Roper, Don (Supt, Potosi Correctional Center) v. Weaver, William (05/21/2007)

Questions presented: Did the appeals court exceed its authority under 28 U.S.C. sec. 2254(d)(1) by overturning a capital sentence on the ground that the prosecutor's closing argument in the penalty phase of sentencing was "unfairly inflammatory?"

BY ALEX ALTMAN, MEDILL NEWS SERVICE

In Roper v. Weaver, a death penalty case from Missouri, the Supreme Court will consider the circumstances under which federal courts may review state court judgments. It also presents the Court an opportunity to limit the ability of prisoners to bring habeas corpus cases in federal appeals courts even in cases where an aspect of the trial is deemed unconstitutional.

"They may put finality and deference to the state courts above getting it right," said Steven Shapiro, national legal director of the American Civil Liberties Union. "If the [state] court was wrong but reasonable [in its findings], they may say the ruling has to stand. And that's an odd ordering of priorities, especially in a death penalty case."

At first glance, the case seems straightforward enough. William Weaver was a hit man convicted in 1988 of first-degree murder in the shooting death of a prospective witness in a drug trial. During the penalty phase of Weaver's capital trial the prosecutor gave a closing argument that, according to the appellate brief, was "unfairly inflammatory"

"This is society's worst nightmare," he said, referring to Weaver. "If a cold-blooded hit on behalf of drug scum isn't enough for the death penalty, then what facts justify it? This isn't personal. It's business. It's your duty. It's right to kill him now."

The prosecutor went on to liken the jurors to soldiers, even paraphrasing the movie "Patton," in which the general tells his platoon, "Sometimes you've got to kill and sometimes you've got to risk death because it's right."

The St. Louis County jury sentenced Weaver to death.

Weaver's attorneys appealed the conviction and sentence to the Missouri Supreme Court, charging the prosecutor's penalty-phase closing argument denied their client due process of law. On December 19, 1995, the court upheld the trial court's judgment, noting "the trial court has considerable discretion in allowing argument of counsel."

Weaver filed a post-conviction challenge in U.S. District Court for the Eastern District of Missouri on November 12, 1996, claiming that the prosecutor's inflammatory statements violated Weaver's right to habeas corpus, the legal action by which detainees may protest unlawful imprisonment. Almost three years later, the district court granted Weaver's petition, ruling that by inflaming the jurors, the prosecutor had violated the U.S. Constitution by denying Weaver a fair trial.

In February 2006, the 8th Circuit Court of Appeals affirmed the district court's judgment in a 2-1 opinion, vacating the death sentence. The court found that the prosecutor's comments during the penalty phase were prejudicial. Judge Michael Melloy, who authored the majority opinion, stated that "Describing jurors as soldiers with a duty eviscerates the concept of discretion afforded to a jury as required by the Eighth Amendment."

On appeal to the U.S. Supreme Court, the state invoked the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), arguing that the federal appeals court had improperly granted habeas relief.

Passed by Congress as a means to limit habeas appeals, AEDPA authorizes federal courts to grant habeas petitions only if the state court's decision violates "clearly established Federal law, as determined by the Supreme Court of the United States." Since the Supreme Court had not held that a penalty-phase argument was too inflammatory, Missouri argued, the federal courts lacked the authority to grant Weaver habeas.

Acknowledging it had not previously addressed this question, the Supreme Court granted Don Roper, a Missouri prison superintendent, a writ of certiorari on Dec. 7, 2006, and allowed Weaver to participate in the case without costs.

Both Malloy and Judge Pasco Bowman, who dissented in the 8th Circuit opinion, devoted much of their dissent to the AEDPA issue. Malloy noted that the 8th Circuit had previously dismissed the notion that the Supreme Court had not addressed improper penalty-phase closing argument, citing its 2000 decision in Copeland v. Washington. Further, he asserted that by framing the death penalty sentence as the jury's "duty," the prosecutor skirted the "requirement that capital sentencing be at the jury's discretion [and] diminished the jury's sense of responsibility for imposing the death penalty, in violation of the Eighth Amendment under Caldwell v. Mississippi."

Bowman found these arguments flimsy. His point was that while the cases Malloy cited underscore the prosecutor's misconduct, they are peripheral to the AEDPA question.

"The only issue for the federal courts in this case," he wrote, "is whether the state court's decision was contrary to or an unreasonable application of clearly established federal law." That cannot be the case in the Weaver trial, Bowman argues, precisely because the Supreme Court's record of commentary on the issue is "apparent[ly] inconclusive."

Cautioning his colleagues that "a state-court decision is not necessarily unreasonable because the federal habeas courts deem it to be incorrect," Bowman concludes that the according to the requirements set forth by AEDPA, the appeals courts overstepped their bounds.

"We are not empowered to grant the writ even though we may believe that the state court got it wrong," Bowman said.

The judges' disagreement highlights disagreements within the judicial community about the intent of the AEDPA, a lack of clarity that stems from the lack of clear Supreme Court precedent on the issue. For some legal thinkers, though, Bowman's reading rightly encourages federal appeals judges to exercise deference to state courts, except in cases when Supreme Court precedent is explicitly violated.

"Federal courts really are limited beings," said Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. "I don't view the AEDPA as a states rights issue; it promotes finality."

Yet according to Shapiro and the ACLU, the letter of the law might mandate executing someone who, admittedly, did not receive a fair trial.

"What is odd about the way it's now set up is Roper doesn't have to argue Missouri got it right," Shapiro said. "All he has to say is it was in the gray area where it wasn't clear if it was right or wrong. As long as the Missouri Supreme Court's contrary ruling was reasonable, the Supreme Court must deny habeas and reinstate the death sentence."

On May 21, 2007, a divided Court dismissed the case as “improvidently granted.”

In an unsigned opinion, Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy and David Souter contend: “We are now aware of circumstances that persuade us that dismissal of the writ is the appropriate manner in which to dispose of this case.”

Chief Justice John Roberts concurred in the dismissal, but wrote that he did not agree with “all the reasons” given in the per curiam.

Meanwhile, Justices Antonin Scalia, Clarence Thomas and Samuel Alito objected to the Court’s decision, which Scalia derided as “a rare manifestation of judicial clemency unrestrained by law.”

The dismissal means that the appeals court’s habeas grant to Weaver stands.