Dewey E. Coleman, a Montana state prisoner who has been sentenced to death for the crime of aggravated kidnapping, appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . We reverse his sentence of death and remand for resentencing.

I

FACTS AND PRIOR PROCEEDINGS

The facts upon which Dewey Coleman was found guilty by a jury on November 14, 1976, are fully set forth in Coleman’s first appeal to the Montana Supreme Court and need not be repeated here. State v. Coleman, 177 Mont. 1 , 579 P.2d 732 (1978) (Coleman I). The following are the facts relevant to the instant appeal.

Coleman, who is black, and his codefend-ant, Robert Nank, who is white, were charged with the crimes of deliberate homicide, aggravated kidnapping and sexual intercourse without consent, inflicting bodily injury. Nank entered a plea bargain with the State and escaped the death penalty. The State refused to enter a similar bargain with Coleman for reasons which we need not consider in this opinion. Coleman went to trial and was convicted on all counts. He was sentenced to 100 years for *1282 deliberate homicide and 40 years on the rape charge. He was sentenced to death for aggravated kidnapping under Montana’s then existing mandatory death penalty statute. 1 On appeal, the Montana Supreme Court held that the mandatory death penalty statute was unconstitutional. Coleman I, 177 Mont. 1 , 579 P.2d at 741-42 . Coleman’s death sentence was vacated and his case was remanded to the trial court for resentencing. 2 Coleman was then resentenced to death in 1978 under a new Montana death penalty statute which had been enacted in 1977. Mont.Code Ann. §§ 95-2206.6 to 95-2206.15 (now codified at Mont.Code Ann. §§ 46-18-301 to 46-18-310; hereinafter cited in precodification version and reproduced at Appendix). Coleman’s sentence was automatically reviewed by the Montana Supreme Court. Mont.Code Ann. §§ 95-2206.12 to 95-2206.-15. The court upheld his convictions and sentences. State v. Coleman, 185 Mont. 299 , 605 P.2d 1000 (1979) (Coleman II), cert. denied, 446 U.S. 970 , 100 S.Ct. 2952 , 64 L.Ed.2d 831 (1980); Coleman v. Sentencing Review Division of Supreme Court of Montana, 449 U.S. 893 , 101 S.Ct. 255 , 66 L.Ed.2d 121 (1980) (vacating stay of execution of death sentence and denying certiorari).

Thereafter, Coleman filed a petition with the state court for post-conviction relief. His judgment and sentence were once again reviewed and affirmed by the Montana Supreme Court. Coleman v. State, 633 P.2d 624 (Mont.1981), cert. denied, 455 U.S. 983 , 102 S.Ct. 1492 , 71 L.Ed.2d 693 (1982) (Coleman III).

Coleman then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of Montana. This proceeding was stayed to enable Coleman to exhaust his state remedy for review of his convictions and death sentence in light of a recent discovery by his then counsel of a transcript of a pretrial hearing. The transcript revealed that during the hearing Coleman’s previous counsel had made statements to the court which implied that Coleman had admitted participating in the murder after being given sodium amytal. The judge who had presided at this pretrial hearing was the same judge who later sentenced Coleman to death. Coleman’s convictions and death sentence were once again reviewed and affirmed by the Montana Supreme Court. Coleman v. Risley, 203 Mont. 237 , 663 P.2d 1154 (1983) (Coleman IV).

Coleman then returned to the district court. He filed a motion for an evidentiary hearing on his habeas corpus petition. He sought a hearing on twelve of thirty-seven issues raised in his petition, and filed a motion for summary judgment on the remaining issues. The State also filed a motion for summary judgment. The district court denied Coleman’s request for an evi-dentiary hearing, denied his motion for summary judgment, and granted summary judgment in favor of the State.

II

THE CONVICTION

Jury Selection

Coleman challenges his convictions on the ground that his sixth amendment right to an impartial jury was violated. He con *1283 tends his jury panel was selected in an impermissibly discretionary manner. 3

Coleman’s first jury panel was dismissed by the court three days before trial in response to a challenge by Coleman. A second panel was drawn. Each name on the jury list was assigned a number, the numbers were placed in a box, and 200 were drawn. The court then directed the court clerk to obtain a panel of sixty jurors by telephoning persons whose names were drawn from the box to see if they would be available to serve on a jury within the next three days. Sixty-one of the prospective jurors indicated they would be available and sixty appeared for Coleman’s trial. Coleman I, 177 Mont. 1 , 579 P.2d at 746-47 . It was from this panel that Coleman’s trial jury was chosen.

