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Death Row U.S.A DEATH ROW U.S.A. Spring 2017 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. Spring 2017 (As of April 1, 2017) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,843 Race of Defendant: White 1,205 (42.38%) Black 1,184 (41.65%) Latino/Latina 375 (13.19%) Native American 25 (0.88%) Asian 53 (1.86%) Unknown at this issue 1 (0.04%) Gender: Male 2,790 (98.14%) Female 53 (1.86%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 33 Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, 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: 20 Alaska, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico [see note below], New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. [NOTE: New Mexico repealed the death penalty prospectively. The men already sentenced remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Winter 2017 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2016 or 2017 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Packingham v. North Carolina, No. 15-1194 (Use of websites by sex offender) (decision below 777 S.E.2d 738 (N.C. 2015)) Question Presented: Under this Court's 1st Amendment precedents, is a law which makes it a felony for a registered sex offender to “access” a wide variety of websites permissible, both on its face and as applied to petitioner - who was convicted based on a Facebook "post" in which he celebrated dismissal of a traffic ticket, declaring "God is Good!" Fourth Amendment Hernandez v. Mesa, No. 15-118 (Reach of 4th Amendment beyond U.S. border) (decision below 785 F.3d 117 (5th Cir. 2015)) Question Presented: (1) Does a formalist or functionalist analysis govern the extraterritorial application of the 4th Amendment's prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States? (2) May qualified immunity be granted or denied based on facts -- such as the victim's legal status -- unknown to the officer at the time of the incident? (3) [Added by the Court] May the claim in this case be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)? Fifth Amendment Turner v. United States, No. 15-1503 and Overton v. United States, No. 15-1504 (Brady standards) (decision below 116 A.3d 894 (D.C. Cir. 2016)) Question Presented: (By the Court) Must Petitioners’ convictions be set aside under Brady v. Maryland, 373 U.S. 83 (1963)? Sixth Amendment Davila v. Davis, No.16-6219 (Ineffective assistance of appellate counsel and waivers) (decision below 650 Fed.Appx. 860 (5th Cir. 2016)) Question Presented: (see Cases Raising Habeas Corpus Questions below) Lee v. United States, No. 16-327 (Effectiveness of counsel and pleas) (decision below 825 F.3d 311 (6th Cir. 2016)) Question Presented: In the context of a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States, is it always irrational for a defendant to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation? Death Row U.S.A. Page 2 Pena-Rodriguez v. Colorado, No. 15-606 (Impeaching jury to prove racial discrimination) (decision below 350 P.3d 287 (Colo. 2015)) Question Presented: May a no-impeachment rule constitutionally bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury? Decision: The Constitution requires an exception to the no-impeachment rule when a juror explicitly indicates that racial animus was a significant motivating factor in his or her decision to convict. Weaver v. Massachusetts, No. 16-240 (Structural defects and harmless error analysis) (decision below 54 N.E.3d 495 (Mass. 2016)) Question Presented: Must a defendant asserting ineffective assistance that results in a structural error, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or is prejudice presumed in such cases, as held by four other circuits and two state high courts? Eighth Amendment Moore v. Texas, No. 15-797 (Standard for determination of intellectual disability in death penalty cases) (decision below 470 S.W.3d 481 (Tex. Ct. Crim. App. 2015)) Question Presented: Does it violate the 8th Amendment and this Court's decisions in Hall v. Florida, 134 S. Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed? Decision: Yes. The TCCA did not use the correct current medical standards to evaluate ID. Although not rigidly bound by every aspect of medical diagnosis, a court cannot ignore current medical standards. TCCA focused on possible adaptive strengths instead of deficits, used an incorrect IQ cutoff, looked at traumatic childhood events as undermining diagnosis rather than as a risk for ID, misunderstood co-morbidity, and used the unreliable Briseno factors. Fourteenth Amendment Class v. United States, No. 16-424 (Appellate claims that survive a guilty plea) (decision below No. 15-3015 (DC Cir. 2016)) Question Presented: Does a guilty plea inherently waive a defendant's right to challenge the constitutionality of his statute of conviction? McWilliams v. Dunn, No. 16-5294 (Defendant’s right to an independent psychiatric expert in a capital case) (decision below 634 Fed.Appx. 698 (11th Cir. 2015)) Question Presented: When this Court held in Ake that an indigent defendant is entitled to meaningful expert assistance for the "evaluation, preparation, and presentation of the defense,” did it clearly establish that the expert should be independent of the prosecution? Rippo v. Baker, No. 16–6316 (Standard for recusal of trial judge) (decision below Rippo v. State, 368 P. 3d 729 (Nev. 2016)) Question Presented: Did the trial judge violate the Due Process Clause of the 14th Amendment when he failed to recuse himself from a capital case where the district attorney’s office was involved with an investigation of the judge’s alleged involvement in bribery? Decision: In a per curiam opinion, the Court held that the Nevada Supreme Court applied the wrong standard in evaluating a judge’s failure to recuse himself. The correct question is “whether, considering all the circumstances alleged, the risk of bias was too high to be Death Row U.S.A. Page 3 constitutionally tolerable.” 2. CASES RAISING HABEAS CORPUS QUESTIONS Buck v. Davis, No. 15-8049 (COA standard) (decision below 623 Fed. Appx. 668 (5th Cir. 2015)) Question Presented: Did the 5th Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an "expert" who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing? Decision: The Court of Appeals applied the wrong standard for a COA. The question was not whether Buck had shown that his case is extraordinary; it was whether jurists of reason could debate that issue. Buck clearly demonstrated ineffective assistance of his trial counsel (both deficient performance and prejudice). Relying on race to impose a sentence of death undermines faith in the judicial system and presents the kind of extraordinary circumstance justifying Rule 60(b) relief. The state waived any argument that Martinez and Trevino are not retroactive. Davila v. Davis, No.16-6219 (Ineffective assistance of appellate counsel and waivers) (decision below 650 Fed.Appx. 860 (5th Cir. 2016)) Question Presented: Does the rule established in Martinez v. Ryan and Trevino v. Thaler that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also apply to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims? Wilson v. Sellers, No. 16-6855 (Habeas review of summary state court ruling) (decision below 834 F.3d 1227 (11th Cir. 2016)) Question Presented: Did this Court's decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) - that a federal court sitting in habeas should "look through" a summary state court ruling to review the last reasoned decision - as a slim majority of the en banc 11th Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply? 3. CASES RAISING OTHER IMPORTANT FEDERAL QUESTIONS Beckles v. United States, No. 15-8544 (Retroactivity of Johnson to collateral cases) (decision below 616 Fed.Appx. 415 (11th Cir. 2015)) Question Presented: (1) Does Johnson v. United States, 135 S. Ct. 2551 (2015), apply retroactively to collateral cases challenging federal sentences enhanced under the residual clause in U.S.S.G.
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