DEATH ROW U.S.A. Spring 2012 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. Spring 2012 (As of April 1, 2012) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,170 Race of Defendant: White 1,371 (43.25%) Black 1,325 (41.80%) Latino/Latina 393 (12.40%) Native American 36 (1.14%) Asian 44 (1.39%) Unknown at this issue 1 (0.03%) Gender: Male 3,109 (98.08%) Female 61 (1.92%) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 37 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, 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: 16 Alaska, District of Columbia, Hawaii, Illinois, 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 [NOTE: New Mexico repealed the death penalty prospectively.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 Winter 2012 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2011 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Reichle v. Howards, No. 11-262 (1st Amendment retaliatory arrest claim) (decision below 634 F.3d 1131 (10th Cir. 2011)) Questions Presented: (1) Does the existence of probable cause to make an arrest bar a 1st Amendment retaliatory arrest claim? (2) Did the 10th Circuit err by denying qualified and absolute immunity to petitioner Secret Service agents, where probable cause existed for respondent's arrest, the arrest comported with the 4th Amendment, it was not (and is not) clearly established that Hartman does not apply to 1st Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President? United States v. Alvarez, No. 11-210 (Constitutionality of law prohibiting misrepresentation) (decision below 617 F.3d 1198 (9th Cir. 2010)) Question Presented: Is 18 U.S.C. 704(b) facially invalid under the Free Speech Clause of the 1st Amendment? [18 U.S.C. 704(b) makes it a crime when anyone "falsely represents himself or herself, * * * verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States."] Fourth Amendment Alford v. Greene, No. 09-1478 (consolidated with 09-1454) (Interview of allegedly abused child at school without parental permission or a warrant) (decision below 588 F.3d 1011 (9th Cir. 2009)) Question Presented: Does the 4th Amendment require a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused by her father? Florida v. Harris, No. 11-817 (Dog sniff of vehicle) (decision below 71 So. 3d 756 (Fla. 2011)) Question Presented: Has the Florida Supreme Court decided an important federal question in a way that conflicts with the established 4th Amendment precedent of this Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle? Florida v. Jardines, No. 11-564 (Dog sniff outside house) (decision below 73 So. 3d 34 (Fla. 2011)) Question Presented: Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog a 4th Amendment search requiring probable cause? Death Row U.S.A. Page 2 Kentucky v. King, No. 09-1272 (Police-created exigent circumstances) (decision below 302 S.W.3d 649 (Ky. 2010)) Question Presented: When does lawful police action impermissibly "create" exigent circumstances which preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist? Ryburn v. Huff, No. 11-208 (Qualified immunity for officers entering a home without a warrant) (decision below Huff v. City of Burbank, 632 F.3d 539 (2011)) Decision: In a per curiam opinion, the Court reversed a 9th Circuit decision holding that police did not have qualified immunity in a suit alleging they entered a home without a warrant. Police officers are allowed to enter a home without a warrant if they reasonably believe that immediate entry is necessary to protect themselves or others from serious harm, even if the officers lack probable cause to believe that a crime has been or is about to be committed. Under the facts found by the District Court, the police had reason to fear for their safety. United States v. Jones, No. 10-1259 (Use of GPS) (decision below 615 F.3d 544 (D.C. Cir. 2010)) Question Presented: (1) Did the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violate the 4th Amendment? (2) [added by the Court] Did the government violate respondent’s 4th Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent? Decision: The government’s installing and using a GPS to track a vehicle is a “search.” The 4th Amendment covers such a physical invasion of a person’s “effect.” The government’s argument that the search was reasonable is forfeited because it was not raised below. Fifth Amendment Blueford v. Arkansas, No. 10-1320 (Double jeopardy and lesser included offenses) (decision below 2011 Ark. 8 (Jan. 20, 2011)) Question Presented: If a jury deadlocks on a lesser-included offense, does the Double Jeopardy Clause bar reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense? Perry v. New Hampshire, No. 10-8974 (Suggestive identification) (decision below NHSC 2009- 0590 App. 1 (Nov. 18, 2010)) Question Presented: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the 1st and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts? Decision: Juries should decide the reliability of testimony, with rare exception. When the police arrange an identification process that is unnecessarily suggestive, the Due Process Clause requires a preliminary judicial inquiry into the reliability of the testimony both to deter the police and to protect the defendant. When the police are not involved in creating the circumstances, even if they are suggestive, no judicial screening is required. Death Row U.S.A. Page 3 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? Lafler v. Cooper, No. 10-209 (Guilty pleas and ineffective assistance of counsel) (decision below 376 Fed. Appx. 563 (6th Cir. 2010)) Questions Presented: (1) Is a state habeas petitioner entitled to relief where his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial? (2) (Added by the Court) What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures? Decision: A petitioner is entitled to relief where counsel was ineffective in the plea bargaining process if he can show that but for the advice there is a reasonable probability that the plea would have been presented to the court, who would have accepted its terms, and that the conviction and/or sentence, would have been less severe than under the judgment and sentence imposed. Going to trial and being convicted does not wipe clean the constitutional violation. Martinez v. Ryan, No. 10-1001 (Right to counsel in post-conviction) (decision below 623 F.3d 731 (9th Cir. 2010)) Question Presented: Does a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, have a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim? Decision: Yes. When a state law requires that an issue be considered for the first time in post-conviction rather than on direct appeal, a defendant is entitled to effective counsel to litigate that issue in post-conviction. When the state asserts that such a claim has been defaulted, the defendant must show that his claim of ineffective assistance of trial counsel is substantial, and he did not have effective counsel in post-conviction. Missouri v. Frye, No. 10-444 (Ineffective assistance and guilty pleas) (decision below 311 S.W.3d 350 (Ct.