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WASHINGTON-No one would have accused the late George “Buzz” Westfall of making restrained closing arguments as a local St. Louis prosecutor, particularly in death penalty trials. Three times federal courts granted convicted murderers post-conviction relief because Westfall, who died in 2003, had crossed that invisible line between what is appropriate and inappropriate in arguing in favor of the death penalty. The third time has brought the now 20-year-old case against William Weaver to the U.S. Supreme Court. The state of Missouri contends that the 8th U.S. Circuit Court of Appeals erroneously refused to defer to the Missouri Supreme Court’s decision rejecting Weaver’s challenge to the prosecutor’s penalty-phase arguments. Roper v. Weaver, No. 06-313. At the heart of the Supreme Court case, to be argued on March 21, is a requirement in the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) that federal courts cannot grant habeas relief unless the state court decision was “contrary to, or an unreasonable application of, clearly established federal law,” as determined by the U.S. Supreme Court. Some scholars and, most recently the 9th Circuit, have questioned the constitutionality of that deference standard. But the constitutional question has never been put directly before the Supreme Court, which itself has developed a long line of decisions interpreting the federal law. The Weaver case does not raise the constitutional issue. Instead, Missouri and its supporters argue that federal courts owe state court decisions in this particular area a great deal of deference. Federal law offers no specific standards “in the sense of setting out clear, sharp lines on what is appropriate and what isn’t” for prosecutors’ closing arguments, said Kent Scheidegger of the Criminal Justice Legal Foundation, an amicus party supporting Missouri. The Supreme Court, he said, has ruled that “if there is a high level of generality” in the law or precedents, “state courts have a lot of leeway, and that’s what we have here with the prosecutor’s argument.” That argument surprises defense lawyers and even some former prosecutors. In fact, a group of former prosecutors who served on the Oklahoma City Bombing Task Force and prosecuted Timothy McVeigh and Terry Nichols, filed an amicus brief supporting Weaver and expressing surprise that the question is before the Supreme Court. The former prosecutors, Aitan Goelman, Larry A. Mackey and Beth A. Wilkinson, in a brief filed by Jeffrey T. Green of Sidley Austin, said that they and “other prosecutors understood this Court’s caselaw as providing clear guidance about the appropriate scope of argument, both in ordinary closing arguments and in capital sentencing arguments.” “It’s weird this is even an issue,” said Goelman, a partner at Washington’s Zuckerman Spaeder. “You have pretty clear standards governing what prosecutors can say in summation. Why would the standards be any less clear or stringent in the penalty phase than in the guilt phase?” Weaver, a hired hit man, was convicted of shooting a witness in a federal drug trial six times and killing him. During his closing in the penalty phase, the prosecutor told the jurors that the case was bigger than Weaver and that they should send a message to “drug-dealing scum and their minions” by handing down a death sentence. Westfall invoked General George Patton’s comments to soldiers who “reach down into the goo” of what was once their best friend’s face and then know what to do. Weaver’s victim’s face was “goo” and the jurors had to kill just as soldiers do, Westfall said. If Weaver was not sentenced to die, he said, there’s no point in having a death penalty. The Missouri Supreme Court rejected Weaver’s claim that the prosecutor’s statements so infected the fairness of his sentencing trial that he was denied due process. A federal trial judge, in a 135-page opinion, disagreed, as did a 2-1 panel of the 8th Circuit. Both the state, represented by Assistant Attorney General Stephen Hawke, and Weaver, whose counsel is John Blume of Cornell Law School, rely on three high court precedents as the framework for analyzing a prosecutor’s closing statements: Donnelly v. DeChristoforo, 416 U.S. 637 (1974); Darden v. Wainwright, 477 U.S. 168 (1986); and Romano v. Oklahoma, 512 U.S. 1 (1994). In each case, Hawke argues, the court found no due process violation even when it agreed that the prosecutor’s statements deserved universal condemnation. Those three precedents require reviewing courts to look at: (i) whether the prosecutor misstated or misrepresented the evidence; (ii) the nature of the trial court’s instructions; (iii) the substance of the prosecutorial remarks, and any defense counter-arguments; and (iv) the weight of the state’s evidence. “Even if the jury had let the complained-of prosecutorial comments influence its decision, the comments were effectively rebutted by defense counsel and were not so pervasive or unambiguously beyond the pale as to unconstitutionally taint the proceedings,” Hawke said. Blume disagrees, arguing that Westfall’s comments were “riddled with improprieties that offended an array of interests” protected by the due process clause. Westfall’s comments, he added, were a persistent, deliberate strategy to appeal to the raw emotions of the jurors. If the state court had applied Donnelly and Darden, he contends, “or even a reasonable facsimile” of the analysis in Supreme Court precedents, “it could not have reasonably escaped the conclusion that Weaver’s due process rights were violated on this record.” Michael C. Small of the Los Angeles office of Akin Gump Strauss Hauer & Feld, who filed an amicus brief supporting Weaver on behalf of the National Association of Criminal Defense Lawyers, said the 8th Circuit also ruled for Weaver on another basis-the Eighth Amendment. The state did not challenge that ground, and so the judgment could stand independent of AEDPA. He and Blume have urged the court to dismiss the state’s case on that basis. But if it does examine AEDPA’s standard, Small said, “clearly established” federal law can’t mean the Supreme Court has spoken to the precise, factual situation before an appellate court. “There’s a general principle about proper argument whether in the penalty or guilt phase,” he insisted. “You just know you can’t do that.” For the state to win here, Scheidegger countered, all that’s needed is for the high court precedents to be “sufficiently general that it’s reasonably debatable as to which way they go. That’s all that’s needed under AEDPA.” Peter A. Joy of Washington University School of Law in St. Louis said he would be “shocked” if the Supreme Court said there isn’t a clear and definite standard on what is inflammatory argument. “That would say this is a mud-wrestling contest,” he said. But states generally win AEDPA challenges, he noted, and the court did take Missouri’s appeal here. “Perhaps they took it to make the law even more bulletproof in this area and so that defendants don’t have a chance of review.”

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