dissenting:
This dissent is occasioned primarily by the majority opinion’s failure to fully appreciate Prejean’s due process argument and secondly by the majority’s conclusion that Prejean’s crime was so reprehensible that the sole relevant statistical analysis would be one that shows how race affects the prosecuting and sentencing of persons who kill Louisiana police officers.
At the outset, it is important to correctly characterize this case. Dalton Prejean is black and is a borderline mental retardate. He was convicted by an all white jury. The conviction is for the murder of a white, Louisiana State Trooper. The offense occurred when Prejean was seventeen years of age.
At trial, the Louisiana State trial court correctly suppressed “any and all” of Pre-jean’s prior adjudications of juvenile delinquency. Even so, those very adjudications which occurred during Prejean’s juvenile years were specifically and affirmatively utilized by the Louisiana Supreme Court in its opinion affirming Prejean’s instant murder conviction.
In the case at bar, Prejean has made an application for a writ of habeas corpus relief to the federal district court. Preje-an’s fully exhausted petition presented eleven claims of constitutional deprivation. The federal district court has examined these claims, found that each lacked merit and dismissed the application. The federal district court’s action was taken withowi holding an evidentiary hearing.
I. Appellate Review of the Death Sentence
The major issue in this appeal may be framed thusly: Does a Louisiana capital defendant have a constitutionally protected right to have the Louisiana Supreme Court review and dispose of his death sentence without expressly relying on intensely prejudicial information that has not been brought within the realm of the penalty jury’s consideration? For the reasons set forth below, I believe that Prejean has such a right, and that the violation of this right deprived Prejean of due process of law.
In reviewing Prejean’s sentence pursuant to its statutory duty “to determine whether the sentence is excessive,” the Louisiana Supreme Court discussed individually the three distinct appellate review criteria of Rule 28, § 1: the “Aggravating Circumstance” (part A), “Passion, Prejudice or Other Arbitrary Factors” (part B), and “Proportionality of the Sentence,” (part C). Throughout part “C” of the opinion, the Louisiana Supreme Court very clearly relied on information that can only be found in the confidential sentence investigation report. Perhaps the explicit details of Pre-jean’s adolescent but murderous past, supplied by the confidential sentence investigation report, constitutes the most serious item of prejudicial information that the Louisiana Supreme Court used to facilitate its discussion of the excessiveness vel non of Prejean’s sentence:
In June of 1974 Dalton was arrested for the killing of John Doucet, a taxi driver. Dalton admitted the killing and was committed once again to the Louisiana Training Institute. In a later statement about the incident Dalton stated that he and two friends called a cab with the intention of robbing the driver. One of his companions was carrying a gun. The three directed the driver to a quiet part of town and persuaded him to stop while they searched for an address. Dalton insisted on taking the gun from his companion because the other youth appeared to be nervous. Dalton approached the driver, and believing that the driver was reaching for a gun of his own, fired twice and began running. While fleeing he told a passerby to call an ambulance because someone had been shot. Dalton later turned himself in to the police and admitted that he had killed the driver. *1106On December 10, 1976 Dalton Prejean was released to the custody of his aunt in Houston, apparently without any probation requirements. Within seven months Dalton was once more under arrest for killing a human being.
State v. Prejean, 379 So.2d at 248. In addition, the court’s opinion identified other examples of Prejean’s juvenile delinquency and delved into his familial background, employment history, educational level, psychiatric examinations, and borderline mental retardation. Significant portions of the court’s discussion find their origin in only one source: the confidential sentence investigation report.
