with whom McMILLIAN, MURPHY, and BYE, Circuit Judges, join, dissenting and with whom MELLOY and SMITH, Circuit Judges, join in Section II.B.2.
Today the majority takes an unprecedented step: it permits trial courts to decide for themselves what criteria would support a death sentence after hearing all the evidence on the matter, and then conclude if the evidence presented fits within their newly-established criteria. I am bewildered that a majority of this court could hold that such a procedure passes constitutional muster. To me, it is a clear due process violation, for it deprives defendants of meaningful notice of what facts of their case might result in their execution. Remaining true to both panel decisions in this case, as well as to relevant Supreme Court precedent on the matter, I continue to believe that Nebraska has not narrowed its “exceptional depravity” aggravator in a constitutionally acceptable manner. The aggravator remains just as open-ended as it was at Moore’s original sentencing. I would reverse the district court, and remand the matter for resentencing without rebanee on the “exceptional depravity” ag-gravator. Because the majority’s cursory factual recitation understates the history of this case and Nebraska’s unsuccessful struggle to bring its death penalty aggra-vator into compliance with the Constitution, I begin with a more thorough examination of the case.
I. BACKGROUND
For well over twenty years, the state of Nebraska has been trying to execute Carey Dean Moore. He was first sentenced to death by a three-judge panel in 1980 after the panel determined that the two murders he committed manifested “exceptional depravity,” an aggravating factor that, if found, supports imposition of the death penalty under Nebraska’s statutory scheme. The panel recognized that the “exceptional depravity” aggravator had been interpreted by the Nebraska Supreme Court to include murder that “is so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life.” State v. Moore, Order of Sentence at 8 (Dist. Ct. Douglas County June 20, 1980) (citing State v. Holtan, 197 Neb. 544, 250 N.W.2d 876, 880 (1977)); see also State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874 (1977). Based on the evidence that Moore had planned his crimes for a day or two and sought victims that were older than he, the sentencing panel determined that Moore’s murders were “so coldly calculated as to indicate a state of mind totally and senselessly bereft of all regard for human life, thus manifesting exceptional depravity.” State v. Moore, Order of Sentence at 10 (Dist. Ct. Douglas County June 20, 1980) (internal quotation marks omitted). The Nebraska Supreme Court, in a divided opinion, affirmed the convictions and sentences. See State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
In 1988, Moore sought federal habeas rebef in district court. The district court6 assigned the matter to Magistrate David L. Piester for a Report and Recommendation. He recommended that the writ be granted on the basis that Nebraska’s “ex*780ceptional depravity” aggravator was unconstitutionally vague both facially and as narrowed by the Nebraska Supreme Court. Judge Urbom, a highly respected district court judge who has served since 1970, accepted the magistrate’s analysis and conclusions, recognizing that while the Nebraska Supreme Court purported to constitutionally narrow the “exceptional depravity” aggravator in Holtan and Rust, the new interpretation “offer[ed] little if anything, objective in nature” to guide the sentencer. Moore v. Clark, No. CV84-L-754, slip op. at 4 (D.Neb. Sept. 20, 1988). The district court then examined the Nebraska Supreme Court’s 1986 decision in State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), which suggested a new, five-prong interpretation of the “exceptional depravity” aggravator.7 Notably missing from this new interpretation was any mention of the “coldly calculated” language from the Rust decision, which was relied upon by the sentencing panel in its imposition of the death penalty. Observant that Palmer was a divergence from pre-1986 interpretations, the court summarized the confused history of the Nebraska Supreme Court’s interpretation of the aggravator in the following manner:
If the 1986 [Palmer ] definition intended to abandon its pre-1986 efforts at guidance, it did not say so distinctly. If it did not so intend, a sentencer now has a series of suggestions, some objective and some not, from which to choose, without assurance that the series is complete.
Moore v. Clark, No CV84-L-754, slip op. at 4 (D. Neb. Sept 20, 1988). The court concluded that “as earnest as the Supreme Court of Nebraska has been in its difficult task to bring Nebraska’s statutory language of this aggravating factor into constitutional objectivity, a sentencer is left with only scattered and uncertain fragments for a definition.” Id. at 5. Recognizing that a death penalty sentencing system that fails to adequately channel the sen-tencer’s discretion is constitutionally infirm, the court was left with no alternative but to grant the writ.
