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Death . Row U.SA. (As O{ October 1, 2000) Death . Row U.SA. Fall 2000 (As o{ October 1, 2000) • r TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,703 a ~ Race of Defendant: White 1,707 (46.10%) I Black 1,586 (42.83%) Latino/Latina 328 ( 8.86%) Native American 47 ( 1.27%) Asian 34 ( .92%) Unknown at this issue 1 ( .03%) Gender: Male 3,650 (98.57%) Female 53 ( 1.43%) Juveniles: Male 71 ( 1.92%) JURISDICTI ONS WITH CAPITAL PUNISHMENT STATUTES : 40 (Underlined jurisdicti .on 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 , Washin~on, Wyoming, U.S. Government, U.S. Military . JURIS DICTI ONS WITH OUT CAPITAL PUNISHMENT STATUTES : 13 Alaska , District of Columbia , Hawaii, Iowa, Maine, Massachusett s, Michigan , Minnesota , North Dakota, Rhode Island, Vennont , West Virginia, Wisconsin. Death Row U.S.A. Page I In the United States Supreme Court Update to Summer 2000 Issue of October Term 1999 Cases and Cases Granted Review in October 2000 Tenn (as of October 25, 2000) Significant Criminal, Habeas, & Other Pending Cases 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Legal Services Corporation v. Velazquez, No . 99-603 & 99-960 (Congressional limits on funding recipients' legal advocacy) (decision below 164 F.3d 757 (2d Cir. 1999)) Question Presented : ls First Amendment violated by Section 504(a)(16) of 1996 Omnibus Consolidation Rescissions and Appropriations Act, and subsequent appropriations statut s incorporating that provision, which preclude recipients of Legal Services Corporation funds from initiating or participating in any other way in "litigation, lobbying, or rule making, involving an effort to reform a Federal or State welfare system," but permit representation of "an individual eligible client who is seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation?" Shaw v. Murphy, No . 99-1613 (Prisoner 's Right to Assist Fellow Prisoner with Pending Litigation) (decision below 195 F.3d 1121 (9th Cir. 2000)) Question Presented : Does First Amendment grant state prison inmate independent and free-standing right to assist another state prison inmate with pending court case even if state supplies other forms of legal assistance to prison inmate? Fourth Amendment Atwater v. Lago Vista, TX, No . 99-1408 (Custodial Arrest & Traffic Stops) (decision below 195 ( F.3d 242 (5th Cir. 1999) (en bane) Question Presented : Does Fourth Amendment limit use of custodial arrest for fine-only traffic offenses? Ferguson v. Charleston, S. C, No . 99-936 (Special Needs Exception to Fourth Amendment) ( (decision below 186 F.3d 469 (4th Cir. 1999)) Question Presented : Was "special needs" exception to Fourth Amendment's warrant and probable cause requirements properly applied to discretionary drug testing program targetin g hospital patients that was created and implemented with police and prosecutors primarily for law enforcement purposes? lllinois v. McArthur, No . 99-1132 (Prohibiting occupant from entering home) (decision below 713 N .E.2d 93 (1999)) Question Presented : Is it constitutionally reasonable for police officers to secure residence from outside, and prohibit occupant's entry into that residence for short time while they obtain search warrant based on probable cause, in light of this court 's suggestion in Segura Death Row U.S.A. Page 2 v. United States, 468 U.S . 796 (1984), that such conduct is reasonable under Fourth Amendment and findings of other courts that similar behavior is consistent with Fourth Amendment and Segura? 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 impainnent, and walk narcotic dog around exterior of each stopped automobile unlawful under Fourth · Amendment? Kyllo v. United States, No . 99-8508 (Thermal Image Scan of Residence) (decision below 190 / F .3d 1041 (9th Cir. 1999)) · ~ Question Presented : Does warrantless use of thermal imaging device to detect heat sources within home constitute unconstitutional search and seizure under the Fourtr Amendment? Sixth Amendment Glover v. United States, No . 99-8576 (Sentencing Guidelines & Strickland v. Washington) (decision below (7th Cir.) unreported) Questions Presented : (1) Did court of appeals err in holding that additional 6 to 21 months in prison due to counsel's error relating to the U.S. Sentencing Guidelines fails to satisfy "prejudice" prong of Strickland v. Washington? (2) Did court of appeals err in holding that two­ level error in offense level under sentencing guidelines was per se insufficient to satisfy "prejudice" prong of Strickland v. Washington even when this two-level error resulted in petitioner being sentenced to additional 6 to 21 months in prison? Texas v. Cobb, No . 