As previously noted, the opinion of the Louisiana Supreme Court is divided into three subheadings that mirror the three-part statutory obligation to determine “ex-cessiveness” by inquiring into the arbitrariness, proportionality, and statutory aggravating circumstances of the sentence. The text of the supreme court’s opinion, however, does not fit neatly under the rubrics as styled. The court’s “proportionality” review section, part “C”, is actually a general discussion of the excessiveness of the sentence; it is virtually indistinguishable from the “arbitrariness” review section, part “B”. Throughout parts “B” and “C” the court discusses whether the death sentence is “excessive” because of Prejean’s youthful age, his alleged intoxication at the time of the offense, and his borderline mental retardation — three factors that assert-edly diminished his capacity to “appreciate the criminality of his conduct.” State v. Prejean, 379 So.2d at 247. After a short discussion in part “B” of Prejean’s youth, his low intelligence, and his voluntary intoxication at the time of the offense, the court concluded:
Those factors, although significant, are not so numerous and persuasive as to clearly outweigh the aggravating circumstance of the case, and are discussed in greater detail below [in part “C”].
Id. In part “C”, after an exhaustive discussion of Prejean’s prior criminal conduct and other information ascertainable only from the confidential sentence investigation report, the court determined:
The record will not support a conclusion that defendant’s capacity to appreciate the criminality of his conduct was so impaired because of his mental condition and intoxication that the death sentence was, for that reason, excessive.
Id. at 249. Only thereafter did the court conduct its proportionality review of Preje-an’s sentence — in a footnote to the very last sentence of the majority opinion.
A careful reading of the opinion thus reveals that the court’s discussion of Preje-an’s impaired capacity to commit the crime actually straddles parts “B” and “C”, and relies heavily upon the nonrecord prejudicial information contained in the confidential sentence investigation report. It is abundantly clear, therefore, that the Louisiana Supreme Court relied, in some significant part, on the confidential prejudicial information in discharging its statutory duty to determine the excessiveness — including arbitrariness and disproportionality — of the jury’s verdict.
A. The Merits
In rejecting Prejean’s due process argument, the federal district court observed that “[i]n Louisiana, as in Florida, the Supreme Court only reviews sentences; it does not impose the sentence.” Prejean v. Blackburn, 570 F.Supp. 985, 997 n. 16 (W.D.La.1983). From this observation the court established the premise that “[mjaterial outside of the record can have no effect in the imposition of the sentence.” 1 Id. at 997. This premise is *1107flawed because it ignores two aspects of the Louisiana death sentencing scheme that distinguish this and any Louisiana capital case from any noncapital case in which presentence reports receive judicial consideration, and from any death penalty case arising out of a capital sentencing system that does not depend upon structured, systematic appellate review in order to assure its constitutionality.
First, the Louisiana capital sentencing scheme does not vest the trial judge with the power to disturb the jury’s sentence of death. Unlike the capital sentencing procedures employed in Florida, see Proffitt v. Florida, 428 U.S. 242, 248-50, 96 S.Ct. 2960, 2964-65, 49 L.Ed.2d 913 (1976), or in California, see Pulley v. Harris, — U.S. -, 104 S.Ct. 871, 880-81, 79 L.Ed.2d 29 (1984), the Louisiana procedure binds the presiding judge to accept the jury’s verdict of death. La.Code Crim.Pro.Ann. art. 905.8 (Supp.1982). Accordingly, once the jury verdict of death is rendered, the trial judge assumes a role analogous to that of a conduit, passing the verdict, and thus the sentence of death, to the Louisiana Supreme Court for its review. The state supreme court thereafter performs its mandatory review of the aggravating circumstance and its concurrent assessment of the arbitrariness of the verdict and the proportionality of the sentence.
