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Deatii ROW U.SA ! DEATiiROW U.SA Spring2000 A quarlerllJ report blJ the Capital Punishment Project 0£the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins, Esq. • Director of Research and Student Services, Criminal Justice Project NAACP Legal Defense & Educational Fund TOTAL NUMBER OF DEA TH ROW INMATES KNOWN TO LDF : . 3,670 Race of Defendant: White 1,698 (46.27%) Black 1,574 (42.89%,) Latino/Latina 321 ( 8.75%) Native American 46 ( 1.25%) Asian 31 ( .84%) Unknown at this issue 0 ( 0%) Gender: Male 3,615 (98.50%) Female 55 ( 1.50%) Juveniles: Male 69 ( 1.88%) DISPOSffiONS SINCE JANUARY 1, 1973: Executions : 625 Suicides: 54 Commutations : 90 (includingthose by the Governorof Texas resulting from favorable court decisions) Died of natural causes or killed while under death sentence: 165 Convictions/Sentences reversed : 1710 JURISDICTIONS WITH CAPITAL PUNISHMENT STA TOTES : 40 (Underlinedjurisdiction has statute but no sentencesimposed) 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.SA Page 1 In the United States Supreme Court Update to Winter 2000 Issue of October Term 1999 Cases (as of May 5, 2000) Significant Criminal, Habeas, & Other Pending Cases 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Bond v. United States, No . 98-9349 (Manipulation of luggage stored in overhead bin of bus) (decision below at 167 F.3d 225 (5th Cir. 1999)) Question Presented : Does search occur when law enforcement officer manipulates bus passengers' carry-on luggage to determine its contents? Decision : The Fourth Amendment recognizes that bus passengers have a reasonable expectation of privacy in baggage stowed above their seats. While passengers understand that such luggage may be touched and moved by other passengers, they do not expect that jt will be subject to exploratory touching by police. There is a Fourth Amendment difference between visual and tactile observation . Florida v. J.L , No . 98-1993 (Anonymous Tips; Gun Exception to Terry rule) (decision below at 727 So. 2d 204 (Fla. 1998)) Question Presented : Whether an anonymous tip that a person is carrying a concealed firearm at a specific location, with a detailed description of the person and his attire, is sufficiently reliable to justify an investigatory detention and frisk where the police immediately verify the accuracy of the tip? Decision : The Court unanimously agrees that this tip is deficient because it lacks sufficient indicia that the suspect would engage in illegal conduct . The mere fact that the information provided in the tip concerning the suspect's identity was confirmed by police prior to the search is insufficient. The Court further refuses to adopt a firearms exception to the Terry v. Ohio exception to the Fourth Amendment's probable cause requirement. Ferguson v. Charleston, S.C , No . 99-936 (Special Needs Exception to Fourth Amendment) (decision below 186 F.3d 469 (4th Cir. I 999)) Question Presented: Was "special needs" exception to Fourth Amendment's warrant and probable cause requirements properly applied to discretionary drug testing program targeting hospital patients that was created and implemented with police and prosecutors primarily for law enforcement purposes? Indianapolis, Ind. v. Edmond, No. 99-1030 (Suspicionless Roadblock) (decision below at 183 F.3d 659 (7th Cir. 1999)) Question Presented : Are checkpoints at which law enforcement officers briefly stop vehicular traffic, check motorists' licenses and vehicle registrations, look for signs of impairment, and walk narcotic dog around exterior of each stopped automobile unlawful under Fourth Amendment? DeathRow U.SA Page 2 Fifth Amendment Dickerson v. United States, No . 99-5525 (18 U.S .C. § 3501 & Miranda v. Arizona ) (decision below 166 F.3d 667 (4th Cir. 1999)) Question Presented : Was passage of 18 U.S.C. § 3501 unconstitutional anempt 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 Griffin 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 testimon y of other witnesses? Decision : Such comments do not violate the Fifth or Sixth Amendments , or due process . Where the defendant does not remain silent, but chooses to testify, the prosecutor is free to suggest that his testimony is not credible because he, unlike other witnesses , heard the other witnesses testify . 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 act of producing ordinary business records constitute compelled testimonial communications sole!y because government cannot identify documents with reasonable particularity before they are produced? · Sixth Amendment Roe, Warden v. Flores-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 , particularl y where the defendant has been advised of his appeal rights? Decision : Counsel for a convicted defendant who has not clearly instructed counsel to file an appeal or not to do so renders ineffective assistance per Strickland v. Washington by failing to consult with the defendant about taking an appeal, if, in light of all the information known, there is reason to think either that a rational defendant would want to appeal or that the defendant reasqnably demonstrated to counsel an interestin appealing, and the defendant shows a reasonable probability that, but for the lack of such consultation, he would have timely appealed . 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)) . Question 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 DeathRow U.S.A Page3 performance was prejudicial under the test this Court articulated in Strickland v. Washington , did the Fourth Circuit err in denying relief by reformulating the Strickland 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 had voted for life imprisonment? Decision : In a 6-3 vote, the majority held that trial counsel's failure to adequately investigate and present evidence of severe childhood neglect and abuse was prejudicial per Strickland v. Washington . Trial counsel began to prepare for the sentencing hearing only a week prior to trial and failed to uncover Williams's nightmarish childhood, borderline mental retardation, inability to proceed beyond 6th grade, favorable prison record and strong evidence that he would likely not be dangerous in a prison setting. The state supreme court erred in ( 1) applying Lockhart v. Fretwe/fs prejudice test to this straightforward performance IAC claim governed by Strickland and in (2) failing to give adequate weight to a significant portion of the missing mitigation evidence. Eighth Amendment 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 ptjson . 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? Fourteenth Amendment Apprendi v. New Jersey, No . 99-478 (Race Crime Enhancer; Standard of Proof) (decision below, 731 A.2d 485 (NJ. 1999)) Question Presented : Is New Jersey's hate crime law, N.J. Stat. Ann. § 2C :44-3e, unconstitutional insofar as it provides for extended term of imprisonment increasing maximum possible penalty by 10 years, on basis of proof by preponderance of evidence rather than proof beyond ~easonable doubt, and denies defendant rights to notice by indictment and trial by jury? Castjllo v. United States, No . 99-658 (Crime Element/Sentence Enhancer Issue) (decision below 179 F.3d 321 (5th Cir. 1999)) Question Presented : In prosecution under Sec. 924(c)(l), is type of firearm element of offense that must be alleged in indictment and found by jury beyond a reasonable doubt , or is it sentencing factor to be found by judge by preponderance of ~vidence? Death Row U.S.A.
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