DE.AIii ROW U.SA Winter2000 A quarterllJ report hlJ. the Capital Punishment Project 0£ the NAACPLegal De£ense and Educational Fund, Inc. Deborah Fins, Esq. Director of Research and Student Services,Criminal Justice Project · NAACP Legal Defense & EducationalFund . \_., TOTAL NUMBER OF'DEATHROWINMATES KNOWN TO LDF: . 3,652 Race of Defendant: White 1,701 (46.71%) Black 1,562 (42.77%) ' Latino/Latina 312 ( 8.54%) Native American 45 ( 1.23%) Asian 31 ( .85%) Unknown at this issue 1 ( .03%) Gender: Male 3,600 (98.58%) Female 52 ( 1.42%) Juveniles: Male 69 ( 1. 89°/o) DISPOSmONS SINCE JANUARY 1, 1973: Executions: 59'8 Suicides: . 54 Commutations: 90 (including those by the Governor ofTexas resulting from favorable court decisions) Died of natural causes or killed while under death sentence: 157 Convi~ions/Sentences reversed: 1697 JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES : 40 (Underlinedjurisdiction 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 Yorlc,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, Vennont,West Virginia,Wisconsin . Death Row U.S.A. Page I In the United States Supreme Court October Term - 1999 SignificantCriminal , Habeas, & Other Pending Cases · 1. CASESRAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Bond v. United States, No. 98-9349 (Manipulationofluggage stored in overhead bin of bus) (decision below at 167 F.3d 225 (5th Cir. 1999)) Question Presented: Does search occur when law enforcementofficer manipulatesbus passengers' carry-on luggage to determine its contents? Flippo v. West Virginia, 145 L.Ed.2d. 16 (1999) (GVR) Held: Police not entitled to make a warrantless search of anythingand everything found within crime scene area, where no exceptions to warrant requirementof Federal Constitution's Fourth Amendment are invoked. Florida v. J.L, No. 98-1993 (AnonymousTips; Gun Exception to Terry rule) (decision below at 727 So. 2d 204 (Fla. 1998)) \.._ Question Presented: Whether an anonymoustip that a person is carrying a concealed firearm at a specific location, with a detailed description of the person and his attire, is sufficientlyreliable to justify an ,investigatory detention and frisk where the police immediatelyverify the accuracy of the tip? lllinois v. Wardlow, William, No. 98-1036 (Flight & Terry reasonable suspicion) (decision below at 701 N.E.2d 484 (Ill . 1998)) Question Presented: Is person's sudden and unprovoked flight from clearly identifiablepolice officer, who is patrolling high crime area, sufficientlysuspicious to justify temporary investigatory stop pursuant to Terry v. Ohio? Decision: The Court unanimouslyrejects Illinoisand SG's argument that unprovoked flight always justifies a Terry stop, regardless of the circumstances. Terry requires that all the circumstances of the encounter be considered. The Court splits 5-4 on whether the circumstances show a reasonable suspicion of criminalconduct . Chief Justice Rehnquist'smajority opinion finds the combination of high crime area and Wardlow's sudden flight at first sight of the police sufficientto justify a stop. The Court makes no judgment on the lawfulnessof the subsequent frisk. Justice Stevens' partial concurrence and dissent amplifiesthat flight is ambiguous and thus courts must carefully weigh all the circumstances. He concludes that because of this inherent ambiguity, and the strong evidence of poor police-citizenrelations in high crime communities, the record evidence fails to show reasonable suspicion. Death Row U.SA Page 2 Fifth Amendment Dickerson v. United States, No . 99-5525 08 U.S .C. § 3501 & Miranda v. Arizona) (decision below 166 F.3d 667 (4th Cir. 1999)) ... Question Presented : Was p~e of 18-US .C. § 3501 unconstitutional attempt by Congress to legislatively overrule Miranda v. Arizona? · Portuondo v. Agard, No . 98-1170 (Teague v. Lane; Comments on Silence) (decision below at 159 F.3d at 123, modifying 117 F.3d 696 (2nd Cir. 1998)) Question Presented: Did Second Circuit err in extending this Court's decision in Oriffin v. California, which prohibited prosecutor's comment on defendant's right to remain silent, to prosecutor's comments on testifying defendant's presence in courtroom during testimony of other witnesses? United States v. Hubbell , No . 99-166 (Production ofBusiness Records) (decision below at 167 F.3d 1456 (D.C. Cir. 1999)) Questions Presented : ( 1) Does Fifth Amendment privilege against self-incrimination protect information previously recorded in voluntarily created documents that defendant delivered to government pursuant to immunized act of production? (2) Does defendant's ~ct of producing ordinary business records constitute compelled testimonial communications solely because government cannot identify documents with reasonable particularity before there are produced ? Sixth Amendment Roe, Warden v. Ortega, No . 98-1441 (Right to Counsel on Appeal) (decision below at 160 F.3d 534 (9th Cir. 1998)) Question Presented : Whether trial counsel has a Sixth Amendment duty to file a notice of appeal following a guilty plea in the absence of such a request by the defendant, particularly where the defendant has been. advised of his appeal rights? T. Williams v. Taylor, No. 98-8384 (Ineffective Assistance of Counsel at Trial) (decision below at 163 F.3d 860 (4th Cir. 1998)) (see also Section 2 below for Question 2, which raises issues under 28 U.S.C. § 2254(d)) . Que,stion Presented : ( 1) Where both the federal district court judge and state trial court judge who had originally sentenced Petitioner to death concluded that counsel's deficient performance was prejudicial under the test this Court articulated in Striclcland v. Washington, did the Fourth Circuit err in denying relief by reformulating the Striclcland test so that : a) ineffective assistance of counsel claims may be assessed under the "windfall" analysis articulated in Lockhart v. Fretwell even where trial counsel's error was no "windfall"; and b) the petitioner must show that absent counsel's deficient performance in the penalty phase, all twelve jurors would have voted for life imprisonment, even where state law would have mandated a life sentence if only one juror DeathRow U.S.A P98c3 had voted for life imprisonment? Eighth Amendment Bryan v. Moore, No. 99-6723 (Constitutionality of Electric Chair) (decision below Fla. Oct. 20, 1999)) Questions Presented : (1) Did the Florida Supreme Court's appraisal of the likelihood that Mr . Bryan will suffer needless agony and degradation when he is put to death by Florida's electrocution machinery violate the Eighth Amendment by disregarding a constitutionally unacceptable risk of physical violence, disfigurement and torment? (2) Did the Florida Supreme Court err in concluding that the record as a whole insufficiently sustains Mr. Bry~ •s contention that his execution by Florida's electrocution machinery unnecessarily exposes him to physical suffering and degradation in violation of the Eighth Amendment? (3) Following the notorious , repeated malfunctioning of Florida's electrocution machinery, resulting in ghastly spectacles of violent disfigurement, did the Florida Supreme Court err in rejecting Mr. Bryan's contention that his subjection to execution by that machinery constitutes psychological and moral cruelty that violated the Eighth Amendment? Decision : On January 24, 2000, the Court dismissed the writ in an order which states : "In light of the representations by the State of Florida, through its Attorney General , that petitioner's ' death sentence will be carried out by lethal injection, unless petitioner affirmatively_elects death by electrocution' pursuant to the recent amendments to Section 922.10 of the Florida Statutes, the writ of certiorari is dismissed as improvidently granted ." Ramdass v. Moore, No . 99-7000 (Simmons v. South Carolina Issue) (decision below 187 F.3d 396 (4th Cir. 1999)) Question Presented : Simmons v. South Carolina holds that when a prosecutor seeks the death sentence on the ground of the defendant's future dangerousness, the defendant has a constitutional right to inform the jurors truthfully that if they spare his life, state law forbids him ever to be released from prison . Does the rule in Simmons tum on the actual operation of state law, or on its hyper-technical terms; and must a federal habeas court adjudicating a Simmons claim make its own analysis of the functional consequences of state law, or is it bound by the state court's characterization of state law for federal constitutional purposes? Weeks v. Angelone, No. 99-5746 (Right to Clarifying Instruction on Sentencing Procedure) ( decision below 176 F.3d 249 (4th Cir. 1999)) Question Presented : When a capital sentencing jury informs the judge that it does not understand the sentencing instructions held facially constitutional in Buchanan v. Angelone and specifically asks whether or not it is free to consider a sentence less than death if it finds one or more aggravating factors, is the judge constitutionally required to clarify that a death sentence is not mandatory upon the finding