DEATH ROW U.S.A. Spring 2011 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 2011 (As of April 1, 2011) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,222 Race of Defendant: White 1,405 (43.61%) Black 1,345 (41.74%) Latino/Latina 393 (12.20%) Native American 36 (1.12%) Asian 42 (1.30%) Unknown at this issue 1 (0.03%) Gender: Male 3,161 (98.12%) Female 61 (1.89%) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 38 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, [Illinois] [see note, below], 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: 15 Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. [NOTE: In March 2011, a bill abolishing the death penalty passed in Illinois, effective July 1, 2011. Gov. Quinn commuted the death sentences of all Illinois prisoners.] [NOTE: New Mexico repealed the death penalty prospectively.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 2011 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2010 1. CASES RAISING CONSTITUTIONAL QUESTIONS 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 Fourth 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? Camreta v. Greene, No. 09-1454 (consolidated with 09-1478) (Interview of allegedly abused child at school without parental permission or a warrant) (decision below 588 F.3d 1011 (9th Cir. 2009)) Questions Presented: (1) Should the 9th Circuit have applied the balancing standard that this Court has identified as the appropriate standard when a witness is temporarily detained? (2) Is the 9th Circuit's constitutional ruling reviewable, notwithstanding that it ruled in petitioner's favor on qualified immunity grounds? Davis v. United States, No. 09-11328 (“Good-faith” exception to exclusionary rule) (decision below 598 F.3d 1259 (11th Cir. 2010)) Question Presented: Does the good-faith exception to the exclusionary rule apply to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional? J.D.B v. North Carolina, No. 09-11121 (Consideration of juvenile’s age in Miranda custody analysis) (decision below 668 S.E.2d 135 (N.C. 2009)) Question Presented: May a court consider a juvenile's age in a Miranda custody analysis in evaluating the totality of the circumstances and determining whether a reasonable person in the juvenile's position would have felt he or she was not free to terminate police questioning and leave? 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? Tolentino v. New York, No. 09-11556 (Identity documents and exclusionary rule) (decision below 14 N.Y.3d 382 (Ct. App. 2010)) Question Presented: Are pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Death Row U.S.A. Page 2 Amendment, subject to the exclusionary rule? Decision: The petition for writ of certiorari was dismissed as improvidently granted. 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? Bullcoming v. New Mexico, No. 09-10876 (Confrontation of forensic analyst) (decision below 147 N.M. 487 (2010)) Question Presented: Does the Confrontation Clause permit the prosecution to introduce testimonial statements of a non-testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements? Harrington v. Richter, No. 09-587 (Counsel’s choice to forego expert testimony) (decision below 578 F.3d 944 (9th Cir. 2009)) Question Presented: In granting habeas corpus relief to a state prisoner, did the 9th Circuit deny the state court judgment the deference mandated by 28 U.S.C. § 2254(d) and impermissibly enlarge the 6th Amendment right to effective counsel by elevating the value of expert-opinion testimony in a manner that would virtually always require defense counsel to produce such testimony rather than allowing him to rely on cross-examination or other methods designed to create reasonable doubt about the defendant's guilt? (See also question under habeas cases) Decision: Counsel has a range of options in defending a case, and the failure to use an expert must be evaluated on a case-by-case basis in light of resources, trial tactics and strategy. On habeas, the federal court must look to see whether it was reasonable for the state court to conclude that counsel’s representation was not incompetent under prevailing professional norms. Here, the Court finds reasonable explanations for counsel’s decision and a lack of prejudice. 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? Michigan v. Bryant, No. 09-150 (Interrogation of wounded person) (decision below 768 N.W.2d 65 (Mich. 2009)) Question Presented: Are preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of a shooting nontestimonial because "made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," that emergency including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous Death Row U.S.A. Page 3 individual? Decision: The victim’s statements describing and identifying his attacker and the location of the shooting were non-testimonial because their primary purpose was to enable police to meet an on-going emergency. A court must objectively evaluate the circumstances to make such a determination, looking at the location of the encounter between police and the person making the statements, the purpose a reasonable person would have, the existence of an on-going emergency threatening the police or the public, and the statements and actions of the speaker and police. Missouri v. Frye, No. 10-444 (Ineffective assistance and guilty pleas) (decision below 311 S.W.3d 350 (Ct. App. W.D. Mo. 2010)) Question Presented: (1) Contrary to the holding in Hill v. Lockhart, 474 U.S. 52 (1985) -- which held that a defendant must allege that, but for counsel's error, the defendant would have gone to trial -- can a defendant who validly pleads guilty successfully assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? (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? Premo v. Moore, No. 09-658 (Counsel’s failure to move to suppress confession before plea) (decision below 574 F.3d 1092 (9th Cir. 2009)) Question Presented: (1) (a) If a collateral challenge is based on a defense attorney's decision not to move to suppress a confession prior to a guilty or no contest plea, does the Fulminante standard apply, even though no record of a trial is available for review? (See also question under habeas cases) Decision: Even in the context of a plea, where there is a lack of a trial record, deference is due to counsel’s reasonable choices given the information he had at the time. Here, counsel had a reasonable explanation for failing to move to suppress the confession -- there was another admissible confession. The state court’s decision that counsel’s performance met the Strickland standards was not unreasonable and should not have been overturned as “contrary to” Fulminante because Strickland, not Fulminante, determines effectiveness of counsel.