DEATH ROW U.S.A. Winter 2016 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. Winter 2016 (As of January 1, 2016) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,943 Race of Defendant: White 1,251 (42.51%) Black 1,227 (41.69%) Latino/Latina 383 (13.01%) Native American 30 (1.02%) Asian 51 (1.73%) Unknown at this issue 1 (0.03%) Gender: Male 2,888 (98.13%) Female 55 (1.87%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 34 Alabama, Arizona, Arkansas, California, Colorado, Delaware, 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: 19 Alaska, Connecticut, 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 [NOTE: New Mexico repealed the death penalty prospectively.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 Summer 2015 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2015 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Bernard v. Minnesota, No. 14-1470 (Criminalization of refusal to take blood alcohol test) (decision below 859 N.W.2d 762 (Minn. 2015)) Consolidated with Beylund v. Levi, No. 14-1507 (decision below 859 N.W.2d 403 (ND 2015)) Birchfield v. North Dakota, No. 14-1468 (decision below 858 N.W.2d 302 (ND 2015)) Question Presented: In the absence of a warrant, may a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person's blood? Utah v. Strieff, No. 14-1373 (Arrest pursuant to outstanding warrant uncovered during unlawful investigatory stop) (decision below 2015 WL 223953 (1/16/15)) Question Presented: Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful? Fifth Amendment Luis v. United States, No. 14-419 (Government freezing assets needed to hire lawyer) (decision below 564 Fed. Appx. 493 (11th Cir. 2014)) Question Presented: Does the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violate the 5th and 6th Amendments? Sixth Amendment Betterman v. Montana, No. 14-1457 (Speedy Trial requirements for sentencing phase) (decision below 342 P.3d 971 (Mont. 2015)) Question Presented: Does the 6th Amendment's Speedy Trial Clause apply to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case? Hurst v. Florida, No. 14-7505 (Constitutionality of Florida death-sentencing scheme) (decision below 147 So. 3d 435 (Fla. 2014)) Question Presented: Does Florida's death sentencing scheme violate the 6th or 8th Amendments in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002)? (See also cases under Eighth Amendment, below) Luis v. United States, No. 14-419 (Government freezing assets needed to hire lawyer) (decision below 564 Fed. Appx. 493 (11th Cir. 2014)) Question Presented: (See cases under Fifth Amendment, above) Death Row U.S.A. Page 2 Maryland v. Kulbicki, No. 14–848 (Ineffective assistance of counsel) (decision below 99 A. 3d 730, 735 (Md. Ct. App. 2014)) Question Presented: Did the Maryland Court of Appeals properly vacate Kulbiki’s conviction on the grounds that he received ineffective assistance of counsel because his attorneys failed to question the legitimacy of the ballistics evidence presented against him? Decision: In a per curiam opinion, the Court held that Kulbicki’s attorneys were not ineffective. His trial was in 1995 when comparative bullet analysis was widely accepted. It was not until 2003 that such evidence was found to be based on bogus science. Although there was a 1991 report questioning the science, counsel was not ineffective for not discovering the report. White v. Wheeler, No. 14–1372 (Exclusion of juror, death-qualification) (decision below Wheeler v. Simpson, 779 F.3d 366 (6th Cir. 2015)) Question Presented: (See cases under Cases Raising Habeas Corpus Questions) Eighth Amendment Hurst v. Florida, No. 14-7505 (Constitutionality of Florida death-sentencing scheme) (decision below 147 So. 3d 435 (Fla. 2014)) Question Presented: (See cases under Sixth Amendment, above) Kansas v. Jonathan Carr, No. 14-449 (Jury instructions on burden of proof of mitigators and severance) (decision below 329 P.3d 1195 (Kansas 2014)). Consolidated with Kansas v. Reginald Carr, No. 14-450 (decision below 331 P.3d 544 (Kansas 2014)) Questions Presented: (1) Does the 8th Amendment require that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held here, or instead whether the 8th Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? (2) Does the trial court's decision not to sever the sentencing phase of the co-defendant brothers' trial here -- a decision that comports with the traditional approach preferring joinder in circumstances like this -- violate an 8th Amendment right to an "individualized sentencing" determination and was not harmless in any event? Kansas v. Gleason, No. 14-452 (Jury instructions on burden of proof of mitigators) (decision below 329 P.3d 1102 (Kansas 2014)) Question Presented: Does the 8th Amendment require that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held in this case, or instead whether the 8th Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? Williams v. Pennsylvania, No. 15-5040 (Former prosecuting attorney as judge on case he prosecuted) (decision below 105 A.3d 1234 (Pa. 2015)) Question Presented: Are the 8th and 14th Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive? Death Row U.S.A. Page 3 Fourteenth Amendment Foster v. Chatman, No. 14-8349 (Batson standard) (decision below Sup. Ct. Ga. Case No. S14e0771 (Nov. 3, 2014)) Question Presented: Did the Georgia courts err in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case? Williams v. Pennsylvania, No. 15-5040 (Former prosecuting attorney as judge on case he prosecuted) (decision below 105 A.3d 1234 (Pa. 2015)) (See cases under Eighth Amendment, above) 2. CASES RAISING HABEAS CORPUS QUESTIONS Duncan v. Owens, 14-1516 (Grant of habeas for inference of motive in criminal case) (decision below 781 F.3d 360 (7th Cir. 2015)) Question Presented: Did the 7th Circuit violate 28 U.S.C. § 2254 and a long line of USSC decisions by awarding habeas relief in the absence of clearly established precedent from the Court? Montgomery v. Louisiana, No. 14-280 (Retroactivity of decision prohibiting mandatory life sentences for juveniles) (decision below 141 So. 3d 264 (La. 2014)) Questions Presented: (1) Does Miller v. Alabama adopt a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison? (2) (Added by the Court) Does the Court have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to Miller? White v. Wheeler, No. 14–1372 (Exclusion of juror, death-qualification) (decision below Wheeler v. Simpson, 779 F.3d 366 (6th Cir. 2015)) Question Presented: (1) Did the 6th Circuit disregard the highly deferential standards Congress imposed in 28 U.S.C. §§ 2254(d)(1), (d)(2) and (e)(1), and the deference owed to trial court’s factual finding of juror bias required by Wainwright v. Witt, when it granted habeas relief on Wheeler’s Witherspoon/Witt claim? (2) Should a violation of Witherspoon/Witt be subject to harmless error analysis? Decision: In a per curiam opinion, the Court held that the 6th Circuit failed to give the double deference due to state trial court findings in Witherspoon/Witt claims in habeas. The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the 6th Amendment. The Court did not address the second question, given its resolution of the first. 3. CASES RAISING OTHER IMPORTANT FEDERAL QUESTIONS Lockhart v. United States, No. 14-8358 (Interpretation of criminal statutes) (decision below 749 F.3d 148 (2nd Cir. 2014)) Question Presented: Is § 2252(b)(2)'s mandatory minimum sentence triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals? Death Row U.S.A. Page 4 Molina-Martinez v. United States, No. 14-8913 (Plain error review and affect on substantial rights) (decision below 588 Fed. Appx. 333 (5th Cir. 2014)) Question Presented: Where an error in the application of the United States Sentencing Guidelines results in the application of the wrong Guideline range to a criminal defendant, should an appellate court presume, for purposes of plain-error review under Federal Rule of Criminal Procedure 52(b), that the error affected the defendant's substantial rights? Mullenix v.