concurring:
I.
I concur wholeheartedly in Judge Fletcher’s opinion for the court. Regretfully, however, I cannot let Judge Kozinski’s extraordinary dissent pass unchallenged. Because we cannot delay filing any longer, I am able to comment on that unfortunate document only very briefly.
Perhaps to those who read his recent musings in The New Yorker magazine regarding his personal experiences in voting in death penalty cases,1 Judge Kozinski’s rambling analysis will come as no surprise. Others surely will be astounded by some of the conclusions he reaches and some of the factual errors he makes. I have time to note only one of each:
First, Judge Kozinski’s conclusion that the en banc process is not available when the objective is to correct specific constitutional errors that will result in the execution of a person who cannot lawfully be executed misses the point not only of our en bane process but of our justice system as a whole. Of course our en bane process is available to correct such grievous and otherwise irremediable errors. Judge Kozinski writes:
If the en banc call is missed for whatever reason, the error can be corrected in a future case where the problem again manifests itself. Since any problem worthy of en banc consideration will perforce appear again and again, missing an en banc call in a single ease does not terminate forever the opportunity of judges troubled by the error to raise the issue____
That this is a capital case does not change this calculus.
This conclusion is bizarre and horrifying in its implications, and is unworthy of any jurist. We cannot correct the error of an unconstitutional execution in the next case. Surely no responsible judge could believe otherwise.
Second, contrary to what Judge Kozinski represents in his dissent, the entire court was immediately notified of the three-judge panel’s unprecedented refusal to permit two judges of this court a brief extension of time in which to make an en bane call. In addition, before our mandate was spread in the district court, two other judges also requested that a belated en banc call be entertained. Again, the entire court was notified immediately.
This is a court which has been marked by collegiality and fairness. We work well together and are all, without exception, proud of this institution. We will all continue in that vein when this case is over. Nevertheless, it is essential to observe that the refusal to permit a late en bane call was contrary to our custom and practice and was indeed aberrational and extraordinary, as is Judge Kozinski’s dissent.
One might think that some of us had forgotten that we are construing a Constitution, examining the question whether a fair trial was held, considering whether a strong possibility of actual innocence exists, and deter*1061mining whether under our system of law a man should live or die. Reading Judge Ko-zinski’s strange dissent, one would think that justice is irrelevant in this nation and that all that matters in our system of law is whether a single piece of paper was misplaced in a judge’s chambers, or whether some recondite internal General Order was complied with to the last detail. That is surely not the type of legal system in which most of us believe. That is surely not the type of nation that we represent ourselves to be when we offer ourselves as a model of fairness and decency, democracy and civilization, throughout the world.
II.
Judge Kozinski has chosen to add to his previously filed dissent. Accordingly, I take this opportunity to add to the brief concurrence (now section I, supra) I was required to draft in only a few short hours. The picture Judge Kozinski paints of our court is not a fair one and does a disservice to the institution. By selective quotations from portions of internal memoranda, misrepresentations regarding historical facts, and omissions of events, some of which he may not even be aware of, he describes a cold and mechanical process that bears little resemblance to the collegial mode of operation and spirit of collaboration that has long marked the operations of this court. We simply do not do business in the unfriendly and adversarial way Judge Kozinski describes. Our internal time limits are not intended to operate as statutes of limitations and do not have the force of Federal Rules of Procedure. The critical fact, though, is that Judge Kozin-ski’s revelations not only reveal a different judicial world than most of us are familiar with, but the revelations, even were they accurate, would be wholly irrelevant to the issue before us.
The questions the dissents principally address are whether this court’s decision to recall the mandate was based on extraordinary circumstances and whether we somehow were guilty of circumventing AEDPA when we decided to hear Thompson’s first habeas petition en banc. It seems apparent that if there were extraordinary circumstances that justified our sua sponte recall of the mandate in order to permit us to hear en banc a first habeas petition that we erroneously failed to review a few short months ago, there can be no possible violation of AEDPA Accordingly, the real question is that of “extraordinary circumstances.”
