News Release

Supreme Court Declines to Re-impose Death Sentence

Death Penalty Litigation Is So Complicated, Even the Courts Make Mistakes

Washington, DC­ (May 21, 2007) – The U.S. Supreme Court today dismissed the state’s appeal of a lower court decision which threw out a Missouri prisoner’s death sentence. A majority of the Court, in an unsigned “per curiam” opinion, relied on an argument made by the National Association of Criminal Defense Lawyers, in a “friend of the court” brief, that the trial court misinterpreted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and federal case law when it dismissed death row inmate William Weaver’s original habeas corpus petition in 1996.

The case is Roper v. Weaver, No. 06-313.

Weaver argued that the prosecutor’s “inflammatory” closing argument went so far over the line that the state violated his due process right to a fair trial. The prosecutor asked the jury to think of the death penalty as “self defense,” arguing “there are times when you have to kill in this life and it’s the right thing to do … it’s right to kill him now.” The U.S. Court of Appeals for the Eighth Circuit vacated Weaver’s death sentence based on the prosecutor’s remarks and the state asked the Supreme Court to review that decision.

In today’s decision, the Court said that it was “now aware of circumstances that persuade us that dismissal … is appropriate.” First, the Court noted, the same prosecutor had made the same argument in other cases, including the trial of Weaver’s co-defendant, and that other federal courts threw out those death sentences.

Second, the Court noted an issue argued in NACDL’s amicus curiae (“friend of the court”) brief: if the federal district court had not mistakenly dismissed Weaver’s original petition for habeas corpus, his later petition would not have been evaluated under AEDPA’s restrictive standards.

An author of the NACDL brief, Gia Kim, said she feels that “at bottom,” today’s case was about fairness in administration of the death penalty. “It would have been grossly unfair to subject Mr. Weaver to the requirements of AEDPA … when his initial habeas petition was filed before that law even went into effect,” she said.

Stanford Law Professor Jeffrey Fisher , while noting that it is unusual for a case to be decided on grounds briefed by a third party, noted that today’s decision was the second habeas case the Court had to “scuttle” due to the AEDPA’s vagaries.

"The Supreme Court's habeas jurisprudence is getting so complicated that even lower federal courts are routinely making procedural mistakes, and the Supreme Court itself is now having trouble spottiong those mistakes in screening cert petitions," Fisher said. "The fact that the Court's jurisprudence typically holds that defendant forfeit their rights by making these same kinds of mistakes -- though thankfully a majority of the Court delcined to do so here -- is getting harder and harder to defend." Fisher is a co-chair of NACDL's Amicus Curiae Committee.

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Kim and co-author Michael Small, attorneys with the Los Angeles office of Akin Gump Strauss Hauer & Feld LLP, echoed Fisher’s complaints regarding AEDPA’s complexities.

“On two previous occasions, the same prosecutor in this case had made similar highly inflammatory appeals to the jurors in his closing argument -- and both times the Eighth Circuit had overturned the death sentence on the grounds that the prosecutor's remarks were improper. Those prior cases arose from habeas petitions that were filed before AEDPA went into effect,” Small said. “Mr. Weaver's habeas petition should have been in that same pre-AEDPA camp, except that the district court incorrectly denied it, thus pushing Mr. Weaver into the AEDPA camp. The Supreme Court recognized today that it would have been unfair to treat Mr. Weaver differently from the defendants in those other two cases just because of the fortuity of the error by the district court in his case.”

Chief Justice John Roberts concurred in the result, and Justice Antonin Scalia filed a dissenting opinion in which he was joined by Justices Clarence Thomas and Samuel Alito.

NACDL's amicus curiae brief is available on the association's Web site:$FILE/Weaver_amicus.pdf

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NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.