99-1706 (Assertion of right to related offense) (decision below TCCA 3-15- 00) Questions Presented : (I) May accused make effective unilateral waiver of his Sixth Amendment right to counsel under Michigan v. Jackson and Patterson v. Illinois, 487 U.S . 285 (1988), when his only previous "assertion" of right to counsel consisted of accepting appointment of counsel following indictment on different, but related, crime nearly one and one­ half years earlier? (2) When accused has been indicted for burglary, does his Sixth Amendment right to counsel attach, under Maine v. Moulton, 474 U.S. 159 (1985), and McNeil v. Wisconsin, 501 U.S . 171 ( 1991), to questioning about factually related murder in case in which eventual capital murder conviction is not based on previously charged burglary as predicate felony? Fourteenth Amendment Due Process Shafer v. South Carolina, No . 00-5250 (Entitlement to Instruction on Non -Parole Eligibility) · (decision below 531 S.E.2d 524 (S.C. 2000)) Question Presented : Whether Petitioner 's due process rights under Simmons v. South Death Row U.S.A. Page 3 Carolina, 512 U.S . 154 (1994), were violated by the trial court 's refusal to instruct the sentencing jury that "under South Carolina law, [petitioner] would be ineligible for parole if the jury were to vote for a life sentence," Ramdass v. Angelone, _U.S .__, 120 S.Ct. 2113, 2119 (2000) (plurality opinion), and by the South Carolina Supreme Court's holding that Simmons no longer applies to South Carolina' s sentencing scheme? Ex Post Facto Rogers v. Tennessee,N5>. 99-6218 (Year-and-a-day-rnle) (decision below 992 S.W.2d 393 (1999)) Question Presented : Does ex posto fa(!to application of judicial ruling abrogating substantive rule of criminal law known as "year-and-a-day" rule to homicide committed five years prior to change in substantive rule of law violate Fifth and Fourteenth Amendments ? Seling v. Young, No .9 9-1185 (commitment of sexua ly violent predator ; double jeopardy; ex post facto) (decision below at 192 F.3d 870 (9th Cir. 1999)) Question Presented : Can an otherwise valid civil statute be divested of its civil nature and held to violate Double Jeopardy and Ex Post Facto Clauses because administrative agency operating commitment facility fails to provide for treatment and other conditions of confinement mandated by statute at some time during individual's commitment? 2. CASES RAISING HABEAS CORPUS QUESTIONS Artuz v. Bennett, No. 99-1238 (Properly filed State Petition & Tolling of Statute of Limitations) (decision below 199 F.3d 116 (2d Cir. 1999)) Question Presented : Is state court post-conviction application "properly filed" under 28 USC §2244(d)(2) , which tolls one-year statute of limitations for habeas corpus petitions in 1996 AEDP A, if it is filed in court that does not have power to hear merits of application? Daniels v. United States of America , No. 99-9136 (Federal Collateral Attack on Prior State Convictions) (decision below 195 F.3d 501 (9th Cir. 2000)) Question Presented : Under Custis v. United States, 511 U.S. 485 (1994), the defendant may not, at his federal sentencing proceeding , collaterally attack prior convictions ( on grounds other than the denial of counsel) that are used to impose a fifteen-year mandatory minimum term under the Armed Career Criminal Act. This case presents the issue left open in Custis: whether the defendant may use federal habeas to reopen his federal sentence and challenge constitutionally infirm prior convictions that were used to enhance his sentence? Fiore v. White, No . 98-942 (Due Proces s, Teague v. Lane) (decision below at 149 F.3d 221 (3rd Cir. 1998)) . Questions Presented : (1) Did state flout due process and evade federal habeas corpus relief for incontestably innocent prisoner by claiming that appellate decision constituted "new law" regarding crime for which, if subsequent state ruling were applied, state did not and could not prove key element at trial; (2) Should federal habeas relief be extended to protect federal constitutional rights in case in which state refuses to retroactively apply decision that was based on already existing clear language of statute? Death Row U.S.A. Page4 On November 30, 1999, the Court unanimously certified the following question to the Pennsylvania Supreme Court : Does the interpretation of Pa . Stat. Ann., Tit. 35, § 6018.40l{a) (Purdon 1993), set forth in Scarpone v. Comm01rwealth, 535 Pa . 273 , 279 , 634 A.2d 1109, 1112 (1993), state the correct interpretation of the law in Pennsylvania at the date Fiore 's convic tion became final? In August 2000, the Pennsylvania Supreme Court answered the certified question affirmatively . Lackawanna County District Attorney v. Coss, No ._99-1884 (Custody Requirement and Attacking Prior Convictions) (decision below 204 F.3d 453 (3rd Cir.
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