Surely, no-one could believe that it is an ordinary occurrence for all of the following to transpire in one case: (1) the misplacing or non-arrival in a judge’s chambers of a form computer message causes a judge to miss an internal deadline for requesting en banc review of the first (and ordinarily the only possible) habeas petition in a death penalty case; (2) the judge realizes the glitch within a reasonable time and seeks such review with dispatch, as does another judge; (3) the three-judge panel unprecedentedly refuses to act favorably on the requests for an extension of time; (4) the internal rules regarding further possible action are ambiguous; (5) two other judges subsequently renew the request for en banc review of the first habeas petition prior to the time our mandate is spread; (6) several more judges urge that out of comity we wait to conduct our en banc vote until all state proceedings are completed; (7) the court will have no further opportunity to review the panel’s patently erroneous decision if it fails to recall the mandate, while if it does it will be able to conduct an initial en banc hearing on a first habeas petition; (8) the experienced district judge who was reversed by the panel had found in a one-hundred page opinion after a full evi-dentiary hearing that the capital defendant did not receive a minimally effective defense on the charge that triggered the imposition of the death penalty; (9) the district judge had concluded that even despite the ineffectiveness of defense counsel the prosecutor failed to present substantial evidence of the charge which was the basis for the imposition of the death penalty; and (10) there is a substantial question whether the prosecutor by his unethical conduct deprived the defendant of due process of law and thus a fair trial.2
*1062To suggest that all of this is just an ordinary run-of-mill occurrence and that the panel’s errors may be corrected in the next en bane case is mind-boggling. Surely, if a court wishes to correct its own errors in these extraordinary circumstances, as seven members of the en banc court voted to do, the court has the authority to do so.
Judge Kozinski’s dissent addresses almost exclusively the question of whether procedural errors actually occurred within the court, how and why they came about, and what our internal rules actually provide when properly construed. In one of his amendments he purports to regret that he has been required to “delve into court communications.”
As far as I am concerned, Judge Kozinski’s delving is not only offensive and inaccurate but it serves no purpose. His delving cannot change the fact that two judges of this court sought to have an en banc hearing held at or about the normal time and two others sought to have it held before our mandate was spread in the district court. His delving cannot change the fact that the reason that a number of judges asked to have an en banc hearing on this first habeas petition in a capital case was to permit review on the merits of a panel opinion that erroneously decided two serious constitutional questions and that, unless overturned, would result in a manifest injustice.
No one familiar with this case has suggested, or could in good conscience suggest, that anything but honest errors and strong disagreements among judges about the appropriate procedures led to the fact that we did not take an en banc vote at the regular time. If anyone were to suggest otherwise, that suggestion would be both false and reprehensible. It is true that this case reveals disagreements on the court about the circumstances under which an en banc vote may be called following non-substantive amendments to an opinion. It is true that we appear to have disagreements about a panel’s obligation to honor a reasonable request for an extension of time in an en banc ease. It is true that a form 5.4(b) notice may have gone astray or unnoticed. The question of why these events occurred, however, is irrelevant.
Rather, the question is whether a person who has been deprived of a fair trial, both because of the ineffectiveness of his counsel and the due process violations of the prosecutor, and who in all likelihood is actually innocent of the death-qualifying offense, should be executed because a court of appeals made good faith mistakes or had good faith disagreements as to internal court procedures and, as a result, initially failed to afford him the en banc review that it would otherwise have conducted. Should a court of appeals, in other words, be prohibited from recalling a mandate sua sponte and correcting the grave constitutional errors made by a panel of that court when the court itself is responsible for the initial failure to hold an en banc hearing and when the capital case presents substantial claims of ineffectiveness of counsel, highly prejudicial prosecutorial misconduct, and actual innocence — particularly when the district court found a substantial part of those claims to be true?
In my view, Judge Kozinski’s attempt selectively to extract items from our internal correspondence3 in an effort to show that the *1063judges were guilty of simple, rather than excusable, neglect is wholly irrelevant. It is possible, as he suggests, that other procedural maneuvers could have been tried. That is a matter of judgment. That additional internal efforts to obtain an earlier en banc hearing were or were not pursued proves nothing. In the absence of a charge of bad faith, the specific nature of the errors really does not matter. The undisputed fact is that either because some judges inadvertently, erroneously, negligently or excusably failed to pursue the en bane call at the proper time, or because a three-judge panel arbitrarily refused to allow a late call in contravention of the court’s long established practice, an en bane call did not occur at the time set by our internal rules. A majority of the judges wished to correct that error in order to remedy a manifest injustice in a capital case. The majority wished to review en banc a first habeas petition that in fact was meritorious, even though, by chance, error, or mistake, the call had not been made a few months earlier. The critical question is whether, under these extraordinary circumstances, a court of appeals is free sua sponte to recall the mandate in order to accomplish those objectives.
Judge Kozinski’s essential response to the question before us can be summed up by a sentence of his that I quoted in Section I: “If the en bane call is missed for whatever reason, the error can be corrected in a future ease where the problem again manifests itself.” Kozinski Dissent at 1060. As I said earlier, that is not an acceptable response to those who believe that fairness and due process play some part, however small, in. our legal system, or to those who believe that individual human life is both valuable and unique.
