Lambright

Opinion by Judge REINHARDT; Dissent by Judge THOMPSON.

Following a single trial before “dual juries,” petitioners Joe Leonard Lambright and Robert Douglas Smith were convicted of first degree murder, kidnapping and sexual assault, and were sentenced to death. Because Arizona law did not authorize the use of dual juries at the time of petitioners’ trial, the Arizona Supreme Court concluded that the trial judge in this case had conducted an inappropriate and unauthorized experiment with petitioners’ trial. It nonetheless upheld the convictions. We hold that the Due Process Clause of the Fourteenth Amendment does not permit a trial judge in a capital case to engage in unauthorized experiments with a central element of the historic trial structure. Moreover, we also hold that, by failing to follow its own procedural rules, Arizona violated a state created liberty interest, and thereby deprived petitioners of their- federal due process rights. For these reasons, we reverse their convictions and remand for issuance of a writ of habeas corpus.

I.

Facts and Procedural History

Lambright and Smith were convicted of the March 11, 1980 kidnapping, sexual assault and brutal murder of…

dissenting.

I respectfully dissent because I disagree with the majority’s conclusion that using dual juries was a structural error which is reversible per se. I would apply a harmless error analysis. Applying such an analysis, I would conclude that the use of dual juries did not result in actual prejudice to either Lambright or Smith, nor did it have a substantial and injurious effect or influence of the juries’ verdicts. See Brecht v. Abrahamson, 507 U.S. 619, 623 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993). Accordingly, any error in the use of dual juries in the joint trial of Lambright and Smith was harmless.

I

As the majority notes, the Constitution guarantees due process “regardless of the heinousness of the crime.” Nonetheless, the majority’s omission of the facts of these cases strips the majority opinion not only of its humanity but also of the necessary context in which to decide the dual jury issue.

The facts are as follows: In February 1980, Lambright, Smith and Kathy Foreman began a cross-country driving trip from Texas to California. They stopped in Arizona, where the crimes at issue occurred. Foreman was Lambright’s girlfriend. During the trip, she and Lambright…