In arguing that the sixty persons making up his jury panel were impermissibly selected, Coleman alleges that potential jurors were asked whether they could appear for his trial and were allowed to excuse themselves on grounds not revealed to him. He further alleges that the system by which his pianel of sixty potential jurors was selected had the disproportionate effect of placing mainly white, affluent residents from the west side of Billings, Montana on the panel. He argues that this system was controlled, not random, and resembled the so-called “key man” system of jury selection. 4

Coleman contends that he is entitled to an evidentiary hearing on this issue. To obtain an evidentiary hearing, Coleman “must show that (1) he has alleged facts which, if proved, would entitle him to relief, and (2) an evidentiary hearing is required to establish the truth of his allegations.” Harris v. Pulley, 692 F.2d 1189, 1197 (9th Cir.1982), rev’d on other grounds, 465 U.S. 37 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984); see also Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838 , 105 S.Ct. 137 , 83 L.Ed.2d 77 (1984).

A. Lack of Showing of Distinctive Group

Trial by a jury of one’s peers contemplates that an impartial jury will be drawn from a fair cross-section of the community. Thiel v. Southern Pacific Co., 328 U.S. 217, 220 , 66 S.Ct. 984, 985 , 90 L.Ed. 1181 (1946). The sixth amendment does not guarantee a randomly selected jury, United States v. Wellington, 754 F.2d 1457, 1468 (9th Cir.), cert. denied sub nom. Utz v. United States, 474 U.S. 1032 , 106 S.Ct. 592 , 593, 88 L.Ed.2d 573 (1985), nor does it require that the jury contain representatives from every group in the community. Lockhart v. McCree, 476 U.S. 162, 173-75 , 106 S.Ct. 1758, 1759 , 90 L.Ed. *1284 2d 137 (1986); Thiel, 328 U.S. at 220 , 66 S.Ct. at 985 . A fair cross-section challenge to the constitutionality of the jury venire requires a showing:

United States v. Miller, 771 F.2d 1219, 1228 (9th Cir.1985) (quoting Duren v. Missouri, 439 U.S. 357, 364 , 99 S.Ct. 664, 668 , 58 L.Ed.2d 579 (1979).

Coleman contends that as a result of the jury selection process, persons from the lower socioeconomic areas of Billings were excluded from his panel of prospective jurors. He has not alleged any facts, however, from which it could be concluded that persons from the lower socioeconomic areas of Billings formed a distinctive group in the community, or that if such a group existed it consisted of a sufficient number of persons so that its systematic exclusion from jury panels would support a fair cross-section challenge under the sixth amendment. Duren, 439 U.S. at 364 , 99 S.Ct. at 668 ; see Taylor v. Louisiana, 419 U.S. 522, 531 , 95 S.Ct. 692, 698 , 42 L.Ed.2d 690 (1975); United States v. Kleifgen, 557 F.2d 1293 (9th Cir.1977); United States v. Potter, 552 F.2d 901, 904-05 (9th Cir.1977). Having failed to demonstrate the existence of a “distinctive” group, Coleman’s claims that such a group was underrepresented in jury venires or was systematically excluded in the jury selection process also fail.

B. Method of Selection of Available Jurors

Coleman challenges the clerk’s dismissal of 139 of the 200 potential jurors drawn from the box. There is nothing in the record, however, to suggest that the jurors who were excused by the clerk were excused for any reason other than their inability to serve in a jury trial which was to commence in three days. Coleman I, 177 Mont. 1 , 579 P.2d at 746 . Coleman does not contend, nor does the record reveal, that the 200 names from which the 60 members of his panel were chosen do not represent a fair cross-section of the community.

The method of jury selection in Coleman’s case was similar to that which occurred in United States v. Anderson, 509 F.2d 312 (D.C.Cir.1974), cert. denied, 420 U.S. 991 , 95 S.Ct. 1427 , 43 L.Ed.2d 672 (1975). There, 200 to 300 jurors were selected for jury service. The defendant did not contend that these jurors were not representative of a fair cross-section of the community. The jurors were told that the trial would be lengthy and the court asked how many jurors would be able to serve. Sixty-eight jurors indicated they would be available, and sixty of these were selected for the panel. Id. at 321 . On appeal the defendant contended the jurors consisted of volunteers and thus did not represent a cross-section of the community. Id. In rejecting this contention, the court concluded that the underlying complement of jurors represented a fair cross-section of the community and “[njeither the panel nor the trial jury became any the less so by reason of the technique the judge employed.” Id. at 322 . The court went on to state, “the judge did not exclude anyone or any cognizable group. The sole criterion he employed was ability to serve longer; the panel from which the jury was drawn was distinguished only by that quality.” Id. (footnote omitted); see also United States v. Branscome, 682 F.2d 484, 485 (4th Cir.1982) (grand jury); United States v. Kennedy, 548 F.2d 608, 611 (5th Cir.), reh’g denied, 554 F.2d 476 (5th Cir.), cert. denied, 434 U.S. 865 , 98 S.Ct. 199 , 54 L.Ed.2d 140 (1977).

