In this double edition several favorable dispositions are noted.

In perhaps the "most run of the mill" type of claims covered here, failure of counsel to adequately investigate, prepare and present mitigation evidence, grants of relief are noted inJesse Bond v. Beard(Third Circuit) andReginald Jells v. Mitchell(Sixth Circuit). Likewise, in a twist on this theme, the Missouri Supreme Court inMichael Taylor v. Stateholds defense counsel were ineffective in failing to present certain mitigating evidence in the penalty phase and that the prosecution failed to obey rules and a court order requiring it to provide impeaching information to the defense. In a closely related area, failure to adequately investigate mental health issues and competency, the Ninth Circuit inJasper N. McMurtrey v. Ryangrants habeas relief as his "memory problems, his erratic behavior, and the variety and quantity of medications that he was prescribed, combined with the absence of an expert evaluation made at the time of trial, created a reasonable doubt as to McMurtrey's mental competence to stand trial."

In one of the more unusual dispositions, the Arizona Supreme Court reverses the imposition of three death sentences inState v. James Granvil Wallace. Each of Wallace's death sentences was based on the same aggravating circumstance - that he committed the murders in an especially heinous and depraved manner." The jury instructions were erroneous on the issue as "senselessness and helplessness, without more, generally do not render a killing especially heinous or depraved. Our conclusion that the jury was improperly instructed on the issue of gratuitous violence therefore requires that we vacate the three death sentences." Further, "[w]e conclude that the State did not present sufficient evidence to prove the defendant had the required mental state" as to one victim on the issue of gratuitous violence.

Remands for further factual development are noted by the Mississippi Supreme Court inMarlon Latodd Howell v. State(recanted testimony, the issues related to his representation or lack thereof at the lineup, and a witnesses purported exculpatory statements) and the Fifth Circuit inDanielle Simpson v. Quarterman, (Atkins / mental retardation).

As noted in the last edition, Jeffrey Woods’ execution has been stayed by the Hon. Orlando L. Garcia, a federal district court judge,Jeffrey Woods v. Quarterman. In strong, blunt language the district court condemned the Texas state courts’ position that Woods, pro se, needed to make a “substantial showing of incompetency” before experts and counsel were appointed. “With all due respect, a system that requires an insane person to first make “a substantial showing” of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.”

Long time activist and attorneyRachel Kinghas died, the Washington Post's obituary is at the end of this edition.

Prosecutors and defense attorneys recently agreed in a Sonoma County Superior Court that Calvin Coleman Jr is mentally retarded, exempt from capital punishment, and entered an appropriate life sentence. The National Law Journal has a web-only dispatch, "Report recommends independent forensics labs," on the Justice Project's,Improving the Practice and Use of Forensic Science. The alleged scandal involving the upcoming Charles Hood execution has turned fromback burner to front burnerwith hearings now scheduled before he is scheduled to be killed (rather than after it as was originally planned).

In public defender news, the AtlantaJournal-Constitution reportsthe Georgia "state public defender council’s board on Thursday voted not to submit a budget that would cut the struggling agency’s funding by at least 6 percent." "Miami judge rules poor defense caseload crushing,"

In a noncapital case of note, Kentucky has become the latest state to hold that procedural niceties, in this case the one year time period for filing CR 60.02 motion (the state analog to a federal Rule 60(b) motion), must give way to making sure the right person is convicted, especially where DNA evidence rules out, or serves to potentially rule out, a defendant as the perpetrator. The Kentucky Supreme Court decision isLacy Bedingfield v. Commonwealth.

In stay news, the Missouri Supreme Court has issued an order, staying the execution ofJohn Middleton. In Arkansas Frank Williams received a stay while lethal injection litigation winds it way through the courts there. In Texas Greg Wright purportedly received a stay for further DNA testing. Frank Williams Jr. won’t be executed next week after the Arkansas Supreme Courtrebuffed the State's requestto move along his execution until pending lethal injection litigation resolves.

The Georgia Board of Pardons and Paroles said Friday itwill not hold a clemency hearingforJack Aldermanbutwill hold a hearingforTroy Davis. Both men are scheduled to be executed in the coming weeks.Pardon Powerhas more. Both men have previously asserted claims of factual innocence.

