DEATH ROW U.S.A. Spring 2018 A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins Consultant to the Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Spring 2018 (As of April 1, 2018) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,743 Race of Defendant: White 1,153 (42.03%) Black 1,143 (41.67%) Latino/Latina 366 (13.34%) Native American 27 (0.98%) Asian 53 (1.93%) Unknown at this issue 1 (0.04%) Gender: Male 2,688 (97.99%) Female 55 (2.01%) 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 [NOTE: New Mexico repealed the death penalty prospectively.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 2018 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2017 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Byrd v. United States, No. 16-1371 (Driver’s expectation of privacy when not on rental lease of car) (decision below 679 Fed.Appx. 146 (3rd Cir. 2017)) Question Presented: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter's permission to drive the car but is not listed as an authorized driver on the rental agreement? Carpenter v. United States, No. 16-402 (Warrantless cell phone tracking) (decision below 819 F.3d 880 (6th Cir. 2016)) Question Presented: Is the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days permitted by the 4th Amendment? Collins v. Virginia, No. 16-1027 (Automobile search exception) (decision below 790 S.E.2d 611 (Va. 2016)) Question Presented: Does the 4th Amendment's automobile exception permit a police officer, uninvited and without a warrant, to enter private property, approach a home, and search a vehicle parked a few feet from the house? District Of Columbia v. Wesby, No. 15–1485 (Probable cause to arrest and qualified immunity of police officers) (decision below 765 F.3d 13 (DC Cir. 2014)) Questions Presented: 1) Do officers have probable cause to arrest under the 4th Amendment when the owner of a vacant home informs police that he has not authorized entry, and may an officer assessing probable cause to arrest those inside for trespassing discredit the suspects' questionable claims of an innocent mental state? 2) Even if there was no probable cause to arrest the apparent trespassers, were the officers entitled to qualified immunity because the law was not clearly established in this regard? Decision: The officers were entitled to qualified immunity. They may discredit the assertions of innocence or explanations of those they question based on other circumstances at the time that give rise to suspicion of unlawful activity. Fifth Amendment Hays, Kansas v. Vogt, No. 16-1495 (Use of incriminating statements at probable cause hearing) (decision below 844 F.3d 1235 (10th Cir. 2017)) Question Presented: Is the 5th Amendment violated when incriminating statements are used at a probable cause hearing but not at a criminal trial? Death Row U.S.A. Page 2 Sixth Amendment MCoy v. Louisiana, No.16-8255 (Right to a defense in a capital trial) (decision below 218 So. 3d 535 (La. 2016)) Question Presented: Is it unconstitutional for defense counsel to concede an accused's guilt over the accused's express objection? Eighth Amendment Madison v. Alabama, No. 17-7505 (Execution of person whose cognitive impairments leave him with no memory of the crime or understanding of the circumstances of execution) (decision below cc-1985-001385.80 (11th Cir. 2018)) Questions Presented: 1) Consistent with the 8th Amendment and USSC decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? 2) Do evolving standards of decency and the 8th Amendment's prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? 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? Decision: No. A guilty plea does not waive a claim challenging the facial constitutionality of a statue. 2. CASES RAISING HABEAS CORPUS QUESTIONS Ayestas v. Davis, No. 16-6795 (Resources to investigate and develop a claim) (decision below 817 F.3d 888 (5th Cir. 2016)) Question Presented: Did the 5th Circuit err in holding that 18 U.S.C. § 3599(f) withholds "reasonably necessary" resources to investigate and develop an IAC claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made? Decision: Yes. The 5th Circuit standard for funding (“substantial need”) was more burdensome than the statute allows (“reasonably necessary”). Even if there is an argument that a claim was procedurally defaulted, funds may enable the petitioner to provide evidence that the procedural bar should not be applied. Tharpe v. Sellers, No. 17–6075 (Availability of COA in case where habeas court deferred to state court finding of lack of prejudice, despite strong evidence to the contrary) (decision below Tharpe v. Warden, 2017 WL 4250413, *3 (11th Cir. Sept. 21, 2017)) Question Presented: 1) Could reasonable jurists disagree with the district court’s rejection of Petitioner’s Rule 60(b) motion and, accordingly, did the 11th Circuit err in denying a certificate of appealability? 2) Given Petitioner’s credible evidence that a juror voted for the Death Row U.S.A. Page 3 death penalty because he is a “nigger,” did the 11th Circuit err in ruling that he failed to make “a substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2)? 3) Did Pena-Rodriguez create a new constitutional claim and, if not, did the lower courts err in denying Petitioner’s motion for relief from judgment under Rule 60(b)(6)? Decision: In a 6-3 per curiam opinion, the Court held that the 11th Circuit erred in concluding that jurists of reason could not debate whether the petitioner had shown by “clear and convincing” evidence (a juror’s affidavit revealing racist views) that his death sentence was affected by racial prejudice. The Court remanded for reconsideration of the COA request. 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 Hughes v. United States, No. 17-155 (Precedent of a 4-1-4 decision) (decision below 849 F.3d 1008 (11th Cir. 2017)) Question Presented: 1) Does the USSC's decision in Marks v. U. S., 430 U.S. 188 (1977), mean that the concurring opinion in a 4-1-4 decision represents the holding of the Court where neither the plurality's reasoning nor the concurrence's reasoning is a logical subset of the other? 2) Under Marks, are the lower courts bound by the 4-Justice plurality opinion in Freeman v. U.S., 564 U.S. 522 (2011), or, instead, by Justice Sotomayor's separate concurring opinion with which all 8 other Justices disagreed? 3) As the 4-Justice plurality in Freeman concluded, is a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Guidelines range? Marinello v. United States, No. 16–1144 (Proof of intent for tax obstruction case) (decision below 839 F.3d 209 (2nd Cir. 2016)) Question Presented: Does §7212(a)'s residual clause require that there was a pending IRS action or proceeding, such as an investigation or audit, of which the defendant was aware when he engaged in the purportedly obstructive conduct? Decision: Yes. To convict a defendant under the “Omnibus Clause,” the prosecution must prove that the defendant was aware of a “pending tax-related proceeding, such as a particular investigation or audit,” or “could reasonably foresee that such a proceeding would commence.” Murphy v. Smith, No. 16-1067 (Defendants’ attorney fees in § 1983 suit) (decision below 844 F.3d 653 (7th Cir.