State v. Creech

BISTLINE, Justice,

dissenting.

PART I

CONSTITUTIONAL RIGHT TO JURY

Travesty. Such is my view of a majority opinion which chooses to answer a dissenting view by ignoring it. In the ordinary case it is pretty much a matter of choice to disdain comment on a contrary view, but in a death sentence case it is a travesty, and especially is this so where this Court can as a collegial group not only ascertain and apply precedent, but add saving graces to legislative enactments.

In this year of 1983, as to the constitutional right to have a jury make the determination between life and death, the majority contentedly declares that “At other places or at other times juries have been given an integral rule in imposing the death sentence.” “Other times” are in most recent times. Since creation of Territorial Idaho in 1863 and passage of the 1864 Criminal Practice Act, and continuing through the time of Idaho’s admittance to the Union in 1890 and until 1973 when the first postFurman legislature thought it was by Fur-man required to provide an automatic death penalty on every first degree murder conviction, death sentencing was a jury determination. The accused participated in the selection of the jury who would determine his fate. That has purportedly been taken away from the convicted murder, and his fate falls to one solitary person — who, if it were to be known, would undoubtedly rather see the question back where it always was — with a jury of twelve. This has been well documented in the dissenting opinion of Justice Huntley wherein on the strength of history and precedent he illustrates that for over 110 years it was the jury who made the decision of death or life. His assertion that the right of an accused to have a jury impose the sentence of death flows from the Idaho Constitution is beyond conscionable dispute. A majority of the Court, obviously unable to mount a tenable attack on that assertion, say only that that elimination of the jury function is a mere matter “of the legislative policy,” — from which point their opinion quickly digresses into an exaltation of the common qualities of Idaho trial judges who, unlike their federal counterparts, realize “that their positions are anything but lifetime sinecures.” A position of vulnerability to popular emotions is not necessarily a plus.

Having joined Justice Huntley’s opinion, there is little reason for further espousing that which he had laid before the majority. But, having read in the majority opinion that they have “conducted an extensive and thorough review of Idaho murder cases,” I, too, have deemed it appropriate to review those cases listed in footnote 2 of the majority opinion, and I have gone back to include in my survey some of those early cases which wholly substantiate Justice Huntley’s declaration that it was ever, both prior to statehood and afterward, clearly the right of the people and of the accused to have a jury determination.

In People v. Walters, 1 Idaho 271 (1869), the defendant was charged with murder in the first degree. The jury, knowing that a first degree conviction required execution, recommended the mercy of the Court.

*387

Notwithstanding the jury’s recommenda- law. tion, the Court followed the mandate of the

*388 In 1870 a territorial jury convicted the defendant of first degree murder, and accordingly he was executed. People v. Ah Choy, 1 Idaho 317 (1870). In 1874 another territorial jury convicted another defendant of first degree murder, and he, too, suffered judgment of death. People v. Waters, 1 Idaho 560 (1874). Three years later four defendants charged with first degree murder escaped the noose upon jury convictions of second degree murder. People v. Ah Hop, Yung Sing, Ah Pong, and Hung Chu. 1 Idaho 698 (1878).

In 1877 the territorial legislature in recodifying statutory law, revised the statute declaring the penalty for murder to read as it did until a 1919 amendment, other than for designation of the “Territorial Prison” instead of “State Prison.” In 1901, in enacting the Idaho Code Annotated, following admission to the Union, the language was then changed to “State Prison” — but all this time there was no change in the penalty for first degree murder, which was death, and it was mandatory.

So, in the transition from territory to statehood, although the typewriter had by then replaced the pen, it was still the jury that made the determination. Conviction of first degree murder meant death. A jury not so disposed could circumvent the death penalty only by returning a verdict of guilty of second degree murder. Thus, in State v. Perry, 4 Idaho 224 , 38 P. 655 (1894), following admission into the Union, the jury’s verdict was:

“We, the jury in the above entitled action, find the defendant guilty of murder of the first degree.

H.L. Beeroft, Foreman.”

And, as before statehood, the penalty was death:

“ ‘That, whereas, the said Charles Perry, having been duly convicted of the crime of murder of the first degree;

“ ‘It is therefore ordered, adjudged and decreed that the said Charles Perry be taken from this Courtroom to the County Jail of this, Bannock County, State of Idaho, and that he be there held until the 28th day of September, A.D., 1894, and that upon said day, between the hours of nine o’clock A.M., and four o’clock P.M., within the walls of said jail, or at some convenient private place within the said Bannock County, and in the manner made and provided by the Statutes of this State in such case, he, the said Charles Perry, be hung by the neck until he is dead.’ And the Sheriff of Bannock County, Idaho, is hereby directed to enforce the execution of this judgment. D.W. Standrod, Judge."

In 1911 the statute governing the penalty for first degree murder was changed to read ás it continued to read until amended after Furman. The penalty now became either death or life imprisonment, and the jury continued to make that decision. Had it so read in 1864, with discretion in the jury, Simeon Walters would not have been executed. In 1910, Fred Gruber, too, was executed, the last person whose fate was decided by a jury which had no discretion where it did render a verdict of murder in the first degree. The jury’s verdict in Gruber’s case:

“We, the jury, duly empaneled and sworn to try the above entitled cause, for our verdict say:

“That we find the defendant, Fred Gruber, guilty of the crime of murder of the first degree as charged in the information.

T.J. McAndrew, Foreman.”

The judgment of the Court:

“that the said defendant, Fred Gruber, be taken hence to the County Jail of the County of Kootenai, State of Idaho, and from there forthwith conveyed and taken to the State Penitentiary of the State of Idaho, in the County of Ada, State of Idaho, and that on the 20th day of May, A.D. 1910, between the hours of eight o’clock in the forenoon and two o’clock in *389 the afternoon of said day, within the walls of the said State Penitentiary of the State of Idaho, the said defendant, Fred Gruber shall by the warden of the State Penitentiary of the State of Idaho, be hanged by the neck until he, the said Fred Gruber shall be dead, and may the Lord have mercy on your soul.”

The Gruber execution may have been unpopular. At any rate, the next legislature amended the statute to provide that the jury could decide between punishment by death or by life imprisonment. 1 The statute remained unchanged until after Fur-man, and it is helpful to note the manner in which the jury continued to administer its sentencing function as part and parcel of the defendant’s right to such determination.

Vicente Ramirez appears to be the first defendant convicted of first degree murder after the jury was given the alternative between a life sentence of death. In his case, in their own language the jurors fixed his penalty at execution. State v. Ramirez, 33 Idaho 803 , 199 P. 376 (1921). 2 The jury did not do so with his co-defendant whom they also convicted of first degree murder.

State v. Hoagland, reviewed in the majority’s survey, was tried in early 1923. The jury’s verdict:

“We, the jury, duly sworn and empanelled in the above entitled cause, find the defendant David L. Hoagland guilty of murder in the first degree, as charged in the information, and fix the penalty at death.

J.W. Pottenger, Foreman.”

In accordance therewith he was executed.

Other first degree murder verdicts after 1911 in cases cited in the majority’s review are, in inverse order, but in chronological order forward:

“We, the jury, duly impanelled and sworn to try the above entitled cause, for our verdict say that we find the defendant guilty of the crime of murder in the first degree, as charged in the information on file herein, and fix his punishment as imprisonment in the State prison for life.

J.A. Stoner, Foreman.”

State v. Redding [Reding], 52 Idaho 260 , 13 P.2d 253 (1932).

“We, the jury, empanelled in the above entitled cause, find the defendant, Douglas Van Vlack, guilty of murder in the first degree, as charged in the information, and fix his punishment at death.

W.S. McGowen, Foreman.”

State v. Van Vlack, 57 Idaho 316 , 65 P.2d 736 (1936).

“We, the Jury in the above entitled cause, find the defendant, Ralph Golden, guilty of murder of the first degree, and we decide that the punishment to be inflicted shall be imprisonment in the state prison for life.

Fay H. Rose, Foreman.”

State v. Golden, 67 Idaho 497 , 186 P.2d 485 (1947).

“We, the jury in the above entitled cause, find the defendant William Lawrence Owen guilty of murder of the first degree. We decide that the punishment to be inflicted shall be death.

D.L. BUSH, Foreman.”

State v. Owen, 73 Idaho 394 , 253 P.2d [203] 394 (1953).

“We, the jury in the above entitled action, find the defendant Robert Clokey GUILTY OF MURDER OF THE FIRST DEGREE, as charged in the Information, and recommend as punishment therefor the DEATH PENALTY.

Chet Moulton, Foreman.”

*390 State v. Clokey, 83 Idaho 322 , 364 P.2d 159 (1961).

“WE, THE JURY, duly impaneled in the above-entitled action, find the defendant Guilty of Murder of the First Degree, and fix the punishment as imprisonment in the State Prison for life.

JAMES F. CAREY, Foreman.”

State v. Gonzales, 92 Idaho 152 , 438 P.2d 897 (1968).

“We, the Jury in the above entitled case, find the defendant guilty of Murder in the First Degree as charged in the Information.

“We further find that the defendant shall be punished by imprisonment in the Idaho State Penitentiary for life.

James W. Buckley”

State v. Foley, 95 Idaho 222 , 506 P.2d 119 (1973).

