The US Supreme Court heard oral arguments Wednesday in the case of Roper v. Weaver, 06-313, a case in which the US Court of Appeals for the Eighth Circuit overturned a capital sentence on the grounds that the prosecutor's penalty phase closing argument was "unfairly inflammatory." During the penalty phase of the trial, the prosecutor urged the jury to send a message to other drug dealers by sentencing Weaver to death, and compared the jurors to soldiers in the movie "Patton" who had the courage to kill. The Court must first articulate a standard of review and prejudice for a penalty phase claim, which is a question of first impression for the Court, and then must decide whether the Eighth Circuit properly found that the prosecutor's statements violated Weaver's right to a fair trial under the due process clause of the Fourteenth Amendment.

During arguments, the Missouri Attorney General argued that while the prosecutor's statements may have been improper, they did not influence the fairness of the guilt phase of Weaver's trial. Justice Souter seemed to agree with Weaver's counsel, indicating that some of the statements made by the prosecutor had no relationship to the facts and evidence presented during Weaver's trial; Justice Scalia noted that the guilt and sentencing phases of trials are "quite different."