DEATH ROW U.S.A. Winter 2005 A quarterly report by 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. Death Row U.S.A. Winter 2005 (As of January 1, 2005) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,455 Race of Defendant: White 1,576 (45.62%) Black 1,444 (41.79%) Latino/Latina 356 (10.30%) Native American 39 ( 1.13%) Asian 40 ( 1.16%) Unknown at this issue 1 ( .03%) Gender: Male 3,401 (98.44%) Female 54 ( 1.56%) Juveniles: Male 79 ( 2.29%) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 40 (Underlined jurisdiction 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, Washington, Wyoming, U.S. Government, U.S. Military. JURISDICTIONS WITHOUT CAPITAL PUNISHMENT STATUTES: 13 Death Row U.S.A. Page 1 Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. Death Row U.S.A. Page 2 In the United States Supreme Court Update to Fall 2004 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2004 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Devenpeck v. Alford, No. 03-710 (Probable cause to arrest and qualified immunity) (decision below Alford v. Haner, 333 F.3d 972 (9th Cir. 2003)) Questions Presented: (1) Does an arrest violate the 4th Amendment when a police officer has probable cause to make an arrest for one offense if that offense is not closely related to the offense articulated by the officer at the time of the arrest? (2) For the purposes of qualified immunity, was the line clearly established when there was a split in the circuits regarding the application of the “closely relate offense” doctrine? Decision: A warrantless arrest by a police officer is reasonable under the 4th Amendment if there is probable cause to believe a crime has been or is being committed, based on the facts known to the officer at the time. It does not matter whether the offense for which there is probable cause is “closely related” to the crime for which the person is actually arrested. Illinois v. Caballes, No. 03-923 (Use of drug-sniffing dog at traffic stop) (decision below 802 N.E.2d 202 (2003)) Question Presented: Does 4th Amendment require reasonable, articulable suspicion to justify using drug-detection dog to sniff vehicle during legitimate traffic stop? Fifth Amendment Deck v. Missouri, No. 04-5293 (Shackling and hand cuffing of defendant at penalty phase) (decision below 136 S.W.3d 481 (Mo. 2004)) Question Presented: Are 5th, 6th, 8th and 14th Amendments violated by forcing capital defendant to proceed through penalty phase while shackled and handcuffed to belly chain in full view of jury, and if so, does burden fall on state to show that error was harmless beyond a reasonable doubt, rather than on defendant to show that he was prejudiced? Smith v. Massachusetts, No. 03-8661 (Double jeopardy; change in ruling on sufficiency of evidence after defense rests) (decision below 788 N.E.2d 977 (2003)) Questions Presented: (1) Is double jeopardy clause’s prohibition against successive prosecutions violated when judge unequivocally rules that defendant is not guilty because government’s evidence is insufficient but later reverses her finding of not guilty? (2) Should court grant certiorari to clarify its jurisprudence and resolve split among federal circuits and among state courts on this issue? Sixth Amendment Deck v. Missouri, No. 04-5293 (Shackling and hand cuffing of defendant at penalty phase) (decision below 136 S.W.3d 481 (Mo. 2004)) Question Presented: Are 5th, 6th, 8th and 14th Amendments violated by forcing capital defendant to proceed through penalty phase while shackled and handcuffed to belly chain in full Death Row U.S.A. Page 3 view of jury, and if so, does burden fall on state to show that error was harmless beyond a reasonable doubt, rather than on defendant to show that he was prejudiced? Florida v. Nixon, No. 03-931 (Per se ineffectiveness and counsel’s concession of guilt) (decision below 857 So. 2d 172 (Fla. 2003)) Question Presented: In capital murder case, did Florida Supreme Court (a) apply incorrect standard, contrary to Strickland v. Washington, 466 U.S. 668 (1984), Bell v. Cone, 535 U.S. 685 (2002), and Roe v. Flores-Ortega, 528 U.S. 470 (2000), by finding defense counsel ineffective per se under United State v. Cronic despite having found counsel’s strategy not to contest overwhelming evidence of guilt but to vigorously contest sentence to be in defendant’s best interest and reasonably calculated to avoid death sentence, and (b) err in concluding that Boykin v. Alabama, 395 U.S. 238 (1969), prohibited trial counsel from adopting strategy, after fully informing his client, without objection, not to contest overwhelming evidence of guilt to protect best interest of his client in contesting appropriateness of imposing death penalty? Decision: Counsel’s failure to obtain Nixon’s express consent to