Looking ahead, so far just one favorable decision is noted. InJoseph Kindler v. Hornthe Third Circuit grants penalty phase relief as"'the jury instructions and verdict sheet that were used during the penalty phase of Kindler’s trial denied him due process of law pursuant to the holding in Mills v. Maryland," as well as "that Kindler was denied effective assistance of counsel during the penalty phase.

Pending Executions

September

10 Charles Hood - Tex.*

16-23 Jack Alderman - Ga*

17 William Murray -Tex.*

18 Joseph Ries -Tex.*

19 Robert Lee Yates Jr. - Wash

23 Richard Henyard - FL*

23-30 Troy Davis - Ga*

25 Jessie Cummings - Okla*

October

3 Freddie E. Owens - S.C.

7-13 Briley Piper - S.D.

14 Richard Cooey - Ohio*

16 Kevin Watts - Tex*

28 Eric Nenno - Tex*

30 Gregory Wright - Tex*

November

6 Elkie Taylor - Tex.*

6 Rogelio Cannaday - Tex.*

12 George Whittaker III - Tex.*

13 Denard Manns - Tex.*

18 Eric Cathey - Tex.*

19 Gregory Bryant-Bey - Ohio*

20 Robert Hudson - Tex.*

Recent Executions

August

5 Jose Medellin - Tex.

7 Heliberto Chi - Tex.

12 Leon Dorsey - Tex.

14 Michael Rodriguez - Tx(v)

Notable Stays

September

9 Gregory Wright -Tex.

9 Frank Williams, Jr., - Ark

17 John Middleton - Mo.

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources: DPIC, Rick Halperin& AP]

Week of August 18, 2008–In Favor of the Defendant or the Condemned

• Jesse Bond v. Beard,2008 U.S. App. LEXIS 17726 (3rd Cir 8/20/2008) Trial counsel failed to adequately investigate the Condemned’s social history. "Counsel for Bond failed to meet this constitutional minimum. Had they investigated Bond’s background and mental health, they would have presented a starkly different picture of Bond to the jury at the penalty phase than the one they actually presented. A reasonable lawyer who understood Bond’s life history would not have proceeded on the theory that he had led a productive life before going on a crime spree as a result of a series of disappointments. Such an attorney instead would have presented evidence to the jury of Bond’s abusive and neglectful family life, his low intelligence, and his psychiatric and psychological problems. There is a reasonable probability that this different course, even in the face of competing expert testimony introduced by the Commonwealth, would have resulted in the imposition of a life sentence.
• Jasper N. McMurtrey v. Ryan, 2008 U.S. App. LEXIS 17821 (9th Cir 8/21/2008) "We hold that McMurtrey's memory problems, his erratic behavior, and the variety and quantity of medications that he was prescribed, combined with the absence of an expert evaluation made at the time of trial, created a reasonable doubt as to McMurtrey's mental competence to stand trial. The state trial court's failure to conduct a competency hearing at that time violated McMurtrey's due process rights. The retrospective competency hearing held thirteen years after trial was insufficient to cure this due process violation. Accordingly, we AFFIRM the district court's decision to grant McMurtrey's habeas petition on this ground. Because this issue is dispositive, we need not address the remaining issues on appeal or on cross-appeal."
• Reginald Jells v. Mitchell,2008 U.S. App. LEXIS 17550 (6th Cir 8/18/2008) "Jells has demonstrated that his counsel provided ineffective assistance when they: (1) failed to timely prepare for the mitigation phase of Jells’s trial; and (2) failed to use a mitigation specialist to gather information about Jells’s background in preparation for mitigation. The Ohio Court of Appeals’ refusal to recognize that these omissions by Jells’s counsel fell outside the bounds of professionally competent assistance constituted an unreasonable application of federal law as determined by the Supreme Court in Strickland."
• State v. James Granvil Wallace, 2008 Ariz. LEXIS 144 (Az 8/22/2008) Jury was improperly instructed in the penalty phase on especially heinous and depraved aggravator as to each of the three victims. Further, the state failed to meet its burden as to one of the three victims.
• Jeffrey Woods v. Quarterman.Civ No. SA-01-CA-423-OG (WDTex 8/21/2008) Ford stay. "With all due respect, a system that requires an insane person to first make “a substantial showing” of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.”

