spisak has made quite a life for himself on death
row. He's lobbied, unsuccessfully, for the prison to allow him to have a
sex change. In 1999, he filed a federal lawsuit to force the state to
refer to him as a woman. And he's spent 25 years burning public money,
dragging out the appeals process for as long as he can. He never got
much sympathy -- until last month. The Sixth Circuit Court in Cincinnati
ruled that Spisak hadn't received a fair defense and struck down his
Shaughnessy had done his best to make his client
appear insane, but it backfired, ruled the judges, actually making a
better case for killing Spisak than for sparing him. "Don't look to him
for sympathy," the lawyer told jurors at one point, "because he demands
Yet lawyers who knew him say Shaughnessy was simply
going by the book. "It's a standard technique -- take the thunder from
the opposing party," says Assistant Prosecutor Steve Dever. "Expose [the
weaknesses of your case] for yourself so that your opponent can't do it."
Unfortunately, Shaughnessy isn't alive to defend himself; he died of
throat cancer in 1997.
The state has appealed, but if it loses its challenge,
Spisak will return to Cleveland to be resentenced. Twenty-five years
later, with the horror of his killings long gone from the headlines,
finding 12 jurors to unanimously deny him mercy is a long shot.
To Sheehan, the only thing that matters is that his
father's killer is getting a walk. For his mother and sisters, it's a
slap in the face. "You're living the case until it is concluded," says
Nugent. "Then a decision like this comes out . . . It's like a death.
You're never prepared for it."
Spisak may never see his way out of Mansfield
Correctional, but he's found a way back into the Sheehans' lives.
Sheehan's kids have heard his worried mother and sister talking about it;
they want to know if they should be afraid. "I said, 'My dad was shot by
someone who was mean and bad, a bully,'" Sheehan says. Those words may
be enough to comfort his kids, but Sheehan just wants to bury this thing.
And prison walls aren't thick enough.
The letter comes from "Death Row, U.S.A." Written in
neat, girlish print, it begins with "Happy Thanksgiving" and a smiley
face. Spisak is writing Scene to dispel the "ignorance" surrounding his
case. He's no Nazi, he claims. And he's truly sorry for the killings.
"Mental illness caused the crimes," he writes, "and I'm sorry that I got
mentally ill enough to hurt and kill others [sad face]."
He signs the letter "Miss Frances Ann Spisak, a.k.a.
STARGIRL, WHITE ROSE in a concrete jungle." The killer seems truly happy
to be alive.
Killer Frank Spisak, not his attorney, brought on
death penalty, justices rule
By Robert Barnes - The Washington Post
January 13, 2010
As jurors prepared to decide whether Ohio killer
Frank G. Spisak Jr. should live or die, a lawyer told them this: "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."
That was Spisak's attorney talking. His unorthodox
closing argument asked only that jurors take "pride" in their own "humanity"
in making their decision. But the Supreme Court essentially said Tuesday
that when your client grows a mustache like Adolf Hitler's, admits to
killing three people and wounding two, expresses remorse only about a
victim who "wasn't Jewish like I thought he was," and says he would like
to kill again, even a sterling closing argument is not likely to save
The court overturned a decision from the U.S. Court
of Appeals for the 6th Circuit and ruled that it was not ineffectiveness
of counsel that earned Spisak a death sentence. After jurors heard "Spisak's
boastful and unrepentant confessions and his threats to commit further
acts of violence," Justice Stephen G. Breyer wrote, "we . . . do not see
how a less descriptive closing argument with fewer disparaging comments
about Spisak could have made a significant difference."
He said there was no "reasonable probability that,
but for the deficient closing, the result of the proceeding would have
Spisak, who committed his crimes in and around
Cleveland State University in the early 1980s, has bounced through a
series of courts since, and his case was making its second appearance at
the Supreme Court. The justices also rejected an argument that jury
instructions were inadequate.
The closing argument by attorney Tom Shaughnessy, now
deceased, caused a lively debate when the justices considered it earlier
in the term. Justice Antonin Scalia called it "brilliant," saying there
was nothing the lawyer could have done but urge the jurors to consider
their own humanity. Others were less generous. Justice John Paul Stevens,
who agreed with the outcome of the case, nevertheless wrote separately
to emphasize the "catastrophe of counsel's failed strategy," and said it
was difficult to demonstrate how egregious it was "without reproducing
it in its entirety."
Stevens added: "Indeed, the argument was so
outrageous that it would have rightly subjected a prosecutor to charges
of misconduct." Even so, Stevens said, he had to agree with the rest of
the court: "Even the most skillful of closing arguments -- even one
befitting Clarence Darrow -- would not have created a reasonable
probability of a different outcome in this case.
Execution for Nazi-loving Cleveland
murderer can move forward, despite his lawyer's 'outrageous'
By Stephen Koff - The Plain Dealer
January 12, 2010
WASHINGTON -- U.S. Supreme Court justices made clear
Tuesday that they unanimously agree with the collective judgment of the
Cleveland community: Frank Spisak, the Hitler-loving triple murderer who
terrorized Cleveland State University, was one demented guy -- one whose
attempted legal defenses have finally failed.
The high court overruled appellate judges who had saved Spisak, a
former cross-dresser who fashioned himself as a modern-day Nazi, from
death for his 1982 killing spree. The Cuyahoga County prosecutor's
office says it will soon ask Ohio to impose the capital sentence that
has been delayed by appeals ever since a Cleveland jury recommended it
"I don't ever feel triumphant about death-penalty
cases," Ohio Attorney General Richard Cordray said in a phone
interview after the Supreme Court's ruling. Cordray had argued to
the high court in October that Spisak's legal claims had no merit. "But
it's a good result, it's a just result, and we feel good about it."
Spisak's appellate attorneys, however, are troubled
by the ruling. Part of their case rested on the fact that before his
conviction, Spisak's trial lawyer appeared to side not with his own
client but, rather, with the prosecution, telling jurors during closing
arguments how awful and murderous Spisak was. Other attorneys and even
justices on the U.S. Supreme Court agreed that it was a bizarre, if not
wholly incompetent, defense.
Yet the high court refused to overturn Spisak's death
penalty on that basis. Instead, it ruled that the totality of Spisak's
actions -- not only his murder spree but his Nazi salute and "Heil
Hitler" remarks and lack of remorse -- provided the jury with ample
grounds on which to recommend a death sentence.
"The court seems to be saying that in some cases,
it doesn't matter how badly the lawyer performs, let's just kill the
defendant," said Michael Benza of Chagrin Falls, who argued Spisak's
case before the high court. Spisak might have been better off had
his trial lawyer, the late Thomas Shaughnessy, simply slept through
the case, Benza said.
Between February and August 1982, Spisak shot and
killed three people at CSU -- the Rev. Horace Rickerson; CSU student
Brian Warford; and Timothy Sheehan, CSU's assistant superintendent for
buildings and grounds. He tried to kill two others.
He said he did it because he was a follower of Adolph
Hitler and was in a war for survival "of the Aryan people," according to
Defending a client like Frank Spisak, who sometimes
called himself Frances Anne Spisak, would have been a challenge for any
lawyer, especially after a judge denied the use of the insanity defense.
So Shaughnessy, who died in 1997, tried something that has been
characterized as either one of the worst defenses known to man or a
tactic of utter brilliance.
He told jurors during closing arguments just how "sick,"
"twisted" and "demented" his client was. He described the crimes in
vivid detail, saying at one point, "You can almost smell the blood." And
he told the jurors not to look for good thoughts or deeds from Spisak,
because they would find none.
But the attorney appealed to the jury's sense of "humanity,"
although he did not explicitly ask for leniency. Instead, he told the 12
jurors, "Whatever you do, we are going to be proud of you."
The jurors concluded that Spisak should die.
New lawyers filed several appeals, contending that
Shaughnessy practically guaranteed a capital sentence with his odd
tactics. The appeals lawyers also said that poor jury instructions might
have led jurors to disregard factors such as Spisak's mental health --
experts testified of borderline personality disorder and gender identity
conflict -- that could have resulted in a different verdict.
The Supreme Court on Tuesday, however, upheld the
death sentence. This was the high court's second time dealing with the
case. At the heart of the opinion by Justice Stephen Breyer were the
basic facts of Spisak's behavior and crimes.
Even assuming "that the closing argument was
inadequate," Breyer wrote," there is "no reasonable probability" that a
better closing argument "would have made a significant difference."
In a separate, concurring opinion, Justice John Paul
Stevens said he agreed that Shaughnessy's closing argument was "rambling"
Nevertheless, Stevens wrote, Spisak's own behavior "alientated
and ostracized the jury, and his crimes were monstrous."