State v. Foley, involving a pre-Furman crime, appears to have been the last murder case where the jury had the discretion to decide between life imprisonment or death. Furman then intervened, following which the legislature returned to the law as it was prior to 1911 — a mandatory death penalty upon conviction of first degree murder. As pointed out in the majority opinion, some death sentences were imposed, but were set aside upon the authority of Woodson v. North Carolina, 428 U.S. 280 [ 96 S.Ct. 2978 , 49 L.Ed.2d 944 ] (1976). The legislature responded by returning to the law as it was following the 1911 amendment. The penalty was set at either death, or, imprisonment for life. I.C. § 18N004 as amended by Ch. 154, § 3, Sess. Laws 1977. The legislature, however, was unmindful of the constitutional right to a jury determination, and passed the Act as presented to it by the attorney general. 3

Since the passage of the 1977 Act the Court has received eight appeals from imposed death sentences. The case now before us is the second. The first was State v. Osborn, 102 Idaho 405 , 631 P.2d 18 (1981), wherein Osborn’s judge-imposed sentence, as per the 1977 Act, was reversed and the cause remanded for resentencing in accordance with the views expressed in the Court’s opinion- — an opinion which I did not join. The district court, the Honorable Arthur P. Oliver, flatly refused to again consider the imposition of a death penalty, for reasons which I shall shortly lay out and discuss. The attorney general acquiesced in the district court’s refusal by not challenging it, and in that first application of the 1977 Death Penalty Act, precedent has been set which strongly suggests the desirability of the pre-Furman statute which placed the death or life determination upon the shoulders of twelve jurors.

Osborn, after initially pleading not guilty, moved the trial court to withdraw that plea, and enter a plea of guilty to first degree murder. His attorney did not at any time, either in the trial court or on the appeal, express any thought that Osborn was constitutionally entitled to a jury determination as to his guilt, and, if guilty, then as to his fate. Hence there was no consideration of that issue in the Osborn opinions. The right to jury involvement at sentencing has been raised for the first time in this case, and even as I pen my views, counsel for Mr. Creech has filed in this Court a motion for an order vacating the sentence and judg *391 ment herein, and at the same time moving this Court to allow him to withdraw his guilty plea. 4

Concluding my views on the constitutionality of the present statutory scheme under which Mr. Creech was sentenced to death without proper regard for the Idaho Constitution which declares in Article I, Declaration of Rights, that “The right to trial by jury shall remain inviolate, ...” § 7 (the major portion of which deals with criminal actions), I pause to say that I, as one person, and most likely Mr. Creech and his counsel as others interested, would be grateful in the extreme were the majority to, in their opinion, explain the error they find in Justice Huntley’s proposition that:

“The provisions of the constitution pertaining to the right to trial by jury are construed to apply as it existed at the date of the adoption of the constitution.”

Justice Huntley did not create and then advocate the proposition, but rather simply stated it as a well-entrenched principle in our Idaho jurisprudence. To my understanding it is a general rule recognized in all jurisdictions.

If that were not enough persuasion to at least evoke a response from the majority, there is also the teaching of State v. Miles, 43 Idaho 46 , 248 P. 442 (1926) where a unanimous Court, a bare 36 years after statehood, stated:

“The rule is well established that the guaranty of right of trial by jury secures that right as it existed under the common law and territorial statutes in force at the date of the adoption of our Constitution.” 43 Idaho at 49 , 248 P. at 442 (citations mooted).

The proposition involved had been earlier examined in an opinion by Justice Ailshie, regarded by many as Idaho’s foremost Justice, in a case wherein it was contended by the attorney general that the Board of Pardons, as established in the 1899 Constitution, could “impose any conditions whatever upon the granting of a parole.” Art. 4, § 7 (since amended). In passing on the question presented, the Court observed the delineations of governmental power;

“There can be no doubt but that, under the Constitution and statute as above cited, the board of pardons may, upon the granting of a pardon, commutation or parole, attach such conditions as they see fit, so long as they are not immoral, illegal or impossible of performance, provided they are to be kept and performed or complied with during the term for which the prisoner was sentenced by the judgment of the court. Under our Constitution it is the duty and prerogative of the legislative department to define crimes and fix the maximum and minimum penalty that may be imposed for the commission thereof. It is the duty of the judicial department to try offenders against those laws, and, upon conviction, to sentence them under the statute. Under the laws of this state, there is no such thing as an indefinite or indeterminate sentence as is provided for in many of the states from which authorities have been cited by the Attorney General. In this state the sentence and judgment of the court must be specific, certain, and definite. The board of pardons belongs to the executive department of the state, and its privilege and prerogative is that of granting clemency. It is a board of clemency, rather than a punitive body. Instead of pronouncing judgment and sentence, and imposing punishment, its prerogative and authority is that of forgiving offenses and remitting penalties, wiping out judgments and sentences of conviction either in whole or in part.” (Emphasis added.) In re Prout, 12 Idaho 494, 498-99 , 86 P. 275, 276 (1906).

In the interim between Prout (1906) and Miles (1926), there was yet another ease, In re Dawson, 20 Idaho [178] 180, 117 P. 696 (1911), wherein our predecessors on this *392 Court again paused to dwell upon our criminal justice system and the function of a jury under the Idaho Constitution. It was not a capital case, but a felony charge of larceny, to which the defendant pleaded guilty five days after he was charged, whereupon he was sentenced to the penitentiary — wherefrom by habeas corpus petition he sought his release on two grounds, one of which was that the right to jury trial provision found in the Idaho Constitution precluded the court’s jurisdiction to commit him to the penitentiary on a guilty plea. In passing upon that contention, the Court made these observations:

“The language used in sec. 7 of article 1 of the Constitution was no doubt intended to preserve to the citizens of the state the right of trial by jury as it existed under the common law, and such right is retained in all cases which were triable by jury at common law .... ‘[Wjherever a right to this trial is guaranteed by the Constitution without qualification or restriction, it must be understood as retained in all those cases which are triable by jury at common law, and with all the common-law incidents to a jury trial so far at least as they can be regarded as tending to the protection of the accused.’ ”

Id. at 182, 117 P. at 697 (quoting Cooley, Constitutional Limitations, 7th ed., p. 453) (emphasis added).

The Court in Dawson further elaborated that:

“[T]he right of every one to have his cause tried or to be tried himself if accused of crime by a jury is guaranteed and established beyond the power of the Legislature to abridge it.... ‘The trial by jury, secured to the subject by the Constitution, is a trial according to the course of the common law, and the same, in substance, as that which was in use when the Constitution was formed.’ ”

Id. at 184, 117 P. at 698 (quoting East Kingston v. Towle, 48 N.H. [57] 64) (emphasis added).

It is clear, then, that the right to trial by jury must be examined in light of the practices at common law and the statutes of Idaho when our constitution was adopted and approved by the citizens of Idaho. In territorial Idaho and in statehood until 1911, as at common law, the uniform practice was to make death the exclusive and mandatory sentence for certain specified offenses. Woodson v. North Carolina, [ 428 U.S. 280 ], 96 S.Ct. 2978, 2983 [ 49 L.Ed.2d 944 ] (1976) (citing H. Bedau, The Death Penalty in America, 5-6, 15, 27-28 (rev. ed. 1967)). A jury in the Territory of Idaho by convicting a person of first degree murder therefore also determined the punishment to be imposed — death. The judge’s role was merely to pronounce the judgment, a matter in which he had no discretion. Such was the statutory law since 1864, and even with some non-capital cases, the legislature placed “a duty upon the court ... to impose the punishment prescribed.” R.S. 1877, § 6306 — now I.C. § 18-106. (See In re Erickson, 44 Idaho 713 , 260 P. 160 (1927).) Idaho followed the common-law practice of giving the jury the role of sentencer in capital cases — the jury being statutorily given the exclusive power to determine when the death penalty would be imposed. As has been seen, Section 17 of the Idaho Criminal Practice Act of 1864, set forth in Justice Huntley’s dissent, provided that:

“[T]he jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree; ... Every person convicted of murder of the first degree, shall suffer death; and every person convicted of murder in the second degree, shall suffer imprisonment in the territorial prison for a term not less than ten years, and which may be extended to life.” (Emphasis added.)

In 1887, a mere three years before the Idaho Constitution was adopted and approved, the Idaho Revised Statutes provided that:

“Sec. 6563. Every person guilty of murder in the first degree shall suffer death, and every person guilty of murder in the second degree is punishable by *393 imprisonment in the Territorial prison not less than ten years, and the imprisonment may extend to life.”

Idaho Revised Statutes, Title VII, ch. 1, § 6563 (emphasis added).

At that same time the trial jury’s function was set out thus:

“Sec. 3938. A trial jury ... is a body of men ... sworn to try and determine by a unanimous verdict a question of fact.”

Idaho Revised Statutes, Title VII, ch. 1, § 3938. (Emphasis added.)

It was a question of fact whether a person was guilty of murder in the first or the second degree. This determination could only be made by a jury and it could only be made by a unanimous jury. Since the time the Territory was created, it took a unanimous vote of twelve jurors to determine that a person was to die.

