DEATH ROW U.S.A. Summer 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. Summer 2012 (As of July 1, 2012) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,162 Race of Defendant: White 1,364 (43.14%) Black 1,327 (41.97%) Latino/Latina 391 (12.37%) Native American 35 (1.11%) Asian 44 (1.39%) Unknown at this issue 1 (0.03%) Gender: Male 3,100 (98.04%) Female 62 (1.96%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 35 Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, 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: 18 Alaska, Connecticut [see note, below], District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico [see note, below], New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. [NOTE: Connecticut and New Mexico repealed the death penalty prospectively. The men already sentenced in each state remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Spring 2012 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2011 or 2012 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? Decided: Petitioners are entitled to qualified immunity because, at the time they arrested Howard, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Other appellate courts had said they could not. 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."] Decision: The statute is unconstitutional because it criminalizes speech content without an adequate showing, required under the First Amendment, that there be a direct causal link between the restriction imposed and the injury to be prevented. Fourth Amendment Bailey v. United States, No. 11-770 (Detention incident to search) (decision below 652 F.3d 197 (2nd Cir. 2011)) Question Presented: Pursuant to Michigan v. Summers, 452 U.S. 692 (1981), may police officers detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed? 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? Decision: The police did not create exigent circumstances by knocking on the door, as the Kentucky court held, and therefore the exigent circumstances rule applies. The case is remanded for the Kentucky court to apply the rule and determine whether noises inside the apartment indicating evidence might be in the process of being destroyed created exigent circumstances allowing the police to enter without a warrant. 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? Decision: Although the jury foreman announced a vote on the greater offenses, that vote was never reduced to a verdict, was thus not final, and jeopardy therefore did not attach. The jurors could have continued to deliberate on the greater charges and changed their minds before the mistrial was declared. Smith v. United States, No. 11-8976 (Burden of persuasion on conspiracy withdrawal) (decision below 651 F.3d 30 (D.C. Cir. 2011)) Question Presented: Does withdrawing from a conspiracy prior to the statute of limitations period negate an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period -- a fundamental due process question that is the subject of a well-developed circuit split? 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? Decision: Judgment vacated and case remanded for further consideration in light of Melendez-Diaz v. Massachusetts, 557 U. S. 305 (2009). Chaidez v. United States, No. 11-820 (Retroactivity of Padilla) (decision below 655 F.3d 684 (7th Cir. 2011)) Question Presented: Does Padilla v. Kentucky, 130 S. Ct. 1473 (2010) apply to persons whose convictions became final before its announcement? Death Row U.S.A. Page 3 Turner v. Price, No. 10-10 (Right to counsel at civil contempt proceeding) (decision below 691 S.E.2d 470 (S.C. 2010)) Questions Presented: (1) Did the Supreme Court of SC err in holding, in conflict with 22 federal courts of appeals and state courts of last resort, that an indigent defendant has no constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration? (2) (added by the Court) Does the court have jurisdiction to review the decision of the SC Supreme Court? Decision: An indigent defendant may have the right to counsel in civil contempt proceedings, depending on the circumstances. Where, as here, the proceedings involve another unrepresented person, rather than the state, counsel may not be required. But alternative procedures must assure that he has clear notice that his ability to pay will be the critical question in the civil contempt proceeding; there must be a form (or the equivalent) designed to elicit information about his financial circumstances; and before imprisonment, the trial court must find that he is able to pay his arrearage. In the absence of those here, due process was violated. Vasquez v. United States, No. 11-199 (Harmless error) (decision below 635 F.3d 889 (7th Cir. 2011)) Question Presented: (1) Did the 7th Circuit violate this Court's precedent on harmless error when it focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel's statements that his client would lose the case and should plead guilty for their truth) on this jury at all? (2) Did the 7th Circuit violate Mr. Vasquez's 6th Amendment right to a jury trial by determining that Mr. Vasquez should have been convicted without considering the effects of the district court's error on the jury that heard the case? Decision: The writ was dismissed as improvidently granted. Williams v. Illinois, No. 10-8505 (Right to confront DNA analysts) (decision below 238 Ill.2d 125 (2010)) Question Presented: Does a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violate the Confrontation Clause? Decision: In the limited circumstances of this case – trial before a judge instead of jury, testimony by an expert giving her opinion – there was no violation.