The state timely appealed. In a 1990 decision, this court affirmed, concluding that the Nebraska Supreme Court had faded to provide sufficient guidance to the sentencing panel “to cure the constitutional deficiencies of this vaguely worded statute.” Moore v. Clarke, 904 F.2d 1226, 1230 (8th Cir.1990) [Moore I). Judge John R. Gibson undertook a careful examination of the words and phrases at issue, and agreed with the district court that the phrase “so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life” had nominal value in channeling the sentencer’s discretion. Id. As such, the “exceptional depravity” aggravator remained unconstitutionally vague, despite the Nebraska Supreme Court’s attempt to narrow it through the “coldly calculated” language. Id. Additionally, the panel determined that Palmer could not be accurately characterized as clarifying existing state law. Id. at 1231. Rather, “[t]o us, the greater significance of Palmer is that it demonstrates the Nebraska Supreme Court’s exhaustive efforts to redefine ‘exceptional depravity’; this simply underscores our conclusion that the phrase is unconstitutionally vague.” Id. at 1232. The court continued:
*781[o]ur examination of the state court precedent available to guide sentencing bodies in Nebraska which are required to determine whether the murder “manifested exceptional depravity” leads us to conclude, as did the district court, that, as earnestly as the Nebraska Supreme Court has attempted to provide objective criteria, the unconstitutional vagueness of the critical language in this statute remains. A sentencing body may glean only subjective and unilluminating fragments from existing case law.
Id. (footnotes omitted). The panel further recognized, consistent with Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), that the Nebraska Supreme Court’s affirmance of Moore’s death sentence was improper, for it merely looked at all of the facts and circumstances of Moore’s case and decided what sentence should follow. Moore I, 904 F.2d at 1233. Harkening back to the Tenth Circuit’s en banc decision in Cartwright, the panel agreed that “[t]he discretion of a sentencer who can rely upon all of the circumstances of a murder is as complete and as unbridled as the discretion afforded to the jury in Furman.” Id. (quoting Cartwright v. Maynard, 822 F.2d 1477, 1491 (10th Cir.1987) (en banc), aff'd, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)).
As the majority correctly notes, following the 1990 panel decision of this court, the Supreme Court handed down two cases that dealt with the narrowing of an unconstitutionally vague death penalty aggravating factor. See Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (upholding Arizona’s narrowed construction of its facially vague death penalty aggravating factor); Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (same).8 The state promptly petitioned for rehearing with suggestions for rehearing en banc, arguing that, as the majority now posits, the 1990 panel “simply failed to predict the direction the United States Supreme Court’s death penalty jurisprudence would take” in these two cases. Ante, at 771. In light of Walton and Jeffers, the panel accepted additional briefing on the effect, if any, that these two decisions would have on Moore’s case. Giving full credence to the recent decisions of the Supreme Court, the panel found its decision to be fully consistent with both Walton and Jeffers, and denied the petition for rehearing. See Moore v. Clarke, 951 F.2d 895 (8th Cir.1991). The United States Supreme Court denied the state’s petition for certiorari. Clarke v. Moore, 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992). Accordingly, our 1990 opinion stood, and the matter was remanded to the Nebraska courts.
Upon remand to the Nebraska Supreme Court for resentencing, the state requested that the court redefine the “exceptional depravity” aggravator in a way that would satisfy the federal court’s objections to its constitutionality, apply the newly constructed definition to the facts of Moore’s case, reweigh the statutory aggravating and mitigating factors, and resentence Moore. See State v. Moore, 243 Neb. 679, 502 N.W.2d 227, 228 (1993). Despite our suggestion that the Nebraska Supreme Court could salvage the “exceptional depravity” aggravator “by construing it to provide the sentencing body with objective criteria for applying the statute,” Moore I, *782904 F.2d at 1229 (citing Godfrey v. Georgia, 446 U.S. 420, 423, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980)), the Nebraska Supreme Court expressly refused to redefine the aggravator, and instead remanded the case to the district court for resentencing “in the interest of judicial, economy,” Moore, 502 N.W.2d at 228, 230. In so doing, the state supreme. court gave no advance guidance to the resentencing panel as to what interpretation of the constitutionally defunct aggravator might salvage it.