"In my judgment," Stevens said, "even the most
skillful of closing arguments -- even one befitting Clarance Darrow --
would not have created a reasonable probability of a different outcome
in this case."
Spisak is being held in the Mansfield Correctional
State v. Spisak, Not Reported in N.E.2d,
1984 WL 13992 (Ohio App. 1984). (Direct Appeal)
Appellant Frank G. Spisak, Jr. was indicted on four
counts of aggravated murder with 20 separate specifications, on two
counts of attempted murder, on three counts of aggravated robbery, and
one count of receiving stolen property. FN1 R.C. 2903.01; R.C. 2929.04;
R.C. 2903.02; R.C. 2923.02; R.C. 2911.01; R.C. 2913.51. The appellant
entered pleas of not guilty and not guilty by reason of insanity to all
counts but one, to which he entered a plea of no contest.
The case went to trial on June 7, 1983. On July 15,
the jury convicted the appellant on the four counts of aggravated murder,
on the two counts of attempted murder, and on two counts of aggravated
robbery. The appellant was acquitted on one count of aggravated robbery
and on one specification on the fourth count of aggravated murder.
A sentencing hearing began on July 16, 1983. The
appellant attempted to establish the existence of factors which would
serve in mitigation of the imposition of the death sentence. R.C.
2929.03. The majority of the appellant's argument dealt with one issue,
diminished capacity at the time of the acts. See R.C. 2929.04(B)(3). The
appellee argued that any mitigating factors were outweighed by the
aggravating circumstances of the murders. On July 19, 1983, the jury
found that the aggravating circumstances outweighed any mitigating
factors so as to justify imposition of the death sentence. The jury thus
recommended to the court that such a sentence be imposed. The court,
after conducting an independent analysis of the issues, agreed with the
jury's finding and recommendation. Accordingly, the appellant was
sentenced to death. Additionally, the appellant was sentenced to a term
of 7-25 years on each conviction for attempted murder and aggravated
Since his arrest, the appellant has consistently
admitted to committing the acts in question. The events which resulted
in the appellant's indictment and subsequent convictions were as follows:
In February of 1982, the appellant was an employee of the Edward W.
Daniel Company. On the first day of that month, he decided that he did
not feel up to going to work, so he called in sick. (Tr. 1381). The
appellant then decided to go to the library at Cleveland State
University. He always carried a gun when he left his apartmentdue to the
fact that he was once mugged by five men. (Tr. 1382).
After arriving at the library, the appellant read for
several hours. He then got up and went to the rest room. Once inside the
rest room, he saw a black man who, he claimed at trial, exposed himself
and ordered to have sex with the appellant. (Tr. 1390-1391). The
appellant became extremely agitated and shot the man several times. (Tr.
1391, 1397). That man, who was later found dead, was identified as the
Reverend Horace Rickerson.
On June 4, 1982, the appellant and a companion,
Ronald Reddish, were driving on the west side of Cleveland. They stopped
and parked near the R.T.A. rapid transit station at the intersection of
Madison Avenue and West 117th Street. (Tr. 1414). The appellant,
believing he saw a black man enter the train station, decided to follow
him. He testified that he intended to kill the black man as retribution
for two white women who were alternately raped and killed by a black man.
(Tr. 1415-1418). The appellant also admitted at trial that he considered
that a murder on the west side of Cleveland and would not be linked to
the Rickerson murder at Cleveland State. (Tr. 1673-1674). Unable to find
the black man, the appellant returned to the car. As he was getting into
the car, the man he had just seen, John Hardaway, walked directly past
the appellant and Reddish and into the station. The appellant quickly
pursued. After entering the station, he pulled his gun, approached
Hardaway, and fired several times. (Tr. 289, 1422-1424). Hardaway,
gravely injured, managed to crawl onto the train platform. He was
spotted by a train operator, who called for help. (Tr. 304, 313, 316).
Hardaway was subsequently taken to St. John's Hospital and treated for
his injuries. He later identified the appellant as the man who shot him.
Coletta Dartt, an employee in the Chemistry
Department at Cleveland State University, went to the women's rest room
in the University's Science Building at 5:00 P.M. on August 9, 1982. (Tr.
378-379). She was inside the rest room for several minutes. When she
opened the door to her stall and prepared to leave, a man jumped out
from the adjacent stall and aimed a gun at her. (Tr. 384). He ordered
Dartt back into her stall, but she pushed him back and dove for the door.
She felt the man grab for the shoulder on which she was carrying her
shoulder bag. (Tr. 384-385). As she ran down the hall, Dartt heard a
loud explosion and realized the man had fired his gun at her. (Tr. 385).
At trial, Dartt identified the appellant as the man who confronted her
in the rest room. (Tr. 386).
In a pre-trial statement to the police, the appellant
stated that he shot at Dartt during the course of a robbery. (Tr. 1119).
At trial, he testified that he was upset because he overheard Dartt and
several other people making derisive remarks about the Nazi Party. The
appellant testified at trial that he remembered shooting at Dartt. (Tr.
On August 27, 1982, the appellant was again in the
men's rest room at Cleveland State University when he encountered
Timothy Sheehan. Sheehan was in charge of maintenance for the physical
plant of the University, and the appellant testified that he thought
Sheehan was a Jewish professor who seduced and perverted young people. (Tr.
1465-1466). The appellant had earlier stated to the police that he was
worried that Sheehan might recognize him, as Sheehan was in the rest
room on February 1 immediately before the appellant shot and killed
Horace Rickerson. (Tr. 1115-1116, 1155).
On August 27, Sheehan was standing at an urinal and
allegedly staring at the appellant. (Tr. 1505). The appellant pulled his
gun and shot Sheehan several times, fatally wounding him. (Tr. 1505). He
took Sheehan's paging beeper and gathered up the brass bullet casings
that were lying on the floor. (Tr. 1510). He then left the rest room.
The appellant and Ronald Reddish decided to go
driving on the night of August 29, 1982. They drove through the near
east side and downtown area of Cleveland on their “hunting” mission. (Tr.
1470). After driving for the better part of the night, the appellant
took Reddish home. Still restless, the appellant continued to drive
until he arrived at the Cleveland State campus. Brian Warford, a young
black man, was sitting asleep at a bus stop. (Tr. 1474, 1478). The
appellant parked the car and checked to insure that no other people were
in the area. (Tr. 1475-1477). He approached Warford, and at close range,
shot and killed him. (Tr. 1477-1480). The appellant was unable to find
the bullet casings on the sidewalk because it was too dark. (Tr. 1700).
Although he was worried that somebody may have heard the shooting, he
was apparently able to avoid detection and made his way home. (Tr.
On September 4, 1982, several Cleveland Police cars
were dispatched to a house on East 53rd Street as a report was received
of a man firing a gun from a window. (Tr. 690). After arriving on the
scene, several officers went to the second floor of the house. The
appellant, who was found inside, admitted to firing one shot. He was
arrested for discharging a weapon within the city limits and for
possession of unregistered handguns. (Tr. 701). Several weapons were
confiscated, and the appellant was taken to the Justice Center. (Tr.
707). He later posted bond and was released. (Tr. 708).
On September 5, 1982, the Cleveland Police received a
call from a woman with information about the Cleveland State murders.
The caller, who asked to remain unidentified, told the police that the
guns that were confiscated from the house on East 53rd had been used in
the killings at Cleveland State University. (Tr. 715-717). Tests were
then performed on the confiscated weapons, and comparisons were made
with the pellets and casings found in connection with the Cleveland
State homicides. After conducting this investigation, the police
obtained a warrant to search the appellant's apartment. (Tr. 762-763.)
While they were in the process of searching the
apartment, a neighbor told the police that her son had seen the
appellant and Reddish driving in a car. The woman gave the police the
license number that her son had copied down. (Tr. 868-869). Through the
use of a computer, the police utilized the license number to get the
address of the car's owner. Officers then went to a house at 4324 Marvin
Avenue in Cleveland. Ronald Reddish answered the door and was quickly
taken outside. (Tr. 892-893). Upon entering the house, the officers
noticed open suitcases, one of which contained the appellant's
identification. (Tr. 893-894). They also discovered a paging beeper that
was later identified as the one which belonged to Timothy Sheehan. (Tr.
540-543). The appellant was found hiding in a basement crawl space. (Tr.
894). He was arrested, advised of his constitutional rights, and taken
to the Justice Center. (Tr. 894, 896-897).
After the appellant entered his pleas, the court
ordered that he undergo examination to determine his mental condition at
the time of the commission of the offenses for which he was indicted.