Week of August 18, 2008– In Favor of the State or Government

• Robert Lee Thompson v. Quarterman, 2008 U.S. App. LEXIS 17949 (5th Cir 8/19/2008) (unpublished) COA denied on a request for "a COA on each of the 15 issues raised in his federal petition. He also maintains the district court erred in denying his motions to expand the record with certain unspecified documents, and for discovery, an evidentiary hearing, and a stay."
• Michael Rosales v. Quarterman2008 U.S. App. LEXIS 17964 (5th Cir 8/19/2008) (unpubilshed) Certificate of Appealability granted on the issue of whether the condemned is mentally retarded within the meaning of Atkins v. Virginia. Relief denied, however, on the merits.
• Comm. v. Thomas. W. Hawkins, 2008 Pa. LEXIS 1292 (PA 8/19/2008) Giglio violation was not timely raise. Court holds despite the factual basis of that claim only being discovered after the one year state statute of limitations for post-conviction petitions, facts sufficient to plead the claim were learned prior to the discovery of the facts sub judice. "Therefore, appellant has not established his claim falls within either the newly discovered evidence exception or the governmental interference exception to the PCRA’s timeliness requirements." "Inmate's Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., petition was untimely as the timeliness exceptions in § 9545(b)(1)(i) and (ii) were not shown; a leniency agreement with a witness was denied during the inmate's direct appeal, and the district attorney's testimony at the witness's 1991 sentencing was a matter of public record." [via LexisOne]
• State v. Dale Wayne Eaton, Nos. 04-180 & 06-255 (Wyo 8/18/2008) Wyoming's capital trial unit is, in reality, one attorney. choosing between finding that attorney ineffective or overlooking some serious errors in trial performance, the Eaton Court affirms. Note that the opinion heavily relies on the ABA standards governing the performance of counsel.
• Albert Holland, Jr. v. State, 2008 U.S. App. LEXIS 17552 (11th Cir 8/18/2008) "28U.S.C.S. § 2254 habeas corpus petition was properly dismissed as untimely where it was filed after expiration of one-year limitations period, and equitable tolling was not warranted because attorney's alleged negligence in responding to inmate's inquiries did not constitute extraordinary circumstance warranting tolling, as bad faith was lacking."

Week of August 25, 2008–In Favor of the Defendant or the Condemned

• Michael Taylor v. State,2008 Mo. LEXIS 152 (Mo 8/26/2008) "The circuit court denied postconviction relief. In a decision written by Chief Justice Laura Denvir Stith, the Supreme Court of Missouri concludes that the prosecution failed to obey rules and a court order requiring it to provide the impeaching information and that defense counsel were ineffective in impeaching the witness and in failing to present mitigating evidence in the penalty phase. In a 6-0 decision, the Court affirms the findings with respect to the guilt phase of the trial, holding that these failures would not have affected the outcome of the guilt phase, in which the inmate admitted the murder but claimed he was not guilty by reason of mental disease or defect. In a 3-1-2 decision, the Court reverses as to the death penalty phase and remands (sends back) the case for a new penalty phase trial on the basis that there is a reasonable likelihood that the outcome of the penalty phase proceeding may have been different but for these errors." [via Missouri Clerk of Court]
• Marlon Latodd Howell v. State------ (Miss. 8/28/2008) Remand is appropriaate to resolve a variety of factual issues that need to be further developed. Specifically Howell “is entitled to an evidentiary hearing on the claims of Rice’s recanted testimony, the issues related to his representation or lack thereof at the lineup, and on issues related to Terkecia Pannell’s alleged exculpatory statements.”
• Danielle Simpson v. Quarterman, 2008 U.S. App. LEXIS 18852 (5th Cir 8/29/2008) (unpublished) "[T]the district court erred by failing to conduct an evidentiary hearing on Simpson's mental retardation claim."
• Ex parte State of Alabama; (In re: State of Alabama v. George Martin), 2008 Ala. Crim. App. LEXIS 157 (Ala. Crim. App 8/29/2008) Trial court's order regarding discovery of certain documents affirmed in part, as to order relating to Petitioner's "motion for access," and reversed in part, as it related to the trial court's order of discovery for certain claims that appear, from the face of the opinion, to have not yet been ripe for review and/or defaulted.