It is precisely on account of the trial judge’s limited sentencing role that the first factor distinguishing the Louisiana scheme becomes readily apparent. In the absence of any trial-level regulation over the jury’s verdict once rendered, the entire burden of ensuring that the jury has adhered to its constitutional duty shifts to the appellate level. For Louisiana fully to discharge its responsibilities at the “selection stage,” see Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983), it must afford its capital defendant “meaningful appellate review” of the death sentence.2 Since no sentence may constitutionally be imposed in Louisiana without meaningful appellate review, the state supreme court of Louisiana does not simply perform the duties of a reviewing court. The “selection” of the criminal defendant is essential to the imposition of his sentence; “selection” necessarily entails some input from the state supreme court; and so it is logical to conclude that the Louisiana Supreme Court must necessarily perform the undifferentiated functions of both a sentence-reviewing court and, to a significant extent, a sentence-imposing court.3 Accordingly, the district court’s assertion that the Louisiana Supreme Court merely “reviews” a capital sentence, but does not “impose” it, is inevitably specious. Most importantly, however, it is an oversimplification of deep constitutional dimension.
Second, a posfeentence report in a Louisiana death penalty case serves a vastly different function from that of the typical presentence report. Once adjudged guilty, the typical [noncapital] defendant is sentenced pursuant to the sentencing authority’s broad discretion to impose sentence within the legislatively determined statutory limits. To carry out this obligation, a sentencing judge may consider the unverified hearsay information contained in a presentence investigation report4 in order to *1108give the defendant a “sentence suited to his particular character and potential for rehabilitation.” Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1137, 22 L.Ed.2d 442 (1969) (discussing Fed.R. Crim.P. 32); see Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). In a Louisiana capital sentence case, however, the jury, acting in its capacity as a vital link to the conscience of its community, has set the sentence of death as the maximum punishment for the proven conviction. Since the jury has already located the assertedly proper punishment at the statutory maximum, the State has little, if any, reason to obtain nonrecord information tending to bolster the jury’s decision.5 The State does have a compelling interest to consider, if it should so desire, postsentence information that might belie the jury’s harsh pronouncement and justify a less severe sentence. Under these circumstances the postsentence reports may certainly affect the appellate court’s ultimate decision whether to affirm or to reverse the jury’s solemn directive, and the State therefore has a legitimate interest in procuring the reports. But whatever may be the ultimate function of the reports, the defendant’s interest in their reliability plainly outweighs the State’s interest in their use. See Gardner v. Florida, 430 U.S. 349, 359-360, 97 S.Ct. 1197, 1205-1206, 51 L.Ed.2d 393 (1977). And the Louisiana capital defendant’s interest is greatly magnified by the fact that he is entitled under the constitution to “meaningful appellate review” as a precondition to his irreversible selection for capital punishment. Accordingly, the district court’s analysis of the nonrecord evidence claim is not persuasive.
Presnell & Gardner
Prejean’s due process argument is an extrapolation from two fairly recent Supreme Court cases: Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) and Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Although neither case by itself establishes a holding dispositive of Prejean’s claim, together the cases supply a valuable insight into our constitutional jurisprudence. The insight guides our identification and application of a rational rule of law which comports with and upholds our obligation “to re-examine capital sentencing procedures against evolving standards of procedural fairness in a civilized society.” Gardner v. Florida, 430 U.S. at 357, 97 S.Ct. at 1204 (footnote omitted). This obligation, while not unrelated, is separate from our eighth amendment duty to ensure that a state capital sentencing procedure affords an acceptable level of “reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944 (1976) (footnote omitted) (plurality opinion).6
In Gardner v. Florida, the United States Supreme Court considered the question whether a Florida defendant was denied due process of law when a death sentence was imposed on the basis of information contained in a presentence investigation report, a portion of which had not been made available to the defendant. 430 U.S. at 357-62, 97 S.Ct. at 1204-07. A jury had convicted Gardner of murder, and in a separate sentencing hearing had recommended life imprisonment. Thereafter the trial judge ordered a presentence investigation report and disclosed all but a “confidential” portion to the parties. After considering the information in the report, the trial judge sentenced Gardner to death. On ap*1109peal, the Florida Supreme Court affirmed the death sentence. The appellate record did not include the confidential portion of the report. The court nonetheless rejected Gardner’s argument that the trial judge had erred in basing his decision in part on the sentencing report. Id. at 351-54, 97 S.Ct. at 1201-03.