Coleman did not present any affidavit or other evidence to suggest jurors were dismissed for any reason other than unavailability. His challenge to the sixty-person jury panel “consists exclusively of counsel’s statements, unsworn and unsupported by any proof or offer of proof.” Frazier v. *1285 United States, 335 U.S. 497, 503 , 69 S.Ct. 201, 205 , 93 L.Ed. 187 (1948). These “con-clusory allegations do not provide a sufficient basis to obtain a hearing in federal court.” Harris, 692 F.2d at 1199 .

Finally, Coleman argues in his reply brief that the trial judge improperly disqualified two jurors because of their opposition to the death penalty. He has failed to present any showing that would justify an evidentiary hearing on this issue. Maggio v. Williams, 464 U.S. 46, 50 , 104 S.Ct. 311, 313 , 78 L.Ed.2d 43 (1983) (per curiam).

We conclude that Coleman’s sixth amendment right to an impartial jury was not violated.

Ill

THE SENTENCE

Coleman challenges his sentence of death on the grounds that (a) his resentencing under the 1977 death penalty statute violated the ex post facto clause of the Constitution; (b) Montana’s death penalty statute unconstitutionally required him to bear the burden of proof of mitigating factors; (c) his trial and death sentence, which occurred because the State refused to make the same plea bargain with him that it made with Nank, were the result of racial discrimination; and (d) he was denied due process of law when he was sentenced to death under a statute not in effect at the time of his trial. Because we reverse Coleman’s death sentence on the ground that he was denied due process in the imposition of that sentence, we do not reach Coleman’s other arguments. 5

Coleman was convicted and first sentenced to death in 1975 under a mandatory death penalty statute subsequently held to be unconstitutional in 1978 by the Montana Supreme Court in Coleman I, 177 Mont. 1 , 579 P.2d at 741-42 . 6 In 1977, the Montana legislature repealed the death penalty statute under which Coleman had originally been tried and sentenced and passed a new death penalty statute, the constitutionality of which Montana’s supreme court upheld in State v. McKenzie, 177 Mont. 280 , 581 P.2d 1205, 1228-29 (Mont.1978), vacated on other grounds, 443 U.S. 903 , 99 S.Ct. 3094 , 61 L.Ed.2d 871 (1979). Coleman was resen-tenced to death in 1978 under this new statute.

Pursuant to section 95-2206.6 of the 1977 statute (see Appendix), the judge who presided over the trial is also required to conduct a sentencing hearing and determine whether, under sections 95-2206.8 or 95-2206.9 of the statute, there exist any aggravating or mitigating circumstances for purposes of determining the sentence to be imposed. Under this statutory scheme, the trial court must impose a sentence of death if it finds the existence of at least one of the enumerated aggravating circumstances, “and finds that there are no mitigating circumstances sufficiently substantial to call for leniency.” Mont.Code Ann. § 95-2206.10. The aggravating circumstance relevant to this case is subsection (7) of section 95-2206.8: “[t]he offense was aggravated kidnapping which resulted in the death of the victim.” The sentencing judge concluded that there were no mitigating circumstances sufficiently substantial to call for leniency, and sentenced Coleman to death. Coleman contends that, in light of the procedural framework of the revised statute, the imposition of his death sentence under it violated the due process clause of the Constitution. We agree.

We begin our analysis of this issue by noting that the Supreme Court has not *1286 to date addressed a due process challenge to the retroactive application of a sentencing statute that resulted in the death sentence. The retroactive application of statutes has typically been challenged as viola-tive of the ex post facto clause, U.S. Const., art. I, § 10. See, e.g., Dobbert v. Florida, 432 U.S. 282 , 97 S.Ct. 2290 , 53 L.Ed.2d 344 (1977); Thompson v. Missouri, 171 U.S. 380 , 18 S.Ct. 922 , 43 L.Ed. 204 (1898); Knapp v. Cardwell, 667 F.2d 1253 (9th Cir.), cert. denied, 459 U.S. 1055 , 103 S.Ct. 473 , 74 L.Ed.2d 621 (1982). In Dobbert , the Supreme Court upheld the retroactive application of Florida’s capital sentencing law under the ex post facto clause, but did not address the due process issue. 7 The Court in Dobbert reiterated the “well settled” principle that the ex post facto clause does not “ ‘limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ ” Dobbert, 432 U.S. at 293 , 97 S.Ct. at 2298 (quoting Beazell v. Ohio, 269 U.S. 167, 171 , 46 S.Ct. 68, 69 , 70 L.Ed. 216 (1925)). As a corollary to this principle, the Court noted that “[e]ven though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” Id. By contrast, the procedural component of the due process clause protects individuals’ rights to fundamentally fair procedures before they are deprived of their liberty rights. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161 , 71 S.Ct. 624, 643 , 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). Especially in the capital sentencing arena, this court has an obligation to scrutinize closely the sentencing procedures against “fundamental principles of procedural fairness.” See Presnell v. Georgia, 439 U.S. 14, 16 , 99 S.Ct. 235, 236 , 58 L.Ed.2d 207 (1978); Gardner v. Florida, 430 U.S. 349, 357 , 97 S.Ct. 1197, 1204 , 51 L.Ed.2d 393 (1977).