The 1887 Revised Statutes of the Territory specifically distinguished between those cases in which the judge could exercise his discretion in meting out punishment and those in which the punishment was determined by the jury as a result of its verdict of guilty for a specified crime. 5 See R.S. 1877, §§ 6306, 6307 (now I.C. §§ 18-106, 18-107. R.S. 6307 was amplified by R.S. 7992.)

“Sec. 7992. After a plea or verdict of guilty, where a discretion is conferred upon the court, as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.” (Emphasis added.)

Now I.C. § 19-2515 (amended in 1977.)

The common-law practice of England, and the practice codified in 1864 and 1887, of requiring jurors to determine whether a sufficient crime was committed to warrant the imposition of the death penalty, was preserved by the Idaho Constitution, art. 1 § 7 and also by art. 21, § 2, as readily confirmed by reading the Proceedings of the Idaho Constitutional Convention.

The Proceedings of the Constitutional Convention revolving around art. 1 § 7 shed further insight as to the intent of the framers, leaving no doubt as to the verity of the above statements of the Court in Miles, Prout, and Dawson . It was proposed by Mr. Claggett that a verdict could be rendered by a majority of % of the jurors “in all criminal actions except where the death penalty is imposed by law.” Idaho Constitutional Convention Proceedings and Debates, p. 151. The framers rejected his proposal and ultimately adopted the provision now in force which allows for less than unanimous verdicts only in non-felony cases.

In reviewing their recorded considerations of that issue, we are fortunate today to have irrefutable evidence that those public leaders, of whom nearly one-half were practicing lawyers (Vol. I, Idaho Constitutional Convention, p. 160), were acutely aware that § 7 of Article I would guarantee forever that the legislature could not impinge upon the right of an accused to have a jury of his fellow men make the death penalty decision. Mr. Heyburn said it with an eloquence befitting a Thomas Jefferson or a James Madison:

“Mr. Chairman, I cannot agree with the gentleman in regard to the wisdom of changing entirely the system that is as old as government itself, that no man shall be deprived of his rights, of his liberty or his life, except by a unanimous verdict of a jury of his fellow citizens who have no interest other than to see that justice is done him. This principle has been deemed so important that at one time the demand that man should be protected by right of trial by jury revolutionized the civilized world.... It is the strong arm of the law that stands between the weak and the strong, between *394 rich and poor, between oppressed and oppressor .... [I]t is still not necessary for us to say that less than a unanimous verdict shall deprive any man of either his liberty or his personal rights. We cannot afford in the interest of economy nor in the interest of speedy justice — or of speedy trial, more properly speaking— to lessen by one hair’s breadth the safeguard, the insurance every man has that his property or his rights will not be taken away from him, unless it is clear, beyond a reasonable doubt that they do not belong to him, and that that reasonable doubt is to be determined by a unanimous verdict.”

Id. at 152-53 (emphasis added).

Although Mr. Claggett, the sponsor of the proposed 5/6 majority rule proposal contended that the requirement of unanimous verdicts in criminal cases paralyzed the law enforcement power of the state, even he recognized that capital cases are unique:

“MR. CLAGGETT.... We all know the defendant has every benefit from reasonable doubt. We all know he has a double advantage in impaneling the jury. We all know that when there has once been a verdict of acquittal he cannot be called in question again, no matter how wrong the verdict may be. And we all know in addition that the court has power to suspend judgment on the verdict after conviction, in order that application may be made to the governor for pardon in any case which may arise now and then, where the conviction is wrong, or where, if not wrong, the punishment is too severe, so that there is ample opportunity given before the execution of the judgment of the court for a review of the case by the governor or board of pardons. Now I ask whether all these things taken together, one and all, do not constitute too much advantage on the part of the defendant, and whether the strong arm of the state, which is stretched out and whose function is to protect the people, is not paralyzed by this system of a unanimous verdict.

“Mr. BATTEN. I will ask you, why make an exception in capital cases?

“Mr. CLAGGETT. Out of mere tenderness to human life, and because if the death penalty is once inflicted you can never rectify the error, but on the question of imprisonment you have the entire term of his imprisonment to correct it.”

Id. at 251 (emphasis added).

“Mr. AINSLIE ... I say it is legitimate in civil proceedings that a jury of three-fourths should find a verdict. I believe it will facilitate litigation and dispatch many suits a great deal quicker than by having a unanimous verdict. But when we come to the life and liberty of the citizen, whether it means imprisonment in the county jail or ninety and nine years in the penitentiary, I say we should pause and be governed to a large extent by the experience of those who have gone before us.... [A]nd you will find that they have never yet undertaken to advocate the doctrine that five-sixths of a jury should find a verdict in a criminal case. Therefore I oppose the motion made by the gentleman from Shoshone, and I hope this body will not adopt it.” Id. at 258.

Clearly the right, indeed the safeguard, to have a jury of fellow citizens make the decision of death was foremost in the minds of the framers when they assembled in the year 1899 and drafted the Constitution of Idaho which was accepted by the people and the Union.

From 1864 until 1977 imposition of the death penalty in Idaho has not been a function of trial judges. During that period of time the legislature set the penalty and the judge merely pronounced judgment accordingly. If the jury returned a verdict of guilty of first degree murder, the judge was under a duty to pronounce a judgment that the defendant suffer the death penalty. This is exemplified nicely in People v. Walters, supra, where the Territorial judgment on the verdict of guilty of first degree murder stated “The Judgment of this court and the sentence of the law is ...” Nor was there any room for discretion in the *395 court. Although the Revised Statutes of 1877 § 639 provided for an aggravation-mitigation hearing, it had no applicability where the verdict in a first degree murder case was guilty of first degree murder. Obviously that procedure would not have withstood scrutiny under decisions of the United States Supreme Court which were handed down in 1972 and 1977.

A forerunner in many areas of criminal law, in 1911 the legislature did give the jury some leeway in capital sentencing, and from that time on until the legislature acted again in 1972, the jury, as a component part of the court (see State v. Ramirez, 34 Idaho 623 , 203 P. 279 (1921),

“the jury, in a case triable by a jury, is as much a part of the court as the judge. Each has certain legal duties and functions, and the combined action of the jury and the judge makes up and merges in the final judgment. The action of the jury in imposing the death penalty merged in the judgment and became a part of the decision of the court.” (Emphasis added.)

34 Idaho at 634 , 203 P. at 283 .

became vested with the same discretion that judges had in non-capital cases where the legislature had not set a mandatory penalty. So, and as has been now well pointed out, from and after 1911 the jury, upon convicting a defendant of first degree murder would decide between imposing a sentence of death or a sentence of life imprisonment. Done away with, at that early time, then, was the mandatory death sentence which would over fifty years later in the seventh decade of the twentieth century be held offensive as violative of the Constitution of the United States.

Becoming then applicable were those provisions enacted in 1877 and now codified as I.C. § 19-2515(a), which, prior to 1977 read exactly as it had read for 110 years, and provided for the presentation of evidence on circumstances both mitigation or aggravation of the punishment. In this manner the Idaho procedure governing the death penalty had all of the requisite features which the Supreme Court of the United States would later require — other than, perhaps guidelines.

But even there, although the legislature did nothing toward providing criteria for the juries to consider in deciding between life sentences and death sentences, the courts of Idaho were not remiss.

Time constraints in meeting the rules of this Court for issuing opinions — with death penalty cases in no way distinguished from run-of-the-mill monetary judgments in small claims court — prevent an exhaustive review, but suffice it to say that my personal knowledge is that trial judges in Idaho have properly instructed the jury. An example which is preserved in our Idaho Reports by reason of a challenge to such instructions is State v. Clokey, supra. The trial court instructed the jury that certain evidence had been admitted “not for the purpose of establishing or tending to establish the guilt or innocence of this defendant ... but is relevant and may be considered by you only as it may assist you in arriving at the punishment to be inflicted upon the defendant should you find him guilty of murder in the first degree.” The Court used the opportunity of Clokey to remind the trial bench and bar that in such cases, where there is exercisable discretion in sentencing, evidence should be admitted in mitigation and aggravation — solely going to the determination of punishment:

“The first paragraph of said instruction informs the jury that in the event they find the defendant guilty of murder of the first degree they may then determine whether the penalty to be imposed shall be death or confinement in the state penitentiary for life. Such instruction is in conformity with I.C. § 18 — 4004. Said instruction then calls attention to the evidence which was adduced during the trial regarding the background and history of the defendant and his experiences and behavior in matters not related to the alleged crime for which he was being tried.

“In this connection evidence was introduced by and on behalf of appellant *396 showing appellant’s place and date of birth; that his father died when he was between five and seven years old; that he was mistreated when a boy at home; that in 1929 he was found guilty of first degree robbery and as punishment therefor served three years and seven months in San Quentin prison; during the years that followed he worked at four or five different trades or occupations; that he suffered a serious accidental injury while working in the mines; that he had been convicted of reckless driving and drunken driving during the past two years and that he had a hit and run charge pending at the time of this trial; that his son became involved in trouble and was committed in the Industrial Training School at St. Anthony, Idaho; that after the son returned to the home appellant and his son got into a fight, shortly after which his wife, Betty Clokey, obtained a divorce.

“Such evidence is unrelated to the crime here charged and it is such evidence of biographical facts that the court refers to in said instruction No. 16. It is evidence regarding the background and history, the experiences and behavior of appellant which the jury may consider only as it may assist them in arriving at the punishment in the event the jury finds defendant guilty of murder of the first degree.

