dissenting.
I respectfully dissent.
I believe that the Attorney General’s participation in the clemency decision, after acting as the chief prosecuting official in this case, and whose assistants represented the state at the clemency proceedings, deprived Otey of substantive due process.
The Supreme Court has recently underscored the significant role clemency plays as a remedy for preventing the miscarriage of justice once the judicial process has been exhausted. In Herrera v. Collins, — U.S. -,-, 113 S.Ct. 853, 869, 122 L.Ed.2d 203 (1993), the Supreme Court, speaking through Justice Rehnquist, held that there is ordinarily no federal habeas review (indeed, no judicial review at all) available for claims of actual innocence based on new evidence discovered after the time for filing a motion for new trial. The appropriate “forum” in which to raise such actual innocence claims is that of executive clemency, which acts as a “fail safe” against executing innocent people. Id. — U.S. at-, 113 S.Ct. at 868. By relying on the existence of executive clemency to justify excluding certain kinds of claims from judicial scrutiny, the Court recognized that clemency procedures are an important last step of an effort to avoid execution. This newly recognized and emphasized significance of the clemency process illuminates the constitutional deficiencies in the clemency proceedings.
When Otey’s case was before us nearly a year ago, I dissented from this court’s opinion. Otey has now presented an even more compelling argument for finding a substantive due process violation.
While there are superficial similarities between Otey’s case and Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), there is a theoretical divide between Dumschat’s reliance on procedural due process and Otey’s plea for substantive due process. Dumschat claimed that by granting three-fourths of the applications for commutation of life sentences the Board of Pardons created a constitutional liberty interest or entitlement to commuta*640tion, and that he was therefore entitled to a statement of reasons for denial of his application for commutation. Dumschat’s claim of an expectation of pardon was far different from Otey’s substantive due process claim that the clemency procedures are fundamentally unfair in including the state’s chief prosecuting officer as á member of the Board of Pardons. Otey’s claim focuses not on a right to receive pardon, but on a right to seek it before an unprejudiced Board.
Substantive due process protects individuals from government conduct that “shocks the conscience.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952). The idea of a prisoner pleading for his life before a board that includes the very official responsible for his prosecution and conviction is shocking to the judicial conscience.
Before 1920, Nebraska vested clemency power in the governor, who had the discretionary power to grant or deny clemency, or take no action. Nebraska established a more formalized procedure in 1920 when it transferred the clemency power to the Board of Pardons. Modifications to the procedure in 1969 gave further structure to clemency proceedings. Nebraska statutes mandate that properly filed clemency requests be considered. See Neb.Rev.Stat. § 83-1, 129 (1987 Reissue). The statutes further mandate that when a petition for clemency is filed, the execution is stayed until the Board rules on the application. Neb.Rev.Stat. § 83-1, 132 (1987 Reissue). The application shall be considered by the Board with or without hearing at its next regular meeting, or within 30 days, whichever is earlier. If a hearing is held, it is to be conducted in an informal manner, but a complete record of the proceedings is to be made and preserved. Neb. Rev.Stat. § 83-1, 129. The State of Nebraska has thus by its constitution and statutes replaced the sole authority of its governor with a structure that governs the deliberations and proceedings of a Board consisting of the Governor, Attorney General and Secretary of State.
The participation of the Nebraska attorney general as a voting member of the Board of Pardons hearing Otey’s case renders the clemency proceeding fundamentally unfair.1 Attorney General Stenberg’s statements of personal objectivity at the hearing do not cure this defect.2 By statute, the attorney general advises county attorneys on criminal matters, and appears for the state and prosecutes criminal proceedings in the Supreme Court. See Neb.Rev.Stat. § 84-205 (1987 Reissue). The assistant attorneys general who participated in Otey’s prosecution, sentencing, appeals, and clemency hearing did so in the attorney general’s name.3 The attorney general, having successfully obtained af-firmance of Otey’s death sentence in the Nebraska Supreme Court, and successfully represented the State in Otey’s habeas case, can hardly be expected to oppose the execution of this sentence. As prosecutor, the attorney general determined that it served the public welfare to seek the death penalty as the appropriate punishment for Otey. It is unreasonable to assume that the attorney general would freely consider the same sentence inappropriate at a clemency hearing, especially when his own representatives are arguing before him in favor of retaining the sentence. With the attorney general’s position fixed, a petitioner must obtain the vote of the other two members of the panel. Otey received one favorable vote, but not both. *641The State has created a playing field that is tilted toward denial and is therefore fundamentally unfair.
Perhaps the Nebraska procedure has systemic constitutional infirmity. We need not reach this issue, however, in view of the actual conflicting roles of the attorney general in Otey’s case. This conflict was demonstrated most dramatically by the attorney general’s discussion with his assistants of specific aspects of the presentation they would make before the Board.
