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Roper v. Weaver Argument


The transcript of argument in Roper v. Weaver is available here. CJLF's brief by Prof. Barry Latzer of the John Jay College of Criminal Justice, is here.

The case involves arguments by the prosecutor in the penalty phase of a capital case that the defendant argued were improper. The Missouri Supreme Court found no reversible error. The question on federal habeas is whether the arguments went so far as to violate the federal constitution and whether the state court's ruling to the contrary was unreasonable under then-existing Supreme Court precedent. There is considerable discussion during the state's argument about old federal cases on prosecutor arguments and whether they amount to constitutional prohibitions or just the U.S. Supreme Court's exercise of supervisory power over federal courts, not binding on state courts. In Sawyer v. Smith, 497 U.S. 227 (1990), another argument case on federal habeas, the Court held that a new constitutional rule is not retroactive on habeas corpus even if it is congruent with long-standing nonconstitutional rules.

During the defense argument, Justice Breyer indicates that he thinks the argument was over the line, but that the lack of precedent establishing that may defeat the claim under AEDPA. See pp. 38-39.

On pages 41-44, Justice Scalia, joined by Chief Justice Roberts and Justice Kennedy, contrast what the defense claims is improper for a prosecutor to say in the penalty phase with what defense counsel are allowed to say all the time. This emphasis on symmetry is heartening.

Overall, it looks like a probable win for the state. Stay tuned.


I am sure Kent will know this off the top of his head, but didn't one of the per curiam reversals of the Ninth Circuit call the Ninth out on using non-constitutional cases to impose constitutional standards on the states?

I wholeheartedly agree that the emphasis on symmetry is heartening. Isn't that somewhat consonant with the teaching of Payne v. Tennessee?

Kent, why do you think this case wasn't simply reversed and remanded in light of Musladin? Because death is different?

Don't recall a per curiam on that point offhand, although there are so many it's hard to keep track. The primary rebuke of the Ninth for granting federal habeas on state-law grounds is Estelle v. McGuire, 502 U.S. 62, 67 (1991).

It's Early v. Packer.

[Ed. Note: 537 U.S. 3 (2002).]

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