“One of the reasons for permitting the introduction of evidence of biographical facts where such facts are unrelated to the offense charged is that the law recognizes that previous good or bad conduct should be considered in fixing punishment for crime. Our statute provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment as follows:

“ ‘After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.’ I.C. § 19-2515.

“I.C. § 19-2516 requires that the hearing be had in open court.

“This Court has considered the language used in I.C. § 19-2515 and has stated that:

“ ‘It may be open to debate as to whether the “circumstances” mentioned in § 19-2515,1.C., refer particularly to circumstances surrounding the commission of the crime and tending to aggravate or mitigate the character of the conduct involved, or whether such circumstances include also the convict, himself, as an individual, which would include his background, his age, upbringing and environment or any other matter appropriate to a determination of the degree of culpability. We think that the statute should be given the broader interpretation, particularly in a capital case. James v. State, 53 Ariz. 42 , 84 P.2d 1081 .’ State v. Owen, 73 Idaho 394 , 253 P.2d 203, 207 .

“This Court has also determined that in cases where the jury may fix the punishment it should have opportunity, under proper instructions, to consider circumstances in aggravation or mitigation of the punishment.

In State v. Owens, supra, this Court said:

“ ‘It, therefore, appears that the law contemplates that in fixing the penalty, the court, when requested by either party, may and should hear and consider circumstances in aggravation or mitigation of the punishment. It logically follows that if it is proper for the court to hear and consider such evidence, the jury where it is called upon to fix the punishment, should have the opportunity to consider such proof, subject, of course, to a proper instruction limiting the jury’s con *397 sideration of such evidence to the determination of punishment, and cautioning that it is not to be considered in determining guilt or innocence, or be allowed to influence the determination of that question.’ ”

State v. Clokey, 83 Idaho at 327-28 , 364 P.2d at 162-63 .

In State v. Owen, supra, quoted in the above excerpt from Clokey , the trial court sustained the State’s objection to the defendant’s evidence offered “to show facts and circumstances of defendant’s age, upbringing and environment for the purpose of mitigating punishment.” 73 Idaho at 401 , 253 P.2d at 207 . The ruling of the trial court was held to be error, but on a four-one decision of this Court, a new trial was not ordered; instead, by a three-two split of the Court, which held that there had been a fair trial on the issue of guilt, the death penalty sentences of the jury were commuted to life imprisonment. 73 Idaho at 420-21 , 253 P.2d at 219-20 . The Owen court’s opinion should have made it clear to the trial bench and bar that charges of first degree murder would encompass, at the same time, a trial of the guilt issue and a trial of the punishment issue:

“However, the law does recognize that previous good or bad conduct should be considered in fixing the punishment for crime. Such is the underlying principle of the persistent violator statute. § 19-2514, I.C. The courts have long recognized that the first offender should be accorded more lenient treatment than the habitual criminal. In addition to considerations of humanity, justice and mercy, the object is to encourage and foster the rehabilitation of one who has for the first time fallen into error, and whose character for crime has not become fixed. State v. O’Dell, 71 Idaho 64 , 225 P.2d 1020 .

“Our statute also provides the court with discretionary power to consider circumstances in aggravation or mitigation of punishment, as follows:

“ ‘After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.’ § 19-2515, I.C.

“And § 19-2516,1.C., requires that the hearing be had in open court. It may be open to debate as to whether the ‘circumstances’ mentioned in § 19-2515, I.C., refer particularly to circumstances surrounding the commission of the crime and tending to aggravate or mitigate the character of the conduct involved, or whether such circumstances include also the convict, himself, as an individual, which would include his background, his age, upbringing and environment or any other matter appropriate to a determination of the degree of culpability. We think that the statute should be given the broader interpretation, particularly in a capital case. James v. State, 53 Ariz. 42 , 84 P.2d 1081 .

“It, therefore, appears that the law contemplates that in fixing the penalty, the court, when requested by either party, may and should hear and consider circumstances in aggravation or mitigation of the punishment. It logically follows that if it is proper for the court to hear and consider such evidence, the jury where it is called upon to fix the punishment, should have the opportunity to consider such proof, subject, of course, to a proper instruction limiting the jury’s consideration of such evidence to the determination of punishment, and cautioning that it is not to be considered in determining guilt or innocence, or be allowed to influence the determination of that question. The offer of proof in behalf of the defendant Owen is as follows:

“ ‘Mr. Doane: Comes now the defendant William Lawrence Owen and *398 offers to prove by the present witness that the defendant William Lawrence Owen was born in Tannover, California, on October 2, 1911, in a family consisting of his mother and father, one. sister and one twin brother; that his father’s occupation was that of a railroad foreman; that his nationality was Welsh and half-breed American Indian; that his mother was a full-blooded American Indian of the Wylacki tribe in northern California; that in the year 1917 when the defendant was of the age of six years his mother died; that the defendant had no real home life in the ordinary meaning of the term, and lived from time to time with his siter and other relatives; that he completed his formal schooling at the age of fourteen and thereupon proceeded to provide for himself, and his first major occupation was that of deck boy on a sailing vessel, upon which vessel he served for two and a half to three years; that since that experience at sea the defendant learned foundary moulding as his trade and has followed that trade ever since that time, and just prior to his coming to the State of Idaho, approximately two weeks before the date of September 7, 1951, was so engaged in his occupation.’

“The offer made by defendant Hastings consists of a lengthy recital of his military service in the United States Army commencing with his voluntary enlistment on July 9, 1940, and ending with his discharge in July, 1945. It contains a detailed statement of the different periods and places of service, engagements in which he or his unit participated, time, place and manner of wounds suffered and of decorations conferred, and also as to decorations and citations conferred upon the regiment, battalion and division in which he served. Except for his military record, he offered no evidence as to age, upbringing, and environment, which was not admitted. Such a detailed statement of ’ military exploits, engagements, wounds and medals, would have a natural tendency to prejudice the jury in the defendant’s favor, and the nature of the offer here would suggest that that was perhaps its purpose. However, we think a briefer statement of military service would be a proper part of a background sketch.

“It is the general practice, at least in important criminal trials, to permit any witness to testify briefly and generally as to his background, giving such facts as date and place of birth, family relationship and occupation, to better enable the jury to appraise the general character of the witness. Each of the defendants was a witness in his own behalf and should have been permitted to testify to such general biographical facts in his capacity as a witness, if for no other purpose. Owen was permitted to testify only to the date and place of his birth. Hastings was permitted to testify to the date of his birth, that in 1932 when he was ten years of age his father died, and that his mother had remarried. The court should have admitted the evidence offered by Owen and anything of a like character which Hastings may have desired to introduce. 70 C.J., Witnesses, § 919.

“However, since the offers, were expressly limited to mitigation of punishment, and since the question of guilt is free from doubt, and since the error can be expunged by a commutation of the sentence, we hold that it does not require reversal of the judgment.”

State v. Owen, 73 Idaho at 402-04 , 253 P.2d at 207-09 .

It is, then, abundantly clear that for at least thirty years, as documented by State v. Owen, supra, there was a sentencing scheme in Idaho that very nearly comported with the requirements the United States Supreme Court would in the 1970’s require as mandated by the United States Constitution. The death penalty was not mandatory, but left with the jury, upon hearing evidence in mitigation or aggravation, the *399 discretionary choice between inflicting the death penalty or life imprisonment. An element probably lacking was the requirement of a specific instruction to the juries of Idaho defining aggravating circumstances, the existence of one or more of which would justify and dictate the imposition of the death penalty and the requirement that the jury set out in writing the requisite aggravating factor(s) proven beyond a reasonable doubt — in which respect, other than for a bifurcation of trials with the second stage to follow and hinge upon there being in the first stage a conviction of first degree murder, the Idaho procedure was much like that in Missouri, as outlined in Bullington v. Missouri, 451 U.S. 430 [ 101 S.Ct. 1852 , 68 L.Ed.2d 270 ] (1981).

When, in 1973, the legislature (apparently acting at the behest of Idaho’s attorney general, as was for certain the situation in 1977) returned to the mandatory death sentence, although the jury was indeed the sentencer even as it was prior to the 1911 amendment which allowed for the exercise of discretion, a step was taken in the wrong direction insofar as was concerned the mandate of the Supreme Court of the United States. Then, when the legislature passed the sweeping provisions of the 1977 Act, although it came close to meeting the requirements of Woodson , it misperceived Woodson’s content to the extent that it believed itself behooved to abolish the jury function (as evidenced by the Statement of Purpose set out in the opinion of Justice Huntley) which is mandated by our Idaho Constitution, guaranteeing that the right to trial shall remain inviolate.

