DEATH ROW U.S.A. Summer 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. Summer 2018 (As of July 1, 2018) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,738 Race of Defendant: White 1,153 (42.03%) Black 1,135 (41.38%) Latino/Latina 368 (13.42%) Native American 28 (1.02%) Asian 53 (1.93%) Unknown at this issue 1 (0.04%) Gender: Male 2,683 (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 [NOTE: New Mexico repealed the death penalty prospectively.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 Spring 2018 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2017 or 2018 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? Decision: Drivers not listed on the rental agreement may have a reasonable expectation of privacy if they are legally permitted to be in possession of the car. The Court leaves to the lower courts to decide if a person who obtains a rental car through a scheme to defraud should be treated as though they stole the car, and whether the search here was justified by probable cause. 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? Decision: No. When the government obtained the cell phone records, it was a search that violated the defendant’s expectation of privacy in his physical movements. The data is obtained automatically when the cell phone is turned on, so it is not shared “voluntarily” in the same way other information might be shared with third parties. The government should have obtained a warrant for the records. 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? Decision: No. A warrantless entry of a home or its curtilage to search a vehicle parked there is not constitutional. The “automobile exception” does not apply when the vehicle is parked within the zone presumptively requiring a warrant. Nieves v. Bartlett, No. 17-1174 (Probable cause to arrest) (decision below 712 Fed.Appx. 613 (9th Cir. 2017)) Question Presented: In Hartman v. Moore, 547 U.S. 250 (2006), the Court held that probable cause defeats a 1st Amendment retaliatory-prosecution claim under 42 U.S.C. § 1983 as a matter of law. Does probable cause likewise defeat a 1st Amendment retaliatory-arrest claim under § 1983? Death Row U.S.A. Page 2 Fifth Amendment Currier v. Virginia, No. 16-1348 (Double jeopardy after voluntary severance of charges) (decision below 292 Va. 737 (Sup. Ct. Va. 2017)) Question Presented: Does a defendant who consents to severance of multiple charges into sequential trials lose his right under the Double Jeopardy Clause to the issue-preclusive effect of an acquittal? Decision: Yes. When the defendant voluntarily consented to sever the charges against him into two separate trials, he gave up the right to object to the second trial on double jeopardy grounds. Gamble v. United States, No. 17-646 (Double jeopardy “separate sovereigns” exception) (decision below 694 Fed.Appx. 750 (11th Cir. 2017)) Question Presented: Should the Court overrule the "separate sovereigns" exception to the Double Jeopardy Clause? 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? Decision: Petition for writ of certiorari dismissed as improvidently granted. Sixth Amendment Garza v. Idaho, No. 17-1026 (Failure to file notice of appeal and presumption of prejudice) (decision below 405 P.3d 576 (Idaho 2017)) Question Presented: Does the "presumption of prejudice" recognized in Roe v. Flores- Ortega, 528 U.S. 470 (2000), apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant's plea agreement included an appeal waiver? McCoy 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? Decision: Yes. Under the 6th Amendment, the defendant has the right to choose the objective of his defense and to insist that his lawyer not admit guilt. The error is structural, so that the defendant need not prove prejudice. Eighth Amendment Bucklew v. Precythe, No. 17-8151, (Means of execution) (decision below 883 F.3d 1087 (8th Cir. 2018)) Questions Presented: 1) Should a court evaluating an as-applied challenge to a state's method of execution based on an inmate's rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended? 2) Must evidence comparing a state's proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate? 3) Does the 8th Amendment require an Death Row U.S.A. Page 3 inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state's proposed method of execution based on his rare and severe medical condition? 4) (Added by the Court) Has petitioner met his burden under Glossip v. Gross, 576 U.S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution? 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 Timbs v. Indiana, No.17-1091 (Incorporation of 8th Amendment under 14th Amendment) (decision below 84 N.E.3d 1179 (Ind. 2017)) Question Presented: Is the 8th Amendment's Excessive Fines Clause incorporated against the States under the 14th Amendment? 2. CASES RAISING HABEAS CORPUS QUESTIONS Sexton v. Beaudreaux, No. 17-1106 (Deference to state courts) (decision below unreported No. 15-15345 (9th Cir. 2017)) Question Presented: Did the court of appeals violate the deferential review requirements of 28 U.S.C. § 2254(d) by setting aside a state conviction based on its de novo analysis of an ineffective-assistance claim, without fulfilling its obligation to consider whether fair-minded jurists could agree with the state court’s contrary conclusion? Decision: Yes. In a per curiam opinion, the Court held that the appeals court should not have conducted a de novo review of petitioner’s identification and the claim that counsel was ineffective for failing to file a motion to suppress it, including arguments and theories not raised in the petition. The state court could have reasonably found the identification sufficiently reliable, and a lack of prejudice in the identification evidence. 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.