Argument Recap: Roper v. Weaver on 3/22

The following argument recap is by Steven Siger of the Stanford Supreme Court Litigation Clinic. His preview of this case can be found here.

During oral argument yesterday in Roper v. Weaver, No. 06-313, the Court appeared to be divided both on what standard of review it should apply and on the question on which it granted certiorari: whether a prosecutor overstepped the bounds of clearly established Supreme Court precedent when he made inflammatory closing statements during the penalty phase of a capital murder case. Respondent William Weaver sought federal habeas relief from his state death sentence on the ground that the prosecutor’s penalty phase closing statement had violated his due process rights. A divided Eighth Circuit granted Weaver relief without agreeing on a basis for that decision, and the Supreme Court granted certiorari to determine whether habeas relief was appropriate.

In addition to the question presented in Roper, the Court also raised a threshold question that went largely undiscussed in the parties’ briefs – whether AEDPA’s deferential standard even applies to this case. Although Mr. Weaver originally filed his federal habeas petition two days before AEDPA took effect, the district court dismissed it for failure to exhaust state court remedies because his petition for certiorari on direct appeal was still pending. By the time Weaver re-filed his petition, AEDPA was already in effect. Weaver unsuccessfully raised the AEDPA issue during the first appeal to the Eighth Circuit (in which the Eighth Circuit reversed the district court’s grant of habeas relief based under Batson); after that decision, however, the Supreme Court held in Lawrence v. Florida that a petition for certiorari was not required to exhaust state post-conviction remedies. The AEDPA issue was not raised again in either the second Eighth Circuit appeal or in the brief in opposition, and it was mentioned in respondent’s brief on the merits only in a footnote. Nonetheless, Justice Kennedy and especially Justice Stevens aggressively questioned the counsel for both parties on this point, and even Justice Scalia – who was otherwise hostile to the respondent throughout the argument – indicated that the Court “might not well have taken the case had that point been raised in the [brief in opposition].”

On the actual question presented, Andrea Spillars began her argument on behalf of the state by emphasizing that the relevant precedent on prosecutorial closing statements is worded broadly: did the prosecutor’s statements so violate fundamental fairness that the punishment should be vacated? She thus argued that under AEDPA different state courts could have varying views of what types of prosecutorial closings were reasonable. Almost immediately, she faced strong challenges by Justices Stevens, Souter, Ginsburg, and Breyer about the Missouri prosecutor’s statement that it sometimes is a jury’s duty to kill, just as it is sometimes the duty of a soldier. Justice Scalia and then Chief Justice Roberts questioned the impermissibility of such statements, seemingly finding them to be within the acceptable bounds of prosecutorial closings.

The second half of Ms. Spillars’s argument focused on whether there was clearly established Supreme Court precedent barring the prosecutorial conduct at issue. In particular, Justice Stevens challenged Ms. Spillars regarding Viereck v. United States, a 1943 case in which the Court overturned a defendant’s conviction because a U.S. Attorney’s closing argument compared the trial against a German citizen to the ongoing World War II against Japan and Germany. The argument focused on whether the ruling in Viereck was grounded in a due process right – in which case it would represent clearly established precedent on point and applicable to the states – or whether it was grounded solely in the Supreme Court’s supervisory role over the federal courts – in which case its holding would not necessarily apply to the states.

Mr. Blume’s argument for respondent Weaver was almost immediately interrupted by Justice Alito, who suggested that Viereck could be distinguished because the closing statement here was about a general duty of jurors to take on a difficult role rather than a specific duty to be a part of a war effort against a specific enemy. Mr. Blume challenged Justice Alito on this point, arguing that the prosecutor had told the jury that it should punish Weaver as part of the “War on Drugs.” Chief Justice Roberts and Justice Scalia also emphasized that the defense had objected to some of the prosecutor’s statements and the judge had offered curative jury instructions – perhaps hinting that even if the prosecutor’s statements were improper, they may not so violate fundamental fairness that Weaver deserves a new trial.

Mr. Blume attempted to focus on the prosecutor’s emphasis on deterrence. He claimed that the prosecutor’s argument that the jury should sentence Weaver to death to send a message to other criminals violated a requirement of individualized punishment. Several justices, led by Justice Scalia, seemed to believe that deterrence, as a legitimate underpinning of the death penalty, could be mentioned in prosecutorial closings. Mr. Blume – supported by Justice Souter – countered that generalized statements about deterrence would be acceptable, but that an individual’s punishment has to be anchored in his own culpability.

As a general matter, the Court seemed truly perplexed by the disconnect between the case it heard today and the case for which it believed it had granted certiorari. The question presented and the briefs at the certiorari stage alleged that there was no Supreme Court precedent on point; at issue was whether lower federal courts had exceeded their authority under AEDPA. The case the Court heard today called into serious question whether AEDPA even applied to this defendant and presented a much closer question regarding relevant Supreme Court precedent. As a result, when the justices go to conference, they will have to grapple with a far more complicated case than they might have anticipated.