DEATH ROW U.S.A. Summer 2004 A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins, Esq. Director of Research and Student Services, Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Summer 2004 (As of July 1, 2004) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,490 Race of Defendant: White 1,587 (45.47%) Black 1,467 (42.03%) Latino/Latina 356 (10.20%) Native American 39 ( 1.12%) Asian 40 ( 1.15%) Unknown at this issue 1 ( .03%) Gender: Male 3,438 (98.51%) Female 52 ( 1.49%) Juveniles: Male 79 ( 2.26%) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 40 (Underlined jurisdiction has statute but no sentences imposed) Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, 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: 13 Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. Death Row U.S.A. Page 1 In the United States Supreme Court Update to Winter 2004 Issue of Significant Criminal, Habeas, & Other Pending Cases for October Term 2003 and Cases to Be Decided in October Term 2004 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Ashcroft v. American Civil Liberties Union, No. 03-218 (Constitutionality of “Child Online Protection Act”) (decision below 322 F.3d 240 (3rd Cir. 2003)) Question Presented: Does Child Online Protection Act violate First Amendment? Decision: The Court of Appeals was correct in upholding the District Court’s injunction against enforcement of the COPA pending trial, because it is unlikely unconstitutional. Fourth Amendment Hiibel v. Sixth Judicial District Court of Nevada, No. 03-5554 (Identifying oneself to police officer) (decision below 59 P.3d 1201 (Nev. 2002)) Question Presented: Do 4th and 5th Amendments bar state from compelling people to identify themselves during police investigation when someone has been seized upon less than probable cause? Decision: Neither the 4th nor 5th Amendments are violated when a person is compelled to provide his name to police officers after an initial stop based on reasonable suspicion. Illinois v. Caballes, No. 03-923 (Use of drug-sniffing dog at traffic stop) (decision below 802 N.E.2d 202 (2003)) Question Presented: Does Fourth Amendment require reasonable, articulable suspicion to justify using drug-detection dog to sniff vehicle during legitimate traffic stop? Thornton v. United States, No. 03-5165 (Search of car incident to arrest of person who had already exited the car) (decision below 325 F.3d 189 (4th Cir. 2003)) Question Presented: Is bright-line rule announced in New York v. Belton confined to situations in which police initiate contact with occupant of vehicle while that person is in vehicle? Decision: Belton applies even when the police do not make contact until after the person arrested has exited the vehicle. The vehicle may be searched incident to the arrest. United States v. Flores-Montano, No. 02-1794 (Border search and disassembling of vehicle) (decision below unpublished (9th Cir. 3/14/03)) Question Presented: Are Customs Service officers at international border required by 4th Amendment to have reasonable suspicion to remove, disassemble, and search vehicle’s fuel tank for contraband? Decision: The search did not require reasonable suspicion. There is less of an expectation of privacy at the border than in the interior. The interference with a motorist’s possessory interest in his vehicle is justified by the Government’s long-recognized paramount interest in protecting the border. Fifth Amendment Hiibel v. Sixth Judicial District Court of Nevada, No. 03-5554 (Identifying oneself to police officer) (decision below 59 P.3d 1201 (Nev. 2002)) Question Presented: Do 4th and 5th Amendments bar state from compelling people to identify themselves during police investigation when someone has been seized upon less than probable cause? Decision: Neither the 4th nor 5th Amendments are violated when a person is compelled to provide Death Row U.S.A. Page 2 his name to police officers after an initial stop based on reasonable suspicion. Missouri v. Seibert, No. 02-1371 (Intentional failure to give Miranda warnings) (decision below: 93 S.W.3d 700 (Mo. 2002)) Question Presented: Is the rule from Oregon v. Elstad, 470 U.S. 298 (1985), that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings, abrogated when the initial failure to give the Miranda warnings was intentional? Decision: The “question-first” interrogation technique, where officers intentionally withhold