Death Row U.S.A
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DEATH ROW U.S.A. Winter 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. Winter 2011 (As of January 1, 2011) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,251 Race of Defendant: White 1,420 (43.68%) Black 1,358 (41.77%) Latino/Latina 394 (12.12%) Native American 36 (1.11%) Asian 42 (1.29%) Unknown at this issue 1 (0.03%) Gender: Male 3,191 (98.15%) Female 60 (1.85%) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 38 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, 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: 15 Alaska, District of Columbia, Hawaii, 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 [NOTE: New Mexico repealed the death penalty prospectively.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 Fall 2010 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2010 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? 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? 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? 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 by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist? Tolentino v. New York, No. 09-11556 (Identity documents and exclusionary rule) (decision below 14 N.Y.3d 382 (Ct. App. 2010)) Question Presented: Are pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Death Row U.S.A. Page 2 Amendment, subject to the exclusionary rule? 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? Harrington v. Richter, No. 09-587 (Counsel’s choice to forego expert testimony) (decision below 578 F.3d 944 (9th Cir. 2009)) Question Presented: In granting habeas corpus relief to a state prisoner, did the 9th Circuit deny the state court judgment the deference mandated by 28 U.S.C. § 2254(d) and impermissibly enlarge the 6th Amendment right to effective counsel by elevating the value of expert-opinion testimony in a manner that would virtually always require defense counsel to produce such testimony rather than allowing him to rely on cross-examination or other methods designed to create reasonable doubt about the defendant's guilt? (See also question under habeas cases) Michigan v. Bryant, No. 09-150 (Interrogation of wounded person) (decision below 768 N.W.2d 65 (Mich. 2009)) Question Presented: Are preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of a shooting nontestimonial because "made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," that emergency including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual? Premo v. Moore, No. 09-658 (Counsel’s failure to move to suppress confession before plea) (decision below 574 F.3d 1092 (9th Cir. 2009)) Question Presented: (1) (a) If a collateral challenge is based on a defense attorney's decision not to move to suppress a confession prior to a guilty or no contest plea, does the Fulminante standard apply, even though no record of a trial is available for review? (See also question under habeas cases) 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 Death Row U.S.A. Page 3 incarceration? (2) (added by the Court) Does the court have jurisdiction to review the decision of the South Carolina Supreme Court? 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? 2. CASES RAISING HABEAS CORPUS QUESTIONS Harrington v. Richter, No. 09-587 (Counsel’s choice to forego expert testimony) (decision below 578 F.3d 944 (9th Cir. 2009)) Question Presented: The Court directed the parties to brief and argue the question: does AEDPA deference apply to a state court's summary disposition of a claim, including a claim under Strickland v. Washington, 466 U.S. 668 (1984)? (See also question under 6th Amendment cases) Premo v. Moore, No. 09-658 (Standard for assessing effectiveness of counsel in plea context) (decision below 574 F.3d 1092 (9th Cir. 2009)) Questions Presented: (1) (b) Is the application of the Fulminante standard to counsel’s failure to challenge a confession before the plea "clearly established Federal law" for purposes of 28 U.S.C. § 2254(d)(1)? (2) Did the 9th Circuit err by granting federal habeas relief on defendant's ineffective-assistance-of-counsel claim when he offered no evidence that he would have insisted on going to trial had counsel challenged his confession before his plea? Wilson v. Corcoran, No. 10-91 (Violation of state sentencing law as basis for habeas relief) (decision below Corcoran v. Levenhagen, 593 F.3d 547 (6th Cir. 2010)) Decision: In a per curiam opinion, the Court reversed the 6th Circuit’s grant of habeas relief because the Circuit did not base its grant on a violation of federal law, but on a violation of state sentencing law. 3. CASES RAISING OTHER IMPORTANT FEDERAL QUESTIONS Abbott v. United States, No. 09-479 (Interpretation of sentencing statute) (decision below 574 F.3d 203 (3d Cir. 2009)) Questions Presented: (1) Does the term "any other provision of law" (in 18 U.S.C. § 924(c) (1)(a), which provides for a minimum sentence for use of a firearm in a crime unless a greater minimum is provided in another provision of law) include the underlying drug trafficking offense or crime of violence? (2) If not, does it include another offense for possessing the same firearm in the same transaction? Decision: Looking at Congressional intent and the language and context of the statute, the Court holds that a defendant is subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum.