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Death Row U.S.A DEATH ROW U.S.A. Winter 2006 A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins, Esq. Director of Research and Student Services, Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Winter 2006 (As of January 1, 2006) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,373 Race of Defendant: White 1,531 (45.39%) Black 1,411 (41.83%) Latino/Latina 353 (10.47%) Native American 39 ( 1.16%) Asian 38 ( 1.13%) Unknown at this issue 1 ( .03%) Gender: Male 3,318 (98.37%) Female 55 ( 1.63%) Juveniles:* Male 11 ( .33%) (* NOTE: On March 1, 2005, the U.S. Supreme Court determined in Roper v. Simmons that it is unconstitutional to execute a person for a crime committed when that person was under the age of 18. Only juveniles whose death sentences were vacated by court order or other official action before January 1, 2006 have been removed from the state rosters. The others remain with their names in brackets.) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 40 (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 Jersey, New Mexico, New York, 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, Vermont, West Virginia, Wisconsin. Death Row U.S.A. Page 1 In the United States Supreme Court Update to Fall 2005 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2005 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Beard v. Banks, No. 04-1739 (Prison policy prohibiting access to any material that isn’t legal or religious) (decision below 399 F.3d 134 (3rd Cir. 2005)) Question Presented: Does a prison policy that denies newspapers, magazines, and photographs to the most difficult inmates in the prison system in an effort to promote security and good behavior violate the First Amendment under the standards of Turner [v. Safley, 482 U.S. 78 (1987)] and Overton [v. Bazzetta, 539 U.S. 126 (2003)]? Hartman v. Moore, No. 04-1495 (Liability for retaliatory prosecution) (decision below 388 F.3d 871 (D.C. Cir. 2004)) Question Presented: Whether law enforcement agents may be liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for retaliatory prosecution in violation of the 1st Amendment when the prosecution was supported by probable cause? Fourth Amendment Georgia v. Randolph, No. 04-1067 (Validity of consent to search where two occupants give conflicting answers to request to search) (decision below 604 S.E.2d 835 (Ga. 2004)) Question Presented: Should the Court grant certiorari to resolve the conflict among federal and state courts on whether an occupant may give law enforcement valid consent to search the common areas of the premises shared with another, even though the other occupant is present and objects to the search? Hudson v. Michigan, No. 04-1360 (Inevitable discovery doctrine) (decision below unpublished (Mich. Ct. App. 1/17/04)) Question Presented: Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a 4th Amendment “knock and announce” violation, as the 7th Circuit and the Michigan Supreme Court have held, or is evidence subject to suppression after such violations, as the 6th and 8th Circuits, the Arkansas Supreme Court, and the Maryland Court of Appeals have held? Samson v. California, No. 04-9728 (Warrantless search of parolee) (decision below unpublished (Cal. App. 10/14/04)) Question Presented: Does the 4th Amendment prohibit police from conducting a warrantless search of a person who is subject to parole search conditions, when there is no suspicion of criminal wrongdoing and the sole reason for the search is that the person is on parole? United States v. Grubbs, No. 04-1414 (Anticipatory warrants and triggering condition) (decision below 377 F.3d 1072 (9th Cir. 2004)) Death Row U.S.A. Page 2 Question Presented: Whether the 4th Amendment requires suppression of evidence when officers conduct a search under an anticipatory warrant after the warrant’s triggering condition is satisfied, but the triggering condition is not set forth either in the warrant itself nor in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched. Sixth Amendment Davis v. Washington, No. 05-5224 (Testimonial statement under Crawford) (decision below 111 P.3d 844 (Wash. 2005)) Question Presented: Whether an alleged victim’s statements to a 911 operator naming her assailant — admitted as “excited utterances” under a jurisdiction’s hearsay law — constitute “testimonial” statements subject to Confrontation Clause restrictions enunciated in Crawford v. Washington, 541 U.S. 36 (2004). Hammon v. Indiana, No. 05-5705 (Testimonial statement under Crawford) (decision below 829 N.E.2d 444 (Ind. 2005)) Question Presented: Whether an oral accusation made to an investigating officer at the scene of an alleged crime is a testimonial statement within the meaning of Crawford v. Washington, 541 U.S. 36 (2004). Holmes v. South Carolina, No. 04-1327 (Admissibility of evidence of another person’s guilt) (decision below 605 S.E.2d 19 (S.C. 2004)) Question Presented: Whether South Carolina’s rule governing the admissibility of third- party guilt evidence violates a criminal defendant’s constitutional right to present a complete defense grounded in the Due Process, Confrontation and Compulsory Process Clauses? Kane v. Espitia, No. 04-1538 (Right of a pro se defendant to have access to law library) (decision below unpublished (113 Fed. Appx. 802 (9th Cir. 11/4/04)) Question Presented: Whether the 9th Circuit exceeded its authority under 28 U.S.C. § 2254(d) when it granted habeas relief solely on the basis of its own circuit precedent that an incarcerated defendant who chooses to represent himself has a 6th Amendment right of legal access to legal materials to assist him in preparing a defense, even though 5 other circuits have held that no such right exists and this Court has never addressed the issue. Decision: In a per curiam opinion, the Court held that Faretta v. California, 422 U.S. 806 (1975), does not specify any specific legal aid the State owes to a pro se criminal defendant. It cannot be relied upon to “clearly establish” (under 28 U.S.C. § 2254(d)(1)) a right to access to a law library for a pro se criminal defendant. Maryland v. Blake, No. 04-373 (Police communication with suspect after right to counsel invoked) (decision below 849 A.2d 410 (Md. App. 2004)) Question Presented: When a police officer improperly communicates with a suspect after invocation of the suspect’s right to counsel, does Edwards permit consideration of curative measures by the police, or other intervening circumstances, to conclude that a suspect later initiated communication with the police? Decision: The writ of certiorari was dismissed as improvidently granted. Eighth Amendment Death Row U.S.A. Page 3 Brown v. Sanders, No. 04-980 (Invalid aggravators and harmless error) (decision below Sanders v. Woodford, 373 F.3d 1054 (9th Cir. 2004)) Questions Presented: (1) Is the California death penalty statute a “weighing statute” for which a state court is required to determine that the presence of an invalid special circumstance was harmless beyond a reasonable doubt as to the jury’s determination of penalty? (2) If an affirmative answer to the first question was dictated by precedent, was it necessary for the state supreme court to specifically use the phrases “harmless error” or “reasonable doubt” in determining that there was no “reasonable possibility” that the invalid special circumstance affected the jury’s sentence selection? Kansas v. Marsh, No. 04-1170 (Constitutionality of statute mandating death when aggravating and mitigating evidence is in equipoise) (decision below 102 P.3d 445 (Kan. 2004)) Questions Presented: (1) Does it violate the Constitution for a state capital sentencing statute to provide for the imposition of the death penalty when the sentencing jury determines that the mitigating and aggravating evidence is in equipoise? (2) Does the USSC have jurisdiction to review the judgment of the Kansas Supreme Court under 28 U.S.C. § 1257, as construed by Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)? (3) Was the Kansas Supreme Court’s judgment adequately supported by a ground independent of federal law? [Note: questions 2 and 3 were added by the Court] Oregon v. Guzek, No. 04-928 (Right to present residual doubt defense in capital trial penalty phase) (decision below 86 P. 3d 1106 (Or. 2004)) Question Presented: Does a capital defendant have a right under the 8th and 14th Amendments to the United States Constitution to offer evidence and argument in support of a residual doubt claim — that is, that the jury in a penalty-phase proceeding should consider doubt about the defendant’s guilt in deciding whether to impose the death penalty? Schriro v. Smith, No. 04-1475 (Procedures for determination of mental retardation) (decision below unpublished (9th Cir. 8/10/04)) (see description under Habeas Cases, below) Fourteenth Amendment Clark v. Arizona, No. 05-5966 (Constitutionality of insanity law) (decision below unpublished (Az. Ct. App.1/25/05)) Questions Presented: (1) Whether Arizona’s insanity law, as set forth in A.R.S. § 13-502 (1996) and applied in this case, violated Petitioner’s right to due process under the 14th Amendment? (2) Whether Arizona’s blanket exclusion of evidence and refusal to consider mental disease or defect to rebut the state’s evidence on the element of mens rea violated Petitioner’s right to due process under the 14th Amendment? Holmes v.
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