Deatii ROW U.SA

DEATiiROW U.SA Fall2003 A qillarterlq report bq 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. Deatl-:1.Row U.SA Fall 2003 (As 0£ October 1, 2003) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,504 Race of Defendant: White 1,593 (45.46%) Black 1,477 (42.15%) Latino/Latina 352 (10.05%) Native American 39 ( 1.11%) Asian 42 ( 1.20%) Unknownat this issue 1 ( .03%) Gender: Male 3,455 (98.60%) Female 49 ( 1.40%) Juveniles: Male 82 ( 2.34%) JURISDICTIONSWITH CAPITALPUNISHMENT STATUTES: 40 (Underlinedjurisdiction has statute but no sentencesimposed) Alabama, Arizona, Arlcansas, 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. JURISDICTIONSWITHOUT CAPITAL PUNISHMENT STATUTES: 13 Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode lslanc~Vermont, West Virginia, Wisconsin. Death Row U.S.A. Page I In the United States Supreme Court Update to Summer 2003 Issue of Significant Criminal, Habeas, & Other Pending Cases for October Term 2002 and Cases to Be Decided in October Term 2003 I. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Ashcroft v. American Civil Liberties Union, No. 03-218 (Constitutionality of"Child Online Protection Act") (decision below 322 F.3d 240 (3rd Cir. 2003)) Question Presented: Does Child Online Protection Act violate First Amendment? Fourth Amendment Arizona v. Grant, No. 02-1019 (Search of vehicle) (decision below 43 P.3d 188 (2d DCA Az. 2002)) Question Presented: When police arrest the recent occupant of a vehicle outside the vehicle, are they precluded from searching the vehicle pursuant to New York v. Belton unless the arrestee was actually or constructively aware of the police before getting out of the vehicle? Groh v. Ramire::.,No. 02-811 (Liability of officers for 4th Amendment violation; particularity requirement) (decision below 298 F.3d l022 (9th Cir. 2002)) Questions Presented: (I) Whether the Ninth Circuit properly ruled that a law enforcement officer violated clearly established law, and thus was personally liable in damages and not entitled to qualified immunity, when at the time he acted there was no decision by the Supreme Court or any other court so holding, and the only lower court decisions addressing the issue had found the same conduct did not violate the law? (2) Whether law enforcement officers violate the particularity requirement of the 4th Amendment when they execute a search warrant already approved by a magistrate judge, based on an attached application and affidavit properly describing with particularity the items to be searche:d and seized, but the warrant itself does not include the same Ieve! of detail? Illinois v. Lidster, No. 02-1060 (Checkpoint to investigate prior offense) (decision below 779 N.E.2d 855 (Ill. 2002)) Question Presented: Whether Indianapolis v. Edmond, 531 U.S. 32 (2000), prohibits police officers from conducting a checkpoint organized to investigate a prior offense, stopping all oncoming motorists to hand out flyers about the offense and arresting motorists for drunk driving? Maryland v. Pringle, No. 02-0809 (Arrnst of car occupants) (decision below unreported (Md. Ct. App. 2002)) Question Presented: Where drugs and a roll of cash are found in the passenger compartment of a car with multiple occupants, and all deny ownership, does the 4th Amendment prohibit a police officer from arresting the occupants of the car? United States v. Banks, No. 02-473 (Knock and announce search) (decision below 282 F.3d 699 (9th Cir. 2002)) Questions Presented: Did law enforcement officers executing warrant to search for illegal Death Row U.S.A. Page 2 drugs violate 4111Amendment and 18 U.S.C. § 3109, thereby requiring suppression of evidence, when they forcibly entered small apartment in middle of afternoon 15-20 seconds after knocking and announcing their presence? United States v. Flores-Montano, No ..02-1794 (Border search and disassemblingof vehicle) (decision below unreported (g'h Cir. 3/14/03)) Question Presented: Are Customs Service officers at internationalborder required by 4111 Amendment to have reasonable suspicionto remove, disassemble,and search vehicle's fuel tank for contraband? Fifth Amendment Mmouri v. Seibert, No. 02-1371 (lnte:ntionalfailure to give Miranda warnings) (decision below: 93 S.W.3d 700 (Mo. 2002)) Question Presented: Is the rule from Oregonv. Elstad, 470 U.S. 298 (1985), that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisiteMiranda warnings, abrogated when the initial failure