When one compares the sentencing law in effect at the time Coleman was tried and sentenced with the law under which he was resentenced, it is apparent that application of the procedural aspects of the new statute to Coleman’s case violated due process. Under the Montana death penalty statute which was in effect when Coleman was originally tried and sentenced, once a defendant was convicted of the crime of aggravated kidnapping, a sentence of death was mandatory. Rev.Code Mont. § 94-5-304 (1947) (repealed 1977). Montana law did not permit the sentencer to consider mitigating circumstances. Therefore, the only factor in Coleman’s trial impacting whether he would live or die was whether or not he was convicted of aggravated kidnapping.

The new law under which Coleman was resentenced contains procedures which mandate what is tantamount to a second trial. This “second trial” is the sentencing hearing. The judge who presides over the guilt phase of the trial is the same judge who presides over the sentencing hearing. This judge decides whether a defendant lives or dies. Mont.Code Ann. § 95-2206.6. Evidence, regardless of its content, which came in during the guilt phase may be considered by the sentencing judge during the sentencing hearing. Id. § 95-2206.7.

As Coleman’s counsel prepared for trial, during pretrial proceedings, and during trial, he had no idea that the decisions he was making would have any effect on a post-trial decision by the trial judge whether Coleman lived or died. Coleman’s counsel could not have known that a new law would be enacted under which the same judge who *1287 presided at Coleman’s trial would preside at a subsequent sentencing hearing and would consider, among other things, Coleman’s prior record of criminal activity, be it good or bad. He only knew that if Coleman were convicted of aggravated kidnapping, he would die. Thus, it made no difference during Coleman’s trial whether evidence of prior criminal activity came in. Indeed, Coleman’s counsel presented just such evidence on cross-examination of Coleman’s codefendant, Robert Nank. He elicited testimony from Nank (which Coleman denied) that Nank and Coleman had committed a robbery on the day of the murder. Coleman’s counsel brought out this testimony in an apparent attempt to discredit Nank. But would he have done so if he had known this testimony would provide evidence to negate mitigation, a circumstance which could mean the death of his client? 8 Not knowing that there would be any post-conviction death penalty hearing, how could Coleman’s counsel have gauged the probative value of this evidence in deciding whether the chance of an acquittal was so enhanced by its admission that it was worth the risk to bring it before the jury, notwithstanding the consequences it might have at a later death penalty hearing before the trial judge? Would Coleman’s counsel have made the tactical decision he made? We don’t know. Coleman’s counsel never had the opportunity to make this choice. The choice was made for him by application of the new death penalty statute at his sentencing hearing. Coleman’s trial judge became his sentencer and all of the trial evidence relevant to the newly adopted categories of aggravating and mitigating circumstances became crucial to the sentencer’s decision whether Coleman lived or died.

Coleman’s testimony, to which the sentencing judge referred in imposing his sentence, also impacted the sentencing judge’s imposition of the death penalty. Apparently Coleman’s trial counsel believed that it was necessary for Coleman to testify in order to avoid a conviction. But would he have made this same choice if he had known Coleman’s testimony, not only its content but Coleman’s demeanor on the stand and how he held up under cross-examination, would be considered at a post-conviction sentencing hearing on the question whether Coleman lived or died? Again, this decision, whether or not to testify in one’s own defense, can only be made rationally if the consequences of such a course of action are known. Here they were not.

The new death penalty statute also impacted the delicate decision of whether to challenge the trial judge. At the time Coleman was tried, Montana permitted a party to a criminal case to remove the assigned judge without cause. Rev.Code Mont. § 95-1709 (1949) (amended and recodified at MontCode Ann. § 3-1-804). Indeed, the prosecution removed the first judge assigned to Coleman's case because of a belief that he was prejudiced against the prosecution’s position. Coleman might have elected to remove the next judge who was assigned the case. He did not. But he did not know that under the new statute his trial judge would become his sentencer, if he were convicted. It is one thing to accept a judge for the purpose of conducting a fair trial, and quite another to accept that judge not only to conduct the trial but to become the sole decisionmaker on the question of life or death. Coleman had no reason to consider these factors under the old law. They became relevant only under the new law. Realistically, therefore, Coleman never had the opportunity to make an informed decision whether to challenge the trial judge, and thereby prevent him from becoming the sentencer. That scenario simply did not present itself under the old law. And yet, Coleman had to bear the consequence of sentencing under the new law as if such a decision had been made.