the strategy of conceding guilt is not ineffective per se under Cronic. The case is remanded for an evaluation of ineffective assistance of counsel under the Strickland standard. Rompilla v. Beard, No. 04-5462 (Ineffective assistance of counsel on sentencing) (decision below Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004)) Questions Presented: (3) Has defendant received effective representation at capital sentencing when counsel does not review prior conviction records that counsel knows prosecution will use in aggravation, and when those records would have provided mitigating evidence regarding defendant’s traumatic childhood and mental health impairment? (4) Has defendant received effective representation at capital sentencing when counsel’s background mitigation investigation is limited to conversations with a few family members; when few people with whom counsel spoke indicated to counsel that they did not know much about defendant and could not help with background mitigation; when other sources of background information, including other family members, prior conviction records, prison records, juvenile court records, and school records were available but ignored by counsel; and when records and other family members would have provided compelling mitigating evidence about defendant’s traumatic childhood, mental retardation, and psychological disturbances? (5) Does counsel’s ineffectiveness warrant habeas relief under AEDPA when state court sought to excuse counsel’s failure to obtain any records about defendant’s history by saying records contained some information that was “not entirely helpful,” by saying counsel hired mental health experts (even though those experts did not do any background investigation and never saw records), and by saying counsel spoke to some family members (even though those family members told counsel they knew little about defendant and could not help with mitigation); and when state court did not even try to address counsel’s failure to interview other family members (who knew defendant’s mitigating history) or counsel’s complete failure to investigate aggravation that prosecution told counsel it would use? Shepard v. United States, No. 03-9168 (Sentence enhancement with prior convictions) (decision below 348 F.3d 308 (2003)) Questions Presented: (1) When defendant has pleaded guilty to nongeneric charge of burglary brought under nongeneric statute, there is no contemporaneous record of guilty plea proceedings, and judgment of conviction reflects general finding of guilty, is sentencing court still bound by categorical method set forth in United States v. Taylor to determine whether defendant’s prior convictions qualify as predicates for sentence enhancement under ACCA, or may court instead be required to conduct inquiry — including evidentiary hearing — into facts underlying Death Row U.S.A. Page 4 conviction to determine whether, in guilty plea proceeding, both defendant and government believed that generic burglary was at issue? (2) If so, may sentencing court be required to consider version of these underlying facts find in any document in court file such as investigative police report or complaint application and, if facts alleged in document are not challenged by defendant, regard them as sufficiently reliable evidence that defendant was convicted of crime including all of the elements of generic burglary to support ACCA enhancement? United States v. Booker, No. 04-104 (decision below 375 F.3d 508 (7th Cir. 2004)) and United States v. Fanfan No. 04-105 (decision below unreported D.Me. 6/28/04)) (Sentence enhancement on judge-found facts other than prior conviction) Questions Presented: (1) Is Sixth Amendment violated by imposition of enhanced sentence under U.S. Sentencing Guidelines based on sentencing judge’s determination of fact (other than prior conviction) that was not found by jury or admitted by defendant? (2) If answer to first question is “yes,” in case in which Guidelines would require court to find sentence-enhancing fact, would U.S. Sentencing Guidelines as whole be inapplicable, as matter of severability analysis, such that sentencing court must exercise its discretion to sentence defendant within maximum and minimum set by statute for offense of conviction? Eighth Amendment Deck v. Missouri, No. 04-5293 (Shackling and hand cuffing of defendant at penalty phase) (decision below 136 S.W.3d 481 (Mo. 2004)) Question Presented: Are 5th, 6th, 8th and 14th Amendments violated by forcing capital defendant to proceed through penalty phase while shackled and handcuffed to belly chain in full view of jury, and if so, does burden fall on state to show that error was harmless beyond a reasonable doubt, rather than on defendant to show that he was prejudiced? Goughnour v.