Had the majority of the Court engaged in any meaningful review of the history of death sentencing in Idaho, “at other times,” while it would be hard pressed to affirmatively show that until Furman the jury in Idaho was not in fact the sentencer in nearly all capital cases, it could point to State v. Arnold, 39 Idaho 589 , 229 P. 748 (1924), as authority for a judge to substitute himself as the court sentencer in place of the jury when a defendant enters a plea of guilty to a charge of first degree murder. Arnold had the misfortune to be the first person in Idaho to ever enter a plea of guilty to first degree murder, and, although it doesn’t appear in the Court’s four-to-one opinion, Arnold also had the misfortune to be a black man charged with first degree murder. Arnold’s case recently came under study by a class of approximately fifty law students, most of them in their third year, at the same time they were reviewing another more famous case of that era, namely Powell v. Alabama, 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932). Every person in that class was of the opinion that Arnold was not only wrongly decided, but a tragedy in the history of Idaho jurisprudence — not on any thought that Arnold wasn’t guilty, but on the misfeasance of the criminal justice system. The main point of concern with Arnold is that, being an indigent for whom counsel was appointed, and fearing to place his life in the hands of a jury who would decide his fate if he went to trial on the issue of guilt or innocence, which was upon the advice of counsel that only a jury could sentence him to death under Idaho law, he pleaded guilty and was by the judge sentenced to death four days later. The facts and circumstances, succinctly laid out in the dissenting opinion of Justice William A. Lee, are:

“The affidavit of appellant, which is not controverted as to the principal facts, states that following his arrest and prior to his arraignment and plea he was taken by the sheriff from the jail where he was being held awaiting trial, into the country and was seized by a mob, blindfolded and hanged, after which he was let down and required by the mob to give information about the commission of the alleged crime and the whereabouts of his alleged accomplice, in the nature of a confession of guilt; that when he was brought before the trial court and stated that he was without means with which to employ counsel to represent him the court appointed counsel to do so, and such counsel *400 advised him that public sentiment in the community was so high against him that if he entered a plea of not guilty and stood trial he would more than likely be given the death penalty, but that if he entered a plea of guilty the judge would not have authority to impose the death penalty upon him; and that when he entered a plea of guilty the judge did ask him if he realized that the death sentence might be pronounced against him on such plea and that he was so frightened he did not answer but relied upon the advice of counsel which the state had furnished him, and believed that the confession which the mob had extorted from him could be used if he stood trial, and so allowed the plea of guilty to stand, but that had he believed the judge had authority to sentence him to death upon his plea of guilty he would not have entered such plea.

“The plea of guilty was entered on the 11th of September, 1923, and the judgment of the court that appellant should suffer the death penalty was entered on the 15th of September thereafter. Upon securing additional counsel appellant, on October 8,1923, moved that the judgment be vacated and that he be permitted to withdraw his plea of guilty and enter a plea of not guilty, which motion was denied.” State v. Arnold, 39 Idaho [589] 604, 605 [ 229 P. 748 ] (1924), Lee, Justice, dissenting.

State v. Arnold, 39 Idaho at 604-05 , 229 P. at 753 .

The four member majority, not only upheld the trial judge’s ruling that he could impose the sentence upon a plea of guilty to first degree murder, but also upheld the ruling below that Arnold , whose plight had attracted the attention of illustrious counsel of experience 6 (the appointed attorney who had pleaded Arnold guilty had been admitted to the bar just a month or so before— another travesty) was not entitled to withdraw his guilty plea and enter a plea of not guilty. Regarding the latter use the Court was content to assume that the lower court “In denying the motion . . . evidently concluded that, upon the showing made, it did not appear that the appellant had entered a plea of guilty in ignorance of his rights, or because he had been misled by erroneous advice of counsel.” 39 Idaho at 603 , 229 P. at 752 .

As to the authority of the judge to impose the death sentence, concerning which issue there was no precedent in Idaho, this appearing to be the first such case where an accused pleaded guilty to murder in the first degree, 39 Idaho at 594 , 229 P. at 749 , the Court relied upon two propositions which were said to uphold the validity of a judge-imposed death sentence:

(1) It being the duty of the court to pronounce judgment, where there is a guilty plea to first degree murder, “the court must do so.” 39 Idaho at 597 [ 229 P. 748 ], citing State v. Ramirez, 34 Idaho [623, 203 P. 279 ], supra, and State v. Hoagland, [39] 34 Idaho [405, 228 P. 314 ], supra, mentioning also two cases from California.

(2) The requirement of § 9024, Compiled Statutes, which provided that “Upon a plea of guilty of a crime distinguished or divided into degrees, the court must before passing sentence, determine the degree.” 39 Idaho at 595, 229 P. at 750 .

The second ground was absolutely untenable. In two places the Arnold majority recognized that Arnold had pleaded guilty to murder in the first degree. So long as that plea was allowed to stand, the degree of the crime had already been determined.

The first ground is likewise on unsound footing. Following Arnold the Idaho cases *401 are replete with expressions recognizing that the jury must on a first degree murder conviction impose one of two available sentences, imposition of a life term or imposition of death. The word “may” as used in Compiled Statutes 8212, which prior to 1973 continued to read the same, I.C. § 18-4004, other than for Arnold’s case, has always been understood to mean that instead of an automatic death judgment on conviction of first degree murder, following the 1911 amendment, the jury while it may still give the death penalty, may also instead give a term of life imprisonment. Hence, entirely without legal foundation was the Arnold Court’s statement that “The only effect of Compiled Statute § 8212, is that, where there is a jury trial on a plea of not guilty, the jury may decide which punishment shall be inflicted. Even in such ease, if the jury does not decide the penalty, the court must do so.” Such statements were clearly made in contravention of the Idaho Constitution which in murder cases, to the exclusion of all other crimes where the death penalty is not a possibility, leaves death sentencing for a jury determination. Reliance on State v. Hoagland, supra, and State v. Ramirez, supra, was wholly misplaced. Both were first degree murder informations which were tried to a jury, and in both instances, as was constitutionally required, the respective juries imposed the sentences of death. In Hoagland , which was decided just 28 days before Arnold , there were some issues of magnitude, but no discernible issue as to the right of a defendant to have a sentence of death imposed upon him by a jury, and only a jury. The Hoagland Court’s total discussion of Compiled Statute § 8212 is this:

“Appellant suggests that the jury fixes the punishment. Under the provisions of C.S., sec. 8212, it might be observed that this section provides that the jury may decide the punishment to be inflicted, whether death or life imprisonment. If the jury fails to fix the punishment that duty then devolves upon the court. The fixing of the punishment by the jury at death was not shown to be the result of any bias or prejudice on the part of any juror and their voir dire examination fails to disclose any objection to their proper qualifications in this respect.”

State v. Hoagland, 39 Idaho at 420, 228 P. at 319 .

Exactly what this passage had to do with Hoagland’s appeal is not at all understood. “Appellant suggests that the jury fixes the punishment.” Such is not and does not purport to be an assignment of error. And, the jury did fix the punishment. Anything found in that entire paragraph is ostensibly pure dictum, and, one might surmise in view of the two cases being under consideration at the same time, with Arnold’s opinion falling shortly upon the heels of the opinion in Hoagland’s case, perhaps a gratuitous statement in Hoagland to be used as bootstrapping for an untenable position the Court was taking in Arnold . I see no other reason whatever for the paragraph in Hoagland . It never was the law, and it never became the law. But in Arnold it was claimed to be the law, to the great detriment of Noah Arnold. It is my understanding that in those days the Court prepared its own headnotes. Something is to be said for the fact that, in headnoting an opinion with fourteen headnotes, the above excerpted paragraph from page 420 [ 228 P. 314 ] was given no mention whatever. Nor does that curious statement ever appear to have been ever relied upon other than in State v. Arnold.

In State v. Ramirez, 33 Idaho 803 [ 199 P. 376 ], supra, the only issue involving Compiled Statute § 8212 revolved around an appeal contention that the death penalty judgment could not be carried out because the jury had returned a verdict fixing the punishment at execution, which the Court disposed of by saying that “The verdict of the jury, however, was not uncertain.”

The Court in Arnold, supra, was guilty of improperly relying upon Hoagland and Ramirez, and rendered a decision contrary to *402 the mandate of Art. 1 § 7 of our Idaho Constitution. Better it should have heeded the words of Justice William A. Lee who wrote:

“The right of those accused of crime to a jury trial extends to the guilty as well as to the innocent, and in some jurisdictions human life cannot be taken by sanction of law without the verdict of a jury. In states not having such a provision I think the instances are comparatively rare where upon a plea of guilty the death penalty has been inflicted. It was recently stated upon credible authority that in one of the older jurisdictions, in more than 300 pleas of guilty of murder entered, only one person was executed upon such a plea, indicating the reluctance of courts to impose the death penalty except upon the verdict of guilty by a jury.

“An application to withdraw a plea of guilty in a capital case should be allowed where such application is made soon after the entry of the plea, and where it further appears that a confession of guilt was obtained by unlawful means and the plea of guilty has been made in the belief that such confession would be used against the accused if he stood trial, and all the other facts and circumstances were such as to induce a plea of guilty that might not otherwise have been made. This is more nearly in harmony with the humane policy of the law that human life will not be taken for the commission of crime unless all the usual and ordinary safeguards with which the law surrounds an accused person have been scrupulously complied with.

“The United States supreme court, speaking through Mr. Justice Harlan, in Hopt v. Utah, 110 U.S. 574 , 4 Sup.Ct. 202 , 28 L.Ed. 262 , said: ‘The natural life, says Blackstone, ‘cannot legally be disposed of or destroyed by any individual neitherby the person himself nor by any other of his fellow creatures, merely upon their own authority.’ 1 Bl. Com. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused; much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation of atonement of the offense committed, but the prevention of future offenses of the same kind. 4 Bl. Com. 11.’