Week of August 25, 2008– In Favor of the State or Government

• United States v. Eben Payne, 2008 U.S. App. LEXIS 18502 (6th Cir. 8/28/2008) Involuntary medication to render competent appeal in this Federal Death Penalty case. "In its order, the district court ruled that, in addition to continuing to medicate defendant for safety reasons, the government could constitutionally administer anti-psychotic drugs to defendant in an effort to render him competent to stand trial. However, it placed a four-month limitation on this enhanced involuntary treatment, as well as other restrictions. For the reasons that follow, the order of the district court is affirmed."
• United states v. Ronald Mikos, 2008 U.S. App. LEXIS 18157 (7th Cir 8/16/2007) (dissent) "Defendant was properly convicted of murder of witness and sentenced to death since warrantless seizure of defendant's firearms was harmless, seeking inference of guilt from missing firearm which was properly tied to murder weapon was proper comment, and vulnerability of obese victim and lack of remorse were properly considered at sentencing." [via Findlaw]
• People v. Gunner Jay Lindberg,2008 Cal. LEXIS 10432 (Cal 8/28/2008) "Evidence of White supremacist defendant's racist statements and expert testimony on Whilte supremacy movement properly introduced to support special circumstance of murder because of victim's race, etc. (PC 190.2(a)(16) ("hate-murder" special circ.).) See also People v.Sassounian (1986) 182 Cal.App.3d 361." [viaElectric Lawyer] " In a death penalty case, conviction and sentence are affirmed on automatic appeal over claims of error regarding: 1) evidence admitted at trial regarding prior uncharged crimes; 2) sufficiency of the evidence of first degree felony murder and the robbery special circumstance; 3) a jury instruction on evidence of other crimes; 4) sufficiency of evidence of the hate-murder special circumstance; 5) prejudice caused by expert evidence regarding white supremacy; 6) the constitutionality of jury instructions on the death penalty; 7) the court's failure to clarify the meaning of "life without the possibility of parole"; 8) the constitutionality of the death penalty statute; and 9) cumulative error. " [via Findlaw]
• People v. Paul Joe Carasi, 2008 Cal. LEXIS 10355 (Cal 8/25/2008) "Even though court would not allow case-specific questions in questionnaire, it informed jurors about about specific facts and charges, and several jurors said they took those into consideration. Therefore, court's procedures were adequate to ascertain attitudes on case-specific factors." [viaElectric Lawyer] " In a death penalty case, the conviction and sentence is affirmed on automatic appeal over claims of error regarding: 1) jury selection; 2) denial of severance; 3) ex parte in camera meetings; 4) admission of evidence regarding a bankruptcy consultation; 5) a pathologist's testimony; 6) provocation and lesser included offense instructions; 7) the sufficiency of the evidence of financial gain; 8) Skipper/Lockett error; 9) lingering doubt evidence; 10) prosecutorial misconduct; 11) the effect of the ex parte in camera meetings on a modification motion; and 12) the validity of the death penalty law. " [via Findlaw]
• Pablo San Martin v. State, 2008 Fla. LEXIS 1460 (FL 8/28/2008) Relief denied on claims relating to: "(1) denial of access to public records, whereby the State withheld material impeachment evidence; (2) guilt-phase ineffective assistance for failing to present evidence; (3) guilt-phase ineffective assistance for failing to object to an individual juror's participation in the trial; (4) guilt-phase ineffective assistance for failing to timely request aRichardsonhearing; (5) guilt-phase ineffective assistance for failing to object to inflammatory and prejudicial comments elicited by the State; (6) guilt-phase ineffective assistance for failing to object to improper bolstering of witness credibility; (7) guilt-phase ineffective assistance for failing to object to State's closing argument regarding mutually exclusive factual theories of prosecution; (8) the State withheld material exculpatory or impeachment evidence; (9) penalty-phase ineffective assistance for failing to present mitigation evidence; (10) ineffective assistance of counsel at voir dire, for failing to challenge an objectionable juror for cause, failing to reassert his