The Supreme Court, in a number of recent opinions, has discussed the nature and expanse of substantive due process. See Albright v. Oliver, — U.S. -,-, 114 S.Ct. 807, 812-13, 127 L.Ed.2d 114 (1994); Collins v. City of darker Heights, — U.S.-,-, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992); and Planned Parenthood v. Casey, — U.S.-,-, 112 S.Ct. 2791, 2804-05, 120 L.Ed.2d 674 (1992). The Court’s discussion establishes that the due process clause protects more than those rights guaranteed by the express provisions of the Bill of Rights. Thus, I am unpersuaded by the argument of the district court and this court that substantive due process requires a liberty interest other than that found in the due process clause itself. We said a few years ago in Meis v. Gunter, 906 F.2d 364, 369 (8th Cir.1990), cert. denied, 498 U.S. 1028, 111 S.Ct. 682, 112 L.Ed.2d 673 (1991), that concepts of liberty and property interests are useful solely in the context of procedural due process.
The substantive due process analysis in Mayberry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S.Ct. 499, 505, 27 L.Ed.2d 532 (1971) is compelling. In Mayberry, the defendant was tried and convicted of contempt by the same judge who was the object of many of the personal aspersions which gave rise to the contempt charges. Id. at 466, 91 S.Ct. at 505. The Supreme Court held that “by reason of the Due Process Clause of the Fourteenth Amendment a defendant in a criminal contempt proceedings should be given a public trial before a judge other than one reviled by the contemnor.” Id. at 466, 91 S.Ct. at 505; see also In re Murchison, 349 U.S. 133, 136-38, 75 S.Ct. 623, 625-26, 99 L.Ed. 942 (1955) (a judge who sat as a one man grand jury was a part of the accusatory process, and could not be disinterested in the conviction or acquittal of those accused of contempt). Mayberry reasoned that “ ‘[f]air trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.’ ” Mayberry, 400 U.S. at 465, 91 S.Ct. at 505, (quoting Murchison, 349 U.S. at 137, 75 S.Ct. at 625-26). See also Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980).
This circuit, in other contexts, has made similar holdings. In Yamaha Motor Corp., U.S.A v. Riney, 21 F.3d 793, 797-98 (8th Cir.1994), we reversed a district court finding that one of the six members of the Arkansas Motor Vehicle Commission was not biased. Commissioner Jones was a Harley-Davidson dealer and had a pecuniary interest in eradicating Yamaha from the state of Arkansas. We held that there was “ample evidence in the record that Jones had abdicated his role as an adjudicator and had prejudged the issues before him,” and that this bias rendered the Commission incompetent to decide the issues before it. Id. Our opinion cited earlier authority that litigants are entitled to an impartial tribunal whether it consists of one person or twenty. Id.; see also Malek v. Camp, 822 F.2d 812, 817 (8th Cir.1987) (holding that defendant’s claim that a member of a prison disciplinary board was personally biased against him because of a pending lawsuit stated a ground for relief under section 1983). Where life is at stake, as opposed to contempt of court, the right to sell motorcycles in a state or prison disciplinary proceedings, there is even more compelling reason to conclude that there has been a substantive due process violation. I reject the State officers’ argument that as elected officials they should be shielded from the reach of the due process clause of the United States Constitution.
This ease is distinguishable from Whitmore v. Gaines, 24 F.3d 1032 (8th Cir.1994). There we held that there was no due process violations where one member of the board conducting clemency proceedings asked questions which suggested that he focused on *642whether the sentence was illegal rather than the evidence presented in support of the defendant’s plea for clemency. Id. at 1034. In Whitmore, the ultimate clemency decision was made by the governor and the alleged violation of the defendant’s substantive due process rights were committed by the clemency board. Id. Here the board of pardons made the ultimate clemency decision, which was infected by the substantive due process violation when one of its members, the attorney general, participated in the decision.
The Board and warden’s brief poses a laundry list of rhetorical questions as to whether certain aspects of the proceeding are shocking. The State’s list, however, falls short of enumerating the situation before us, namely that the attorney general actively prosecuted the appeals in Otey’s case; sought the death penalty; and then sat on the board deciding whether Otey was to receive clemency. The State has failed to grasp the judicially shocking nature of these conflicting roles.
As the Court recently underscored in Herrera, clemency plays a crucial role in the implementation of state capital punishment laws. Herrera, — U.S. at — , 113 S.Ct. at 867-69. Given the crucial role of clemency in the states’ capital punishment laws, it is a violation of substantive due process to entrust the pardoning power, even in part, to the state’s chief prosecutor, as was done in Otey’s case. Executions, like convictions, “cannot be brought about by methods that offend a ‘sense of justice.’ ” See Rochin, 342 U.S. at 173, 72 S.Ct. at 210.
For these reasons, I respectfully dissent. I would reverse and remand to the district court to craft an appropriate remedy.
. I should make clear that the issue is not the propriety or impropriety of the Board of Pardons' decision on the application for grant of clemency, but rather the unconstitutionality of the procedure under which the Board considered Otey's clemency request.
. The fact that Otey's counsel withdrew a procedural objection after the attorney general made these statements does not, in my view, constitute a waiver of or otherwise affect Otey's present claims. At the beginning of the hearing, the Governor announced that the proceedings would be informal and that the rules of evidence would not apply. Under these circumstances, Otey's counsel had no obligation to preserve his objection formally.
.The assistant attorneys general presented the State's “case” against Otey at the clemency hearing. Attorney General Stenberg’s claim to have no personal knowledge of the content of their presentations does not alter their institutional status as his representatives. The attorney general conceded in his deposition that other prosecuting authorities could have presented the position of the state in Otey's case before the Board of Pardons.