*1288 The finality and severity of a death sentence makes it qualitatively different from all other forms of punishment. See, e.g., Lockett v. Ohio, 438 U.S. 586, 605 , 98 S.Ct. 2954, 2965 , 57 L.Ed.2d 973 (1978) (plurality opinion). The Supreme Court has stressed the great need for reliability in capital cases requiring that “capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding.” Strickland v. Washington, 466 U.S. 668, 704 , 104 S.Ct. 2052, 2073 , 80 L.Ed.2d 674 (1984) (Brennan, J., concurring in part and dissenting in part); see also California v. Ramos, 463 U.S. 992, 998-99 , 103 S.Ct. 3446, 3451-52 , 77 L.Ed.2d 1171 (1983) (“the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination”) (footnote omitted).

“The defendant has a legitimate interest in the character of the procedure which leads to the imposition of [the death] sentence-” Gardner, 430 U.S. at 358 , 97 S.Ct. at 1204 . When human life is at stake, the need to ensure that punishment is meted out fairly and in a noncapricious manner is preeminent. Dobbert, 432 U.S. at 309 , 97 S.Ct. at 2306 (Stevens, J., dissenting). The defendant is due at least that amount of process which enables him to put on a defense during trial knowing what effect such a strategy will have on the subsequent capital sentencing, the results of which may be equally if not more critical to the defendant than the conviction itself.

Coleman was given no notice whatsoever of the life and death consequences of his actions in defending himself against the State’s prosecution before and during trial. A defendant’s right to notice and to fair warning of the conduct that impacts upon his liberty is a basic principle long recognized by the Supreme Court. Cf. Bouie v. City of Columbia, 378 U.S. 347, 350-51 , 84 S.Ct. 1697, 1700-01 , 12 L.Ed.2d 894 (1964); In re Oliver, 333 U.S. 257, 273 , 68 S.Ct. 499, 507 , 92 L.Ed. 682 (1948). Because Coleman had no reason to suspect that his decisions at trial would come back to haunt him at a sentencing hearing, we must conclude that he was denied due process when he was resentenced to death under Montana’s revised death penalty statute.

The State argues that even if Coleman’s due process rights were violated, the error was harmless. Ever since Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), it has been the general rule that “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986). The harmless error rule “recognizes ... that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence ... and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Id. (citations omitted). The Supreme Court has not exempted capital cases from harmless error analysis. See, e.g., Satterwhite v. Texas, 486 U.S. 249 , 108 S.Ct. 1792 , 100 L.Ed.2d 284 (1988) (applying harmless error analysis); Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967) (same); see also Hitchcock v. Dugger, 481 U.S. 393 , 107 S.Ct. 1821, 1824 , 95 L.Ed.2d 347 (1987) (reversing death sentence because there was constitutional error and state did not show that error was harmless).

Chapman and its progeny hare recognized, however, that the harmless error rule has exceptions. As the Court in Chapman observed, “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” 386 U.S. at 23 , 87 S.Ct. at 827; see id. at 23 n. 8, 87 S.Ct. at 828 n. 8, citing Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) (complete denial of right to counsel); Payne v. Arkansas, 356 U.S. 560 , 78 S.Ct. 844 , 2 L.Ed.2d 975 (1958) (introduction of coerced confession); Turney v. Ohio, 273 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927) (adjudication by biased judge). Since *1289 Chapman , the Court has added to the list of constitutional violations which merit per se reversal. See, e.g., Waller v. Georgia, 467 U.S. 39 , 49 & n. 9, 104 S.Ct. 2210 , 2217 & n. 9, 81 L.Ed.2d 31 (1984) (public trial); Holloway v. Arkansas, 435 U.S. 475 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978) (conflict of interest in representation throughout entire proceeding); Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975) (self-representation); Price v. Georgia, 398 U.S. 323 , 90 S.Ct. 1757 , 26 L.Ed.2d 300 (1970) (double jeopardy). In adding to this list, however, the Court has emphasized that the “errors to which Chapman does not apply ... are the exception and not the rule.” Rose v. Clark, 478 U.S. 570, 578 , 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 (1986).