challenge for cause against another unqualified juror, and failing to object to the court limiting his ability to back strike members of the panel; (11) the trial court failed to conduct an adequate cumulative error analysis; (12) due process violation because the rules prohibit Evans from interviewing jurors to determine if constitutional error was present during deliberations; (13) Evans' sentence violatesRing[; 14] ineffective assistance of appellate counsel for failing to raise meritorious issues on direct appeal, including the denial of Evans' motion for a mistrial and request for aRichardsonhearing based onBradyand discovery violations, and the denial of Evans' motion for a mistrial andRichardsonhearing when the State's witness improperly and without prior notice testified as to the character of Evans; [15] Evans' sentence of death constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution because of his mental impairments and his age at the time of the crime; and [16] Florida's capital sentencing procedure deprived Evans of due process rights to notice and a jury trial underRingandApprendi."
• Paul H. Evans v. State,2008 Fla. LEXIS 1459 (FL 8/28/2008) "In a capital murder case, denial of postconviction relief is affirmed and habeas relief denied over claims of error regarding: 1) denial of requests for public records; 2) ineffective assistance of trial and appellate counsel; 3) undisclosed Brady evidence; 4) the constitutionality of rules barring the defense from interviewing jurors for possible misconduct; 5) the constitutionality of Florida's death sentencing statute; 6) the prohibitions against executing juveniles and the mentally retarded; and 7) cumulative error." [via FindLaw]
• Alvin Leroy Morton v. State,2008 Fla. LEXIS 1457 (FL 8/28/2008) "In a capital murder case, denial of postconviction relief is affirmed and petition for habeas relief is denied where: 1) petitioner failed to demonstrate that his counsel rendered deficient performance with respect to investigating petitioner's background and evaluating his mental health, or that he was prejudiced by it; 2) petitioner's claim that he received an inadequate mental health evaluation was procedurally barred; 3) the postconviction court was not required to take judicial notice of the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases; 4) an evidentiary hearing was not required on new evidence that would influence the weight given to age as a mitigating factor; and 5) petitioner raised no habeas claims that warranted relief. " [via Findlaw]
• State v. Scott A. McLaughlin, 2008 Mo. LEXIS 153 (Mo 8/26/2008) "In a 6-0 decision written by Chief Justice Laura Denvir Stith, the Supreme Court of Missouri affirms the conviction and sentence. The trial court did not err in instructing the jury or, after the jury deadlocked after making the factual findings necessary to increase punishment from a life sentence to death, in imposing the death penalty. In entering judgment on the defendant's rape conviction, the trial court properly applied the "ongoing criminal assault rule;" it is not necessary for the victim to be alive at the time of the rape for the defendant to be guilty of forcible rape. The trial court properly admitted the victim's hearsay statements and did not err in submitting to the jury one lesser-included offense instead of, or in addition to, another." [via Missouri Clerk of Court]
• State v. Jeremy Dushane Murrell, 2008 N.C. LEXIS 688 (NC 8/27/2008) Relief denied on claims relating: (A) "denial of a pretrial motion to suppress an oral statement:" (B) "that the trial court erred during jury selection by permitting the prosecutor, over defendant's objection, to misrepresent the law with regard to mitigating circumstances:" (C) "a question asked individually of prospective jurors by the prosecutor at jury selection:" (D) "that the prosecution misrepresented the law with regard to mitigating circumstances:" (E) " that the trial court erred in overruling his objection to the following portion of the prosecution's closing argument:" (F) "the trial court's failure to interveneex mero motuduring the prosecution's closing argument when the prosecutor implored jurors to "find the inner strength to carry out justice:"" (G) "that the following portion of the prosecution's closing argument prompted the jury to consider defendant's evidence