Argument Preview: Roper v. Weaver on 3/21

The following argument preview is by Steven Siger of the Stanford Supreme Court Litigation Clinic.

During oral arguments tomorrow in No. 06-313, Roper v. Weaver, the Supreme Court will consider whether a state prisoner convicted of a capital offense is entitled to federal habeas relief when a prosecutor’s closing statement during the penalty stage of his trial was “unfairly inflammatory.” Andrea K. Spillars of the Missouri Attorney General’s office will argue on behalf of petitioner Don Roper. John H. Blume of Cornell Law School will argue for respondent William Weaver. The parties’ briefs are available here.

In 1988, a Missouri state court convicted Weaver of killing Charles Taylor and sentenced him to death. On direct appeal, the Missouri Supreme Court affirmed Weaver’s death sentence. After exhausting his state post-conviction remedies, Weaver filed a federal habeas petition in the Eastern District of Missouri seeking relief on twenty-two separate grounds. The district court initially granted relief on the ground that the prosecutor’s use of two peremptory challenges to exclude black venirepersons from the jury violated Weaver’s Fourteenth Amendment rights. In 2001, the Eighth Circuit reversed and remanded, instructing the district court to address the remaining claims.

On remand, the district court again granted relief, this time holding that the prosecutor had made improper closing arguments during the penalty stage of the trial.
For example, he claimed that the law did not require the jury to exclude all possibility of innocence before sentencing Weaver to death. He also compared jurors to soldiers, telling them that “sometimes you’ve got to kill . . . because it’s right,” and focused on the death penalty’s deterrent effect, emphasizing that jurors should send “the right message instead of the wrong message” to criminals. Finally, the prosecutor seemed to take ultimate responsibility for punishment away from the jury, stating that he “decide[s] in which cases we ask for the death penalty.”

On appeal, a divided Eighth Circuit panel affirmed the grant of habeas relief without agreeing on a basis for that decision. Judge Melloy held that relief was appropriate because even under the deferential standard established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) – which requires that a state court decision be affirmed unless it “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” – the state court decision violated clearly established Supreme Court precedent. Judge Bowman agreed with Judge Melloy that AEDPA applied to Weaver’s claims but would have declined to award habeas relief, explaining that in his view no Supreme Court opinion “touches on the distinct claims of prosecutorial misconduct on which the writ was granted.” Finally, although Judge Bye disagreed with Judge Melloy’s holding that AEDPA applied to Weaver’s claims (because, in his view, the Missouri Supreme Court had failed to address some of Weaver’s claims about the prosecutor’s closing statement), he agreed that habeas relief was warranted.

The state sought – and the Supreme Court granted – certiorari on the following question: “Since this Court has neither held a prosecutor’s penalty phase closing argument to violate due process, nor articulated, in response to a penalty phase claim, what the standard of error and prejudice would be, does a court of appeals exceed is authority under [AEDPA] by overturning a capital sentence on the ground that the prosecutor’s penalty phase closing argument was unfairly inflammatory.”

In its merits brief, however, the state largely abandons the view that the Supreme Court has never addressed a standard for inflammatory penalty phase arguments, apparently recognizing after the grant of certiorari that the Court had addressed just this question in three cases: Donnelly v. DeChristoforo, Darden v. Wainwright, and Romano v. Oklahoma. Instead, the state spends the majority of its brief arguing that the Missouri Supreme Court’s review of Weaver’s claims was consistent with the precedent clearly established in those three cases, which hold that prosecutorial arguments are improper only when they “so infect the trial with unfairness as to make the resulting [punishment] a denial of due process.”

Weaver’s brief begins by urging the Court to dismiss the case as improvidently granted for two reasons. First, he argues that the state has effectively engaged in a “bait and switch”: in violation of Supreme Court Rule 14.1(a) (which provides that “[o]nly the questions set forth in the petition, or fairly included therein, will be considered by the Court”), it has now abandoned the argument on which the Court granted certiorari in favor of a new argument that is, Weaver contends, merely a “fact-bound, record-specific question of no general consequence.” Second, Weaver argues that the appeals court decision rests on two independently sufficient grounds – the Fourteenth Amendment’s Due Process Clause and the Eighth Amendment’s Cruel and Unusual Punishment Clause. Because the state argues only that the Eighth Circuit’s due process holding was improper, Weaver asserts, any opinion on the subject “would be advisory only” because he would still receive habeas relief on Eighth Amendment grounds.

If the Court does reach the merits of the case, any decision will turn on the Missouri Supreme Court’s application of the standard set forth in Donnelly, Darden, and Romano. Although that court’s decision affirming Weaver’s death sentence does not explicitly reference the factors – outlined by the Supreme Court in Donnelly, Darden, and Romano – to be considered to determine whether a due process violation occurred, the Supreme Court’s AEDPA jurisprudence has not required state courts to follow the exact language of its decisions so long as their rulings comport with Supreme Court precedent in reasoning and result. The case on the merits may therefore turn on whether the Missouri Supreme Court did enough to satisfy the requirements of Donnelly, Darden, and Romano, even if it did not know explicitly that it was doing so.