DEATH ROW U.S.A. Summer 2013 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 2013 (As of July 1, 2013) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,095 Race of Defendant: White 1,334 (43.10%) Black 1,291 (41.71%) Latino/Latina 391 (12.63%) Native American 33 (1.07%) Asian 45 (1.42%) Unknown at this issue 1 (0.03%) Gender: Male 3,034 (98.03%) Female 61 (1.97%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 35 Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, U.S. Government, U.S. Military. JURISDICTIONS WITHOUT DEATH PENALTY STATUTES: 18 Alaska, Connecticut [see note below], District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico [see note below], New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. [NOTE: Connecticut and New Mexico repealed the death penalty prospectively. The men already sentenced in each state remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Spring 2013 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2012 and October Term 2013 1. CASES RAISING CONSTITUTIONAL QUESTIONS Article I § 10 Ex Post Facto Clause Peugh v. United States, No. 12-62 (Use of sentencing guidelines) (decision below 675 F.3d 736 (7th Cir. 2012)) Question Presented: Does a sentencing court violate the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence? United States v. Kebodeaux, No. 12-418 (Retroactive application of sex offender registration act) (decision below 687 F.3d 232 (5th Cir. 2012)) Questions Presented: (1) Did the court of appeals err in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender? (2) Did the court of appeals err in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted? Fourth Amendment Fernandez v. California, No. 12-7822 (Continuing assertion of 4th Amendment rights) (decision below 208 Cal.App.4th 100 (2012)) Question Presented: What is the proper interpretation of Georgia v. Randolph, 547 U.S. 103 (2006), specifically, must a defendant be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or is a defendant's previously-stated objection, while physically present, to a warrantless search a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant? Maryland v. King, No. 12-207 (Collection of DNA from arrestees) (decision below 425 Md. 550 (Ct. App. Md. 2012)) Question Presented: Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes? Missouri v. McNeely, No. 11-1425 (Blood sample from drunk driver) (decision below 358 S.W.3d 65 (2012)) Question Presented: May a law enforcement officer obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the 4th Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream? Death Row U.S.A. Page 2 Fifth Amendment Alleyne v. United States, No. 11-9335 (Element of offense vs. sentencing factor) (decision below 457 Fed.Appx. 348 (4th Cir. 2011)) Question Presented: Should Harris v. United States, 536 U.S. 545 (2002), be overruled? Kansas v. Cheever, No. 12-609 (State’s use of evidence from court-ordered mental exam) (decision below 284 P.3d 1007 (Kan. Sup. Ct. 2012)) Question Presented: When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant's methamphetamine use, does the State violate the defendant's 5th Amendment privilege against self-incrimination by rebutting the defendant's mental state defense with evidence from a court-ordered mental evaluation of the defendant? Salinas v. Texas, No. 12-246 (5th Amendment rights before arrest) (decision below 369 S.W.3d 176 (Tex. CCA 2012)) Question Presented: Does the 5th Amendment's Self-Incrimination Clause protect a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights, and if so, under what circumstances? White v. Woodall, No. 12-794 (Instruction on failure to testify in penalty phase of capital case) (decision below 685 F.3d 574 (6th Cir. 2012)) (See description under habeas cases, below.) Sixth Amendment Boyer v. State of Louisiana, No. 11-9953 (Speedy trial and failure to appoint counsel) (decision below 56 So. 3d 1119 (La. Ct. App. 3rd Cir. 2011)) Question Presented: Should a state's failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, be weighed against the state for speedy trial purposes? Burt v. Titlow, No. 12-414 (Adequacy of counsel regarding pleas) (decision below 680 F.3d 577 (6th Cir. 2012)) Question Presented: (3) Does Lafler always require a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to "remedy" the violation of the defendant's constitutional right? (See also habeas cases below) Marshall v. Rodgers, No. 12–382 (Right to counsel after prior demand for self-representation) (decision below 678 F. 3d 1149 (9th Cir. 2012)) (See description under habeas cases, below.) 2. CASES RAISING HABEAS CORPUS QUESTIONS Burt v. Titlow, No. 12-414 (AEDPA and adequacy of counsel regarding pleas) (decision below 680 F.3d 577 (6th Cir. 2012)) Questions Presented: (1) Did the 6th Circuit fail to give appropriate deference to a Michigan state court under AEDPA in holding that defense counsel was constitutionally Death Row U.S.A. Page 3 ineffective for allowing Respondent to maintain his claim of innocence? (2) Is a convicted defendant's subjective testimony that he would have accepted a plea but for ineffective assistance, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea? (See also 6th Amendment cases above) Descamps v. United States, No. 11-9540 (Proof of missing element of offense) (decision below 466 Fed.Appx. 563 (9th Cir. 2012)) Question Presented: Did the 9th Circuit err by applying its ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) that, where the burglary statute is missing an element of the generic crime, a state conviction may be subject to the modified categorical approach? Marshall v. Rodgers, No. 12–382 (Right to counsel after prior demand for self-representation) (decision below 678 F. 3d 1149 (9th Cir. 2012)) Question Presented: Does Faretta v. California, 422 U.S. 806 (1975), "clearly establish" that a defendant retains a constitutional right to revoke his prior waiver of counsel at trial and require re-appointment of counsel to file a new-trial motion? Decision: The Court per curiam reversed the 9th Circuit’s grant of habeas to a defendant whose request for counsel to assist in filing a new trial motion had been denied by the state court. The Court held that California’s approach of allowing a trial judge discretion to look at the totality of circumstances to decide whether to appoint counsel after a valid Faretta waiver was not “contrary to or an unreasonable application of the ‘general standards’” established by Supreme Court cases, as required under AEDPA. “The shifting nature of respondent’s preferences, the unexplained nature of his motion, and his demonstrated capacity to handle the incidents of trial” support the state court’s decision. McQuiggin v. Perkins, No. 12-126 (Actual innocence and procedural rules in habeas) (decision below 670 F.3d 665 (6th Cir. 2012)) Questions Presented: (1) Is there an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that "prevented timely filing" of a habeas petition? (2) If so, is there an additional actual-innocence exception to the requirement that a petitioner demonstrate that "he has been pursuing his rights diligently?" Metrish v. Lancaster, No. 12-547 (Clear error, retroactive change in law) (decision below 683 F.3d 740 (6th Cir. 2012)) Questions Presented: (1) Was the Michigan Supreme Court's recognition that a state statute abolished the long-maligned diminished-capacity defense an "unexpected and indefensible" change in a common-law doctrine of criminal law under this Court's retroactivity jurisprudence? (2) Was the Michigan Court of Appeals' retroactive application of the Michigan Supreme Court's decision "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement" so as to justify habeas relief? Nevada v.