DEATH ROW U.S.A. Spring 2016 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 2016 (As of April 1, 2016) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,918 Race of Defendant: White 1,236 (42.36%) Black 1,217 (41.71%) Latino/Latina 383 (13.13%) Native American 29 (0.99%) Asian 52 (1.78%) Unknown at this issue 1 (0.03%) Gender: Male 2,863 (98.12%) Female 55 (1.88%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 34 Alabama, Arizona, Arkansas, California, Colorado, Delaware, 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: 19 Alaska, Connecticut, 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 [NOTE: New Mexico repealed the death penalty prospectively.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 Winter 2016 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2015 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Bernard v. Minnesota, No. 14-1470 (Criminalization of refusal to take blood alcohol test) (decision below 859 N.W.2d 762 (Minn. 2015)) Consolidated with Beylund v. Levi, No. 14-1507 (decision below 859 N.W.2d 403 (ND 2015)) Birchfield v. North Dakota, No. 14-1468 (decision below 858 N.W.2d 302 (ND 2015)) Question Presented: In the absence of a warrant, may a State make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person's blood? Utah v. Strieff, No. 14-1373 (Arrest pursuant to outstanding warrant uncovered during unlawful investigatory stop) (decision below 2015 WL 223953 (1/16/15)) Question Presented: Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful? Fifth Amendment Bravo-Fernandez v. United States, No. 15-537 (Double jeopardy acquittal and inconsistent verdicts) (decision below 790 F.3d 41 (1st Cir. 2015)) Question Presented: (1) Under Ashe v. Swenson, 397 U.S. 436 (1970) and Yeager v. United States, 557 U.S. 110 (2009), can a vacated, unconstitutional conviction cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause? Luis v. United States, No. 14-419 (Government freezing assets needed to hire lawyer) (decision below 564 Fed. Appx. 493 (11th Cir. 2014)) Question Presented: Does the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violate the 5th and 6th Amendments? Decision: (See decision under Sixth Amendment below) McDonnell v. United States, No.15-474 (Interpretation and constitutionality of Hobbs Act) (decision below 792 F.3d 478 (4th Cir. 2015)) Question Presented: (1) Is "official action" under the Hobbs Act limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and must the jury be so instructed; or, if not so limited, are the Hobbs Act and honest-services fraud statute unconstitutional? Welch v. United States, No. 15-6418 (Convictions qualifying for sentence enhancement) (decision below 14-15733 order (11th Cir. June 9, 2015)) Question Presented: (2) Did Johnson v. United States, 135 S. Ct. 2551 (2015), announce a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review? (See also question under Cases Raising Other Important Federal Questions below) Death Row U.S.A. Page 2 Sixth Amendment Betterman v. Montana, No. 14-1457 (Speedy Trial requirements for sentencing phase) (decision below 342 P.3d 971 (Mont. 2015)) Question Presented: Does the 6th Amendment's Speedy Trial Clause apply to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case? Hurst v. Florida, No. 14-7505 (Constitutionality of Florida death-sentencing scheme) (decision below 147 So. 3d 435 (Fla. 2014)) Question Presented: Does Florida's death sentencing scheme violate the 6th or 8th Amendments in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002)? (See also cases under Eighth Amendment, below) Decision: Florida’s death sentencing scheme is unconstitutional. Under the 6th Amendment, a jury -- not a judge -- must find each fact necessary to impose a sentence of death. A “recommendation” by a jury is not enough. Luis v. United States, No. 14-419 (Government freezing assets needed to hire lawyer) (decision below 564 Fed. Appx. 493 (11th Cir. 2014)) Question Presented: (See cases under Fifth Amendment, above) Decision: It is a violation of a defendant’s 6th Amendment rights to prohibit her from using “legitimate” “untainted” assets to hire counsel of her choice. Eighth Amendment Hurst v. Florida, No. 14-7505 (Constitutionality of Florida death-sentencing scheme) (decision below 147 So. 3d 435 (Fla. 2014)) Question Presented: (See cases under Sixth Amendment, above) Decision: (See cases under Sixth Amendment, above) Kansas v. Jonathan Carr, No. 14-449 (Jury instructions on burden of proof of mitigators and severance) (decision below 329 P.3d 1195 (Kansas 2014)). Consolidated with Kansas v. Reginald Carr, No. 14-450 (decision below 331 P.3d 544 (Kansas 2014)), Kansas v. Gleason, No. 14-452 (decision below 329 P.3d 1102 (Kansas 2014)) Questions Presented: (1) Does the 8th Amendment require that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held here, or instead whether the 8th Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? (2) Does the trial court's decision not to sever the sentencing phase of the co-defendant brothers' trial here -- a decision that comports with the traditional approach preferring joinder in circumstances like this -- violate an 8th Amendment right to an "individualized sentencing" determination and was not harmless in any event? Decision: (1) The 8th Amendment does not require a specific jury instruction that mitigating circumstances need not be proved beyond a reasonable doubt. Instructions cannot prevent the consideration of mitigation, but need not set forth how mitigation is to be found or judged. (2) The Carr brothers’ 8th Amendment rights to individualized sentencing were not violated by their joint penalty phase. The jury was given individualized instructions and verdict forms for each brother for each murder, and the limiting instructions should have sufficed to cure any risk of prejudice. Death Row U.S.A. Page 3 Montgomery v. Louisiana, No. 14-280 (Retroactivity of decision prohibiting mandatory life sentences for juveniles) (decision below 141 So. 3d 264 (La. 2014)) Questions Presented: (1) Does Miller v. Alabama adopt a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison? (2) (Added by the Court) Does the Court have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to Miller? Decision: (1) Yes. Miller’s prohibition on mandatory life-without-parole sentences for juveniles is fully retroactive as a new substantive rule of constitutional law under the 8th Amendment. (2) Yes. The Court has jurisdiction to decide the retroactivity question. When a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. The resulting decision is reviewable by the Supreme Court. Williams v. Pennsylvania, No. 15-5040 (Former prosecuting attorney as judge on case he prosecuted) (decision below 105 A.3d 1234 (Pa. 2015)) Question Presented: Are the 8th and 14th Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive? Fourteenth Amendment Foster v. Chatman, No. 14-8349 (Batson standard) (decision below Sup. Ct. Ga. Case No. S14e0771 (Nov. 3, 2014)) Question Presented: Did the Georgia courts err in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case? Wearry v. Cain, No. 14–10008 (Brady violation) (decision below unreported State ex rel. Michael Wearry v. Cain, No. 2013-Kp-2422 (La. Sup. Ct. Feb. 27, 2015)) Question Presented: Did the Louisiana courts err in failing to find that the State's failure to disclose exculpatory evidence violated its obligation under Brady v. Maryland, 373 U.S. 83 (1963), and that this failure prejudiced the defense? Decision: Yes. In a per curiam decision, the Court held that the state’s failure to disclose exculpatory evidence was a denial of due process warranting a new trial. That undisclosed evidence included statements by fellow prisoners casting doubt on the credibility of a key witness against the defendant, discussion with the other key witness about a reduction in a prior sentence if he testified, and medical records of an accomplice indicating his physical condition was inconsistent with the state’s witness’ version of his activities during the incident. Prejudice is found upon cumulative evaluation of the withheld evidence. Williams v.