On certiorari, the United States Supreme Court vacated the death sentence. The Court began its discussion by noting that it would be unnecessary to consider the contents of the confidential report, which the state had disclosed in an appendix to its brief.7 The Court stressed that a death sentence is fundamentally different from any other kind of legitimate punishment, and acknowledged that the protection of the due process clause extends to the sentencing process. “The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.” Id. at 358, 97 S.Ct. at 1205; cf. Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). The Court then turned to the question of the reliability of confidential presentence reports:
[Consideration must be given to the quality, as well as the quantity, of the information on which the sentencing judge may rely. Assurances of secrecy are conducive to the transmission of confidences which may bear no closer relation to fact than the average rumor or item of gossip, and may imply a pledge not to attempt independent verification of the information received. The risk that some of the information accepted in confidence may be erroneous, or may be misinterpreted, by the investigator or by the sentencing judge, is manifest.
If, as the State argues, it is important to use such information in the sentencing process, we must assume that in some cases it will be decisive in the judge’s choice between a life sentence and a death sentence. If it tends to tip the scales in favor of life, presumably the information would be favorable and there would be no reason why it should not be disclosed. On the other hand, if it is the basis for a death sentence, the interest in reliability plainly outweighs the State’s interest in preserving the availability of comparable information in other cases.
Id. 430 U.S. at 359, 97 S.Ct. at 1205. Perhaps most relevant to the instant case, the Court explained that the presentence report must be disclosed to the reviewing state court in order to ensure the evenhanded administration of capital sentencing decisions.8 That counsel had not requested access to the full report in no way justified “the submission of a less complete record to the reviewing court than the record on which the trial judge based his decision to sentence petitioner to death.” Id. at 361, 97 S.Ct. at 1206.
In Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207, the Supreme Court had further occasion to consider the extent to which due process protection permeates a criminal defendant’s appeal of his capital sentence. In Presnell, the Court took up the issue whether a defendant could be condemned to die on the basis of an appellate court’s finding that the record contained evidence establishing an aggravating circumstance. A jury had found Presnell guilty of murder. In the sentencing phase of the trial, the judge instructed the jury that it could impose the death sentence if it determined that Presnell had committed the murder while engaged in the offense of “kidnapping with bodily harm, *1110aggravated sodomy.” Id. at 14-15, 99 S.Ct. at 236. The jury returned a sentence of death.9 On appeal, the Supreme Court of Georgia ruled that the offense of sodomy would not properly constitute an aggravating circumstance. Nonetheless the court affirmed the sentence, holding that even though there was no jury finding on the issue of forcible rape, evidence in the record sufficiently established that offense and therefore supported the necessary aggravating circumstance.
On certiorari, the United States Supreme Court reversed. First, relying on Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), the Court recognized that a criminal defendant’s right to due process is violated when his conviction is affirmed on the basis of evidence establishing an offense on which the jury had not been instructed:
It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made____ To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.
Presnell v. Georgia, 439 U.S. at 16, 99 S.Ct. at 236, quoting Cole v. Arkansas, 333 U.S. at 201, 202, 68 S.Ct. at 517. Second, relying on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393, the Court concluded that the “fundamental principles of procedural fairness” enunciated in Cole10 “apply with no less force at the penalty phase of a trial in a capital case----” Because in upholding the death sentence the state appellate court relied on evidence that was not properly the subject of the jury’s finding, the Court reversed the death sentence.