The resentencing panel, “left with an ineffective and constitutionally infirm interpretation of ‘exceptional depravity’ as it proceeded] to determine the sentences to be imposed on Carey Dean Moore,” fashioned its own construction of the aggravator. State v. Moore, Order of Sentence at 12 (Dist. Ct. Douglas Co. Apr. 21, 1995). With no “effective appellate definition” of the aggravator, the resentencing panel made up a new one that considered the presence of four factors: (1) the killer’s infliction of violence on the victim after the victim had died or lost consciousness; (2) the killer’s mutilation or dismemberment of the victim’s body after death; (3) the apparent relishing of the murder by the killer; and (4) “the killer’s cold, calculated planning of the victim’s death as exemplified ... by the purposeful selection of a particular victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability, or age.” Id. at 12-14. The panel then determined that this newly constructed aggravator applied to Moore because he picked older victims, and resentenced Moore- to death.
Moore appealed and the Nebraska Supreme Court affirmed. The court suggested that the resentencing panel’s new construction was unnecessary, stating for the first time its belief that the panel “could have applied the Palmer factors.” State v. Moore, 250 Neb. 805, 553 N.W.2d 120, 131 (1996). In the same opinion, the court recognized the particular newly-constructed aggravator found present in Moore’s case “was not based on Palmer, but on the ‘coldly calculated’ language that the Eighth Circuit had disapproved.” Id. at 132 (emphasis added). Nonetheless, the court affirmed the death sentence because the panel -had, in its view, further narrowed this construction by limiting it to situations where the defendant picked the victim based on some specific characteristic, such as age. Id.
Once again, Moore sought habeas relief in federal district court.9 Again, the matter was assigned to Magistrate Piester for a Report and Recommendation. He recommended that the petition for writ of habeas corpus be granted for two reasons: 1) defining exceptional depravity to include the purposeful selection of the victim on the basis of some open-ended list of specific characteristics faded to properly channel the sentencer’s discretion, contrary to Supreme Court precedent; and 2) the panel’s post hoc application of its newly-constructed aggravator violated Moore’s due process rights by depriving him of notice and an opportunity to respond. See Moore v. Kinney, No. 4:99CV3263, slip, op at 21-25 (D.Neb.2000) (Order, Report and Recommendation). “Nothing has changed in the present litigation,” Magistrate Piester explained:
The Nebraska Supreme Court has neither abandoned nor expressed a desire to abandon pre-Palmer constructions that havé been held to be unconstitutionally invalid.... This reluctance of the state’s supreme court to abandon prior *783constructions has left the sentencer ... with a series of suggestions, some objective and some not, from which to choose, without assurance that the series is complete .... Therefore, I conclude the re-sentencing panel committed constitutional error in considering this aggravator to resentence the petitioner.
Id. at 17-18 (citations and internal quotation marks omitted). With regard to the specific aggravator applied to Moore, the magistrate found it failed to channel the sentencer’s discretion:
Another troubling aspect of the resen-tencing panel’s sub-prong is that it is, itself, open ended. The sub-prong is worded as “purposeful selection of the victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability, or age.” The use of “characteristics” implies something about the victim which makes that person one of a class of persons, seemingly identifiable by an unalterable condition, but that is not altogether clear. What other “characteristics” might be included? A killer may have a “purpose” of ridding the world of a class of persons he or she finds unworthy of life, but who do not fit these classifications. The use of the “such as” language opens this factor to a myriad of seemingly limitless applications.
Id. at 21.
The magistrate also determined that the resentencing panel fashioned its new construction to fit the facts of Moore’s case: “The panel reviewed the facts of petitioner’s case ... and then, for all practical purposes, concluded that those facts made out the ‘exceptional depravity’ aggravator by creating the ‘selection of the victim’ aggravator.” Id. at 22. Recognizing that this type of death sentencing by fiat was specifically outlawed by the Supreme Court in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the magistrate recommended that the writ be granted.