This case does not involve one of the categories listed above which the Supreme Court has determined to be exempt from Chapman harmless error analysis. In this case, the critical factor rendering violations of these rights inappropriate for harmless error analysis is the reviewing court’s inability to determine whether such violations were in fact harmless beyond a reasonable doubt. See, e.g., Satterwhite, 108 S.Ct. at 1798 (harmless error rule applies since “reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury”) (emphasis added). Errors that either “abort[ ] the basic trial process ... or den[y] it altogether,” Rose, 478 U.S. at 578 n. 6, 106 S.Ct. at 3106 n. 6, have an effect on the composition of the record so pervasive that it cannot be determined by the reviewing court. See also Satterwhite, 108 S.Ct. at 1797 (errors that “pervade the entire proceeding” and whose scope “cannot be discerned from the record” require per se reversal); Van Arsdall, 475 U.S. at 681 , 106 S.Ct. at 1436 (suggesting that errors having a pervasive effect on the factfinding process are not susceptible to harmless error analysis). To apply harmless error analysis under such circumstances would require the reviewing court to engage in an inquiry that was “purely speculative.” Satterwhite, 108 S.Ct. at 1797 .

Applying the foregoing principles to this case, we hold that the due process violation here is not subject to harmless error analysis. Coleman was sentenced to death under a statute not in effect at the time of his trial. The new statute added a sentencing “trial” at which the sentencing judge could consider any evidence that came in during the guilt phase. By contrast, the old statute required the death penalty once a defendant was convicted of aggravated kidnapping. Coleman’s counsel made countless tactical decisions at trial aimed solely at obtaining Coleman’s acquittal, without even a hint that evidence in the record would be considered as either mitigating or aggravating factors. This due process violation had a pervasive effect on the composition of the trial record. As we have already observed, Coleman’s counsel might not have called his client to testify under the new statute. He might not have brought in evidence of Coleman’s prior criminal activity in his cross-examination of Nank. He might have challenged the trial judge. It would be fruitless in this case to require trial counsel to provide a record of how he or she would have handled the case differently. The error is such that no additional evidence is needed to demonstrate that the error “pervade[s] the entire proceeding.” See id.; see also Raley v. Ohio, 360 U.S. 423, 439 , 79 S.Ct. 1257, 1267 , 3 L.Ed.2d 1344 (1959) (it is impermissible in a criminal case to excuse due process violations by assuming that the defense would have acted as it did had no violation occurred). We will not affirm Coleman’s death sentence by speculating that his defense counsel might have made the same pretrial and trial decisions regardless of the sentencing scheme. See Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir.1986).

We, therefore, REVERSE the district court and REMAND with instructions to determine a reasonable time for the State to vacate Coleman’s sentence of death on the aggravated kidnapping count. If within such time the State does not vacate Coleman’s death sentence, the district court is instructed to grant the writ of habeas *1290 corpus as to the aggravated kidnapping count. 9 The opinion of the three-judge panel in this case, reported at 839 F.2d 434 (9th Cir.1988), is withdrawn.

APPENDIX

95-2206.6. Sentence of death — hearing on imposition of death penalty. When a defendant is found guilty of or pleads guilty to an offense for which the sentence of death may be imposed, the judge who presided at the trial or before whom the guilty plea was entered shall conduct a separate sentencing hearing to determine the existence or nonexistence of the circumstances set forth in 95-2206.8 and 95-2206.9 for the purpose of determining the sentence to be imposed. The hearing shall be conducted before the court alone.

95-2206.7. Sentencing hearing — evidence that may be received. In the sentencing hearing, evidence may be presented as to any matter the court considers relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court considers to have probative force may be received regardless of its admissibility under the rules governing admission of evidence at criminal trials. Evidence admitted at the trial relating to such aggravating or mitigating circumstances shall be considered without reintroducing it at the sentencing proceeding. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.

95-2206.8. Aggravating circumstances. Aggravating circumstances are any of the following:

(1) The offense was deliberate homicide and was committed by a person serving a *1291 sentence of imprisonment in the state prison.

(2) The offense was deliberate homicide and was committed by a defendant who had been previously convicted of another deliberate homicide.

(3) The offense was deliberate homicide and was committed by means of torture.

(4) The offense was deliberate homicide and was committed by a person lying in wait or ambush.

(5) The offense was deliberate homicide and was committed as a part of a scheme or operation which, if completed, would result in the death of more than one person.

(6) The offense was deliberate homicide as defined in subsection (l)(a) of 94-5-102 and the victim was a peace officer killed while performing his duty.

(7) The offense was aggravated kidnapping which resulted in the death of the victim.

95-2206.9. Mitigating circumstances. Mitigating circumstances are any of the following:

(1) The defendant has no significant history of prior criminal activity.

(2) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(3) The defendant acted under extreme duress or under the substantial domination of another person.

(4) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(5) The victim was a participant in the defendant’s conduct or consented to the act.

(6) The defendant was an accomplice in an offense committed by another person, and his participation was relatively minor.

(7) The defendant, at the time of the commission of the crime, was less than 18 years of age.

(8) Any other fact exists in mitigation of the penalty.

