DEATH ROW U.S.A. Summer 2009 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. Summer 2009 (As of July 1, 2009) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,279 Race of Defendant: White 1,457 (44.43%) Black 1,364 (41.60%) Latino/Latina 379 (11.56%) Native American 37 ( 1.13%) Asian 41 ( 1.25%) Unknown at this issue 1 ( .03%) Gender: Male 3,219 (98.17%) Female 60 ( 1.83%) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 38 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico [see note, below], 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: 15 Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. [NOTE: New Mexico repealed the death penalty prospectively. The two men already sentenced remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Spring 2009 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases Decided or to Be Decided in October Term 2008 and October Term 2009 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment United States v. Stevens, No. 08-769 (First Amendment, depiction of animal cruelty) (decision below 533 F.3d 218 (3rd Cir. 2008)) Question Presented: Is 18 U.S.C. § 48 facially invalid under the Free Speech Clause of the First Amendment? (18 U.S.C. § 48 prohibits the knowing creation, sale, or possession of a depiction of a live animal being intentionally maimed, mutilated, tortured, wounded, or killed, with the intention of placing that depiction in interstate or foreign commerce for commercial gain, where the conduct depicted is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, and the depiction lacks serious religious, political, scientific, educational, journalistic, historical, or artistic value.) Fourth Amendment Arizona v. Gant, No. 07-542 (Warrantless search of vehicle) (decision below 216 Ariz. 1 (Sup. Ct. Ariz. 2007)) Question Presented: Does the 4th Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured? Decision: Yes. Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Fifth Amendment Maryland v. Shatzer, No. 08-680 (Invocation of right to counsel and delay in re-interrogation) (decision below 954 A.2d 1118 (Md. 2008)) Question Presented: Is the Edwards v. Arizona prohibition against interrogation of a suspect who has invoked the 5th Amendment right to counsel inapplicable if, after the suspect asks for counsel, there is a break in custody or a substantial lapse in time (more than two years and six months) before commencing re-interrogation pursuant to Miranda? Yeager v. United States, No. 08-67 (Collateral estoppel of retrial of counts on which jury hung) (decision below 521 F.3d 367 (5th Cir. 2008)) Question Presented: When a jury acquits a defendant on multiple counts but fails to reach a verdict on other counts that share a common element, and, after a complete review of the record, the court of appeals determines that the only rational basis for the acquittals is that an essential element of the hung counts was determined in the defendant's favor, does collateral estoppel bar a retrial on the hung counts? Decision: A jury verdict that necessarily decided a critical issue of ultimate fact in a defendant’s favor protects him from prosecution for any charge for which that fact is an essential element. The court may not guess about why the jury neither acquitted nor convicted on other counts. If the jury acquitted the defendant of behavior necessary to convict him on the counts on which they hung, he cannot be retried on those counts. Sixth Amendment Briscoe v. Virginia, No. 07-11191 (Right to confront lab analyst) (decision below 657 S.E.2d 113 (Va. 2008)) Question Presented: If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the 6th Amendment by providing that the accused has a right to call the analyst as his own witness? Florida v. Powell, No. 08-1175 (Advising suspects of right to counsel during interrogation) (decision below 998 So. 2d 531 (Fla. 2008)) Questions Presented: (1) Does the decision of the Florida Supreme Court, holding that a suspect must be expressly advised of his right to counsel during custodial interrogation, conflict with Miranda v. Arizona and decisions of federal and state appellate courts? (2) If so, does the failure to provide express advice of the right to the presence of counsel during questioning vitiate Miranda warnings which advise of both (a) the right to talk to a lawyer "before questioning" and (b) the "right to use" the right to consult a lawyer "at any time" during questioning? Kansas v. Ventris, No. 07-1356 (Impeachment use of statement obtained without voluntary waiver of counsel) (decision below 176 P.3d 920 (Kan. 2008)) Question Presented: Is a criminal defendant’s “voluntary statement obtained in the absence of a knowing and voluntary waiver of the [6th Amendment] right to counsel,” Michigan v. Harvey, 494 U.S. 344, 354 (1990), admissible for impeachment purposes — a question the Court expressly left open in Harvey and which has resulted in a deep and enduring split of authority in the Circuits and state courts of last resort? Decision: Yes. The need to prevent perjury and protect the integrity of the trial outweighs the deterrent effect of precluding the use of the statement for impeachment. Melendez-Diaz v. Massachusetts, No. 07-591 (Right to confrontation and state forensic analyst’s report) (decision below 870 N.E.2d 676 (Mass. App. 2007)) Question Presented: Is a state forensic analyst’s laboratory report prepared for use in a criminal prosecution “testimonial” evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)? Decision: Yes.The report presents testimony which the defendant has the right to confront. Montejo v. Louisiana, No. 07-1529 (Right to counsel during interrogation) (decision below 974 So. 2d 1238 (La. 2008)) Question Presented: (1) When an indigent defendant’s right to counsel has attached and counsel has been appointed, must the defendant take additional affirmative steps to “accept” the appointment in order to secure the protections of the Sixth Amendment and preclude police- initiated interrogation without counsel present? (2) [added by the court] Should Michigan v. Jackson, 475 U.S. 625 (1986), be overruled? Decision: Michigan v. Jackson is overruled. The case is remanded so petitioner can present a claim under Edwards. Death Row U.S.A. Page 1 Padilla v. Kentucky, No. 08-651 (Duty of counsel in representing legal permanent resident) (decision below 253 S.W.3d 482 (Ky. 2008)) Questions Presented: (1) Are the mandatory deportation consequences that stem from a plea to trafficking in marijuana (an "aggravated felony" under the INA) "collateral consequences" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise? (2) Assuming immigration consequences are "collateral," can counsel's gross misadvice as to the collateral consequence of deportation constitute a ground for setting aside a guilty plea which was induced by that faulty advice? Eighth Amendment Graham v. Florida, No. 08-7412 (Life without parole for juvenile for non-homicide) (decision below 982 So. 2d 43 (Fla. 1st Dist. Ct. App. 2008)) Question Presented: Does the Eighth Amendment's ban on cruel and unusual punishments prohibit the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide? Sullivan v. Florida, No. 08-7621 (Life without parole for 13-year-old child for non-homicide) (decision below Fla. 1st Dist. Ct. App. Case (1D07-6433) Aug. 6, 2008)) Questions Presented: (1) Does imposition of a life-without-parole sentence on a thirteen- year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children? (2) Given the extreme rarity of a life imprisonment without parole sentence imposed on a 13-year-old child for a non-homicide and the unavailability of substantive review in any other federal court, should this Court grant review of a recently evolved Eighth Amendment claim where the state court has refused to do so? Fourteenth Amendment Alvarez v. Smith, No. 08-351 (Due Process right to a hearing) (decision below 524 F.3d 834 (7th Cir. 2008)) Question Presented: (1) In determining whether the Due Process Clause requires a State or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the "speedy trial" test employed in United States v.