The district court rejected the magistrate’s recommendations. Moore v. Kinney, 119 F.Supp.2d 1022, 1024 (D.Neb.2000). The court first noted that Moore’s resentencing panel did not use the Palmer construction of “exceptional depravity,” but rather made up its own definition. Id. at 1029-30. Next, the court approved of this newly constructed definition, opining that the new definition’s requirement that a victim be picked based on a specific characteristic would “exclude most defendants convicted of capital murder.” Id. at 1031. The court gave no credence to the magistrate’s point that any precision in the new definition’s specific characteristic language was obviated by the inclusion of the phrase “such as,” which modifies the definition to include any characteristic of the victim, resulting in no more narrow a definition than one we have previously found unconstitutionally vague. Id. at 1032-33.
The district court went on to hold that the resentencing panel had derived its definition from prior cases in which exceptional depravity existed as evidenced by the killer’s cold, calculating planning of the victim’s death, including selecting the victim on the basis some specific characteristic, foreclosing Moore’s due process argument. Id. at 1033.
Moore again appealed to this court. In a divided panel opinion, our court decided that Nebraska had done nothing to narrow the aggravator that we had previously found unconstitutional. Thus, consistent with our 1990 and 1991 panel opinions, we again found Nebraska’s “exceptional depravity” aggravator to be unconstitutional on its face and as interpreted by the Nebraska Supreme Court. Moore v. Kinney, 278 F.3d 774, 782 (8th Cir.2002). We further determined that Nebraska had acted in contravention of the Constitution by *784forcing the resentencing panel to construct a new statute and apply it to Moore in the first instance. Id. Our authority for this principle derived from Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (overturned on other grounds), and Moore I, which itself rested on Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), for the same proposition. Because Moore’s 1995 death sentence rested on an unconstitutional statute — just as his 1980 death sentence did— we remanded the matter for resentencing, with directions that Moore could not be sentenced to death on the basis of the “exceptional depravity” aggravator.
II. DISCUSSION
A. THE “EXCEPTIONAL DEPRAVITY” DEATH PENALTY AGGRA-VATOR THAT WAS APPLIED TO MOORE AT HIS 1995 SENTENCING WAS UNCONSTITUTIONALLY VAGUE.
Although the majority calls into question the propriety of the 1990 panel decision, it acknowledges that our vagueness analysis concerns Moore’s 1995 resentenc-ing proceeding. I agree, and will focus my discussion accordingly. Throughout the entirety of this case, one thing has remained static: neither the Nebraska Legislature nor the Nebraska Supreme Court has fashioned a death penalty sentencing scheme that provides the sentencing body with a cogent, “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J., concurring)). As it stands, Nebraska’s checkerboard approach to narrowing an unconstitutional aggravator “fails adequately to inform [the sentencing body] what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion which was held invalid in Furman.” Maynard v. Cartwright, 486 U.S. 356, 361-62, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (full citation omitted).
Initially, we consider whether Nebraska’s “exceptional depravity” aggravator is constitutional on its face. It provides for imposition of the death penalty where, inter alia, “[t]he murder ... manifested exceptional depravity by ordinary standards of morality and intelligence.” Neb.Rev. Stat. § 29 — 2523(l)(d). In Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the Supreme Court recognized that a similar aggravator was clearly unconstitutional on its face. Walton, 497 Ú.S. at 654 (“In this case there is no serious argument that Arizona’s ‘especially heinous, cruel or depraved ’ aggravating factor is not facially vague.” (emphasis added)). Finding no significant difference between the unconstitutionally vague Arizona statute and the one applied to Moore, it is clear that Nebraska’s “exceptional depravity” aggravator is also unconstitutional on its face.