“I am also of the opinion that the information in this case is fatally defective in that it does not comply with C.S., sec. 8827, and fails to be direct and certain as to the offense charged. Appellant’s counsel say they are unable to find any authority or precedent that sustains the sufficiency of this information, and I think none can be found. It is beside the question to say that because appellant understands he is being charged with murder the information is therefore sufficient within the requirements of the law. He understood the nature of the charge when he was being hanged by the mob, but that did not obviate the necessity of filing a formal charge as required by law, in the trial court. The information itself is a sufficient and conclusive answer to the claim that this has been done.

“Entirely aside from any question as to the guilt of this appellant there should be no appearance of the courts approving or countenancing in any degree some of the proceedings resorted to by which this plea of guilty was probably obtained. I think a refusal to allow its withdrawal may be reasonably construed as a condonation of such unlawful acts. The language of the supreme court of Nebraska, in Reynolds v. State, 58 Neb. 49 , 78 N.W. 483 , seems to me peculiarly appropriate to the situation here, wherein it is said:

“ ‘It has been suggested, and is doubtless true, that in this case “outraged jus *403 tice has laid her avenging lash on the back of one who honestly deserves the scourge,” but we cannot for that reason alone affirm the judgment. The jurisdiction of the courts is not co-ordinate with that of the mob.’ ” (Emphasis added.)

State v. Arnold, 39 Idaho 605 -607, 229 P. 753 -54.

Thirty years later, and now thirty years ago, Justice Keeton wrote simply but with equal eloquence, and with a firmness of mind, that the accuseds in Idaho must have all of their rights if the criminal justice system as envisioned by the founders of the federal and state constitutions is to survive:

“The real question presented is whether or not the guilt of the appellants has been established in the manner and by the procedure provided by law, long recognized and established, and based on experience and sound reasoning.

“We should never lose sight of the fact that the guilt or innocence of appellants and the degree of crime are questions in the first instance to be determined by the jury. Our inquiry concerns the method, means and procedure by which the guilt was established and punishment imposed.

“If the appellants were convicted, or might have been convicted, and the death penalty imposed, because of errors in the proceedings taken against them, then it must be apparent to all that every other person similarly situated and placed on trial would be in exactly the same position; and the rules of law and procedure adhered to here must, of necessity, be applicable to all other persons.

“Under our rules of law and procedure, well recognized and established, before a person’s liberty or life can be taken, it is necessary that he first be tried in a court of competent jurisdiction, before an impartial jury. When such a jury is impaneled, it is the exclusive judge of the facts — and in this particular proceeding, may, if it sees fit, determine the punishment to be imposed.

“Trial means a fair trial; that is, the accused’s legal rights, during the proceedings had, must be safeguarded and respected, not alone in the observance of the naked forms of law, but in the recognition and just application of the principles applicable to the case. Until such time as an accused has been so tried and found guilty, he cannot be legally convicted.

“It is far more important for society to accord a defendant in a criminal action a fair trial than he forfeit his life in expiation of the crime.

“The rules of law and procedure which. apply to the appellants are, and should be, measured by the same yardstick and exactly the same standards as apply to all other persons; and in determining the appellants’ rights, we necessarily measure and determine the rights of all others who might be similarly situated. A fair trial for those accused of crime protects the liberties of all.

“If a person in a civil matter is wrongly deprived of his property, or a person in a criminal proceedings wrongly convicted of a less serious crime, it might be possible in some way to partially rectify the wrong done. Were the sentence imposed in this proceeding executed, regardless of how wrong it might be, no rectification could ever be made. It is impossible to call back the dead.”

State v. Owen, 73 Idaho at 425-430 , 253 P.2d at 223-26 .

I have always been and remain impressed by the views of Justice Lee and Justice Keeton. There is far more at stake today than the life of Thomas Creech. Although the majority today can in apparent conscience restrict their review of the history of death penalty in Idaho by the casual observation that “At other places or at other times juries have been given an integral *404 role in imposing the death sentence,” I submit that the views of Justice Huntley, meaning his own and those which he adopts as his own in the appendix to his opinion, make it abundantly clear that, historically since the time when the thirteen colonies broke free of English rule and English judges, and thereafter drafted the Constitution which has been the backbone of justice in these United States, the American people have by far and large for the most part restricted death sentencing to a jury of the accused’s peers.

It is equally clear and beyond refute that Justice Huntley is entirely correct in his assertion that the Constitution of the State of Idaho now requires and forever has required that it be twelve jurors and not a single judge who will in Idaho impose the sentence of death.

H.

UNCONSTITUTIONALITY OF THE 1977 ACT AS BEING APPLIED

The Court’s opinion delivered today, authored by Justice Shepard, and which commands a bare majority of the Court’s membership is reminiscent of his views which were set forth in his dissenting opinion in State v. Lindquist, 99 Idaho 766 , 589 P.2d 101 (1979) wherein, in declaring his view to affirm a death sentence, he concluded:

“With all deference and respect to our brethern on the Bench of the United States Supreme Court, I regret that I can neither understand what they have said as a court, where they now stand as a court or where they may be going in this important area of the law involving capital cases and the death penalty. I may well be wrong in my interpretation of what they have said and what they will do. I believe it is equally possible that today’s majority may be in error in their understanding. I am sure the sentencing judge here suffered an agony of the spirit much greater than that of Mr. Justice Blackmun. This Judge had need to face the human rather than decide in the sanctity and solitude of his chambers while considering an abstract principle. The trial judge shouldered his heavy burden and I think this Court should affirm his decision, leaving to the United States Supreme Court, if they so desire, the option of deciding the fate of Phillip Lewis Lindquist.” 99 Idaho at 775 [ 589 P.2d 101 ].

Although the Lindquist majority opinion authored by Justice Bakes readily recognized as a matter of law that Idaho’s then existing death penalty statutes were invalid in light of “ Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976) which held unconstitutional a North Carolina mandatory death penalty statute virtually identical to the Idaho statute...” 99 Idaho at 768 , 589 P.2d at 110 , the Lindquist dissent set forth in detail the facts of Lindquist’s crime. Those facts were then, and remain, unpalatable, but cannot affect the obligation of an Idaho court to adhere to the Constitution of the United States and apply its precepts as the Supreme Court of the United States interprets and applies that Constitution. Admittedly, to have joined the Lindquist and Creech 7 execution bandwagons would have met with large spread public favor. Today, four years after Creech and Lindquist , that same Creech is again before the Court on review of the imposition of a death sentence. Once again a popular decision would be to affirm that death sentence. Of this there can be no doubt. Even before sentence was imposed upon Creech by the district court, the Boise Statesman, by far Idaho’s newspaper of *405 largest circulation, in its Sunday edition of September 20, 1981, both editorialized on his fate and carried a lead article authored by its managing editor:

Idaho STATESMAN

Editorials

Execution for Creech

A few people by their crimes leave society no choice but to kill them for its own protection. Thomas Eugene Creech who has been convicted of five murders, is one of those people. He should be sentenced to death for the most recent of his murders, the May 13 slaying of fellow Idaho Penitentiary inmate David Jensen.

Longtime readers of this editorial page will recognize that this stance is a turnaround for The Statesman. The change of position, taken with a good deal of soul-searching, reflects changes in membership on the editorial board and concurrent changes in the beliefs of some members. (For an explanation of why the position was changed, see the Dear Reader column on the opposite page.)

The general philosophical position in favor of the death penalty is based upon the belief that society must protect itself, and that in an imperfect world there is no way to protect against some people so dangerous and so irredeemable except to end their lives. Creech is the example that proves the point.

In 1976, Creech was sentenced to death for the 1974 murders of two men near Donnelly. That sentence was reduced to two terms of life imprisonment when the Idaho Supreme Court declared the state’s 1973 mandatory death penalty law unconstitutional.

The court’s decision was a good one. It followed a U.S. Supreme Court ruling that mandatory death penalties are arbitrary and capricious because they do not allow judges to consider mitigating factors in cases. The Idaho law was rewritten in 1977 to include a list of factors to guide sentencing and meet the constitutional requirements laid down in the U.S. Supreme Court decision.

In 1979, Creech pleaded guilty to another murder that took place in 1974, this one the shooting death of a Portland man. Creech again escaped the death penalty. Oregon’s capital punishment law also had been declared unconstitutional.

On Friday, a California state appeals court upheld Creech’s first-degree murder conviction in 1980 for the 1974 slaying of a Sacramento man. That crime, like the others, preceded a ruling that the state death-penalty law in effect at the time was unconstitutional.

Then, last May, Creech beat Jensen to death with a sock full of flashlight batteries while the two inmates were incarcerated together during an exercise period.

Jensen was no model citizen; at age 23 he had been in and out of jail on theft convictions. Still, he deserved protection. And if Oregon or Idaho had had viable death penalty laws in force at the time of Creech’s earlier murders, Jensen might have been protected. He might be alive today.

By all accounts Jensen was a wayward but unviolent young man who never should have been locked up with someone like Creech, who had been implicated in three earlier attacks on jail inmates. For that mistake, prison authorities have to bear the blame. But to argue *406 that improving administration of our prisons and parole systems negates the need for the death penalty is to ignore reality. It is the nature of institutions that mistakes are made.