The Due Process Violation
It is submitted that Gardner and Pres-nell, when applied in the context of the Louisiana capital sentence system, establish Prejean’s due process right to have the validity of the jury’s sentencing decision appraised on the basis of the evidence that was brought before the jury, unaffected by the use of extremely prejudicial extraneous information that was never incorporated into the adversarial process. As has been noted, under Louisiana’s capital sentencing process, which entitles a capital defendant to “meaningful appellate review,” the Louisiana Supreme Court sits in a sentence-reviewing capacity as well as in a capacity analogous to that of a sentence-imposing entity. See note 3, supra, and accompanying text. By using the nonrecord information in this instance, the Louisiana Supreme Court injected extraneous and untested information into the “selection phase” of the sentencing process. See Zant v. Stephens, 103 S.Ct. at 2741-44. That the jury was no longer involved in the selection decision only rendered more acute Prejean’s interest in the reliability of the postsentence report. For however strictly the state supreme court in fact may have assessed the jury’s “individualized determination” of Prejean’s character and the circumstances of his crime, it did so regardful of prejudicial information both more potent and more extensive than that which the jury considered.
*1111In adulterating its constitutionally required “review” function by openly recognizing unreliable and untested information, the court introduced potential for error inimical to the Furman v. Georgia directive that capital sentencing systems be free of intolerably arbitrary factors. 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); see Gregg v. Georgia, 428 U.S. 153 at 188-90, 195, 96 S.Ct. 2909 at 2932-33, 2935 (1976). In expressly utilizing the confidential, untested information in the midst of its dual, undifferentiated functions to “impose” and to “review” the sentence, the court clearly ran afoul of the requirement that a criminal defendant be sent to his death only by dint of material information forged by the adversarial process, see Gardner,11 and tempered in the crucible of public awareness, see Presnell; Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Accordingly, the Louisiana Supreme Court’s use of prejudicial postsentence information in this case infringed Prejean’s right to have the jury’s verdict assessed on the basis of the criteria that circumscribed the jury’s deliberation, and simultaneously denegrated the appellate court’s constitutional obligation to determine whether the jury has acted arbitrarily or has rendered an otherwise excessive sentence.
This analysis, of course, in no way depends on a finding that counsel was not furnished the confidential sentence investigation report. While Prejean’s counsel may have been alerted to the contents of the confidential sentence investigation report, notice alone falls short of satisfying the Louisiana defendant’s right to have -the appellate review of his death sentence fairly and objectively administered.12 Mani*1112festly, the Due Process Clause demands that a Louisiana defendant’s eighth amendment right to meaningful appellate review remain unadulterated by the use of damaging extraneous information in the review process. Accordingly, the Louisiana Supreme Court’s express use of the confidential information in its review of the excessiveness of the sentence violated the due process right adumbrated by Presnell and Gardner.
Due process is a flexible concept; it “calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The typical inquiry into the scope of due process rights requires a balancing of competing interests. See generally Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 872-74, 74 L.Ed.2d 675 (1983); Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). When the interest at stake is human life, however, the due process analysis focuses sharply on .the fairness of the procedures employed to deprive a prisoner of that interest. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 874-77, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Gardner v. Florida, 430 U.S. at 355-62, 97 S.Ct. at 1203-07; Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The inquiry accordingly centers on the fairness of the Louisiana Supreme Court’s use of the two prejudicial postsentence reports in affirming the death sentence. This analysis implicitly entails a balancing of the private benefit to Prejean against the public burden incurred by the State. Prejean would derive substantial benefit from the Louisiana Supreme Court’s meaningful appellate review of his sentence based only upon the information known to the jury. On the other hand the Louisiana Supreme Court, as an organ of the State, plainly has a legitimate interest in learning all that it may choose to learn about the capital defendant whom it may pass unto death. These competing interests have clashed in the instant case, but they may be readily reconciled.
