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The majority decision, written by Judge Sidney Thomas and joined by Chief Judge Mary Schroeder and Judges Harry Pregerson, Stephen Reinhardt, Michael Daly Hawkins, M. Margaret McKeown, Kim Wardlaw, and Raymond Fisher: . . . The question of whether a newly announced constitutional rule will apply retroactively on collateral review is a relatively recent inquiry in American jurisprudence. As Justice Holmes observed at the turn of the century, “[j]udicial decisions have had retrospective operation for near a thousand years.” . . . We first consider the threshold Teague question, namely whether Ring announced a substantive rule or a procedural rule. Unlike strictly procedural rules, “new rules of substantive criminal law are presumptively retroactive.” . . . In one sense, Ring — like Apprendi — announced a procedural rule: Ring mandated that a jury, rather than a judge, must find aggravating circumstances in a capital case. Ring‘s holding thus addressed, at least in part, the procedure by which any capital trial must be conducted. . . . More than a procedural holding, Ring effected a redefinition of Arizona capital murder law, restoring, as a matter of substantive law, an earlier Arizona legal paradigm in which murder and capital murder are separate substantive offenses with different essential elements and different forms of potential punishment. That is, as applied to the particular Arizona murder statute at issue here, Ring‘s holding was “substantive” for Teague purposes. The dissent, written by Judge Johnnie Rawlinson and joined by Judges Diarmuid O’Scannlain and Richard Tallman: . . . The majority opinion views jury determination of the penalty as an indispensable manifestation of the jury’s role as the “conscience of the community.” However, empirical evidence suggests that the “conscience of the community” is not necessarily the fairest adjudication for a capital defendant. Not only do jurors prejudge defendants, they also engage in penalty negotiations during the guilt phase. Their decisions are tainted by considerations of sympathy, pity, anger and disgust. And their death determinations are influenced by race. Judge Thomas responded to Judge Rawlinson in a footnote to his majority opinion: The dissent assails the use of juries in capital sentencing. This criticism misses the central issue. The presence of some imperfections in jury sentencing does not affect the conclusion that juries are ultimately more accurate than judges. While individual jurors may hold emotional or legally inaccurate views, the requirement of unanimity across twelve individuals significantly reduces the chance that these views will hold sway. Moreover, the fact that some jurors feel sympathy or pity does not imply that the verdict is ultimately governed by these emotions.

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