If steps can be taken to end the possibility that mistakes will result in harm to members of society, then those steps must be taken. Obviously, there is at least one such step — to put to death those who have proved beyond all reasonable doubt that they are a threat to the life of anyone with whom they come in contact.

To take the step involves a terrible responsibility. Capital punishment must be used sparingly and with every effort to be fair to the convicted murderer. Yet, if society is to protect itself absolutely against the likes of Thomas Creech, then such people must die.

*407 THE IDAHO STATESMAN, Boise, Sunday, September 20, 1981

Why The Statesman penalty now favors the death

By ROD SANDEEN Managing editor

To support or oppose capital punishment requires an examination of one’s deepest convictions.

So it was with The Statesman editorial board last week. In a 5-A vote, the board endorsed the death penalty, a reversal of a longstanding position.

The catalyst for the switch was Thomas E. Creech, who has been convicted of five murders, three of them in Idaho. His latest victim, a fellow inmate at the Idaho Penitentiary, was beaten to death with a sock filled with flashlight batteries.

Creech, 31, admitted killing the inmate, David Jensen, and pleaded guilty last month to first-degree murder. At that time, he told several persons he wanted to be executed.

In Idaho, that means death by lethal injection. The director of Corrections selects the deadly substance. It is administered by remote control while the condemned person lies strapped to a stretcher.

The Statesman opposed this form of punishment in 1978. “To paraphrase Gertrude Stein, murder is murder is murder,” the editorial said. “Execution is just a pretty name for it.”

But three years later, as an editorial in today’s paper says, The Statesman is endorsing the death penalty.

The decision was made after the issue was debated at a board meeting. Proponents said the death penalty is needed to protect society. Some people, the majority argued, have no redeeming qualities. They remain a threat to society as long as they are alive.

Frustration was expressed at our permissive legal system, which seems to turn criminals loose while they remain a threat to others. The argument was made that if Creech’s original death sentence had been carried out, he would not have killed Jensen, the 23-year-old inmate from Pocatello who had the misfortune to be alone with Creech during an exercise period.

No members of the board thought the death penalty served as a deterrent. The belief was that people who plot and carry out a murder — the type of killing for which the death penalty is applied — don’t plan to get caught. The board also reasoned that because most murders are crimes of passion, capital punishment doesn’t serve as a deterrent. Those killings are committed in a fit of anger. Their victims usually are acquaintances or relatives.

Those who opposed the editorial position made strong arguments, too.

One distinctive quality that puts America above many other nations is the value it puts on human life, they said. In El Salvador, Iran and many other countries, the disregard for human life is appalling. For Americans purposefully to kill a human being, no matter what the circumstances, erodes the value of all human life, opponents argued.

The minority also asserted that the real motive for the death penalty is revenge. As many supporters of the death penalty will admit, capital punishment is an expression of society’s wrath at murder by killing its murderers.

The subject of the death penalty came before the board after Creech killed Jensen. Sensing controversy and divided opinion, board members agreed to come to grips individually with the issue and debate it openly two weeks later, near the time Creech is due back in court. His presentence investigation is due Friday.

With that preparation, the debate was quick. Everyone gave his opinion.

Members agreed readers deserved an explanation because of the gravity of the subject. Readers have a right to expect consistency in the editorial positions of the newspaper. If positions on significant issues change, readers should be told why.

The change in the makeup of the board in the last three years accounts for a significant reason why the position was reversed. But more telling is the role of Creech himself. He seems without conscience, without chance of rehabilitation. He, in fact, wants to be sentenced to death.

With Creech as the focal point of a death penalty debate, the change in position seemed inevitable.

*408 Ordinarily such articles would not find their way into an appellate opinion. But, ordinarily such articles are not part of an appellate record. Here, sad to say, they are part of the appellate record which we review. Ordinarily, if in an appellate court record, they are found as exhibits to motions for change of venue prior to a trial or motions directed at excessive publicity which allegedly deprived an accused of a fair trial. Such is not so here.

The articles are part of the appellate record because they were in the presentence report submitted to and considered by the trial court in reaching its sentencing decision, concerning which Justice Huntley has written separately, and to which I will hereinafter turn, infra, time permitting.

In addition to the public favor which might reasonably be expected by yielding to the views of the local newspaper, just three weeks prior to that publication, a most highly respected district judge at a resentencing hearing in a capital case stated on the record at that hearing his firm conviction “That the present makeup of the members of the Supreme Court of the State of Idaho would not affirm a death sentence, I’m satisfied of that, under any circumstances, factual circumstances, that were presented to them.” Upon that basis, but also noting the Court’s agonizing on having previously imposed a death sentence on that defendant, noting also the defendant’s agony in two or three years incommunicado on death row while the Idaho Supreme Court reviewed his findings of fact and conclusions, the court said: “And for this reason, I refuse to follow the mandate of the Supreme Court and make findings in mitigation.” State of Idaho v. Osborn, 102 Idaho 405 [ 631 P.2d 187 ] (1983).

The trial court’s remarks, being newsworthy, were given prominent statewide dissemination. So thusly it has been made evident that a decision from this Court upholding any death sentence, and especially one for Mr. Creech, was hailed as popular even before Mr. Creech came before the district court for sentencing.

Shunning such influences, and agreeing with Justice Huntley that no person shall be put to death without due process of law, no matter how deserving of that penalty, and regardless of his own desire for such an execution, for reasons expressed by Justice Huntley, I must also conclude that in this case the sentencing procedure was a total failure of due process under both the Constitutions of the United States and of the State of Idaho, specifically alluding to the remarkable use of a presentence report comprised almost exclusively of hearsay, without any right of any cross-examination. Obvious in the extreme, and with constitutional due process concerns put aside, the statutory procedure selected by the legislature for reaching the decision between a sentence of life and death was not followed.

The legislature specifically has required that where imposition of death is a sentence which may be imposed, the only alternative being a life sentence, there will be a sentencing hearing, the purpose of which is for HEARING relevant evidence and argument of counsel. I.C. § 19-2515(c). While “relevant evidence” is a term which may, perhaps, be open for discussion, the word “hearing” is not. Since statehood, and before, this Court has steadfastly distinguished between evidence which a trier of an issue hears live from the witnesses, and evidence which, like on appellate review, is by affidavits, documents; or, otherwise put, a “cold record.”

That the trial judge made use of the presentence report, perhaps almost exclusively, is not to his discredit — not according to a three member majority who experience no trouble in seeing that resolution of a life or death issue may be determined “from the voluminous information available in the presentence report.”

Defense counsel’s request for a hearing (by a jury) where the aggravating and mitigating factors would be decided on the basis of live testimony of witnesses should have been honored. Whatever may be the law under the Federal Rules of Civil Procedure, relied upon by the majority, although I.C. § 19-2515(c) directs the trial judge to “or *409 der a presentence investigation to be conducted,” the statute does not, nor does it purport to, nor could it when viewed under a due process challenge, declare that the report of that investigation, or any part of it, may become the evidence upon which a judge (properly a jury) may render a death sentence. It will serve as a source of information to prosecutors and defense counsel, but that is and should be the extent of its permissible use. Where a defendant has been tried by a jury and by it convicted of first degree murder, evidence of the crime is already before the sentencer, be it judge or the same jury who rendered the verdict. The statute recognizes this, and provides that “Evidence admitted at the trial shall not be considered and need not be repeated at the sentencing hearing.” Clearly, then, the statute contemplates that where there has not been a trial, that evidence will necessarily have to be presented to the sentencing authority — be it judge or jury. The majority in this case are of a different view, obviously. Hence it bothers them not that the facts of the homicide were laid before the trial judge in the form of newspaper articles and editorials, and in garbled reports of a number of taped interviews with the sheriff’s department conducted with Creech — the first of which in my reading of the presentence report discloses to have taken place with a complete absence of any Miranda warnings.

The majority’s reliance on some recent Idaho cases for the wholesale admission of such hearsay (The presentence report’consists of 13 pages. To it are attached various documents which go to a depth of 2% inches.) is misplaced. Those cases, State v. Johnson, 101 Idaho 581 , 618 P.2d 759 (1980), State v. Tucker, 97 Idaho 4 , 539 P.2d 556 (1975), to which might have been added State v. Coutts, 101 Idaho 110 , 609 P.2d 642 (1980), and Ybarra v. Dermitt, 104 Idaho 150 , 657 P.2d 14 (1983), did not involve sentencing for first degree murder. Nor does State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981) sustain the Osborn majority opinion in its condoning of the use of wholesale, random, hearsay. In Osborn that defendant, too, pleaded guilty to first degree murder. The Osborn Court did say, with which I did not agree, that it was there permissible to use the cold record of a preliminary hearing transcript in lieu of live testimony presenting evidence of the crime, notwithstanding the mandatory language of I.C. § 19-2515(c); and it was to that issue, and that issue alone, that the majority said, responsive to my own contrary view, that there had been no error on the part of the trial judge at the sentencing hearing. The Court did not there say or intimate that the hearsay running rampant in a presentence report could be the evidence upon which a judge could hinge his decision in a post-conviction trial of the nature of the defendant’s crime and the nature of his past and of his character. The majority simply choose to ignore that in Osborn counsel for the defendant not only pleaded his client guilty, did not, in the face of the 1977 Act, claim a right to jury trial at sentencing, and did himself rely upon the preliminary testimony and material in the presentence report in presenting matters in mitigation. I can understand a majority opinion which in Osborn thus theorized that the error in not following the statute was waived, even though it is generally believed that a- valid death sentence can be imposed only when the statutory procedure is closely adhered to, but I cannot comprehend a majority opinion which allows rampant hearsay at the sentencing trial, but not at guilt trials. It would seem that the second trial is considerably more important than is the first.

