DEATH ROW U.S.A. Winter 2010 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 2010 (As of January 1, 2010) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,261 Race of Defendant: White 1,448 (44.40%) Black 1,351 (41.43%) Latino/Latina 383 (11.74%) Native American 37 ( 1.13%) Asian 41 ( 1.26%) Unknown at this issue 1 ( .03%) Gender: Male 3,200 (98.13%) Female 61 ( 1.87%) 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 [NOTE: New Mexico repealed the death penalty prospectively.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 2009 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2009 1. CASES RAISING CONSTITUTIONAL QUESTIONS Article I Section 9 - Ex Post Facto Carr v. United States, No. 08-1301 (Ex post facto prosecution under sex offender registry act) (decision below 551 F.3d 578 (7th Cir. 2008)) Questions Presented: (1) May a person be criminally prosecuted under § 2250(a) of the Sex Offender Registration and Notification Act (SORNA) for failure to register when the defendant's underlying offense and travel in interstate commerce both predated enactment of the law? (2) Does the Ex Post Facto Clause preclude prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA's enactment? United States v. Marcus, No. 08-1341 (Standard of review for ex post facto violation) (decision below 538 F.3d 97 (2nd Cir. 2008)) Question Presented: Did the court of appeals depart from the Supreme Court's interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an asserted ex post facto violation whether "there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct?" First Amendment United States v. Stevens, No. 08-769 (First Amendment, depiction of animal cruelty) (decision below 533 F.3d 218 (3rd Cir. 2008)) Question Presented: Is 18 U.S.C. § 48 facially invalid under the Free Speech Clause of the 1st Amendment? (18 U.S.C. § 48 prohibits the knowing creation, sale, or possession of a depiction of a live animal being intentionally maimed, mutilated, tortured, wounded, or killed, with the intention of placing that depiction in interstate or foreign commerce for commercial gain, where the conduct depicted is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, and the depiction lacks serious religious, political, scientific, educational, journalistic, historical, or artistic value.) Fourth Amendment City of Ontario v. Quon, No. 08-1332 (4th Amendment right of SWAT team member) (decision below 529 F.3d 892 (9th Cir. 2008)) Questions Presented: (1) Does a SWAT team member have a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers? (2) Did the 9th Circuit contravene this Court's 4th Amendment precedents and create a circuit conflict by analyzing whether the police department could have used "less intrusive methods" of reviewing text messages transmitted by a SWAT team member on his SWAT pager? (3) Do individuals who send text messages to a SWAT team Death Row U.S.A. Page 2 member's SWAT pager have a reasonable expectation that their messages will be free from review by the recipient's government employer? Michigan v. Fisher, No. 09-91 (“Emergency” exception to warrant requirement) (decision below 2008 WL 786515 (Mich. App., Mar. 25, 2008)) Decision: In a per curiam opinion, the Court held that when, in response to a report of a disturbance, police find a “tumultuous situation,” signs of a recent injury, evidence of violence, a person “raging” and throwing things, they may reasonably enter a residence without a warrant. Fifth Amendment Maryland v. Shatzer, No. 08-680 (Invocation of right to counsel and delay in re-interrogation) (decision below 954 A.2d 1118 (Md. 2008)) Question Presented: Is the Edwards v. Arizona prohibition against interrogation of a suspect who has invoked the 5th Amendment right to counsel inapplicable if, after the suspect asks for counsel, there is a break in custody or a substantial lapse in time (more than two years and six months) before commencing re-interrogation pursuant to Miranda? Renico v. Lett, No. 09-338 (Mistrial and double jeopardy) (decision below 316 Fed. Appx. 373 (6th Cir, 2009)) Question Presented: Did the 6th Circuit, in a habeas case, err in holding that the Michigan Supreme Court failed to apply clearly established Supreme Court precedent under 28 U.S.C. § 2254 in denying relief on double jeopardy grounds in the circumstance where the State trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict? Skilling v. United States, No. 08-1394 (Vagueness of criminal statute under Constitution) (decision below 554 F.3d 529 (5th Cir. 2009)) Question Presented: (1) Does the federal "honest services" fraud statute, 18 U.S.C. § 1346, require the government to prove that the defendant's conduct was intended to achieve "private gain" rather than to advance the employer's interests, and, if not, is § 1346 unconstitutionally vague? (See also question under 6th Amendment cases) Sixth Amendment Berghuis v. Thompkins, No. 08-1470 (Scope of the Miranda rule) (decision below 547 F.3d 572 (6th Cir. 2008)) Question Presented: (1) Did the 6th Circuit expand the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them? (See also question under habeas cases) Berguis v. Smith, No. 08-1402 (Fair cross section of jurors) (decision below 543 F.3d 326 (6th Cir. 2008)) Question Presented: Did the 6th Circuit err in concluding that the Michigan Supreme Court failed to apply “clearly established” Supreme Court precedent under 28 U.S.C. § 2254 on the issue of the fair cross-section requirement under Duren v. Missouri where the 6th Circuit adopted the comparative-disparity test (for evaluating the difference between the numbers of Death Row U.S.A. Page 3 African Americans in the community as compared to the venires), which this Court has never applied and which four circuits have specifically rejected? Bobby v. Van Hook, No. 09-144 (Effective assistance of counsel at sentencing) (decision below 560 F. 3d 523 (6th 2009)) Decision: In a per curiam opinion, the Court found that counsel had conducted an adequate investigation, consistent with the ABA guidelines in effect at the time of the trial. 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? Florida v. Powell, No. 08-1175 (Advising suspects of right to counsel during interrogation) (decision below 998 So. 2d 531 (Fla. 2008)) Questions Presented: (1) Does the decision of the Florida Supreme Court, holding that a suspect must be expressly advised of his right to counsel during custodial interrogation, conflict with Miranda v. Arizona and decisions of federal and state appellate courts? (2) If so, does the failure to provide express advice of the right to the presence of counsel during questioning vitiate Miranda warnings which advise of both (a) the right to talk to a lawyer “before questioning” and (b) the “right to use” the right to consult a lawyer “at any time” during questioning? Magwood v. Culliver, No. 09-158 (Counsel’s failure to challenge death penalty eligibility on resentencing) (decision below 555 F.3d 968 (11th Cir. 2009)) Question Presented: (2) Did petitioner's attorney provide ineffective assistance of counsel warranting federal habeas relief by failing to raise an argument at petitioner's resentencing proceedings that would have made clear that petitioner was constitutionally ineligible for the death penalty? (See also question under habeas cases) Padilla v. Kentucky, No. 08-651 (Duty of counsel in representing legal permanent resident) (decision below 253 S.W.3d 482 (Ky. 2008)) Questions Presented: (1) Are the mandatory deportation consequences that stem from a plea to trafficking in marijuana (an “aggravated felony” under the INA) “collateral consequences” of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise? (2) Assuming immigration consequences are “collateral,” can counsel's gross misadvice as to the collateral consequence of deportation constitute a ground for setting aside a guilty plea which was induced by that faulty advice? Porter v.