Along with the reasonable, perhaps laudable, goal of understanding the background histories of the individuals who have been selected for the ultimate punishment, the Louisiana Supreme Court must carry out its constitutional obligation to examine the jury’s solemn decision. By allowing its review of the arbitrariness and excessiveness of the sentence to be prominently influenced by severely harmful information that could not have been a factor in the jury’s decision, the Louisiana Supreme Court permitted an element of intolerable unfairness to be injected into the proceedings. The error is particularly acute in the context of Louisiana’s capital sentencing system, because the Louisiana Supreme Court operates as a sentence-reviewing body and simultaneously operates in a manner akin to a sentence-imposing body. Under the particular circumstances present here, the Louisiana Supreme Court encountered an obligation to separate its examination of the information upon which the jury actually deliberated from its use of whatever prejudicial information it may have chosen to discover. In this case, however, the Louisiana Supreme Court openly commingled those separate functions; its opinion publicly demonstrates that error. Prejean was entitled to such process as would ensure the meaningful appellate review of his sentence, unimpugned by the use of extremely prejudicial information contained in the postsentence reports.
*1113The circumstances of this capital case bear reiteration. An all white jury sentenced Dalton Prejean, age 17 and black, to death by electrocution. It did so without any knowledge whatsoever of his long history of serious juvenile delinquency, a history of illicit conduct that belied his youthful age. From the very fact of the jury’s verdict, the public may presume that the jury believed that the circumstance in aggravation — the killing of a (Caucasian) state trooper — outweighed testimony establishing Prejean’s youthful age, his deficient intellect, and the extent to which he was under the influence of alcohol at the time of the offense. Yet the Louisiana Supreme Court, unlike the jury, found Prejean’s youth to be a significant factor, at least to the extent that his youthful years had been inured to incorrigibility and violence. In conducting the constitutionally sacred appellate review of Prejean’s sentence, the supreme court utilized evidence of Preje-an’s adolescent criminal past, suppressed from the jury’s knowledge, to justify, at least in part, the ultimate penalty.
The court’s use of the two reports has not been urged as having violated the eighth amendment, either by causing an arbitrary sentence or by rendering the appellate review constitutionally meaningless. It has not been asserted, nor is it suggested, that Louisiana Supreme Court Rule 28 is unconstitutional as written. On the contrary, the legal rights involved in this case guard the fair conduct of facially proper provisions of state law. In any capital case, the UCSR and the confidential sentence investigation report may be received by the Louisiana Supreme Court without raising the spectre of a due process violation. Indeed, the prejudicial information in the two types of report regularly may enter the percipience of each Louisiana Supreme Court Justice without giving cause for constitutional alarm. But the court may not, as here, put extremely prejudicial postsentence information to use in the sentence review portion of the opinion; this information, unknown to the jurors, cannot be used by the court to justify even slightly the jury’s verdict. For this Court to hold otherwise countenances potential for gross unfairness in the delicate calculus of the death sentence decision-making process.
For the above reasons, Dalton Prejean should be granted the Writ on his due process claim.
II. Discrimination in Capital Sentencing
The majority opinion holds that none of Prejean’s five claims for relief establish a violation of his constitutional rights. I cannot agree that Prejean is not, at the least, entitled to an evidentiary hearing on his racial discrimination-in-capital-sentencing claim. The majority conveniently concludes that killing a police officer is so utterly reprehensible that only a statistical study of murders of law enforcement officers would be relevant (Prejean was, and perhaps still is, the only person in the state on death row for murdering a peace officer). While it is true that Prejean’s statistical proof would have to cure the defects that this Court noted in Smith v. Balkcom, 671 F.2d 858 (5th Cir.1982), it is errant to suggest that, in this case, only a study of the murders of Louisiana peace officers could enable a judicial finding of racial discrimination. It is essential to keep in mind that Prejean’s claim stems from both the eighth and fourteenth amendments, and that the spectre of arbitrary or invidious jury conduct is raised by a showing that Louisiana juries, however racially constituted, sentence black murderers to death substantially more frequently than white murderers, or that they sentence to death any murderers much more frequently for killing whites than for killing blacks. If the proffered statistical study would establish these disparities, it would by necessity be focused strictly upon those murder prosecutions which had already resulted in convictions and in which the jury was being asked to find at least one statutory aggravating circumstance. So long as the proffered statistical data would analyze the racial impact of those sentencing phases in which the state ■ adduced evidence of at least one of the nine statutory aggravating *1114circumstances, it would be highly relevant on the issue of the jury’s discriminatory, and therefore arbitrary, conduct.
