WASHINGTON (CN) - A man who murdered three people is challenging his death sentence, claiming his lawyer did a terrrible job in closing argument, even though the killer exclaimed "Heil Hitler!" in front of the jury while making a Nazi salute. "I thought it was a brilliant closing argument," Justice Antonin Scalia told the lawyer who challenged the death sentence. "Have you ever conducted a capital case in which the defendant takes the stand with a Hitler moustache and says he's glad for what he's done and he will do it again?"
Murderer Frank Spisak confessed to killing three people and spewed hate speech against Jews, blacks and gays on the stand. He said he would kill more people if given the chance, even naming the potential victims.
"What would you have done?" Justice Stephen Breyer asked of Michael Benza, who was appointed by the Supreme Court to represent Spisak on appeal. "It makes sense logically to say he has the worst defendant he has ever seen. He's murdered lots of people in cold blood. He gets up on the stand and says, 'I'm going to kill a lot more.' He sounds totally bonkers."
Benza argued that Spisak's original lawyer had done such a poor job that it constituted ineffective assistance of counsel.
Spisak's original lawyer admitted that Spisak's crimes were awful, but asked the jury to consider Spisak's mental illness during his closing arguments.
"What's remarkable about it is at no point did counsel say, 'Give him a life sentence,'" Justice Ruth Bader Ginsburg said of Spisak's original lawyer. "He said that either one would be acceptable: either death or life would be acceptable."
"It was not a perfect closing," Attorney General Richard Cordray acknowledged, arguing against Spisak, but maintaining that the lawyer did what he could while defending Spisak.
Cordray said that Spisak's lawyer had "used the sheer depravity of his client's crimes and his disturbing character to tell a story about his client's mental illness," suggesting that Spisak was not misrepresented and that the death penalty should be carried out.
"At some point you can have a strategy and execute it so poorly, so incompetently, that you're providing ineffective assistance of counsel," Justice Sonia Sotomayor said to Cordray.
While Benza argued in Spisak's favor, Ginsburg asked, "Do you know of any case where ineffective assistance was found on the basis of a closing argument alone?"
Benza replied that he had not - but said he had never seen a closing argument like this either.
"You've conducted many capital cases," interjected Scalia. "Have you ever conducted a capital case in which the defendant takes the stand with a Hitler moustache and says he's glad for what he's done and he will do it again? How many cases have you had like that?"
Benza said he had never had a case like that.
"I don't know how to make a judgment that his choice was worse than the other," Chief Justice John Roberts said.
The 6th Circuit has twice vacated Spisak's sentence, on the basis of faulty jury instructions and inadequate assistance of counsel.
The case was tried in an Ohio state court and affirmed by the Ohio Supreme Court. The federal district court then denied Spisak's petition for habeas corpus, but the 6th Circuit reversed . The state court then petitioned for certiorari and the Supreme Court granted it and remanded , and the 6th Circuit reinstated its decision.
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