Nonetheless, a state supreme court may salvage a facially vague statute through a narrowed interpretation. See Walton, 497 U.S. at 654, 110 S.Ct. 3047 (upholding facially unconstitutional statute where Arizona Supreme Court had narrowed its construction). Moore’s first sentencing panel attempted to narrow the unconstitutional aggravator by construing “exceptional depravity” to mean a murder “so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life.” State v. Moore, Order of Sentence at 9 (Dist. Ct. Douglas County June 20, 1980), aff'd, State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). This *785construction failed in part because every premeditated murder, by its very nature, is “calculated,” otherwise the verdict would not stand. The word “cold,” as used in this phrase, is equally unilluminating. Our first panel correctly recognized that the sentencing court’s construction of the ag-gravator “offers little, if any, objective guidance,” Moore I, 904 F.2d at 1230, and is consequently not in accord with the Supreme Court’s requirement that the aggra-vator “channel the sentencer’s discretion by clear and objective standards that provide specific and detailed guidance,” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (opinion of Stewart, Blackmun, Powell, and Stevens, JJ.) (footnotes and internal quotation marks omitted).10
The state attempted to bring its vague aggravator into constitutional compliance again following Moore’s 1995 resentencing hearing. The resentencing panel crafted its own construction of the “exceptional depravity” aggravator, and found that Moore deserved the death penalty because the murders exhibited “the killer’s cold, calculated planning.” State v. Moore, Order of Sentence at 14 (Dist. Ct. Douglas Co. Apr. 21, 1995). Apparently cognizant that this construction was nearly identical to the one held unconstitutional by our court in 1990, the resentencing panel attempted to modify the aggravator by suggesting that “the purposeful selection of a particular victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability, or age” was proof of “cold, calculating planning.” Id. (emphasis added).
Rather than clarifying the aggravator, the panel complicated matters by inserting an open-ended list of qualifiers, including the basis on which Moore selected his victims. However, the phrase “such as” renders the list of traits following it at most advisory, and most likely useless. The effect is that the list of specific characteristics remains open-ended, leaving it to the sentencing body to determine what traits may be included in the list. This does not comport with the Supreme Court’s mandate that the aggravator must provide clear, objective, and detailed standards that guide the sentencing body’s discretion. Godfrey, 446 U.S. at 428, 100 S.Ct. 1759; see also Cartwright, 486 U.S. at 362, 108 S.Ct. 1853 (“Since Furman, our cases have insisted that the channeling and limiting of the sentencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.”).
Put another way, “[i]f the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm.” Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993). Here, it is hard to imagine a murder that would not be committed on the basis of some specific characteristic of the victim. While race, gender, creed, sexual orientation, disability, and age are some characteristics, a victim may also be chosen because of where he or she worked, or because of his or her tone of voice, or because of appearance, or because of socioeconomic status. *786In short, the list is endless; the -sentencer’s discretion has not been narrowed by the new construction.
Moreover, to the extent that Nebraska intends to use this construction of “exceptional depravity” in conjunction with the Palmer construction, the aggravator’s shortcomings become more pronounced. Palmer held that “exceptional depravity” was present where the killer relished in the murder, inflicted gratuitous violence, or mutilated the victim; where the killing was senseless; or where the victim was helpless. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 731-32 (1986). Adding the “cold, calculated planning” construction, it is hard to imagine any defendant, once convicted of firstTdegree murder, who would not fit one of these many circumstances. If. permitted to stand, Nebraska has, through its broadened constructions, created a catch-all death penalty aggravator. Our court found the “exceptional depravity” aggravator unconstitutional in 1990, and it remains so today.
B. THE DEATH PENALTY SENTENCING PROCEDURES USED BY NEBRASKA VIOLATED MOORE’S CONSTITUTIONAL DUE PROCESS RIGHTS.
While I remain convinced that the Ne-. braska “exceptional depravity” aggravator is unconstitutionally vague, Moore’s-sentence must be set aside for an additional reason: Nebraska’s procedures for sentencing Moore to death violated his due process rights. I agree with the majority that Moore’s due process challenge to Nebraska’s reconstruction of the “exceptional depravity” aggravator presents two distinct issues: 1) whether Moore could have known in 1979 that selecting victims based in part on their age would be accorded so much weight at his sentencing; and 2) whether the resentencing panel’s post hoc construction of the aggravator left him without adequate notice of what criteria the panel would rely upon in its sentencing determination. I find Moore’s argument compelling on both of these matters, and would hold that the procedure Nebraska used in Moore’s case denied him of the process due under the United States Constitution.
1.
Throughout the original proceedings, at no time — not when Moore committed the crimes, confessed, waived his right to a jury trial, was convicted, or was sentenced — did he have reason to know that indicating that he picked the victims because they were older than he would become an integral part of the “exceptional depravity” calculus. At the time of these proceedings, “exceptional depravity” had been defined to mean that either: 1) the victims were helpless or unresisting, State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977); 2) the act itself was “so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life,” State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874 (1977); or 3) the depravity is so apparent “as to obviously offend all standards of morality and intelligence,” State v. Simants, 197 Neb. 549, 250 N.W.2d.881, 891 (1977). While picking a victim based on age is certainly a more narrow construction than any of these definitions, the available constructions of “exceptional depravity” could not have alerted Moore that doing so automatically implicated a death sentence.