R.C. 2945.39. The appellant was examined by five doctors who were either
trained in psychiatry or psychology: Dr. Phillip Resnick, Dr. Sandra
McPherson, Dr. Kurt Bertschinger, Dr. S.M. Samy, and Dr. Oscar Markey.
The first four doctors explicitly stated in their reports that the
appellant's mental condition was not of such nature that it would
support a plea of legal insanity. The fifth report, that of Dr. Oscar
Markey, was ambiguous in that regard. At trial, the appellant called
Markey to testify in support of his plea of not guilty by reason of
After listening to Markey's proposed testimony during
a voir dire hearing, the court determined that Markey could testify
before the jury. (Tr. 1845-1930). Shortly after Markey began his
testimony, the court ordered the jury returned to the jury room, and
Markey was further questioned by the court and counsel out of the
presence of the jury. Finally, the appellee objected to the continuation
of Markey's testimony. (Tr. 2001). The appellee argued that Markey's
testimony was irrelevant to the issue of legal insanity as it indicated
that the appellant was legally sane at the time of the acts. The court
agreed with the appellee's contention, disallowed Markey from testifying
further, and struck from the record the testimony that had already been
given. (Tr. 2017, 2022). The court did state that it was willing to hear
any further testimony relevant to the issue of legal insanity. (Tr.
In addition to the appellant and Markey, the only
other defense witnesses who were called to testify were the appellant's
sister and his ex-wife. At the conclusion of the trial, the court ruled
that the defense had not sufficiently met its burden of going forward
with evidence of legal insanity. Therefore, the court refused to
instruct the jury on the insanity defense. (Tr. 2400).
In this appeal, we are asked to address a single
assignment of error: WHETHER OR NOT THE TRIAL COURT ERRED BY RULING THAT
BEFORE AN EXPERT DOCTOR COULD TESTIFY BEFORE THE JURY THAT THE EXPERT
DOCTOR MUST HAVE FOUND THE DEFENDANT-APPELLANT TO BE “LEGALLY INSANE.”
At no point in this case did the trial court rule
that a defense expert must find the appellant legally insane before he
or she would be permitted to testify. The trial court did rule that Dr.
Oscar Markey's testimony was irrelevant to the insanity defense and thus
struck Markey's testimony from the record. We will direct our analysis
to two main points; whether the court erred in striking the testimony of
of Markey, and whether the appellant met his burden of going forward
with evidence of legal insanity.
We must initially determine whether Markey's
testimony met the basic requirements set forth in the Rules of Evidence.
Evidence Rule 403 states: (A) Exclusion Mandatory. Although relevant,
evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of 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.
Further, Evidence Rule 702 states: 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.
According to the appellant, Markey's testimony was
supportive of the proposition that he was legally insane. However, our
review of the testimony leads us to conclude that it did little, if
anything, to alter the presumption that the appellant was sane. Moreover,
there was a high probability that the testimony would have confused the
issues in the minds of the jurors and would not have aided the jury in
understanding the evidence or in reaching a determination on legal
The test for legal insanity in Ohio is that: One
accused of criminal conduct is not responsible for such criminal conduct
if, at the time of such conduct, as a result of mental disease or defect,
he does not have the capacity either to know the wrongfulness of his
conduct or to conform his conduct to the requirements of law. State v.
Staten (1969), 18 Ohio St.2d 13; State v. Brown (1983), 5 Ohio St.3d
133. Markey's testimony was, at best, ambiguous, and far more often than
not made a strong case for the fact that the appellant was legally sane
at the time of committing the acts.
For instance, the following exchange took place
between the court and Markey: THE COURT: Doctor, in your opinion,
obviously, it is based on reasonable medical certainty, does Mr. Spisak
have a mental disease, actively, presently? THE WITNESS: Actively, no.
THE COURT: Presently, does he have a mental disease? THE WITNESS: No.
THE COURT: Okay. 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? THE WITNESS: On the basis of what I know, no. THE COURT:
Okay. (Tr. 1978-1979). Markey went on to repeat that the appellant was
not suffering from a mental disease and also stated that the appellant
was not suffering from a mental defect. (Tr. 1988-1989). At one point,
Markey testified that the appellant was unable to conform his conduct to
the requirements of the law because he lacked the ability to control his
impulse to assault. (Tr. 1980-1981). At a later point, however, Markey
admitted that the appellant did have the ability to resist the impulse
to assault and could conform his conduct to the requirements of the law.
(Tr. 1992-1993). Finally, Markey and the prosecuting attorney entered
into this exchange during cross-examination: 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?
*6 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. (Tr. 1995).
It is difficult, if not impossible, to see how
Markey's testimony would, in any fashion, have assisted the jury in
reaching a conclusion on the legal insanity of the appellant. Primarily,
the testimony reinforced the argument that the appellant was sane at the
time of the acts.
We agree with the appellant that an expert should not
have to conclusively state that a defendant is legally insane before he
should be allowed to testify, or before the jury should be permitted to
consider his testimony. It is the role of the jury to determine the
issue of legal insanity. However, when 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. Because
those requirements were not met in the case sub judice, it was not error
for the trial court to strike Markey's testimony from the record.
Even if the court had allowed Markey to complete his
testimony, we are unconvinced that the appellant met his burden of going
forward with evidence of legal insanity. The defense of not guilty by
reason of insanity is an affirmative defense. State v. Humphries (1977),
51 Ohio St.2d 95. As such, “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.
Chase (1978), 55 Ohio St.2d 237; R.C. 2901.05(A). In deciding exactly
what quality of evidence is sufficient to raise an affirmative defense,
the Ohio Supreme Court has held:
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. State v.
Robbins (1979), 58 Ohio St.2d 74; State v. Melchior (1978), 56 Ohio St.2d
15. There was little, if any, evidence presented by the appellant, which,
if believed, would have raised a question in the minds of the jurors
regarding the issue of legal insanity.
The testimony of the appellant, of his sister, and of
his ex-wife, like the testimony of Markey, did nothing but reaffirm the
presumption that the appellant was legally sane at the time of the acts.
The appellant's sister and ex-wife testified in a general fashion about
bizarre behavior exhibited by the appellant on various occasions, but
nothing in their testimony sufficiently raised a question of legal
insanity. The appellant's own testimony, filled with examples of how he
attempted to cover his tracks, demonstrated beyond doubt that he knew
what he was doing was wrong and could have conformed to the requirements
of the law had he so chosen. Further, four doctors, in addition to
Markey, examined the appellant and concluded that he was legally sane at
the time he committed the offenses for which he was indicted. Thus,
there was not sufficient evidence for the jury to even begin determining
the question of legal insanity.
Clearly, anyone who murders three people and attempts
to murder two others is suffering from extremely severe emotional and/or
mental problems. However, the existence of such problems does not
necessarily mean that a defendant can meet the very strict test for
legal insanity. Because the appellant in the instant case failed to meet
his burden of going forward with evidence of legal insanity, it was not
error for the trial court to refuse to instruct the jury on the insanity
defense. Accordingly, the appellant's assignment of error is overruled.
Pursuant to R.C. 2929.05(A), in any case where the
sentence of death is imposed, the court of appeals and supreme court
must: [I]ndependently weigh all of the facts and other evidence
disclosed in the record in the case and consider the offense and the
offender to determine whether the aggravating circumstances the offender
was found guilty of committing outweigh the mitigating factors in the
case, and whether the sentence of death is appropriate. In determining
whether the sentence of death is appropriate, the court of appeals and
the supreme court shall consider whether the sentence is excessive or
disproportionate to the penalty imposed in similar cases. They shall
also review all of the facts and other evidence to determine if the
evidence supports the finding of the aggravating circumstances the trial
jury or the panel of three judges found the offender guilty of
committing, and shall determine whether the sentencing court properly
weighed the aggravating circumstances the offender was found guilty of
committing, and the mitigating factors. The court of appeals or the
supreme court shall affirm a sentence of death only if the particular
court is persuaded from the record that the aggravating circumstances
the offender was found guilty of committing outweigh the mitigating
factors present in the case and that the sentence of death is the
appropriate sentence in the case.
Before turning our attention to the aggravating
circumstances and mitigating factors in the case before us, we must
address an issue regarding the appellant's indictment and subsequent
convictions. 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 or
and sentenced on all four counts of aggravated murder.
R.C. 2941.25(A) provides: (A) Where the same conduct
by defendant can be construed to constitute two or more allied offenses
of similar import, the indictment or information may contain counts for
all such offenses, but the defendant may be convicted of only one.