This case is different from any other case we have had or are likely to have again. We cannot cut it into pieces, examine each piece separately and then say each piece is not unusual. Together the whole is extraordinary, probably as extraordinary a case as any of us has ever seen. Yet, to Judge Koanski this is simply an everyday occurrence. Nothing unusual about it. We can correct the error in the next case. To the majority of this en banc court, that would come far too late. To us, this case is about a person who did not receive a fair trial and who is in all likelihood innocent of the offense of rape which underlies his scheduled execution. It is about a court that made an error not only in reversing a scrupulously careful district judge who vacated the rape conviction but also in failing to hold a timely en banc hearing at which we could have corrected our own mistake. It’s about this court’s ability to act to prevent a manifest injustice. It is about fairness, justice and due process of law.
TASHIMA, Circuit Judge, concurring, with whom JUDGE THOMAS joins:I join in all of the majority opinion, except Part III, and concur in the judgment. As explained briefly below, I also concur in the major premise of Part III, but not in its result.
A homicide victim dies as a result of a gunshot wound inflicted with a single bullet. The prosecutor obtains a first-degree murder conviction of defendant A. In a separate trial, he also subsequently obtains a first-degree murder conviction of defendant B. The prosecutor’s theory in each case is that the defendant on trial fired the gun. Few would argue that, at least in some circumstances, defendant A or defendant B (or both) has been deprived of due process. This is the major premise of Part III with which few would disagree. As the three-judge panel observed, “[f]rom these principles emerges the requirement that the prosecutor not pursue wholly inconsistent theories of a case at separate trials.” Thompson v. Calderon, 109 F.3d 1358, 1371 (9th Cir.1996), (citing Haynes v. Cupp, 827 F.2d 435, 439 (9th Cir.1987)), cert. denied, — U.S. -, 117 S.Ct. 2426, 138 L.Ed.2d 188 (1997).
I agree with the major premise of Part III that due process is violated when a prosecutor “pursue[s] wholly inconsistent theories of a case at separate trials.” Id. I also agree with the majority that the prosecutor’s theories in the two trials involved here were “fundamentally inconsistent” and, thus, violated due process.
*1064The three-judge panel found no prejudice from the prosecutor’s conduct and “[fjurther, we conclude that if any prejudice resulted from the differences in emphasis it would have affected Leitch, not Thompson.” Id. (citation omitted). The majority opinion concludes that “[t]o the contrary, Thompson was prejudiced.” To reach a conclusion of prejudice or no prejudice as to Thompson first requires a finding of which of the two inconsistent theories pursued by the prosecutor represents the true facts and which is false. In the absence of a district court finding on the issue, the majority has made its own finding.1
Thus, although I agree that there was a due process violation, absent a finding of which version is true, I am unprepared to decide whether or not Thompson was prejudiced by it.2 Because I am unprepared to make that finding on appeal on this record, I would remand to the district court for an evidentiary hearing on this issue.
. Alex Kozinski, Tinkering With Death: A Death-Penalty Judge Reflects: How Does It Feel To Send Another Man To Die?, New Yorker, Feb. 10, 1997, at 48.
. I describe the facts as one might have described them conservatively at the time of the *1062vote by the en banc court to recall the mandate. The fact is that the case could well be stated far more strongly. By the time the en banc court voted on the question of recalling the mandate it had already heard full argument on the merits and knew that it would be required to reverse the death-eligible conviction if the mandate were recalled. We not only had taken the "peek under the rug” described in the majority opinion, but we had heard and reviewed everything that was hidden under the rug. In short, we knew that we were being asked to recall the mandate, not, as Judge Kozinski suggests, in a case involving a "colorable” claim, but in a case in which we already knew that a capital defendant did not receive effective counsel on the charge that made him death-penalty eligible and had been deprived of due process of law as a result of prosecutorial misconduct. We also knew that if we failed to recall the mandate he would be executed without ever having received a fair chance for a full review in this court, notwithstanding that the evidence against him on the death-eligible charge was insubstantial.
. Selective quotations from internal memoranda can be highly misleading. Even the quotation of a full internal communication may give a false impression under some circumstances. The reader might be surprised to read, for example, the contents of a communication from Judge K in this case, if I were uncollegial enough to include it in this opinion.
. The majority's "finding” would also seem to require the prosecutor on Thompson's retrial to pursue the same theory he pursued at Leitch's trial. I am reluctant to impose this limitation on the prosecution, absent a finding on the issue.
. Another way of viewing the issue is that without that finding, one cannot conclude which defendant, Thompson or Leitch (or perhaps both), was deprived of due process.