Moore’s case is analogous to the circumstance presented to the Ninth Circuit in Coleman v. McCormick, 874 F.2d 1280 (9th Cir.1989) (en banc), cert. denied, 493 U.S. 944, 110 S.Ct. 349, 107 L.Ed.2d 337 (1989). In Coleman, the mandatory death penalty statute in effect when the defendant was tried and convicted was held to be unconstitutional, and was replaced by a more narrow statute that weighed aggravating and mitigating circumstances. 874 *787F.2d at 1285. The Ninth Circuit, sitting en banc, recognized that “the due process clause protects individuals’ rights to fundamentally fair procedures before they are deprived of their liberty rights.” Id. at 1286. Acknowledging its obligation' to closely scrutinize the procedures used in capital sentencing cases, the court concluded that retroactive application of the narrowed death penalty statute deprived the defendant of due process because he “had no reason to suspect that his decisions at trial would come back to haunt him at a sentencing hearing.” Id. at 1288. Similarly, the resentencing panel’s new construction in Moore’s case was not a reasonably foreseeable evolution of the “exceptional depravity” aggravator.11
2.
Moore’s due process rights were further violated by the resentencing panel’s post hoc application of its newly-defined “exceptional depravity” aggravator. In its 1990 panel opinion, our court indicated that the Nebraska Supreme Court could “salvage a facially-vague statute by construing it to provide the sentencing body with objective criteria for applying the statute.” Moore I, 904 F.2d at 1229. This, of course, would provide the sentencing body with the “specific and detailed guidance” necessary to pass constitutional muster. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); accord Walton v. Arizona, 497 U.S. 639, 653-54, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (approving application of a vague aggravator when it had first been narrowed by state supreme court). In no cases cited by the majority or uncovered in my research, however, has the Supreme Court approved of a state supreme court delegating the task of narrowing a death penalty aggravator to a district court.
On remand following this court’s 1990 and 1991 decisions, the Nebraska Supreme Court could have narrowed the aggravator, or provided some direction to the resen-tencing panel to guide its decision. This is particularly true in light of Nebraska’s adherence to the construction it put forth in State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 731-32 (1986), nearly ten years before Moore’s resentencing hearing. Instead, the Nebraska Supreme Court remanded to the resentencing panel, leaving the panel with what it believed was “an ineffective and constitutionally infirm interpretation of ‘exceptional depravity,’ ” and “no effective appellate definition” to guide the panel’s analysis. State v. Moore, Order of Sentence at 12 (Dist. Ct. Douglas Co. Apr. 21, 1995). Accordingly, the panel was forced to reconstruct the “exceptional depravity” aggravator and then apply it to Moore in the first instance.
Logic and fairness would dictate that the resentencing panel should have crafted its new construction of the aggravator, informed the parties as to what the construction was, held an evidentiary hearing, and then heard argument from the parties as to whether Moore’s circumstance fit within the panel’s construction of the ag-gravator. Undertaking the process in this way would have given both Moore and the state advance notice of the criteria it was using, such that the parties could provide informed argument on whether the facts of Moore’s case should result in a sentence of death.12
*788Instead, the resentencing panel took precisely the opposite approach: rather than alerting Moore as to what criteria would guide its decision at the outset of the proceedings, the panel first held an evidentiary hearing and then heard oral argument from both parties. The first time the panel indicated to Moore that it was going to narrow the “exceptional depravity” aggravator to include selection of victims based on age, was in its final pronouncement of Moore’s sentence. Put another way, it was not until the adversarial process was complete that the panel decided what criteria it would rely upon for determining the sentence. This left Moore in the unenviable position of trying to argue for his life without any idea of what would guide the panel’s decision. A post hoc sentencing scheme such as this denies defendants due process in the most basic sense, for they have no prior notice of the law to be used against them. Accord Osborne v. Ohio, 495 U.S. 103, 115, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (holding new construction of statute may be applied to conduct occurring prior to construction only where defendant has fair warning of new application); Marks v. U.S., 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (same).