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. State v. Osborne (1976), 49 Ohio St.2d 135; State v. Morningstar
(1980), 19 Ohio Op.3d 283. Therefore, the appellant's conviction for
aggravated murder on the fifth count of the indictment, as well as the
five specifications attached thereto, must be vacated.
The appellant's three convictions for aggravated
murder specify fourteen separate aggravating circumstances. R.C.
2929.04. At no time has there been the contention by the appellant that
he did not commit the offenses or the aggravating circumstances for
which he was indicted. In fact, he freely admitted that he was
responsible for the acts. Furthermore, the appellant was positively
identified by John Hardaway and Coletta Dartt. The bullet casings and
pellets recovered by the police in connection with the Cleveland State
homicides corresponded to the firearms that were confiscated from the
appellant. The appellant stated to the police that he killed Thomas
Sheehan because he was afraid that Sheehan recognized him from the day
of the Rickerson murder. (Tr. 1115-1116, 1155). Additionally, Sheehan's
paging beeper was discovered in one of the appellant's suitcases. Thus,
our review of the facts and evidence leads us to conclude that the
offenses and the aggravating circumstances which the appellant was found
guilty of committing were proven beyond a reasonable doubt.
In mitigation, the appellant's sole argument was
directed to his allegation that he was suffering from diminished
capacity at the time he committed the acts. R.C. 2929.04(B)(3). Dr.
Sandra McPherson, Dr. Kurt Bertschinger, and Dr. Oscar Markey testified
on the appellant's behalf. They detailed a variety of personality
disorders from which they believed the appellant to be suffering which
allegedly caused him to lack “substantial capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements
of the law.” R.C. 2929.04(B)(3). Even if we accept as true the
appellant's argument regarding diminished capacity, we are not persuaded
that that mitigating factor, standing alone, is of sufficient magnitude
to counterbalance the aggravating circumstances that the appellant was
found guilty of committing. Further, our independent review of the other
six mitigating factors outlined in R.C. 2929.04(B) does not reveal
additional factors which are relevant to the instant case. The appellant
murdered three people and attempted to murder two others. The
aggravating circumstances which were the by-product of that conduct
clearly outweigh any mitigating factors which may exist in this case.
We reach this determination after our own independent
analysis of the facts and evidence in this case. We also determine,
after reviewing the evidence and the opinion of the trial court, that
the court properly weighed the aggravating circumstances and mitigating
factors. The opinion indicates that the court carefully considered the
testimony during the sentencing hearing, as well as any other factors in
mitigation of the imposition of the death sentence, and correctly
concluded that the aggravating circumstances outweigh the mitigating
It is this Court's conclusion that the sentence of
death is appropriate in the instant case, and that such sentence is
neither excessive nor disproportionate to the penalty imposed in similar
cases. See State v. Jenkins (Ct.App., Cuy. Cty., 1984), unreported No.
Accordingly, for the reasons adduced herein, the
judgment and sentence of the trial court, as modified, are affirmed.
It is ordered that appellee(s) recover of appellant(s)
its costs herein taxed. The Court finds there were reasonable grounds
for this appeal. It is ordered that a special mandate issue out of this
Court directing the Common Pleas Court to carry this judgment into
execution. A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
MARKUS, J., CONCURS; JACKSON, J., CONCURS (See
Concurring Opinion attached)
Smith v. Spisak, 130 S.Ct. 676, 130 S.Ct.
676, 175 L.Ed.2d 595 (2010). (Habeas)
Background: Following affirmance of state court
convictions for three counts of murder and two counts of attempted
murder and affirmance of death sentence, 36 Ohio St.3d 80, 521 N.E.2d
800, petitioner sought writ of habeas corpus. The United States District
Court for the Northern District of Ohio, Solomon Oliver, Jr., J., denied
the petition. Petitioner appealed. The United States Court of Appeals
for the Sixth Circuit, Clay, Circuit Judge, 465 F.3d 684, affirmed in
part and reversed in part, granting partial habeas relief. The Supreme
Court, 552 U.S. 945, 128 S.Ct. 373, 169 L.Ed.2d 257, granted certiorari,
vacated, and remanded for further consideration. On remand, the Court of
Appeals, 512 F.3d 852, reinstated its prior opinion, and remanded.
Certiorari was granted.
Holdings: The Supreme Court, Justice Breyer, held
that: (1) instructions and jury forms at penalty phase did not
unconstitutionally require jury to consider in mitigation only those
factors that jury unanimously found to be mitigating, and (2) assuming
counsel performed deficiently in making a penalty-phase closing argument
that allegedly understated the facts upon which defense experts based
their mental illness conclusions, defendant was not prejudiced, as
element of ineffective assistance of counsel.
Court of Appeals reversed. Justice Stevens filed an
opinion concurring in part and concurring in the judgment.
Justice BREYER delivered the opinion of the Court.
Frank G. Spisak, Jr., the respondent, was convicted
in an Ohio trial court of three murders and two attempted murders. He
was sentenced to death. He filed a habeas corpus petition in federal
court, claiming that constitutional errors occurred at his trial. First,
Spisak claimed that the jury instructions at the penalty phase
unconstitutionally required the jury to consider in mitigation only
those factors that the jury unanimously found to be mitigating. See
Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).
Second, Spisak claimed that he suffered significant harm as a result of
his counsel's inadequate closing argument at the penalty phase of the
proceeding. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). The Federal Court of Appeals accepted these
arguments and ordered habeas relief. We now reverse the Court of Appeals.
In 1983, an Ohio jury convicted Spisak of three
murders and two attempted murders at Cleveland State University in 1982.
The jury recommended, and the judge imposed, a death sentence. The Ohio
courts denied Spisak's claims, both on direct appeal and on collateral
review. State v. Spisak, 36 Ohio St.3d 80, 521 N.E.2d 800 (1988) (per
curiam); State v. Spisak, No. 67229, 1995 WL 229108 (Ohio App., 8th
Dist., Cuyahoga Cty., Apr. 13, 1995); State v. Spisak, 73 Ohio St.3d
151, 652 N.E.2d 719 (1995) (per curiam).
Spisak then sought a federal writ of habeas corpus.
Among other claims, he argued that the sentencing phase of his trial
violated the U.S. Constitution for the *681 two reasons we consider here.
The District Court denied his petition. Spisak v. Coyle, Case No.
1:95CV2675 (ND Ohio, Apr. 18, 2003), App. to Pet. for Cert. 95a. But the
Court of Appeals accepted Spisak's two claims, namely, his mitigation
instruction claim and his ineffective-assistance-of-counsel claim.
Spisak v. Mitchell, 465 F.3d 684, 703-706, 708-711 (C.A.6 2006). The
Court of Appeals consequently ordered the District Court to issue a
conditional writ of habeas corpus forbidding Spisak's execution. Id., at
The State of Ohio then sought certiorari in this
Court. We granted the petition and vacated the Court of Appeals'
judgment. Hudson v. Spisak, 552 U.S. 945, 128 S.Ct. 373, 169 L.Ed.2d 257
(2007). We remanded the case for further consideration in light of two
recent cases in which this Court had held that lower federal courts had
not properly taken account of the deference federal law grants state-court
determinations on federal habeas review. Ibid.; see 28 U.S.C. § 2254(d);
Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006);
Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836
(2007). On remand, the Sixth Circuit reinstated its earlier opinion.
Spisak v. Hudson, 512 F.3d 852, 853-854 (2008). The State again sought
certiorari. We again granted the petition. And we now reverse.
Spisak's first claim concerns the instructions and
verdict forms that the jury received at the sentencing phase of his
trial. The Court of Appeals held the sentencing instructions
unconstitutional because, in its view, the instructions, taken together
with the forms, “require[d]” juror “unanimity as to the presence of a
mitigating factor”-contrary to this Court's holding in Mills v. Maryland,
supra. 465 F.3d, at 708. Since the parties do not dispute that the Ohio
courts “adjudicated” this claim, i.e., they considered and rejected it
“on the merits,” the law permits a federal court to reach a contrary
decision only if the state-court decision “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). Unlike the Court of Appeals, we conclude that Spisak's claim
does not satisfy this standard.