to give the Miranda warnings was intentional?. United States v. Patane, No. 02-1183 (Suppression of physicalevidence derived from unwarned but voluntary statement) (decision below 304 F.3d 1013 (10th Cir. 2002)) Questions Presented: Whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), requires the suppression of physical evidence derived from the suspect's unwarned but voluntary statement? Sixth Amendment Banks v. Dretke, No. 02-8286 (Ineffectiveassistance of counsel) (decision below unreported Banks v. Cockrell(5th Cir. 2002)) Question Presented: (2) Did the,Fifth Circuit act contrary to Stricklandv. Washington,466 U.S. 668 (1984) and Williamsv. Taylor,529 U.S. 362 (2000), where it weighed each item of mitigating evidence separately and concluded that no single category would have brought a different result at sentencing without weighing the impact of the evidence collectively? Crawford v. Washington, No. 02-9410 (Co-defendants' interlocking statements; taped statements) (decision below 54 P.3d 656 (Wash. 2002)) Questions Presented: (I) Whether the Confrontation Clause of the 61hAmendment permits the admission against a criminal defendant of a custodial statement by a potential accomplice on the ground that parts of the statement "interlock" with the defendant's custodial statement. (2) Whether the Confrontation Clause framework establishedin Ohio v. Roberts, 448 U.S. 56 (1980), should be reevaluated and read to unequivocallyprohibit the admission of out-of-court statements insofar as they are contained in "testimonial" materials, such as tape-recorded custodial statements. Fellers v. United States, No. 02-6320 (Statements elicited by government; post~indictment interview without counsel) (decision below 285 F.3d 721 (8th Cir. 2002)) Questions Presented: (I) Did the 8th Circuit err when it concluded that Feller's 6111 Amendment right to counsel under MOJ:siahv. UnitedStates, 377 U.S. 201 (1964), was not violated because he was not interrogated by government agents when the proper standard under Death Row U.S.A. Page 3 Supreme Court precedent is whether the government agents deliberately elicited information from him? (2) Should second statements, pn:ceded by Miranda warnings, have been suppressed as fruits of an illegal post-indictment interview without the presence of counsel, under this Court's decisions in Nix v. Williams, 467 U.S. 43 I (1984), and Brown v. Illinois, 422 U.S. 590 (I 975)? Iowa v. Tovar, No. 02-1541 (Warnings to prose defendant pleading guilty) (decision below 656 N.W.2d 112 (Ia. Sup. Ct. 2003)) Question Presented: Does 61hAmendment require court to give rigid and detailed admonishment to prose defendant pleading guilty of usefulness of attorney, that attorney may provide independent opinion whether it is wise to plead guilty, and that without attorney defendant risks overlooking defense? Yarborough v. Alvarado, 02-1684 (Consideration of"custody" under Miranda for juvenile suspects) (decision below Alvarado v. Hickman, 316 F.3d 841 (91hCir. 2002)) Question Presented: (I) In applying objective test for "custody" determination under Miranda, must court consider age and ,experience of person ifhe or she is a juvenile? Eighth Amendment Nelson v. Campbell, No.03-6821(03A308) (Granting of stay 10/9/03 pending disposition of cert. petition) (Issue raised in cert. petition is whether condemned prisoner may challenge the means of execution in a Sec. I 983 action. Here the claim is that a venous cut-down to facilitate lethal injection would be cruel and unusual punishment.) Smith v. Dretke, No. 02-11309 (51hCircuit's limiting construction of Penry v. Johnson) (decision below Smith v. Cockrell, 311 F.3d 661 (51hCir. 2002)) Question Presented: Cert. was granted limited to the first question presented, which is: "Did court of appeals misapply Penry fl by imposing requirement that evidence demonstrate "uniquely severe permanent handicap" in order for Texas capital murder defendant to claim that "nullification" instruction was improper? Tennard v. Dretke, 02-10038 (Effect of Atkins on 5"' Circuit's limiting construction of Penry v. Johnson) (decision below Tennard v. Cockrell, 317 F.3d 476 (5"' Cir. 2003)) (This case was consolidated with Smith v. Dretke) Questions Presented: (I) Is Fifth Circuit rule requiring "nexus" to crime before evidence of impaired intellectual functioning can be considered as mitigation for purposes of determining

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