The majority suggests that Moore must have known that the panel would define the “exceptional depravity” aggravator to include selection of the victims based on age, citing State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). I disagree. First, I note that at the time of Moore’s resen-tencing hearing, the Nebraska Supreme Court’s Joubert decision had been overturned by the federal district court’s grant of habeas corpus relief. See Joubert v. Hopkins, 8:CV91-00350, slip op. (D.Neb. Oct. 11, 1994). It cannot be said that Moore should have anticipated that Jou-bert would, over a year later, ultimately be reversed by our court. At the time he was sentenced, the Nebraska Supreme Court’s Joubert decision was bad law, and Moore had no reason to believe otherwise.
Nonetheless, even if Joubert is considered, it does not stand for the broad proposition that exceptional depravity is manifested by selecting victims due to their age. The defendant in Joubert kidnaped and killed two young boys within a four-month period. He was sentenced to death in part because the panel found the murders to exhibit exceptional depravity. In affirming the sentence, the Nebraska Supreme Court noted that Joubert “planned these abductions and murders far in advance,” that “the murders were to be repetitive,” and “the victims selected by the defendant would, by his fantasized standards, be somewhat defenseless and consist of prepubescent boys or women fitting the pictorial description gleaned from detective magazine covers.” State v. Joubert, 224 Neb. 411, 399 N.W.2d 237, 250 (1986). The court concluded that “the murders were coldly planned as part of a repetitive program of self-gratification, involving immature victims selected on the basis of their availability at a time when the likelihood of detection was slight.” Id. at 251 (emphasis added). Given these statements, the majority misreads Joubert in concluding that age was used as an aggravator. It is clear that the court in Joubert was concerned with the victims’ age and immaturity only as it concerned other factors the court considered relevant, such as their availability, helpless*789ness as victims, and relation to the gratification Joubert took in the killings. That the victims were young was a fact of the Joubert case, but that does not transform age into an aggravating factor absent a more specific pronouncement to that effect.
The majority also claims that Moore had sufficient notice that the “exceptional depravity” aggravator would be constructed to include selecting victims on the basis of age because of a single question from a member of the resentencing panel during oral argument. At the October 14, 1994 resentencing hearing, Judge Rist asked Moore’s counsel, “What about the testimony that he selected older men because he didn’t want to kill younger ones?” State v. Moore, Sent. Tr. at 263 (Dist. Ct. Douglas County Oct. 14, 1994), available at Moore v. Kinney, No. 4:99CV3263 (D.Neb.2000). Notably missing from the majority’s opinion, however, is the context for this statement: Moore’s attorney began his argument by taking each aggravator proposed by the prosecutor in turn; at the time of this question, counsel was in the midst of analyzing the applicability of aggravator (l)(b), which deals with murders committed in an effort to conceal commission of the crime or the identity of the perpetrator. See Neb.Rev.Stat. 29 — 2523(l)(b). Judge Rist’s question was in response to argument on this point, and was not raised again in any form during discussion on the “exceptional depravity” aggravator. Thus, any assertion that the age question related to the “exceptional depravity” aggravator is simply not supported by the record. The majority’s insinuation that a single question about age during argument on an unrelated aggravator should have alerted Moore that the panel would interpret “exceptional depravity” to mean selecting victims based on their age is simply untenable.13
C.
In Moore II, we recognized that the well-established concept of stare decisis prohibited us from reconsidering matters decided by the panel in Moore I. Today, this court, sitting en banc, gives little credence to the importance of uniformity in the law and reexamines a decision that has stood for over a decade. While I question whether this approach exhibits sound jurisprudence, I will take this opportunity to address a matter not fully explored in Moore II: whether- the 1990 panel should have clarified that the resentencing court could no longer rely on the “exceptional depravity” aggravator.
