McDowell

Opinion by Judge DAVID R. THOMPSON; Partial Concurrence and Partial Dissent by Judge TROTT.

Prior Report: For Majority Opinion, see 107 F.3d 1351 .

*365 ORDER

The opinion filed February 26, 1997 and published at 107 F.3d 1351 is amended by deleting Judge Trott as concurring in the majority opinion, and by adding to the majority opinion Judge Trott’s concurring and dissenting opinion filed herewith.

With this amendment, Judges Wiggins and Thompson have voted to deny the petition for rehearing. Judge Thompson has -voted to reject the suggestion for rehearing en banc, and Judge Wiggins recommends rejection. Judge Trott has voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The suggestion for rehearing en banc is being circulated to the entire court. An order accepting or rejecting that suggestion will be entered in due course.

concurring and dissenting:

I

In Duncan v. Louisiana, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968), the Supreme Court said that trial by jury is “fundamental to the American scheme of justice,” id. at 149 , 88 S.Ct. at 1447 . In expanding on this statement, the Court observed that

Id. at 155-156 , 88 S.Ct. at 1450-51 . A jury cannot fulfill this historic role in our Government, however, if it does not follow the law. It is not an unguided missile free according to its own muse to do whatever it wants. To accomplish its purpose as chartered in Duncan , a jury must be instructed properly as to the relevant law and as to its function in the fact-finding process. It also must follow these instructions. Otherwise, it too might exercise power in a manner thoroughly arbitrary, oppressive, or eccentric.

This demand is especially keen in a death penalty case where, as in California, the jury is the sentencer and decides whether a defendant shall live or die. The Supreme Court has made it abundantly clear, in a series of cases going back for almost twenty years, that for a jury determination of death to stand against Eighth Amendment scrutiny, the jury’s discretion must be…