dissenting.
State v. Johns, 679 S.W.2d 253 (Mo.1984) (en banc), cert. denied, 470 U.S. *5481034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985), the case in which petitioner’s conviction and death sentence were affirmed, has been overruled by name. See State v. O’Brien, 857 S.W.2d 212, 218 (Mo.1993) (en banc); State v. Ervin, 835 S.W.2d 905, 923 (Mo.1992) (en banc). This fact has been brought directly to the attention of the Supreme . Court of Missouri. Yet, that Court has denied Johns any relief, and has given no reason for its action. To send Johns to his death in these circumstances, when other defendants, similarly situated in all respects save for the timing of the Missouri Supreme Court’s review of their cases, would be allowed to live, seems to me arbitrary and unjust. I therefore respectfully dissent.4
One of petitioner’s major points on appeal was that the trial court had failed to instruct the jury that, in order to find him guilty of capital murder, it would have to find that Johns himself deliberated on the crime. The case was submitted to the jury on the theory that the actual shooting was done by an associate, Wishon, and that Johns was guilty as an accomplice. Instruction No. 5, which the Court quotes, ante at 543, required the jury to find that the defendant, “with the purpose of promoting or furthering the commission of capital murder, ... aided or encouraged Robert Wishon in committing that offense .... ” The instruction did not require that the defendant himself have deliberated or reflected upon the matter coolly and fully, even though deliberation is an element, under Missouri law, of both capital murder and murder in thé first degree. Notwithstanding this omission, the Supreme Court of Missouri said the element of deliberation was sufficiently submitted to the jury. In so holding the Court relied entirely on State v. White, 622 S.W.2d 939, 945 (Mo. 1981) (en banc), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982).5 According to the White opinion, anyone who purposely aids in the commission of a capital murder necessarily has the same intention, absent special circumstances, as the active participant.
So far, so good. I would have no trouble accepting such an interpretation of state law as consistent with the federal Constitution. Indeed, I believe our Court has accepted it, as against a contention that the Sixth Amendment is violated by failure to instruct on an essential element of the offense. See Thompson v. Missouri Bd. of Probation & Parole, 39 F.3d 186, 190 (8th Cir.1994). But there is another wrinMe in the present case. The view of state law on which the Johns opinion was based has been disavowed by the final word on state law, the Supreme Court of Missouri. In State v. O’Brien, supra, decided nine years after Johns’s case, that Court squarely stated that “ ‘a first-degree murder instruction premised on accessory liability must ascribe deliberation to the defendant. ’ ” 857 S.W.2d at 217, quoting Ervin, supra, 835 S.W.2d at 923 (emphasis in O’Brien; citations omitted). The Court added, in order to make the point inescapably clear:
Proof that the defendant merely aided another with the purpose of facilitating an intentional killing cannot be sufficient to prove first degree murder and, therefore, Ervin clearly overruled Johns .... Additionally, to the extent that White has been read to require less than proof of the defendant’s own premeditation in every case, it too was overruled.
O’Brien, supra, at 218.
The question is whether this new decision helps Johns. This- question contains two parts: (1) is Johns entitled to have O’Brien’s holding applied to his case; and (2) does the O’Brien holding do Johns any good? The Court avoids the first part by answering the second in the negative. It maintains it need not decide whether *549O’Brien announced a new rule of law, or was dictated by precedent. According to the Court, Johns would not be entitled to any relief even under the standards announced in Ervin and O’Brien.
I start with the question our Court avoids: whether O’Brien announced a new rule of law, or was dictated by precedent. I recognize that the federal Constitution does not prevent state courts from making decisions that announce “new law” prospective, but for two reasons I cannot agree that this general proposition solves the present case.
First, the Missouri Supreme Court’s opinion in O’Brien is not phrased in terms of “new law.” As previously discussed, Johns relied entirely on White. The O’Brien Court says that Johns misconstrued White: “The key to White, and that which Johns and Hunter overlooked, is that the Court, in White, went on to state that the instruction was proper only insofar as it meant ‘acting with the conscious object of causing premeditated murder, defendant aided in causing capital murder.’” O’Brien, 857 S.W.2d at 217 [emphasis added]. Thus, it appears that the O’Brien Court believed that Johns was wrong when decided. Certainly nothing in the O’Brien opinion indicates that the Court was announcing a new rule to be applied prospectively only. O’Brien himself, the litigant before the Court, got the benefit of the ruling.
Second, the Missouri Supreme Court has not even now indicated that O’Brien was “new law.” When it denied Johns’s motion to recall the mandate, the Court gave no reason. If the Court had explained that it regarded O’Brien as “new law,” and that it was, therefore, not applying it to Johns’s case, we would have a different situation. Given that the text of O’Brien suggests that it is not “new law,” I would require a statement of reasonable clarity from the Missouri Supreme Court to convince me otherwise. Compare Fiore v. White, - U.S. -, 120 S.Ct. 469, 145 L.Ed.2d 358 (1999) (to determine whether Pennsylvania prisoner should receive benefit of recent Pennsylvania decision, United States Supreme Court certified to Pennsylvania Supreme Court question of whether recent decision explained or changed Pennsylvania law). No such certification procedure is available in Missouri.
I therefore proceed on the assumption that O’Brien is not “new law,” and that Johns gets the benefit of its holding. According to the Court, Johns is still not entitled to relief under O’Brien. This is because, given the evidence in his case, even if Johns had received the proper jury instructions, there is no doubt the jury would have reached the same conclusion regarding Johns’s guilt.
The Court’s holding assumes that had the Missouri Supreme Court correctly decided Johns, it would have applied some type of harmless-error analysis to the trial court’s error. I am not so certain that this is true. The State has not argued that position before this Court. Nor do I find an unequivocal statement in Missouri law indicating that harmless-error analysis would be applied to erroneous jury instructions which omit or drastically misdescribe an element of the offense. Given that the right of an accused to a trial by jury, not by appellate judges, is one of the most fundamental common law and constitutional rights, it may well be that Missouri would not allow its appellate judges to speculate on what a jury “might have found” regarding an element of the crime. See Neder v. United States, 527 U.S. 1, -, 119 S.Ct. 1827, 1843, 144 L.Ed.2d 35 (1999) (Scalia, J. concurring in part and dissenting in part).
To summarize: O’Brien appears on its face to indicate that Johns’s case was wrongly decided under the law that should have been applied at the time. In denying Johns’s motion to recall the mandate, the Missouri Supreme Court offered nothing to support an alternative view, nor did it say that the error, though fundamental, *550was harmless.' ;So there is uncertainty as to Missouri law. I recognize that courts often summarily deny post-judgment motions. 'We do this ourselves every day. But this is a death case, and death is different. The Eighth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, requires a higher degree of reasoned certainty in capital cases than in ordinary criminal proceedings. In these unusual circumstances, I believe that putting Johns to death falls short of federal constitutional requirements. I respectfully dissent.
. I have no quarrel with the other points covered by the Court’s opinion.
. Like Johns, White has now been disapproved by name by the Supreme Court of Missouri. O'Brien, supra, 857 S.W.2d at 218.