In a state such as Nebraska that makes a death penalty determination by weighing aggravating and mitigating factors, “[u]se of a vague or imprecise aggravating factor in the weighing process invalidates the sentence and at the very least requires ... reweighing in the state judicial system.” Stringer v. Black, 503 U.S. 222, 237, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). A question remains as to whether a sentenc*790ing court on remand can resentence a defendant to death on the basis of an aggra-vator already found to be unconstitutional. The answer is clearly no, because of the due process concerns outlined in Moore II and reiterated above. Moore’s resentenc-ing panel recognized that it had the option of deciding Moore’s sentence without reference to the “exceptional depravity” ag-gravator, for other aggravators were also found to be present. Accordingly, the panel could have weighed these other ag-gravators against the mitigating evidence to determine if a death sentence was ap-propriate1, The panel was also mindful, however, that the original sentencing panel based its death sentence on the “exceptional depravity” aggravator “to a significant degree.” State v. Moore, Order of Sentence at 12 (Dist. Ct. Douglas Co. Apr. 21, 1995). This statement leads me to believe that the panel recognized that.without the “exceptional depravity” aggravator, the remaining aggravating circumstances did not support a sentence of death.
III. CONCLUSION
Nebraska has not narrowed its “exceptional depravity” aggravator in a constitutionally acceptable manner; the aggravator remains just as open-ended as it was at Moore’s original sentencing. Moreover, the procedures used by the Nebraska courts violated Moore’s due process rights, leaving him without notice of'what criteria might be used to decide his fate. I would reverse the district court, and remand the matter for resentencing without reliance on the “exceptional depravity” aggravator.
. The Honorable Warren K. Urbom, United States District Court for the District of Nebraska.
. In Palmer, the Nebraska Supreme Court held “that 'exceptional depravity1 in a murder exists when it is shown, beyond a reasonable doubt, that the following circumstances, either separately or collectively, exist in reference to a first degree murder: (1) apparent relishing of the murder by the killer; (2) infliction of gratuitous violence on the victim; (3) needless mutilation of the victim; (4) senselessness of the crime; or (5) helplessness of the victim.” 399 N.W.2d at 731-32.
. Walton was overruled recently by the Supreme Court in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Ring effectively outlaws Nebraska's capital sentencing system by requiring that death penalty determinations be made by a jury, rather than a judge or panel of judges. Id. at 2443. Because no Ring issue was certified for appellate review, the question of whether or not it has applicability to Moore’s case or similar cases remains open.
. The Honorable Richard G. Kopf, United States District Court for the District of Nebraska.
. In Arave v. Creech, 507 U.S. 463, 471-76, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993), the Supreme Court upheld an aggravator that had been interpreted to mean the murderer was a "cold-blooded, pitiless slayer.” As the Supreme Court noted, "the phrase 'coldblooded, pitiless slayer refers to a killer without feeling or sympathy.’” Id. at 472, 113 S.Ct. 1534. On the other hand,'the construction in Moore’s case is concerned with the type of planning undertaken by the killer. As such, I find the aggravator approved in Creech to be inapposite to the one at issue in Moore’s case.
. In its 1980 sentencing order, the panel noted that Moore selected his victims in part due to their age. This fact was reiterated by the Nebraska Supreme Court in its 1982 decision. However, as noted above, these cases were held unconstitutional by the federal district court in 1988 and our court in 1990, leaving unanswered the question of whether age would be considered by the sentencing court.
. There is no argument that the process I have outlined would be less efficient than the *788process actually employed; Moore's resen-tencing began on April 25, 1994, and was not concluded until April 21, 1995-almost a full year later. In the interim, the resentencing panel held a preliminary hearing on April 25, 1994, took evidence on June 29-30, 1994, heard oral argument on October 14, 1994, and concluded by reading its decision in open court on April 21, 1995.
. A close read of the sentencing transcript in this matter reveals that Moore was truly without prior notice that age would become part of the "exceptional depravity” calculus, even by the prosecutor's requested interpretation. At the preliminary hearing, Moore’s counsel asked the court to order the prosecutor to state what aggravators he was relying upon. The prosecutor responded that he was relying on the aggravators in the statute. Moore v. Kinney, 4:99CV3263, Sent. Tr. at 40-41 (Dist. Ct. Douglas County Oct. 14, 1994). During the evidentiary hearing, the prosecutor told the court he was relying on the "exceptional depravity” aggravator as defined in Palmer and Joubert, id. at 78-79, but the prosecutor failed to provide a written brief on the matter, id. at 220, and then admitted that he believed the "coldly calculated” construction of the aggravator had been abandoned, and he was thus relying only on the Palmer construction, id. at 234-35.