WASHINGTON, March 21 — A Missouri prosecutor’s final words to the jury strayed far over the boundary of proper argument, or so a federal appeals court ruled in overturning the death sentence of a man convicted of the execution-style murder-for-hire of a federal drug witness.
The prosecutor, George Westfall, had told the jurors that they were like soldiers on a battlefield of the war on drugs. “It’s your duty” to sentence the defendant, William Weaver, to death, Mr. Westfall said, in order to send a message to “all the dope peddlers and the murderers in the world.” He told the jury that “you’ve got to look beyond William Weaver” because “it’s not personal; it’s business.”
These statements, and others, were “improperly inflammatory” and violated the constitutional requirement for capital sentencing to be “an individualized decision-making process,” according to a ruling last year by a panel of the United States Court of Appeals for the Eighth Circuit, which granted Mr. Weaver’s petition for habeas corpus.
The question for the Supreme Court, in hearing Missouri’s appeal on Wednesday, was not the correctness of the Eighth Circuit’s view of the limits on closing arguments. Rather, it was whether the appeals court had properly placed Mr. Weaver in the shrinking category of state prisoners whose habeas corpus petitions meet the restrictive test set by an 11-year-old federal law.
Under that law, the Antiterrorism and Effective Death Penalty Act, a federal court can grant habeas corpus to a state prisoner only if the previous state court decision that rejected the prisoner’s appeal was “contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.”
In this case, Roper v. Weaver, No. 06-313, the Missouri Supreme Court rejected Mr. Weaver’s argument that the prosecutor’s statements were improper. The Federal District Court in St. Louis disagreed, granting his habeas corpus petition and giving the state a choice between giving Mr. Weaver a new sentencing hearing or converting his sentence to life without parole. The Eighth Circuit upheld that ruling in a 2-to-1 decision.
Supreme Court decisions stretching back for decades have disapproved of prosecutors’ closing arguments that appeal to juror’s emotions or that suggest a larger “duty” to society beyond the facts of the individual case. The dispute at the court on Wednesday was over whether those decisions were specific enough to provide the “clearly established” Supreme Court precedents that Mr. Weaver needed to thread the habeas corpus needle.
Andrea K. Spillars, an assistant attorney general from Missouri, argued that they were not. Because the Supreme Court had simply established a “nonspecific standard of fundamental fairness,” Ms. Spillars said, the Eighth Circuit should have deferred to the conclusion of the Missouri Supreme Court.
The prosecutor’s closing argument was “an outlier” that was “beyond the bounds,” Mr. Weaver’s lawyer, John H. Blume, told the justices. “I don’t believe you have to have a United States Supreme Court case directly on point for everything the prosecutor said,” Mr. Blume continued, adding: “At some point, you can say, Well, you don’t have a case on point because no one has said anything so outrageous.”
Mr. Blume, a law professor at Cornell University, where he is director of the Cornell Death Penalty Project, sparred with the conservative justices throughout his argument. It became apparent that this case was performing a kind of double duty: on the surface, it was a habeas corpus case, but it also offered an opportunity, one the conservatives appeared eager to take, to debate deeper death penalty issues.
Justice Antonin Scalia, for example, said that “I just don’t see the argument” that it was improper for the prosecutor to urge the jurors to “look beyond William Weaver.” Paraphrasing the prosecutor’s argument as “if you let a person who is as guilty as William Weaver go, you’re affecting not just William Weaver, you’re affecting the whole war on drugs,” Justice Scalia asked, “What’s wrong with that?”
Justice Samuel A. Alito Jr. told Mr. Blume that describing the case as bigger than the individual defendant was simply another way of asking the jury to consider the deterrent purpose of the death penalty. “Why is that improper?” Justice Alito asked. “Is it improper at the penalty phase for a prosecutor to refer to the concept of deterrence, which by definition is bigger than the individual whose sentence is being considered?”
Mr. Blume replied that “I don’t think this can properly be considered a deterrence argument when you say over and over, ‘This is far more important than William Weaver, this goes way beyond William Weaver, this is bigger than William Weaver, this doesn’t just pertain to William Weaver’.”
Justice Anthony M. Kennedy entered the conversation. “Deterrence is one of the reasons we have the death penalty,” he said.
Mr. Blume responded: “Deterrence is not a substitute for moral culpability. We allow the deterrent function of the death penalty as a justification for it, but you couldn’t give the death penalty to somebody who didn’t deserve it under the state’s scheme in order to further deterrence.”
Justice Kennedy’s vote is likely to determine the outcome of the case. At the end of the argument, he opened a line of questioning that suggested he might be looking for a way to avoid a ruling, on the procedural ground that the federal law restricting habeas corpus might not apply to this case. That would undoubtedly be welcome news to the court’s more liberal members, who seemed exasperated with the direction of the conservatives’ questioning.
Justice Scalia, for example, staked out a position to the right of the state’s own argument. Ms. Spillars, the state’s lawyer, said that although the court’s precedents on closing arguments were all directed toward the guilt-innocence phase of a trial, they also applied, at least in general, to the sentencing phase.
Justice Scalia said he did not agree. “I’m not sure that you can analogize from the one situation to the other,” he said.