The parties, like the Court of Appeals, assume that
Mills sets forth the pertinent “clearly established Federal law.” While
recognizing some uncertainty as to whether Mills was “clearly
established Federal law” for the purpose of reviewing the Ohio Supreme
Court's opinion, we shall assume the same. Compare Williams v. Taylor,
529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (STEVENS, J.,
for the Court) (applicable date for purposes of determining whether
“Federal law” is “established” is when the “state-court conviction
became final”), with id., at 412, 120 S.Ct. 1495 (O'Connor, J., for the
Court) (applicable date is “the time of the relevant state-court
decision”); see State v. Spisak, 36 Ohio St.3d 80, 521 N.E.2d 800 (decided
Apr. 13, 1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d
822 (decided Mar. 6, 1989); Mills v. Maryland, supra (decided June 6,
The rule the Court set forth in Mills is based on two
well-established principles. First, the Constitution forbids imposition
of the death penalty if the sentencing judge or jury is “ ‘ “precluded
from considering, as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense that the
defendant proffers as a basis*682 for a sentence less than death.” ’ ”
486 U.S., at 374, 108 S.Ct. 1860 (quoting Eddings v. Oklahoma, 455 U.S.
104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), in turn quoting Lockett v.
Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality
opinion)). Second, the sentencing judge or jury “ ‘may not refuse to
consider or be precluded from considering “any relevant mitigating
evidence.” ’ ” Mills, 486 U.S., at 374-375, 108 S.Ct. 1860 (quoting
Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1
(1986), in turn quoting Eddings, supra, at 114, 102 S.Ct. 869).
Applying these principles, the Court held that the
jury instructions and verdict forms at issue in the case violated the
Constitution because, read naturally, they told the jury that it could
not find a particular circumstance to be mitigating unless all 12 jurors
agreed that the mitigating circumstance had been proved to exist. Mills,
486 U.S., at 380-381, 384, 108 S.Ct. 1860. If, for example, the defense
presents evidence of three potentially mitigating considerations, some
jurors may believe that only the first is mitigating, some only the
second, and some only the third. But if even one of the jurors believes
that one of the three mitigating considerations exists, but that he is
barred from considering it because the other jurors disagree, the Court
held, the Constitution forbids imposition of the death penalty. See id.,
at 380, 384, 108 S.Ct. 1860; see also McKoy v. North Carolina, 494 U.S.
433, 442-443, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (“ Mills requires
that each juror be permitted to consider and give effect to ... all
mitigating evidence in deciding ... whether aggravating circumstances
outweigh mitigating circumstances ...”). Because the instructions in
Mills would have led a reasonable juror to believe the contrary, the
Court held that the sentencing proceeding violated the Constitution. 486
U.S., at 374-375, 108 S.Ct. 1860.
In evaluating the Court of Appeals' determination
here, we have examined the jury instructions and verdict forms at issue
in Mills and compared them with those used in the present case. In the
Mills sentencing phase, the trial judge instructed the jury to fill out
a verdict form that had three distinct parts. Section I set forth a list
of 10 specific aggravating circumstances next to which were spaces where
the jury was to mark “yes” or “no.” Just above the list, the form said:
“Based upon the evidence we unanimously find that each of the following
aggravating circumstances which is marked ‘yes' has been proven ... and
each aggravating circumstance which is marked ‘no’ has not been proven
....” 486 U.S., at 384-385 [, 108 S.Ct. 1860] (emphasis added; internal
quotation marks omitted).
Section II set forth a list of eight potentially
mitigating circumstances (seven specific circumstances and the eighth
designated as “other”) next to which were spaces where the jury was to
mark “yes” or “no.” Just above the list the form said: “Based upon the
evidence we unanimously find that each of the following mitigating
circumstances which is marked ‘yes' has been proven to exist ... and
each mitigating circumstance marked ‘no’ has not been proven ....” Id.,
at 387 [, 108 S.Ct. 1860] (emphasis added; internal quotation marks
Section III set forth the overall balancing question,
along with spaces for the jury to mark “yes” or “no.” It said: “Based on
the evidence we unanimously find that it has been proven ... that the
mitigating circumstances *683 marked ‘yes' in Section II outweigh the
aggravating circumstances marked ‘yes' in Section I.” Id., at 388-389 [,
108 S.Ct. 1860] (emphasis added; internal quotation marks omitted).
Explaining the forms, the judge instructed the jury
with an example. He told the jury that it should mark “ ‘yes' ” on the
jury form if it “ ‘unanimously’ ” concluded that an aggravating
circumstance had been proved. Id., at 378, 108 S.Ct. 1860. Otherwise, he
said, “ ‘of course you must answer no.’ ” Ibid. (emphasis deleted).
These instructions, together with the forms, told the jury to mark “yes”
on Section II's list of mitigating factors only if the jury unanimously
concluded that the particular mitigating factor had been proved, and to
consider in its weighing analysis in Section III only those mitigating
factors marked “yes” in Section II. Thus, as this Court found, the jury
was instructed that it could consider in the ultimate weighing of the
aggravating and mitigating evidence only the mitigating factors that the
jury had unanimously found to exist. See id., at 380-381, 108 S.Ct.
The instructions and jury forms in this case differ
significantly from those in Mills. The trial judge instructed the jury
that the aggravating factors they would consider were the specifications
that the jury had found proved beyond a reasonable doubt at the guilt
phase of the trial-essentially, that each murder was committed in a
course of conduct including the other crimes, and, for two of the
murders, that the murder was committed with the intent to evade
apprehension or punishment for another offense. 8 Tr. 2967-2972 (July
He then explained the concept of a “mitigating
factor.” After doing so, he listed examples, including that “the
defendant because of a mental disease or defect ... lacked substantial
capacity to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law.” Id., at 2972-2973. The court
also told the jury that it could take account of “any other” mitigating
consideration it found “relevant to the issue of whether the defendant
should be sentenced to death.” Id., at 2973. And he instructed the jury
that the State bore the burden of proving beyond a reasonable doubt that
the aggravating circumstances outweighed the mitigating factors. Id., at
With respect to “the procedure” by which the jury
should reach its verdict, the judge told the jury only the following:
“[Y]ou, the trial jury, must consider all of the relevant evidence
raised at trial, the evidence and testimony received in this hearing and
the arguments of counsel. From this you must determine whether, beyond a
reasonable doubt, the aggravating circumstances, which [Spisak] 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 circumstance in each separate count outweighs the mitigating
factors, then you must return that finding to 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 [Spisak] has
been found guilty of committing in the separate counts outweigh the
mitigating factors, you will then proceed to determine *684 which of two
possible life imprisonment sentences to recommend to the Court.” Id., at
The judge gave the jury two verdict forms for each
aggravating factor. The first of the two forms said: “ ‘We the jury in
this case ... do find beyond a reasonable doubt that the aggravating
circumstance ... was sufficient to outweigh the mitigating factors
present in this case. “ ‘We the jury recommend that the sentence of
death be imposed ....’ ” Id., at 2975-2976. The other verdict form read:
“ ‘We the jury ... do find that the aggravating circumstances ... are
not sufficient to outweigh the mitigation factors present in this case.
“ ‘We the jury recommend that the defendant ... be sentenced to life
imprisonment ....’ ” Id., at 2976.
The instructions and forms made clear that, to
recommend a death sentence, the jury had to find, unanimously and beyond
a reasonable doubt, that each of the aggravating factors outweighed any
mitigating circumstances. But the instructions did not say that the jury
must determine the existence of each individual mitigating factor
unanimously. Neither the instructions nor the forms said anything about
how-or even whether-the jury should make individual determinations that
each particular mitigating circumstance existed. They focused only on
the overall balancing question. And the instructions repeatedly told the
jury to “conside[r] all of the relevant evidence.” Id., at 2974. In our
view the instructions and verdict forms did not clearly bring about,
either through what they said or what they implied, the circumstance
that Mills found critical, namely, “a substantial possibility that
reasonable jurors, upon receiving the judge's instructions in this case,
and in attempting to complete the verdict form as instructed, well may
have thought they were precluded from considering any mitigating
evidence unless all 12 jurors agreed on the existence of a particular
such circumstance.” 486 U.S., at 384, 108 S.Ct. 1860.
We consequently conclude that the state court's
decision upholding these forms and instructions was not “contrary to, or
... an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” in Mills. 28 U.S.C.
§ 2254(d)(1). We add that the Court of Appeals found the jury
instructions unconstitutional for an additional reason, that the
instructions “require[d] the jury to unanimously reject a death sentence
before considering other sentencing alternatives.” 465 F.3d, at 709 (citing
Mapes v. Coyle, 171 F.3d 408, 416-417 (C.A.6 1999)). We have not,
however, previously held jury instructions unconstitutional for this
reason. Mills says nothing about the matter. Neither the parties nor the
courts below referred to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382,
65 L.Ed.2d 392 (1980), or identified any other precedent from this Court
setting forth this rule. Cf. Jones v. United States, 527 U.S. 373,
379-384, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (rejecting an arguably
analogous claim). But see post, at 3-5 (STEVENS, J., concurring in part
and concurring in judgment). Whatever the legal merits of the rule or
the underlying verdict forms in this case were we to consider them on
direct appeal, the jury instructions at Spisak's trial were not contrary
to “clearly established Federal law.” 28 U.S.C. § 2254(d)(1).