in mitigation as evidence in support of anaggravatingcircumstance instead:" (H) "that prosecutors expressed their personal desires, opinions, or beliefs during closing argument when advocating that the jury return a binding recommendation of death and that these remarks were grossly improper:" (I) "that the trial court gave an incorrect definition of mitigating circumstances in its final charge to the jury at the close of the penalty proceeding:" (J) "claims ineffective assistance of counsel because his trial counsel did not object to a number of questions asked by the prosecution and the trial court during jury selection concerning prospective jurors' "sympathy" for defendant on account of his age:" (K) "to an instruction given by the trial court concerning the (e)(6) "aggravating circumstance--whether the murder "was committed for pecuniary gain":" (L) " to his MAR petition assigning error to: "(1) the allegedly false testimony of State's witness Bennie Cameron; (2) the allegedly false testimony of State's witness Alonzo Dingle; and (3) the prosecutors' closing remarks, trial strategy, and direct examination pertaining to victim impact evidence;" (M) preservation issues; and (N) proportionality review.
• Christopher Anthony Floyd v. State, 2008 Ala. Crim. App. LEXIS 132 (Ala. Crim. App 8/29/2008) (dissent) Relief denied, most notably, on a fairly strong Batson claim.
• Aundra Marshall v. State, 2008 Ala. Crim. App. LEXIS 142 (Ala. Crim. App 8/29/2008) Relief denied on claims: [1] that the circuit court erred in allowing the State to present evidence that Rick Kile had filed a police report against Marshall; [2] that the circuit court erred in refusing to give three of his requested jury instructions; [3] that the circuit court erred in refusing to give his requested charge on circumstantial evidence; [4] that the circuit court erred in failing to give his requested charge on witness; [5] that the circuit court erred in failing to give his requested charge on the presumption of innocence; [6] that the circuit court erred in denying his motion for a judgment of acquittal because, he argues, the State failed to prove its capital-murder case beyond a reasonable doubt; and [7] that he was denied the effective assistance of counsel because as counsel's performance in both preparing and trying his capital-murder case was deficient.
• Joseph B. Hooks v. State, 2008 Ala. Crim. App. LEXIS 147 (Ala. Crim. App 8/29/2008) (override to death) Relief denied on claims: [1] that his due-process rights were violated by the circuit court's wholesale adoption of the State's proposed order denying postconviction relief.; [2] that his right to an impartial jury was violated when three prospective jurors failed to answer questions during voir dire about whether they were related to law-enforcement personnel; [3] that he was deprived of the effective assistance of counsel at both his trial and on direct appeal. He makes many arguments in support of this claim: ([a] that the circuit court erroneously applied this Court's holding in Williams v. State, 783 So. 2d 108 (Ala.Crim.App. 2000), to bar his claims of ineffective-assistance-of-counsel; [b] that his trial counsel failed to adequately argue the motion to suppress his statement to police; [c] that his trial and appellate counsel were ineffective for failing to challenge the State's use of its peremptory strikes; [d] that his counsel failed to ensure that he was protected from prejudicial pretrial publicity; [e] that counsel was ineffective in defending him against the charge of robbery/murder; [f] that his trial counsel failed to object to the "prosecution's repeated misconduct." ; [g] that his trial counsel failed to investigate and to present evidence in mitigation; [h] that his counsel was ineffective for making disparaging remarks about him; [i] that trial counsel failed to raise the claim that Alabama's sentencing scheme is unconstitutional; [k] that his appellate counsel was ineffective); [4] that the circuit court erred in barring his substantive claims that supported his claims of ineffective assistance of counsel; and [5] that Alabama's judicial override statute, § 13A-5-47(e), Ala. Code 1975, is unconstitutional, both on its face and as applied to him, because, he says, it results in the arbitrary application of the death penalty based on political pressures.

