Lambright

Opinion by Judge FERNANDEZ; Dissent by Judge REINHARDT.

Joe Leonard Lambright and Robert Douglas Smith were found guilty of murder and sentenced to death. Their convictions and sentences were affirmed by the Arizona Supreme Court, 1 and they, ultimately, sought federal writs of habeas corpus on various grounds. The district court denied the writs and they appealed. A three-judge panel of this court ordered that the writs be granted on the single ground that they were deprived of their constitutional rights when the Arizona trial court used dual juries (one for each of them). See Lambright v. Stewart, 167 F.3d 477 (9th Cir.1999). It did not decide the other issues that they raised. We withdrew the panel’s opinion and ordered that the issue be heard en banc. See Lambright v. Stewart, 177 F.3d 901 (9th Cir.1999). Because we disagree with the panel’s determination, we now affirm the district court on the dual jury trial issue.

BACKGROUND

Lambright and Smith were traveling across the country with Lambright’s girlfriend, Kathy Foreman. Smith was troubled by the fact that while Lambright and Foreman had intercourse in his presence, he did not have anybody along to satisfy him. For his…

dissenting:

This court, like so many others in this era of diminishing concern for constitutional rights, particularly in capital cases, pays lip service to the idea that “death is different.” Meanwhile, it firmly closes its eyes and its mind to the content of that message. The majority tells us, as courts have in so many cases recently, that it is only the end that matters, not the means.

Perhaps it is not surprising, when the primary concern of the judiciary is to “get on with” executions, and when even actual innocence is of questionable importance, 1 that this court is willing to approve untested and unauthorized experiments as a means of determining whether capital defendants will live or die. It is not surprising except for the fact that, because “death is different,” we are obligated by the Constitution to employ the most reliable methods available to ensure that we arrive at a fair and just verdict. There are tried and true methods of arriving at the truth in our legal system. At the time of Lam-bright and Smith’s capital trial, there was a procedure for conducting capital jury trials that had been approved by the Arizona courts and that was regularly employed in other…