Spisak's second claim is that his counsel's closing
argument at the sentencing*685 phase of his trial was so inadequate as
to violate the Sixth Amendment. To prevail, Spisak must show both that
“counsel's representation fell below an objective standard of
reasonableness,” Strickland, 466 U.S., at 688, 104 S.Ct. 2052, and 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, 104 S.Ct. 2052.
The Ohio Supreme Court held that Spisak's claim was
“not well-taken on the basis of our review of the record.” State v.
Spisak, 36 Ohio St.3d, at 82, 521 N.E.2d, at 802 (citing, inter alia,
Strickland, supra). The District Court concluded that counsel did a
constitutionally adequate job and that “[t]here simply is not a
reasonable probability that, absent counsel's alleged errors, the jury
would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Spisak v. Coyle, App. to Pet. for
Cert. 204a. The Court of Appeals, however, reached a contrary conclusion.
It held that counsel's closing argument, measured by “ ‘an objective
standard of reasonableness,’ ” was inadequate, and it asserted that “a
reasonable probability exists” that adequate representation would have
led to a different result. 465 F.3d, at 703, 706 (quoting Strickland,
supra, at 688, 104 S.Ct. 2052). Responding to the State's petition for
certiorari, we agreed to review the Court of Appeals' terse finding of a
“reasonable probability” that a more adequate argument would have
changed a juror's vote.
In his closing argument at the penalty phase,
Spisak's counsel described Spisak's killings in some detail. He
acknowledged that Spisak's admiration for Hitler inspired his crimes. He
portrayed Spisak as “sick,” “twisted,” and “demented.” 8 Tr. 2896 (July
19, 1983). And he said that Spisak was “never going to be any different.”
Ibid. He then pointed out that all the experts had testified that Spisak
suffered from some degree of mental illness. And, after a fairly lengthy
and rambling disquisition about his own decisions about calling expert
witnesses and preparing them, counsel argued that, even if Spisak was
not legally insane so as to warrant a verdict of not guilty by reason of
insanity, he nonetheless was sufficiently mentally ill to lessen his
culpability to the point where he should not be executed. Counsel also
told the jury that, when weighing Spisak's mental illness against the
“substantial” aggravating factors present in the case, id., at 2924, the
jurors should draw on their own sense of “pride” for living in “a humane
society” made up of “a humane people,” id., at 2897-2900, 2926-2928.
That humanity, he said, required the jury to weigh the evidence “fairly”
and to be “loyal to that oath” the jurors had taken to uphold the law.
Id., at 2926.
Spisak and his supporting amici say that this
argument was constitutionally inadequate because: (1) It overly
emphasized the gruesome nature of the killings; (2) it overly emphasized
Spisak's threats to continue his crimes; (3) it understated the facts
upon which the experts based their mental illness conclusions; (4) it
said little or nothing about any other possible mitigating circumstance;
and (5) it made no explicit request that the jury return a verdict
We assume for present purposes that Spisak is correct
that the closing argument was inadequate. We nevertheless find no
“reasonable probability” that a better closing argument without these
defects would have made a significant difference.
Any different, more adequate closing argument would
have taken place in the following context: Spisak admitted that he had
committed three murders and two other shootings. Spisak's defense at the
guilt *686 phase of the trial consisted of an effort by counsel to show
that Spisak was not guilty by reason of insanity. And counsel,
apparently hoping to demonstrate Spisak's mentally defective condition,
called him to the stand.
Spisak testified that he had shot and killed Horace
Rickerson, Timothy Sheehan, and Brian Warford. He also admitted that he
had shot and tried to kill John Hardaway, and shot at Coletta Dartt. He
committed these crimes, he said, because he was a follower of Adolf
Hitler, who was Spisak's “spiritual leader” in a “war” for “survival” of
“the Aryan people.” 4 id., at 1343-1344, 1396 (July 5, 1983). He said
that he had purchased guns and stockpiled ammunition to further this war.
Id., at 1406-1408. And he had hoped to “create terror” at Cleveland
State University, because it was “one of the prime targets” where the
“Jews and the system ... are brainwashing the youth.” Id., at 1426-1428.
Spisak then said that in February 1982 he had shot
Rickerson, who was black, because Rickerson had made a sexual advance on
Spisak in a university bathroom. He expressed satisfaction at having
“eliminated that particular threat ... to me and to the white race.” 5
id., at 1511 (July 7, 1983). In June he saw a stranger, John Hardaway,
on a train platform and shot him seven times because he had been looking
for a black person to kill as “blood atonement” for a recent crime
against two white women. 4 id., at 1416 (July 5, 1983). He added that he
felt “good” after shooting Hardaway because he had “accomplished
something,” but later felt “[k]ind of bad” when he learned that Hardaway
had survived. Id., at 1424-1425. In August 1982, Spisak shot at Coletta
Dartt because, he said, he heard her “making some derisive remarks about
us,” meaning the Nazi Party. Id., at 1432-1435. Later that August, he
shot and killed Timothy Sheehan because he “thought he was one of those
Jewish professors ... that liked to hang around in the men's room and
seduce and pervert and subvert the young people that go there.” 5 id.,
at 1465-1466 (July 7, 1983). Spisak added that he was “sorry about that”
murder because he later learned Sheehan “wasn't Jewish like I thought he
was.” Ibid. And three days later, while on a “search and destroy mission,”
he shot and killed Brian Warford, a young black man who “looked like he
was almost asleep” in a bus shelter, to fulfill his “duty” to “inflict
the maximum amount of casualties on the enemies.” Id., at 1454-1455,
Spisak also testified that he would continue to
commit similar crimes if he had the chance. He said about Warford's
murder that he “didn't want to get caught that time because I wanted to
be able to do it again and again and again and again.” Id., at 1699 (July
8, 1983). In a letter written to a friend, he called the murders of
Rickerson and Warford “the finest thing I ever did in my whole life” and
expressed a wish that he “had a human submachine gun right now so I
could exterminate” black men “and watch them scream and twitch in agony.”
Id., at 1724-1725. And he testified that, if he still had his guns, he
would escape from jail, “go out and continue the war I started,” and
“continue to inflict the maximum amount of damage on the enemies as I am
able to do.” Id., at 1780-1781.
The State replied by attempting to show that Spisak
was lying in his testimony about the Nazi-related motives for these
crimes. The State contended instead that the shootings were motivated by
less unusual purposes, such as robbery. See id., at 1680, 1816-1818.
The defense effort to show that Spisak was not guilty
by reason of insanity foundered*687 when the trial judge refused to
instruct the jury to consider that question and excluded expert
testimony regarding Spisak's mental state. The defense's expert witness,
Dr. Oscar Markey, had written a report diagnosing Spisak as suffering
from a “schizotypal personality disorder” and an “atypical psychotic
disorder,” and as, at times, “unable to control his impulses to assault.”
6 id., at 1882-1883, 1992 (July 11, 1983). His testimony was somewhat
more ambiguous during a voir dire, however. On cross-examination, he
conceded that he could not say Spisak failed Ohio's sanity standard at
the time of the murders. After Markey made the same concession before
the jury, the court granted the prosecution's renewed motion to exclude
Markey's testimony and instructed the jury to disregard the testimony
that it heard. And the court excluded the defense's proffered reports
from other psychologists and psychiatrists who examined Spisak, because
none of the reports said that Spisak met the Ohio insanity standard at
the time of the crimes. Id., at 1898-1899, 1911-1912, 1995; id., at
2017, 2022 (July 12, 1983).