The majority ignore the highly singular fact that today’s presentence investigation and report are of rather recent origin, and, from my own study, came into existence where a defendant notified the trial judge of his intent to ask for leniency, usually some form of withheld judgment or suspended sentence, coupled with a term of probation. This Court, however, has misused the procedure to the detriment of those who were supposed to benefit therefrom. As suggested reading I submit my dissents in Coutts, Johnson, and Ybarra .

*410 For my part, with what I consider proper and due deference to the holdings of the Supreme Court of the United States, in matters of death sentencing, I cannot in good conscience look away when the statutory procedures are not followed. Nor will I fail to require the same due process at a capital sentencing trial which has always been required at the guilt-innocence trial. At the same time, where the statute flatly requires the imposition of death whenever one or more aggravating factors are found to exist, and they are not outweighed by mitigating factors found to exist, I am much troubled by the knowledge that prosecuting attorneys apparently are thought to have unlimited discretion in bargaining away first degree informations which they have themselves signed, and that they apparently are thought to have the discretion to determine both before and after conviction whether the death penalty will be sought — in which respect district judges are apparently of the view that a prosecutor’s election to not seek the death penalty is the end of the inquiry, or at the least a mitigating factor. Back of it all prosecutors initially assume the right to decide what homicides will be charged as first degree murder, and which will not. This latter may be an unavoidable circumstance, but it would seem that if justice, including the death penalty, is to be dealt evenhandedly, once a prosecutor charges first degree murder, from that time on he is committed to laying his first degree murder charge before a jury. After that, if the jury convicts, it should not be the prosecutor, but a jury who determines a just and mete sentence.

III.

DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL

Time constraints permitting, there is in my view more which can be said concerning the issues discussed by Justice Huntley. There is also the need to discuss and question the due process issues which arise if the Court determines to issue its opinion without allowing briefs or argument of counsel attendant to the resentencing of Mr. Creech which just took place in district court on the 17th day of February of this year, a transcript of which hearing was furnished to the Clerk of this Court on April 6, 1983, a scant two weeks ago as I write this far along into my own opinion, which is done without the benefit of briefs of the parties. A more pressing need, however, is to express considerable doubt upon the constitutionality of the process by which Creech was brought into court on the court’s own motion to go through the formality of entering a guilty plea. The circumstances of this affair put me much in mind of Boykin v. Alabama, 395 U.S. 238 [ 89 S.Ct. 1709 , 23 L.Ed.2d 274 ] (1969). Other than for lack of jury involvement under the Idaho legislature’s capital sentencing procedures, there is little difference and, as I will point out, both jurisdictions provide for an automatic appeal from a death sentence. Where in Alabama an “automatic appeal in capital cases also requires the reviewing court to comb the record for ‘any error prejudicial to the appellant, even though not called to our attention in brief of counsel’ Lee v. State, 265 Ala. 623, 630 , 93 So.2d 757, 763 ,” Boykin, 395 U.S. at 241 [ 89 S.Ct. at 1711 ], in Idaho on automatic appeal from a death sentence, it was recently held that under I.C. § 19-2827 “we may not ignore unchallenged errors .... We have previously recognized as much in this state by holding that fundamental error, even absent objection at trial will be reviewed on appeal.” State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981). Obviously under this rule we are also obliged to make that same review on automatic appeal even though plain or fundamental error as was involved in Boykin is not assigned by appellate counsel.

The High Court in Boykin held that “It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” 395 U.S. at 242 [ 89 S.Ct. at 1711 ]. The Boykin defendant pleaded guilty on his first arraignment; Mr. Creech pleaded not guilty initially. At a subsequent hearing when a guilty plea was entered for him, the trial *411 court conducted the hearing, allowed cross-examination by the prosecutor, admitted the prosecutor’s offered exhibits, and made oral findings:

“THE COURT: Very well. Thank you very much, Mr. Creech. You may step down. I believe you have been very candid with the Court.

“For the record, the Court will find that the defendant understands the nature of the offense to which he has just plead guilty and he understands the consequences of his plea of guilty, and that there is a factual basis for the guilty plea, and that the guilty plea was freely and voluntarily made.

“I will accept the guilty plea and I will direct my Clerk to enter the same.”

This does not satisfy my notions of due process. Time having run out on me, I must necessarily save for another time or some other place an in-depth review of this strange affair. Creech had pleaded not guilty, and in due time a jury would pass upon his guilt or innocence. His court-appointed attorney adamantly opposed the procedure — which was against his advice— and insisted on being allowed to withdraw from further representation of Creech. The motion was denied, although from that time on Mr. Creech really had no further need for the attorney whose advice he disregarded. Time permitting, Mr. Creech might have followed that advice, but the trial judge moved too precipitately for any meaningful reflection; at the time the trial judge assumed the responsibility for helping Mr. Creech along in his bent for self-destruction, for which Mr. Creech had a Gilmore-like penchant as the members of this Court personally observed in connection with the first Creech case, and as is more than amply demonstrated in various sections of the presentence report attachments, Mr. Creech was then and there divested of effective assistance of counsel— which was his guarantee under both the United States and Idaho Constitutions. The precipitate manner in which it all came about is not an acceptable procedure.

Creech, following the homicide at the penitentiary, was turned over to county authorities and incarcerated at the county jail. I have already mentioned the impermissible tape questioning transcripts of which one is in the presentence report along with other question and answer transcripts where he was given Miranda warnings prior to being taken through the same routine without the warnings.

From the jail Creech, the defendant, Creech the counseled defendant, wrote his own letter to the district judge declaring that he wanted to enter a plea of guilty. Assuming the letter was received by the judge on the next day, as was probably so, the very next day after receipt, or at least no later than two days after the letter was sent, the judge apparently had Creech delivered to his courtroom, and apparently summonsed Creech’s counsel as well. And then the hearing took place as aforesaid — of which the record contains a transcript.

In the first place I think that there is something lacking in our criminal justice system where criminal defendants are allowed to bypass their counsel and engage in direct dealings with the court. Such conduct in my view is improper, disruptive, productive of error and possible injustice, and cannot be tolerated. In so saying I level my criticism not at the particular judge, but at the practice. As alluded to above, in Mr. Creech’s first case before this Court he took it upon himself to bypass counsel and write directly to the Court. And, he was not the first; nor was he the last. As often as such communications have been received and circulated to the Court membership, I have denounced and remonstrated against the practice continuing. It is an evil, and it will produce evil rewards.

Here, to me it seems inescapable that Mr. Creech, unless he omnisciently knew that the statutory scheme for death sentencing was unconstitutional, cannot realistically be said to have knowingly and intelligently waived his right to a jury trial of the degree of his guilt, and if found guilty of first degree murder, then, in turn, to have at the *412 same time waived his right to have that same jury, from the evidence which they heard from live witnesses as to his crime, as to his past, to his mental condition, and to his prognosis, decide whether he should die or live.

. The statute as amended in 1911 is set forth in the opinion of Justice Huntley.

. This is not the same opinion as that cited in the majority’s survey, State v. Ramirez, 34 Idaho 623 , 203 P. 279 (1921).

. At oral argument in this case we were advised by the Honorable Lynn Thomas, Solicitor General for the State of Idaho, that the 1977 Act was attributable to his personal efforts. Justice Huntley has pointed out in his opinion that the statement of purpose clearly, but erroneously, misled the legislature into the belief that enactment of the bill as presented was mandated by the United States Supreme Court. I very much doubt that there was any intentional thought directed toward omitting the jury function. In other cases the solicitor general has been adamant that, until a 1982 constitutional amendment, the right of jury trial in felony cases was mandatory and could not be waived by a defendant, with or without the State’s consent. State v. Hightower, 101 Idaho 749 , 620 P.2d 783 (1980); State v. Davis, 661 P.2d 308 (Idaho 1983).

. Prior to receipt of this motion I have already written one portion of this dissent wherein the procedure whereby Mr. Creech was allowed to enter a guilty plea against the advice of counsel comes under discussion. To that I will presently turn.

. To my reading of the 1887 Penal Code, capital offenses were the only offenses in which the sentencing discretion rested not with the court but with the jury.

. Two of the attorneys who volunteered their services on behalf of Noah Arnold would themselves later serve on the Supreme Court which turned awry their contentions, namely the Honorable E.B. Smith and the Honorable William M. Morgan.

. A companion case decided at the same time as Lindquist and which simply followed its holding, State v. Creech, 99 Idaho 779 , 589 P.2d 114 (1979). The defendant in Creech was shown to be an amoral multiple murderer, as equally an unpopular defendant as Lindquist.