DEATH ROW U.S.A. Summer 2008 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 2008 (As of July 1, 2008) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,307 Race of Defendant: White 1,489 (45.03%) Black 1,376 (41.61%) Latino/Latina 365 (11.04%) Native American 36 ( 1.09%) Asian 40 ( 1.21%) Unknown at this issue 1 ( .03%) Gender: Male 3,249 (98.25%) Female 58 ( 1.75%) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 38 (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 Mexico, 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. Death Row U.S.A. Page 1 In the United States Supreme Court Update to Winter 2008 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases Decided in October Term 2007 or to Be Decided in October Term 2008 1. CASES RAISING CONSTITUTIONAL QUESTIONS Second Amendment District of Columbia v. Heller, No. 07-290, (Right to own and keep guns) (decision below 478 F.3d 370 (D.C. Cir. 2007)) Question Presented: Do D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 violate the 2nd Amendment right of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? Decision: Yes. The 2nd Amendment protects the right of an individual to possess a firearm “cted to ser” that firea“traditionally lawful purposes, such as self-defense w” Fourth Amendment Arizona v. Gant, No. 07-542 (Warrantless search of vehicle) (decision below 216 Ariz. 1 (Sup. Ct. Ariz. 2007)) Question Presented: Does the 4th Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured? Arizona v. Johnson, No. 07-1122 (Pat down of passenger) (decision below 170 P.3d 667 (Ct. App. II Ariz. 2007)) Question Presented: In the context of a vehicular stop for a minor traffic infraction, may an officer conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense? Herring v. United States, No. 07-513 (Suppression of evidence where officer relies on bad information) (decision below 492 F.3d 1212 (11th Cir. 2007)) Question Presented: Does the 4th Amendment require evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent? Pearson, et al. v. Callahan, No. 07-751 (Warrantless entries) (decision below 494 F.3d 891 (10th Cir. 2007)) Questions Presented: (1) [added by the Court] Should the Court's decision in Saucier v. Katz, 533 U.S. 194 (2001) be overruled? (2) Several lower courts have recognized a "consent once removed" exception to the 4th Amendment warrant requirement. Does this exception authorize police officers to enter a home without a warrant immediately after an undercover informant buys drugs inside (as the 6th and 7th Circuits have held), or does the warrantless entry in such circumstances violate the 4th Amendment (as the 10th Circuit held below)? (3) Did the 10th Death Row U.S.A. Page 2 Circuit properly deny qualified immunity when the only decisions directly on point had all upheld similar warrantless entries? Virginia v. Moore, No. 06-1082 (Suppression of evidence where arrest violates state law) (decision below 636 S.E.2d 395 (Va. 2006)) Question Presented: Does the 4th Amendment require the suppression of evidence obtained incident to an arrest that is based upon probable cause, where the arrest violates a provision of state law? Decision: No. The 4th Amendment is not violated when the police make an arrest based on probable cause but prohibited by state law, nor when they search incident to that arrest. Sixth Amendment Arave v. Hoffman, No. 07-110 (Ineffective assistance of counsel, plea offers) (decision below 455 F.3d 926 (9th Cir. 2006)) Questions Presented: (1) Because the 9th Circuit did not require the defendant to prove his attorney’commendation on a plea offer constitut“ross err”nd mandated the attorney “escient about the direc”th Circuit err by rejecting’ prohibition regarding the use of hindsight to conclude the defendant established deficient performance? (2) Because the defendant failed to allege he would have acce’s plea offer but for his attorney’ and the 9th Circuit determined the defe’ision to reject the offer wa“”th Circuit err by concluding the defendant established prejudice? (3) (added by the Court) What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial? Decision: The defendant Hof’ate Decision Below and Dismiss the Cause as Moot was granted. The portion of the 9th’nt to the claim is vacated, and the claim is to be dismissed with prejudice in the district court. Giles v. California, No. 07-6053 (Defense responsibility for unavailable witness and the Confrontation Clause) (decision below 152 P.3d 433 (Cal. 2007)) Question Presented: Does a criminal defe“orfe”th Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the def’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held? Decision: A defendant does not lose his right to confrontation unless his actions causing a ’ilability were undertaken for the purpose of making that witness unavailable to testify against him. Indiana v. Edwards, No. 07-208 (Standard for competency for self-representation) (decision below 866 N.E.2d 252 (Ind. 2007)) Question Presented: May states adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial? Decision: Yes. Mentally ill defendants may be competent to be tried, but insufficiently competent to conduct trial proceedings by themselves. Knowles v. Mirzayance, No. 07-1315 (Habeas review of ineffective assistance of counsel claim) (decision below unreported; 9th Cir. No. 04-57102 (11/8/07)) Death Row U.S.A. Page 3 Questions Presented: (1) Did the 9th Circuit again exceed its authority under § 2254(d) by granting habeas relief without considering whether the state-court adjudication of the claim was “asonable”“arly established Feder” based on its previous conclusion that trial counsel was required to proceed with an affirmative insanity defense because it was the only defense available and despite the absence of a Supreme Court decision addressing the point? (2) May a federal appellate court substitute its own factual findings and credibility determinations for those of a district court without determining whether’indings we“clearly erroneous?” Melendez-Diaz v. Massachusetts, No. 07-591 (Right to confrontation and state forensic analy’ report) (decision below 870 N.E.2d 676 (Mass. App. 2007)) Question Presented: Is a state forensic analy’y report prepared for use in a criminal prose“”nce subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)? Oregon v. Ice, No. 07-901 ( Application of Apprendi and Blakely to consecutive sentences) (decision below 170 P.3d 1049 (Ore. 2007)) Question Presented: Does the 6th Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), require that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant? Snyder v. Louisiana, No. 06-10119 (Application of Batson by state court) (decision below 942 So. 2d 484 (La. 2006)) Questions Presented: (1) Did the majority below ignore the plain import of Miller-El by failing to consider highly probative evidence of discriminatory intent, including the pr’s repeated comparisons of this case to the O.J. Simpson case, the prosec’ peremptory challenges to purge all African Americans from the jury, the prosec’te questioning of white and black prospective jurors, and documented evidence of a pattern of practice by the prosec’ice to dilute minority presence in petit juries? (2) Did the majority err when, in order to shore up its holding that Mr. Snyder had failed to prove discriminatory intent, it imported into a direct appeal case the standard of review this Court applied in Rice v. Collins, an AEDPA habeas case? (3) Did the majority err in refusing to consider the pr’s first two suspicious strikes on the ground that defense c’ilure to object could not constitute ineffective assistance of counsel because Batson error does not render the trial unfair or the verdict suspect —i.e., that failure to raise a Batson objection can never result in prejudice under Strickland v.