During the sentencing phase of the proceedings,
defense counsel called three expert witnesses, all of whom testified
that Spisak suffered from some degree of mental illness. Dr. Sandra
McPherson, a clinical psychologist, said that Spisak suffered from
schizotypal and borderline personality disorders characterized by
bizarre and paranoid thinking, gender identification conflict, and
emotional instability. She added that these defects “substantially
impair his ability to conform himself” to the law's requirements. 8 id.,
at 2428-2429, 2430-2441 (July 16, 1983). Dr. Kurt Bertschinger, a
psychiatrist, testified that Spisak suffered from a schizotypal
personality disorder and that “mental illness does impair his reason to
the extent that he has substantial inability to know wrongfulness, or
substantial inability to refrain.” Id., at 2552-2556. Dr. Markey, whose
testimony had been stricken at the guilt phase, again testified and
agreed with the other experts' diagnoses. Id., at 2692-2693, 2712-2713 (July
In light of this background and for the following
reasons, we do not find that the assumed deficiencies in defense
counsel's closing argument raise “a reasonable probability that,” but
for the deficient closing, “the result of the proceeding would have been
different.” Strickland, 466 U.S., at 694, 104 S.Ct. 2052. We therefore
cannot find the Ohio Supreme Court's decision rejecting Spisak's
ineffective-assistance-of-counsel claim to be an “unreasonable
application” of the law “clearly established” in Strickland. §
First, since the sentencing phase took place
immediately following the conclusion of the guilt phase, the jurors had
fresh in their minds the government's evidence regarding the killings-which
included photographs of the dead bodies, images that formed the basis of
defense counsel's vivid descriptions of the crimes-as well as Spisak's
boastful and unrepentant confessions and his threats to commit further
acts of violence. We therefore do not see how a less descriptive closing
argument with fewer disparaging comments about Spisak could have made a
Similarly fresh in the jurors' minds was the three
defense experts' testimony that Spisak suffered from mental illness. The
jury had heard the experts explain the specific facts upon which they
had based their conclusions, as well as what they had learned of his
family background and his struggles with gender identity. And the jury
had heard the experts draw connections between his mental illness and
the crimes. We do not see how it could have *688 made a significant
difference had counsel gone beyond his actual argument-which emphasized
mental illness as a mitigating factor and referred the jury to the
experts' testimony-by repeating the facts or connections that the
experts had just described.
Nor does Spisak tell us what other mitigating factors
counsel might have mentioned. All those he proposes essentially consist
of aspects of the “mental defect” factor that the defense experts
Finally, in light of counsel's several appeals to the
jurors' sense of humanity-he used the words “humane people” and “humane
society” 10 times at various points in the argument-we cannot find that
a more explicit or more elaborate appeal for mercy could have changed
the result, either alone or together with the other circumstances just
discussed. Thus, we conclude that there is not a reasonable probability
that a more adequate closing argument would have changed the result, and
that the Ohio Supreme Court's rejection of Spisak's claim was not
“contrary to, or ... an unreasonable application of” Strickland. 28
U.S.C. § 2254(d)(1).
Spisak contends that the deferential standard of
review under § 2254(d)(1) should not apply to this claim because the
Ohio Supreme Court may not have reached the question whether counsel's
closing argument caused Spisak prejudice. That is, the Ohio Supreme
Court's summary rejection of this claim did not indicate whether that
court rested its conclusion upon a finding (1) that counsel was not
ineffective, or (2) that a better argument would not have made a
difference, or (3) both. See State v. Spisak, 36 Ohio St.3d, at 82, 521
N.E.2d, at 802. Spisak argues that, under these circumstances, a federal
court should not defer to a state court that may not have decided a
question, but instead should decide the matter afresh. Lower federal
courts have rejected arguments similar to Spisak's. See, e.g., Hennon v.
Cooper, 109 F.3d 330, 334-335 (C.A.7 1997); see also Weeks v. Angelone,
528 U.S. 225, 231, 237, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (applying
the § 2254(d) standard in case involving a state court's summary denial
of a claim, though not a Strickland claim, and without full briefing
regarding whether or how § 2254(d) applied to a summary decision);
Chadwick v. Janecka, 312 F.3d 597, 605-606 (C.A.3 2002) (Alito, J.) (relying
on Weeks in holding that § 2254(d) applies where a state court denies a
claim on the merits without giving any indication how it reached its
decision); see generally 2 R. Hertz & J. Liebman, Federal Habeas Corpus
Practice and Procedure § 32.2, pp. 1574-1579 (5th ed.2005 and 2008 Supp.).
However, we need not decide whether deference under § 2254(d)(1) is
required here. With or without such deference, our conclusion is the
For these reasons, the judgment of the Court of
Appeals for the Sixth Circuit is reversed. It is so ordered.
Justice STEVENS, concurring in part and concurring in
In my judgment the Court of Appeals correctly
concluded that two errors that occurred during Spisak's trial violated
clearly established federal law. First, the jury instructions
impermissibly required that the jury unanimously reject a death sentence
before considering other sentencing options. Second, the closing
argument of Spisak's counsel was so egregious that it was
constitutionally deficient under any standard. Nevertheless, for the
reasons set forth in Part III of the Court's opinion, ante, at 685-88, I
agree that these errors *689 did not prejudice Spisak and thus he is not
entitled to relief.
The jury instructions given during Spisak's penalty
phase, described in the Court's opinion, ante, at 683-84, are fairly
read to require the jury first to consider whether the death penalty is
warranted- i.e., whether the aggravating factors outweigh the mitigating
factors-before moving on to consider whether instead a lesser penalty-
i.e., one of two available life sentences-is appropriate. Consistent
with Ohio law at the time of Spisak's trial,FN1 the jury was told that
it must reach its decision unanimously. The jury was not instructed on
the consequence of their failure to agree unanimously that Spisak should
be sentenced to death. Spisak and the Court of Appeals both described
these instructions as “acquittal first” because they would have led a
reasonable jury to believe that it first had to “acquit” the defendant
of death-unanimously-before it could give effect to a lesser penalty.
FN1. Ohio no longer uses the type of jury
instructions at issue in this case. In 1996 the Ohio Supreme Court
instructed that “[i]n Ohio, a solitary juror may prevent a death penalty
recommendation by finding that the aggravating circumstances in the case
do not outweigh the mitigating factors. Jurors from this point forward
should be so instructed.” State v. Brooks, 75 Ohio St.3d 148, 162, 661
N.E.2d 1030, 1042. Although the Brooks decision signaled a change in
Ohio's capital jury instructions, it was not a change in state law: One
juror had the power to prevent a death penalty recommendation before
Brooks. See State v. Springer, 63 Ohio St.3d 167, 172, 586 N.E.2d 96,
100 (1992) (holding that an offender must be sentenced to life if the
penalty-phase jury deadlocks). Thus, consistent with our view that
“accurate sentencing information is an indispensable prerequisite to a [jury's]
determination of whether a defendant shall live or die,” Gregg v.
Georgia, 428 U.S. 153, 190, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint
opinion of Stewart, Powell, and STEVENS, JJ.), the Ohio high court
laudably improved upon the accuracy of Ohio capital jury instructions in
Following its prior decision in Davis v. Mitchell,
318 F.3d 682 (C.A.6 2003), in which it struck down “virtually identical”
jury instructions, Spisak v. Mitchell, 465 F.3d 684, 710 (C.A.6 2006),
the Court of Appeals concluded that the instructions given during
Spisak's penalty phase were impermissible because they “require[d] the
jury to unanimously reject a death sentence before considering other
sentencing alternatives,” id., at 709. In Davis, the court had explained
that an instruction that requires a capital jury to “first unanimously
reject the death penalty before it can consider a life sentence ...
precludes the individual jury from giving effect to mitigating evidence....”
318 F.3d, at 689. The source of this constitutional infirmity, the court
decided, was our decision in Mills v. Maryland, 486 U.S. 367, 108 S.Ct.
1860, 100 L.Ed.2d 384 (1988). For the reasons cogently examined in
Justice BREYER's opinion, ante, at 682-85, I agree that Mills does not
clearly establish that the instructions at issue were unconstitutional.
But, in my view, our decision in Beck v. Alabama, 447 U.S. 625, 100 S.Ct.
2382, 65 L.Ed.2d 392 (1980), does.FN2
FN2. Notably, Beck substantially predates Spisak's
trial and thus my application of Beck obviates any discussion on when
federal law is established for Antiterrorism and Effective Death Penalty
Act of 1996 purposes, see ante, at 681. Regardless, in accordance with
the view I expressed in Williams v. Taylor, 529 U.S. 362, 379-380, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion of STEVENS, J.), I would
conclude that our decision in Mills, decided before Spisak's conviction
became final, is also available to him.
In Beck we held that the death penalty may not be
imposed “when the jury was not permitted to consider a verdict of guilt
*690 of a lesser included non-capital offense, and when the evidence
would have supported such a verdict.” Id., at 627, 100 S.Ct. 2382 (internal
quotation marks omitted). At that time, the Alabama death penalty
statute had been “consistently construed to preclude any lesser included
offense instructions in capital cases.” Id., at 629, n. 3, 100 S.Ct.