95-2206.10. Consideration of aggravating and mitigating factors in determining sentence. In determining whether to impose a sentence of death or imprisonment, the court shall take into account the aggravating and mitigating circumstances enumerated in 95-2206.8 and 95-2206.9 and shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency. If the court does not impose a sentence of death and one of the aggravating circumstances listed in 95-2206.8 exists, the court may impose a sentence of imprisonment for life or for any term authorized by the statute defining the offense.

95-2206.11. Specific written findings of fact. In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact as to the existence or nonexistence of each of the circumstances set forth in 95-2206.8 and 95-2206.9. The written findings of fact shall be substantiated by the records of the trial and the sentencing proceeding.

95-2206.12. Automatic review of sentence. The judgment of conviction and sentence of death are subject to automatic review by the supreme court of Montana as provided for in 95-2206.13 through 95-2206.15.

95-2206.13. Review of death sentence— priority of review — time for review. The judgment of conviction and sentence of death are subject to automatic review by the supreme court of Montana within 60 days after certification by the sentencing court of the entire record unless the time is extended by the supreme court for good cause shown. The review by the supreme court has priority over all other cases and shall be heard in accordance with rules promulgated by the supreme court. The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration.

95-2206.14. Transcript and records of trial transmitted. The clerk of the trial *1292 court, within 10 days after receiving the transcript, shall transmit the entire record and transcript to the supreme court.

95-2206.15. Supreme court to make determination as to the sentence. The supreme court shall consider the punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall determine:

(1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) whether the evidence supports the judge’s finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in 95-2206.8 and 95-2206.9; and

(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration.

. The statute provided that "[a] court shall impose the sentence of death following conviction of aggravated kidnapping if it finds that the victim is dead as a result of the criminal conduct." Rev.Code Mont. § 94-5-304 (1947) (repealed 1977).

. Coleman's conviction on all three counts, and sentence for deliberate homicide, were affirmed. His death sentence and his sentence for sexual intercourse without consent, inflicting bodily injury were vacated. The Montana Supreme Court concluded there was insufficient evidence to show Coleman had inflicted bodily injury upon the victim in the course of committing sexual intercourse because she was murdered sometime after the rape incident. Coleman I, 177 Mont. 1 , 579 P.2d at 742-43 . On remand, Coleman was resentenced to death and was sentenced to 20 years for the crime of sexual intercourse without consent, the latter sentence to run consecutively to his sentence of 100 years for deliberate homicide. Coleman II, 185 Mont. 299 , 605 P.2d 1000, 1007 (1979).

. In his dissent. Judge Alarcon contends Coleman also seeks reversal of his convictions on the ground that he was denied effective assistance of counsel, because his first attorney told the court at a pretrial hearing that Coleman had taken a sodium amytal test and had admitted participating in the crimes with which he was charged. We disagree with this characterization of Coleman’s appeal. Coleman’s attack regarding the sodium amytal procedure and his attorney’s revelation of its results is not directed to his convictions, but to his sentence. Coleman’s argument is that he was sentenced to death without due process because the results of the sodium amytal test were revealed to the judge who later became the judge who sentenced him to death. Appellant's Brief, pp. 22-24. No argument is made that this incident had any effect on Coleman’s convictions. Because we reverse Coleman’s death sentence on other grounds, we do not reach his sodium amytal/ineffective assistance of counsel argument.

The dissent also contends Coleman has raised an issue on appeal concerning the sufficiency of the evidence on which he was convicted. We disagree. Coleman’s only argument about the evidence presented at his trial concerns the effect such evidence was given when he was sentenced to death. See Appellant’s Brief, p. 48.

. Coleman’s argument that his jury panel was selected using the key man system is without merit. The key man system of jury selection involves the selection of particular persons to make up a pool from which a jury is then chosen at random. It is not unconstitutional on its face. Castaneda v. Partida, 430 U.S. 482, 497 , 97 S.Ct. 1272, 1281 , 51 L.Ed.2d 498 (1977); United States v. Nelson, 718 F.2d 315, 319 (9th Cir.1983). Here there is nothing to suggest the jury panel was chosen using the key man system. The initial 200 jurors were selected at random. Cf. Castaneda, 430 U.S. at 497 , 97 S.Ct. at 1281 . The panel of sixty potential jurors were in essence volunteers, a fact which standing alone does not render the composition of a panel unconstitutional. Nelson, 718 F.2d at 319 .

. Both parties agree, and it is clear from the record, that Coleman has exhausted his state remedies on this issue by arguing before the Montana courts that the application of Montana’s 1977 death penalty law to this case violated due process. The issue is thus properly before us on appeal.