Week of August 25, 2008– Remand for Record Development / Clarification

• Melvin Gene Hodges v. State, 2008 Ala. Crim. App. LEXIS 137 (Ala. Crim. App 8/29/2008) "[W]e have no alternative but to again remand this case to the circuit court. On remand, the circuit court is directed to enter a new order in which it makes specific, written findings of fact regarding each of the specific claims Hodges raised in his petition about trial counsel's alleged failure to conduct an adequate investigation into mitigation evidence and to adequately present mitigation evidence at the penalty phase of his trial. The court's order must include specific findings of fact about the evidence that was presented by the parties on remand and the evidence presented at trial, as well as an analysis of Hodges's allegations and the evidence presented in light of the two-pronged analysis established in Strickland v. Washington for claims of ineffective assistance of counsel, so that the basis for the circuit court's ruling is clear on the record."
• Jason Michael Sharp v. State, 2008 Ala. Crim. App. LEXIS 152 (Ala. Crim. App 8/29/2008) "[W]e remand this case with instructions that the trial court amend its sentencing order to comply with the requirements of §13A-5-47(d), Ala. Code 1975. "

(Initial List)Week of September 1, 2008–In Favor of the Defendant or the Condemned

• Joseph Kindler v. Horn, 2008 U.S. App. LEXIS 18815 (3rd Cir 9/3/2008) "To summarize: we conclude that the jury instructions and verdict sheet that were used during the penalty phase of Kindler’s trial denied him due process of law pursuant to the holding in Mills v. Maryland. We also find that Kindler was denied effective assistance of counsel during the penalty phase. However, we find no merit in the remainder of Kindler’s claims."

(Initial List)Week ofSeptember 1, 2008– In Favor of the State or Government

• David Barnett v. Roper, 2008 U.S. App. LEXIS 18926 (8th Cir 9/5/2008) "Denial of a petition for habeas corpus is affirmed where: 1) the Missouri procedural rule requiring sufficient pleading before granting an evidentiary hearing on ineffective assistance of counsel constituted independent and adequate state grounds barring federal review; 2) there was no clear and convincing evidence of discriminatory intent in jury selection; and 3) the prosecutor's comments at trial did not deny defendant due process."
• Harry Jones v. State, 2008 Fla. LEXIS 1565 (FL 9/4/2008) Relief denied on claims relating to: (A) Brady/Giglio violations; (B) failure to investigate and present mitigation information; (C) "summary denial of two claims of ineffective assistance of counsel: (1) failing to object to the use of shackles during voir dire; and (2) failing to object to improper prosecutorial argument;" (D) Ring; (E) jury instructions improperly shifted the penalty phase burden; and (F) undue dilution of jury's responsibility for a verdict.of death.

In Memoriam

From the Washington Post'sobituary for Rachel King:

Rachel Carol King, 45, a lawyer for the U.S. House Judiciary Committee's subcommittee on crime and homeland security, died Aug. 25 of breast cancer at her summer home in Wayne, Maine. She lived in Washington.

Ms. King moved to Washington in 1998 and was a legislative counsel and lobbyist for the American Civil Liberties Union, where she worked on limiting the scope of the USA Patriot Act. She joined the House subcommittee in 2007.

Ms. King, a longtime activist against the death penalty, was a founding member of Takoma Village Cohousing in Northwest Washington, where she lived.

She was born in Enid, Okla., and moved to Wayne as a child. She graduated from Smith College in Massachusetts and then worked for the Girl Scouts of America in Massachusetts while volunteering in the sanctuary movement, a religious and political movement that sheltered Central American refugees.

She received a law degree in 1990 from Northeastern University in Boston and received a master's degree in law in 1998 from Temple University in Philadelphia.

At the time of her death, she was in a master's degree program in creative writing at Johns Hopkins University.

During the 1990s, she worked as a public defender in Alaska and became the first executive director of Alaskans Against the Death Penalty.

She was also executive director of the Alaska Civil Liberties Union and was active in the state's Green Party.

Ms. King, a Quaker, was chairwoman of the National Coalition to Abolish the Death Penalty, which announced in July that it planned to give her its lifetime achievement award.

She was a photographer and a long-distance runner, and she competed in more than a dozen marathons, including the Boston Marathon. She also taught law classes at Howard University.

She wrote "Don't Kill in Our Names: Families of Murder Victims Speak Out Against the Death Penalty" (2003) and "Capital Consequences: Families of the Condemned Tell Their Stories" (2005). She self-published a novel, "Tales of the District," last year.

Survivors include her husband of three years, Richard G. McAlee of Washington; three stepdaughters, Lauren McAlee of Washington, Julia McAlee of Olympia, Wash., and Livia McAlee of Crofton; her mother and stepfather, Jill Howes and David Rogers of Wayne; her father, Charles H. King of Wayne; and two brothers.

Rachel's family has asked that memorial donations be made in her name to theNational Coalition to Abolish the Death Penalty.

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