2382. Thus, the Alabama jury was “given the choice of either convicting
the defendant of the capital crime, in which case it [was] required to
impose the death penalty, or acquitting him, thus allowing him to escape
all penalties for his alleged participation in the crime.” Id., at
628-629, 100 S.Ct. 2382. Because of the unique features of Alabama's
capital punishment system,FN3 Beck's jury believed that either it had to
convict Beck, thus sending him to his death, or acquit him, thus setting
him free. The jury was not presented with the “third option” of
convicting him of a noncapital offense, thus ensuring that he would
receive a substantial punishment but not receive the death penalty. Id.,
at 642, 100 S.Ct. 2382. We concluded that the false choice before the
jury-death or acquit-“introduce[d] a level of uncertainty and
unreliability into the factfinding process that cannot be tolerated in a
capital case.” Id., at 643, 100 S.Ct. 2382. In other words,
FN3. Under Alabama law, the judge conducts a separate
penalty-phase proceeding after the jury has returned a conviction on a
capital offense. Beck, 447 U.S., at 629, 100 S.Ct. 2382. Thus, the jury
reasonably believed that its verdict would set the defendant's
punishment at death. “the difficulty with the Alabama statute is that it
interjects irrelevant considerations into the factfinding process,
diverting the jury's attention from the central issue of whether the
State has satisfied its burden of proving beyond a reasonable doubt that
the defendant is guilty of a capital crime. Thus, on the one hand, the
unavailability of the third option of convicting on a lesser included
offense may encourage the jury to convict for an impermissible reason-its
belief that the defendant is guilty of some serious crime and should be
punished. On the other hand, the apparently mandatory nature of the
death penalty may encourage it to acquit for an equally impermissible
reason-that, whatever his crime, the defendant does not deserve death.”
Id., at 642-643, 100 S.Ct. 2382.
Although Beck dealt with guilt-phase instructions,
the reach of its holding is not so limited. The “third option” we
discussed in Beck was, plainly, a life sentence. Moreover, the unusual
features of the Alabama capital sentencing scheme collapsed the guilt
and penalty phases before the jury (but not before the judge). Our
concern in Beck was that presenting the jury with only two options-death
or no punishment-introduced a risk of arbitrariness and error into the
deliberative process that the Constitution could not abide in the
capital context. See Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct.
3154, 82 L.Ed.2d 340 (1984) (“The goal of the Beck rule, in other words,
is to eliminate the distortion of the factfinding process that is
created when the jury is forced into an all-or-nothing choice between
capital murder and innocence”). We held, therefore, that the jury must
be given a meaningful opportunity to consider and embrace the equivalent
of a life-sentence when the evidence supports such an option.
The acquittal-first jury instructions used during
Spisak's penalty phase interposed before the jury the same false choice
that our holding in Beck prohibits. By requiring Spisak's jury to decide
first whether the State had met its burden with respect to the death
sentence, and to reach that decision unanimously, the instructions
deprived the jury of a meaningful opportunity to consider the third
option that was before it, namely, a life sentence. Indeed, these
instructions are every bit as pernicious as those at issue in Beck
because they would have led individual jurors (falsely) to believe that
their failure to agree might have resulted in a new trial and that, in
any event, they could not give effect to their determination that a life
sentence was appropriate unless and until they had first convinced each
of their peers on the jury to reject the death sentence.
Admittedly, Spisak has never identified Beck as the
source of the constitutional infirmity at issue in this case, nor did
the courts below cite or rely upon it. But Spisak has consistently
pressed his argument in terms that are wholly consistent with Beck. On
direct appeal he contended, for example, that he: “was severely
prejudiced by the erroneous jury forms because the jurors were never
informed of what would happen if they were unable to reach a unanimous
decision. That may have led to irreparable speculation that if they
failed to agree, Frank Spisak would be freed or have a new trial or
sentencing hearing. Such improper speculation may have led those not in
agreement with death to go along with a majority. The jury should have
been instructed that if they were unable to unanimously agree to death
they must return a verdict of one of the life sentences or in the
alternative, the court would impose a life sentence.” Exh. 28D, 16
Record 391 (Brief for Supreme Court of Ohio).
The untenable choice Spisak describes is perfectly
analogous to the quandary, discussed above, that we described in Beck.
See also 447 U.S., at 644, 100 S.Ct. 2382 (“It is extremely doubtful
that juries will understand the full implications of a mistrial or will
have any confidence that their choice of the mistrial option will
ultimately lead to the right result. Thus, they could have no assurance
that a second trial would end in the conviction of the defendant on a
lesser included offense” (footnote omitted)). Spisak and the Court of
Appeals both correctly assailed the jury instructions at issue in this
case, but in my view Beck provides the proper basis in clearly
established federal law to conclude the instructions were
Petitioner defends Spisak's counsel's closing
argument as a reasonable strategic decision “to draw the sting out of
the prosecution's argument and gain credibility with the jury by
conceding the weaknesses of his own case.” Brief for Petitioner 37. I
agree that such a strategy is generally a reasonable one and, indeed,
was a reasonable strategy under the difficult circumstances of this
case. Even Spisak concedes that his counsel “faced an admittedly
difficult case in closing argument in the penalty phase.” Brief for
Respondent 43. But, surely, a strategy can be executed so poorly as to
render even the most reasonable of trial tactics constitutionally
deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). And this is such a case.
It is difficult to convey how thoroughly egregious
counsel's closing argument was without reproducing it in its entirety.
The Court's assessment of the closing as “lengthy and rambling” and its
brief description of its content, see ante, at 685, does not accurately
capture the catastrophe of counsel's failed strategy. Suffice it to say
that the argument shares far more in common with a prosecutor's closing
than *692 with a criminal defense attorney's. Indeed, the argument was
so outrageous that it would have rightly subjected a prosecutor to
charges of misconduct. See Brief for Steven Lubet et al. as Amici Curiae
15-16 (observing that counsel's closing argument “would have been
improper even coming from the prosecutor”). A few examples are in order.
Presumably to take the “sting” out of the
prosecution's case, Brief for Petitioner 37, counsel described his
client's acts in vivid detail to the jury: “[Y]ou 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 know the terror
that [the victim] 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 ... 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.” FN4 465 F.3d, at 704-705 (internal quotation marks omitted).
FN4. To make matters worse, these graphic and
emotionally charged descriptions of Spisak's crimes were irrelevant
under state law even for purposes of the State's case for aggravating
circumstances. See State v. Wogenstahl, 75 Ohio St.3d 344, 356, 662 N.E.2d
311, 322 (1996) (“[T]he nature and circumstances of the offense may only
enter into the statutory weighing process on the side of mitigation”);
see also State v. Johnson, 24 Ohio St.3d 87, 93, 494 N.E.2d 1061, 1066
(1986) (explaining that statutory aggravating circumstances should be
narrowly construed); Ohio Rev.Code Ann. § 2929.04(A) (2006) (identifying
10 aggravating circumstances but not including heinous circumstances of
offense). Presumably to “gain credibility” with the jury, Brief of
Petitioner 37, counsel argued that his client deserved no sympathy for
his actions: “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.” 465 F.3d, at
705 (internal quotation marks omitted).
And then the strategy really broke down: At no point
did counsel endeavor to direct his negative statements about his client
toward an express appeal for leniency.FN5 On the contrary, counsel
concluded by telling the jury that “whatever you do, we are going to be
proud of you,” ibid. (internal quotation marks omitted), which I take to
mean that, in counsel's view, “either outcome, death or life, would be a
valid conclusion,” ibid.
FN5. Counsel did attempt to appeal to the jury's
sense of humanity, perhaps implicitly suggesting that humane people do
not condemn others, especially those with mental illness, to death. App.
to Pet. for Cert. 339a-341a. But counsel never requested a life sentence
on behalf of his client. Spisak's crimes, and the seemingly unmitigated
hatred motivating their commission, were truly awful. But that does not
excuse a lawyer's duty to represent his client within the bounds of
prevailing professional norms. The mere fact that counsel, laudably, may
have had a “strategy” to build rapport with the jury and lessen the *693
impact of the prosecution's case, does not excuse counsel's utter
failure to achieve either of these objectives through his closing
argument. In short, counsel's argument grossly transgressed the bounds
of what constitutionally competent counsel would have done in a similar
Notwithstanding these two serious constitutional
errors, I agree with the Court that these errors do not entitle Spisak
to relief. As Justice BREYER's discussion in Part III makes vividly
clear, see ante, at 685-87, Spisak's own conduct alienated and
ostracized the jury, and his crimes were monstrous. In my judgment even
the most skillful of closing arguments-even one befitting Clarence
Darrow-would not have created a reasonable probability of a different
outcome in this case. Similarly, in light of Spisak's conduct before the
jury and the gravity of the aggravating circumstances of the offense,
the instructional error was also harmless because it did not have a
substantial and injurious effect on this record, Brecht v. Abrahamson,
507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
Accordingly, I concur in the judgment and concur in
the Court's discussion of prejudice in Part III of its opinion.