. In Coleman I , the Montana Supreme Court held that Montana’s mandatory death penalty statute was unconstitutional because ‘‘[t]here is no provision for the trial court to consider any mitigating circumstances.” Coleman I, 177 Mont. 1 , 579 P.2d at 742 . The court found the requirements of the statute were inconsistent with the Supreme Court’s holdings in Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976), Coker v. Georgia, 433 U.S. 584 , 97 S.Ct. 2861 , 53 L.Ed.2d 982 (1977) and Roberts v. Louisiana, 431 U.S. 633 , 97 S.Ct. 1993 , 52 L.Ed.2d 637 (1977).

. The Court in Dobbert upheld the imposition of a death sentence on a defendant who was tried and sentenced under a valid capital punishment statute even though the statute was not in effect at the time the crime was committed. The amendment to the statute came after commission of the crime but before trial. By contrast, in the present case Coleman was sentenced under an unconstitutional capital punishment statute. At least two courts have concluded that this factual distinction from Dobbert is decisive and have declined to resentence under new statutes defendants who were tried, convicted and sentenced under unconstitutionally defective statutes. See Meller v. State, 94 Nev. 408 , 409 n. 3, 581 P.2d 3 , 4 n. 3 (1978) (per curiam); State v. Rogers, 270 S.C. 285, 291 , 242 S.E.2d 215, 217-18 (1978); cf., State v. Lindquist, 99 Idaho 766 , 589 P.2d 101, 105 (1979) (acknowledging factual distinction with Dobbert but resting decision on other grounds). Because we decide this case on due process grounds, rather than under the ex post facto clause as in Dobbert , we do not reach Coleman’s ex post facto argument.

. When Coleman was resentenced under the new death penalty statute, the sentencing judge stated that he was relying on the burglary to which Nank testiñed, and which Coleman denied, to deny Coleman any statutory credit in mitigation for not having any prior history of criminal activity. See Mont.Code Arm. § 95-2206.9(1). Deprivation of this mitigating factor was critical, because it eliminated a circumstance that might have overcome the aggravating factor and allowed Coleman to avoid the death penalty.

. Coleman’s contention that he was prosecuted, and sentenced to death, because of race discrimination when the state plea bargained with Nank, a white man, but refused to enter into a plea bargain with Coleman, who is black, does not impact his conviction of deliberate homicide. He would have been convicted upon his offer to plead guilty to this crime in any event. Nor does it have any disadvantageous impact on Coleman by reason of his conviction of sexual intercourse without consent, a crime different from the crime of solicitation to commit sexual intercourse to which Nank pleaded guilty. Nank's sentence for solicitation to commit sexual intercourse (Nank being the "solicitor” and Coleman the "solicitee”) was 40 years. Coleman’s sentence for sexual intercourse without consent, the crime he was eventually left convicted of following his first appeal, was 20 years. Both sentences were the máximums for the respective crimes. The disparity in the sentences occurred when the Montana Supreme Court struck the bodily injury element from Coleman’s conviction of sexual intercourse without consent.

Coleman’s racial discrimination claim, however, does impact his conviction of aggravated kidnapping, a crime to which his plea offer would not have applied. Upon resentencing, the state court will have to determine what sentence to impose on Coleman and how to treat his conviction of aggravated kidnapping in view of our reversal of his death sentence. Until Coleman is resentenced, we cannot evaluate the merits of his claim of racial discrimination based upon the state’s refusal to plea bargain with him as it did with Nank.

In his dissent, Judge Alarcon states that he ”do[es] not understand the majority’s reluctance to face up to Mr. Coleman’s constitutional attack on the judgment of conviction for aggravated kidnapping, deliberate homicide, and forcible rape in the appeal presently before this court. If Mr. Coleman has stated sufficient facts to show that these convictions were obtained in violation of his constitutional rights, he is entitled to an evidentiary hearing in the district court now.” Alarcon, J., dissenting p. 1308. We disagree. There is a strong practical possibility that today’s decision upholding one of Coleman’s principal constitutional arguments will serve ultimately to make it unnecessary for us to consider Coleman’s remaining claims. While this may depend in part on Coleman’s and Montana’s actions following remand, it would not be appropriate for us to presume that those actions will fail to eliminate any need for this court to address further constitutional arguments.

We express no opinion as to whether Montana would be precluded from again seeking the death penalty in the event Coleman obtains a new trial. Compare Bullington v. Missouri, 451 U.S. 430 , 101 S.Ct. 1852 , 68 L.Ed.2d 270 (1981), and Fitzpatrick v. McCormick, 869 F.2d 1247 (9th Cir.1989), with United States v. DiFrancesco, 449 U.S. 117 , 101 S.Ct. 426 , 66 L.Ed.2d 328 (1980); North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969); Stroud v. United States, 251 U.S. 15 , 40 S.Ct. 50 , 64 L.Ed. 103 (1919); and United States v. Andersson, 813 F.2d 1450 (9th Cir.1987).