dissenting.
On April 4, 1989, the Court issued its first opinion in this case. We affirmed the first degree murder conviction, but vacated the death sentence and remanded for resen-tencing.
Full development of the attendant facts and circumstances is available in the reported case, 116 Idaho 129, 132-34, 774 P.2d 299, 302-04 (1989). Highly unusual was Charboneau’s selection of defense counsel, concerning which I wrote at 116 Idaho at 162, 774 P.2d at 332, laying out the highly singular fact that defense counsel predicated the defense which he would present upon the results of a seance which was conducted by a spiritualist. Defense counsel wholly succumbed to relying entirely on the hypothesis that Charboneau was not the real culprit, but the real culprit was a daughter of the deceased victim. Based on that belief, said defense counsel forewent making any of the ordinary preparations for presenting a defense. Even more damaging to Charboneau was defense counsel allowing him to be interrogated by prosecuting authorities.
The interested reader will become more fully informed by reading all of the Char-boneau opinions. My purpose for so suggesting is to further my view that the actions of the defense counsel were not just inimicable to the best interests of Charboneau, but actually deprived Charbo-neau of a fair trial.
For that reason I was unable to sanction the death sentence and am therefore presently equally unable to see him imprisoned for the remainder of his life without receiving the benefit of a new trial, one which could not but be substantially more fair than the one to which he was submitted by the attorney who supposedly represented and defended him. In regard to that disaster, I am reminded of and fortified by a news item recently observed in a local newspaper. It was to the effect that a convicted murderer who had been sentenced to life imprisonment had been recently paroled. A full report of the facts of that affair, which was the same sort of factual background as Charboneau, is readily available in State v. Hargraves, 62 Idaho 8, 107 P.2d 854 (1940). To my mind, for one defendant to be released on parole requires that others equally entitled be treated evenly. To which must be added, the 62 Idaho defendant at all times had the benefit of competent counsel, whereas the trial of Charboneau was facially farcical from its inception. It is my firm belief that the trial in State v. Charboneau should have been aborted abruptly the very minute that defense counsel disclosed his reliance on the outcome of a seance.
It was within the province of the district court to declare a mistrial. To have done so would not have unduly delayed a second trial at which Charboneau would be represented by competent counsel well versed in defending a defendant charged with first degree murder. What did occur, however, was a classic tragedy. It is equally true, and fully conceded, that hindsight is just that and nothing more. Undoubtedly the trial court was caught short when defense counsel presented his highly unusual theory of a defense which was not a defense. The district judge who presided at the trial is an extremely capable and fair-minded jurist; it can only be surmised that as is so with most trial court judges, he was not inclined to interfere with the defense coun*221sel’s mystical theory for defending a first degree murder charge.