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Death Row U.S.A DEATH ROW U.S.A. Summer 2011 A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins, Esq. Consultant to the Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Summer 2011 (As of July 1, 2011) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,220 Race of Defendant: White 1,398 (43.42%) Black 1,346 (41.80%) Latino/Latina 397 (12.33%) Native American 36 (1.12%) Asian 42 (1.30%) Unknown at this issue 1 (0.03%) Gender: Male 3,157 (98.04%) Female 63 (1.96%) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 37 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico [see note, below], North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, U.S. Government, U.S. Military. JURISDICTIONS WITHOUT CAPITAL PUNISHMENT STATUTES: 16 Alaska, District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. [NOTE: New Mexico repealed the death penalty prospectively. The two men already sentenced remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Spring 2011 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2010 and October Term 2011 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Alford v. Greene, No. 09-1478 (consolidated with 09-1454) (Interview of allegedly abused child at school without parental permission or a warrant) (decision below 588 F.3d 1011 (9th Cir. 2009)) Question Presented: Does the Fourth Amendment require a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused by her father? Camreta v. Greene, No. 09-1454 (consolidated with 09-1478) (Interview of allegedly abused child at school without parental permission or a warrant) (decision below 588 F.3d 1011 (9th Cir. 2009)) Questions Presented: (1) Should the 9th Circuit have applied the balancing standard that this Court has identified as the appropriate standard when a witness is temporarily detained? (2) Is the 9th Circuit's constitutional ruling reviewable, notwithstanding that it ruled in petitioner's favor on qualified immunity grounds? Decision: The case is moot because the “child” reached the age of 18 and high school graduation. Because mootness frustrates the official’s ability to challenge the 9th Circuit’s ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school, that part of the 9th Circuit’s decision must be vacated. Davis v. United States, No. 09-11328 (“Good-faith” exception to exclusionary rule) (decision below 598 F.3d 1259 (11th Cir. 2010)) Question Presented: Does the good-faith exception to the exclusionary rule apply to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional? Decision: Yes. If a court decision making a search unconstitutional is rendered after the search, the search is not subject to the exclusionary rule. J.D.B v. North Carolina, No. 09-11121 (Consideration of juvenile’s age in Miranda custody analysis) (decision below 668 S.E.2d 135 (N.C. 2009)) Question Presented: May a court consider a juvenile's age in a Miranda custody analysis in evaluating the totality of the circumstances and determining whether a reasonable person in the juvenile's position would have felt he or she was not free to terminate police questioning and leave? Decision: The police and courts must examine all of the circumstances surrounding an interrogation, including a person’s age. Kentucky v. King, No. 09-1272 (Police-created exigent circumstances) (decision below 302 S.W.3d 649 (Ky. 2010)) Question Presented: When does lawful police action impermissibly "create" exigent circumstances which preclude warrantless entry; and which of the five tests currently being used Death Row U.S.A. Page 2 by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist? United States v. Jones, No. 10-1259 (Use of GPS) (decision below 615 F.3d 544 (D.C. Cir. 2010)) Question Presented: (1) Did the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violate the 4th Amendment? (2) [added by the Court] Did the government violate respondent’s 4th Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent? Fifth Amendment Perry v. New Hampshire, No. 10-8974 (Suggestive identification) (decision below NHSC 2009- 0590 App. 1 (Nov. 18, 2010)) Question Presented: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the 1st and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts? Sixth Amendment Briscoe v. Virginia, No. 07-11191 (Right to confront lab analyst) (decision below 657 S.E.2d 113 (Va. 2008)) Question Presented: If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the 6th Amendment by providing that the accused has a right to call the analyst as his own witness? Bullcoming v. New Mexico, No. 09-10876 (Confrontation of forensic analyst) (decision below 147 N.M. 487 (2010)) Question Presented: Does the Confrontation Clause permit the prosecution to introduce testimonial statements of a non-testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements? Decision: No. Unless the analyst is unavailable to testify and the defendant had a prior opportunity to cross-examine the analyst, the defendant has the right to cross-examine the analyst at trial. Lafler v. Cooper, No. 10-209 (Guilty pleas and ineffective assistance of counsel) (decision below 376 Fed. Appx. 563 (6th Cir. 2010)) Questions Presented: (1) Is a state habeas petitioner entitled to relief where his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial? (2) (Added by the Court) What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures? Martinez v. Ryan, No. 10-1001 (Right to counsel in post-conviction) (decision below 623 F.3d 731 (9th Cir. 2010)) Question Presented: Does a defendant in a state criminal case who is prohibited by state law Death Row U.S.A. Page 3 from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, have a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim? Missouri v. Frye, No. 10-444 (Ineffective assistance and guilty pleas) (decision below 311 S.W.3d 350 (Ct. App. W.D. Mo. 2010)) Question Presented: (1) Contrary to the holding in Hill v. Lockhart, 474 U.S. 52 (1985) -- which held that a defendant must allege that, but for counsel's error, the defendant would have gone to trial -- can a defendant who validly pleads guilty successfully assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? (2) (Added by the Court) What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures? Turner v. Price, No. 10-10 (Right to counsel at civil contempt proceeding) (decision below 691 S.E.2d 470 (S.C. 2010)) Questions Presented: (1) Did the Supreme Court of South Carolina err in holding, in conflict with 22 federal courts of appeals and state courts of last resort, that an indigent defendant has no constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration? (2) (added by the Court) Does the court have jurisdiction to review the decision of the South Carolina Supreme Court? Williams v. Illinois, No. 10-8505 (Right to confront DNA analysts) (decision below 238 Ill.2d 125 (2010)) Question Presented: Does a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violate the Confrontation Clause? Tenth Amendment Bond v. United States, No. 09-1227 (10th Amendment challenge to federal criminal statute by defendant) (decision below 581 F.3d 128 (3rd Cir. 2009)) Question Presented: Does a criminal defendant convicted under a federal statute have standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government's enumerated powers and inconsistent with the Tenth Amendment? Decision: Yes. Fourteenth Amendment Bobby v. Mitts, No. 10–1000 (Constitutionality of Ohio sentencing instructions) (decision below Mitts v. Bagley, 620 F.3d 650 (6th Cir. 2010)) Decision: In a per curiam opinion, the Court held that the Ohio sentencing instructions, identical to those in Spisak, did not violate Beck v.
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