In light of Louisiana’s legislative (and constitutional) determination that nine separate aggravating circumstances are so reprehensible that each alone enables the execution of a convicted murderer, it cannot be suggested that Louisiana society has any basis for claiming a superior aversion to any one factor vis a vis the others. In any event, that cannot (and should not) be this Court’s conclusion, as it is a wholly unsubstantiated foray into the realm of simple conjecture. I believe that the proffered evidence entitled Prejean to an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); Spencer v. Zant, 715 F.2d 1562, 1579-1582 (11th Cir.1983).
For the foregoing reasons, I respectfully dissent.
. In support of this statement, the court cited Brown v. Wainwright, 392 So.2d 1327 (Fla. 1981), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981), and Ford v. Strickland, 676 F.2d 434 (11th Cir.1982). Brown, a Florida . case, was erroneously designated as a Louisiana case. Ford, an Eleventh Circuit case, was erroneously referred to as a Fifth Circuit case. Furthermore, the panel opinion in Ford had been superseded by the court’s en banc opinion. Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc) cert. denied, -U.S. -, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). Because the plurality en banc opinion determined that the Florida *1107Supreme Court did not consider nonrecord information in its appellate review, that case is largely inapposite. See id. at 809-11.
. "The Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage." Zant v. Stephens, 103 S.Ct. at 2744.
. For the sake of analytical clarity, the Louisiana Supreme Court might be viewed as “imposing" sentence in a fashion analogous to that by which a trial judge may impose sentence under the California or Florida capital sentencing procedures.
. A trial judge should not view the information contained in a defendant’s presentence report until after the defendant has been adjudged guilty. “To permit the ex parte introduction of this sort of material to the judge who will pronounce the defendant’s guilt or innocence or who will preside over a jury trial would seriously contravene the rule’s purpose of preventing possible prejudice from premature submission of the presentence report." Gregg v. United States, 394 U.S. at 492, 89 S.Ct. at 1136-37 (discussing Fed.R.Crim.P. 32).
. “[T]he extinction of all possibility of rehabilitation is one of the aspects of the death sentence that makes it different in kind from any other sentence____" Gardner v. Florida, 430 U.S. 349, 360, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393 (1977).
. As the Supreme Court has noted, "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. at 358, 97 S.Ct. at 1204 (emphasis added). Thus a state capital sentencing scheme is limited by the eighth amendment duty and circumscribed by a separate, yet related, duty to administer its process in a manner that assures a vigilant and faithful adherence to constitutional due process.
. The court stated:
It is not a function of the Court to evaluate in the first instance the possibly prejudicial impact of facts and opinions appearing in a presentence report.
Gardner v. Florida, 430 U.S. at 354 n. 5, 97 S.Ct. at 1203 n. 5.
. "Without full disclosure of the basis for the death sentence, the Florida capital-sentencing procedure would be subject to the defects which resulted in the holding of unconstitutionality in Furman v. Georgia." Gardner v. Florida, 430 U.S. at 361, 97 S.Ct. at 1206.
. Actually, the jury had convicted Presnell of three capital offenses, and in the penalty phase had returned a verdict sentencing Presnell to three death sentences. Two of the capital offenses and sentences depended on Presnell having committed "forcible rape.” The jury’s verdict simply found "rape.” Since the jury had been instructed on both forcible and statutory rape, the Georgia Supreme Court was unwilling to assume that the jury's verdict referred to the more serious offense. Accordingly, the court reversed the two death sentences that depended on forcible rape. Presnell v. Georgia, 439 U.S. at 15 & n. 1, 99 S.Ct. at 236 & n. 1.