warnings until after a confession is obtained, then give warnings and continue to interrogate until the confession is repeated, violates the constitution. A post-warning statement that is remote in time and circumstances from an initial, unwarned statement might be admissible. Smith v. Massachusetts, No. 03-8661 (double jeopardy; change in ruling on sufficiency of evidence after defense rests) (decision below 788 N.E.2d 977 (2003)) Questions Presented: (1) Is double jeopardy clause’s prohibition against successive prosecutions violated when judge unequivocally rules that defendant is not guilty because government’s evidence is insufficient but later reverses her finding of not guilty? (2) Should court grant certiorari to clarify its jurisprudence and resolve split among federal circuits and among state courts on this issue? United States v. Patane, No. 02-1183 (Suppression of physical evidence derived from unwarned but voluntary statement) (decision below 304 F.3d 1013 (10th Cir. 2002)) Questions Presented: Whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), requires the suppression of physical evidence derived from the suspect's unwarned but voluntary statement? Decision: Failure to give Miranda warnings does not require suppression of the physical fruits of an unwarned but voluntary statement. Sixth Amendment Blakely v. Washington, No. 02-1632 (Proving fact supporting imposition of sentence within statutory maximum under Apprendi v. New Jersey) (decision below 47 P.3d 149 (Wash. App. Div. 3 2002)) Question Presented: Must fact other than prior conviction, that is necessary for upward departure from statutory standard sentencing range be proved according to procedures mandated by Apprendi v. New Jersey? Decision: Yes. Because the sentence was enhanced based on facts that were neither admitted by petitioner nor found by a jury, petitioner’s Sixth Amendment right to trial by jury was violated. Florida v. Nixon, No. 03-931 (Per se ineffectiveness and counsel’s concession of guilt) (decision below 857 So. 2d 172 (Fla. 2003)) Question Presented: In capital murder case, did Florida Supreme Court (a) apply incorrect standard, contrary to Strickland v. Washington, 466 U.S. 668 (1984), Bell v. Cone, 535 U.S. 685 (2002), and Roe v. Flores-Ortega, 528 U.S. 470 (2000), by finding defense counsel ineffective per se under United State v. Cronic despite having found counsel’s strategy not to contest overwhelming evidence of guilt but to vigorously contest sentence to be in defendant’s best interest and reasonably calculated to avoid death sentence, and (b) err in concluding that Boykin v. Alabama, 395 U.S. 238 (1969), prohibited trial counsel from adopting strategy, after fully informing his client, without objection, not to contest overwhelming evidence of guilt to protect best interest of his client in contesting appropriateness of imposing death penalty? Schriro v. Summerlin, No. 03-526 (Retroactivity of Ring) (decision below 341 F.3d 1082 (9th Cir. 2003)) Questions Presented: (1) Did Ninth Circuit err by holding that new rule announced in Ring is substantive, rather than procedural, and therefore exempt from retroactivity analysis of Teague v. Lane? Death Row U.S.A. Page 3 (2) Did Ninth Circuit err by holding that new rule announced in Ring applies retroactively to cases on collateral review under Teague’s exception for watershed rules of criminal procedure that alter bedrock procedural principles and seriously enhance accuracy of proceedings? Decision: Ring’s holding should be classified as a “procedural” rule, which does not apply retroactively unless it was a “watershed” rule, which the Court holds it was not. Shepard v. United States, No. 03-9168 (Sentence enhancement with prior convictions) (decision below 348 F.3d 308 (2003)) Questions Presented: (1) When defendant has pleaded guilty to nongeneric charge of burglary brought under nongeneric statute, there is no contemporaneous record of guilty plea proceedings, and judgment of conviction reflects general finding of guilty, is sentencing court still bound by categorical method set forth in United States v. Taylor to determine whether defendant’s prior convictions qualify as predicates for sentence enhancement under ACCA, or may court instead be required to conduct inquiry — including evidentiary hearing — into facts underlying conviction to determine whether, in guilty plea proceeding, both defendant