. Presnell necessarily expanded Cole. The jury in Presnell had been instructed on forcible rape as well as statutory rape. The evidence supporting the aggravating circumstance therefore may have been the subject of the jury's finding, but if so the finding was so ambiguous that it was not properly attributable to the offense of forcible rape. See note 9, supra.
. “[D]ebate between adversaries is often essential to the truth seeking function of trials____" Gardner v. Florida, 430 U.S. at 360, 97 S.Ct. at 1206.
. Prejean’s counsel successfully obtained the exclusion of Prejean’s juvenile record from the guilt and sentencing phases of trial. Once the trial was completed and the reports were made, Prejean certainly had a statutory right to object to the information contained in both the UCSR and the confidential sentence investigation report. His objections were directed solely at the UCSR. Although the Louisiana trial judge is vested with the discretion to hold a "contradictory hearing,” the judge did not find it necessary to order any such hearing. See La.S.Ct. Rule 28, § 3(c). The utility of a contradictory hearing under these circumstances is doubtful: the trial judge and Louisiana Supreme Court were well aware of Prejean’s juvenile/criminal background, and Prejean has admitted that the reports accurately display his prior juvenile adjudications. The crucial factor here is that Preje-an is objecting to the Louisiana Supreme Court’s express use of the postsentence reports in a manner that helps justify the severity of his sentence. He does not contend that the factual details contained in the reports may not enter the cognizance of the members of the Louisiana Supreme Court.
In this case the Rule demonstrably worked to Prejean's disadvantage. Prejean’s counsel elected, as a tactical decision, not to put Prejean on the stand to testify in his own behalf at the sentencing hearing. Had Prejean and others (such as juvenile correction officials, the psychiatrists who had evaluated him during his troubled youth, and immediate family members) testified during the sentencing phase of the trial, then there would have been nothing in the post-sentence reports that was not already disclosed to the jury. Having prevailed in a motion to suppress the evidence, and having decided as a matter of trial strategy not to attempt a more exhaustive elucidation of Prejean's pitiable character, counsel nonetheless encountered the Louisiana Supreme Court’s use of the objectionable information at a point in time when his interest in reliability had become paramount, see Gardner v. Florida, 430 U.S. at 359, 97 S.Ct. at 1205, and yet when his ability to demonstrate fallacy had become rather limited. See also id. at 354 n. 5, 360-61, 97 S.Ct. at 1203 n. 5, 1205-06.
On a purely visceral level, the information contained in the two postsentence reports was profoundly prejudicial. The State’s pursuit of the death sentence against Prejean rested on one factor, and one factor alone: that the murder victim was a peace officer engaged in his lawful duties. The factors militating in favor of a sentence less than death were, on the contrary, numerous: Prejean was only 17 at the time of the offense; he functioned at the mental age of 13‘/2 (borderline mental retardation); and his capacity to appreciate the criminality of his conduct was diminished by his night of drinking. Had the Louisiana Supreme Court disregarded the two postsentence reports, and devoted serious consideration to these mitigating factors (perhaps even in the light of the racial composition of the jury and the respective races of the victim and offender), a reversal of the sentence might very well have been forthcoming. See, e.g., State v. (Eddie) Sonnier, 380 So.2d 1, 6-9 (La.1979); cf. Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 *1112(1980) (valid liberty interest in sentencing discretion). Additionally, in reviewing the "arbitrariness" of the jury’s conduct the Louisiana Supreme Court might have found it significant that the jury, without any knowledge of Preje-an’s past juvenile record, returned the most severe sentence permitted in our civilized society. Instead, however, the supreme court focused on prejudicial information that could not possibly have been known by the jury in its exercise of its sentencing discretion. As a result whatever moral reservations the State and its judiciary otherwise might have encountered in sending such a youthful offender to his death were immediately assuaged, and the sentence objectively became more readily justifiable.