dissenting:
In a detailed and thoughtful order, the trial judge explained why the severed trials in this case can best be handled in a simultaneous presentation before dual juries. He wrote in part:
Two trials in this case would cause needless duplication. Witnesses would lose time from employment and suffer the inconvenience, tension and strain caused by having to repeat their testimony at separate trials. In addition, the victim’s families would be put through the emotional turmoil of attending or enduring separate but almost identical presentations of evidence relating to the violent deaths of family members. Except for certain statements admissible against each defendant separately, the State’s entire case is essentially the same as to both defendants. Counsel for the State has avowed that the testimony relating separately to each defendant would take less than an afternoon to present.
The trial judge also displayed a proper solicitude for the rights of the two defendants, setting forth detailed procedural requirements for the unfolding of the trial.
The majority concludes that the trial judge abused his discretion. I conclude that he used his discretion — particularly those underused elements, flexibility, adaptability, and innovation. Although the Lambright case presents a barrier, I do not think it as solid a barrier as the majority finds it to be.
First, as the trial judge observed, Lam-bright was written before the enactment of the Victims’ Bill of Rights, Ariz. Const. art. 2, § 2.1. Although the majority correctly states that the Victims’ Bill of Rights does not create a substantive victims’ right to the use of dual juries in cases such as this, the trial judge did not suggest otherwise. His point was rather that the Victims’ Bill of Rights requires the judiciary to rethink and adapt conventional methods to better accommodate the enumerated victims’ right “[t]o a speedy trial or disposition.” Ariz. Const. art. 2, § 2.1(10). The victims’ families neither have nor assert the right to a dual jury proceeding in this case. The trial court’s order, however, is intended in part to relieve them of the delay and trauma of a second, duplicative trial, and thereby serves a now-constitutionalized objective that was not considered when Lambright became law.
Second, our supreme court has very recently cast the vitality of Lambright into doubt. See In the Matter of the Rights to the Use of the Gila River, Salt River Project/Salt River Valley Water Users’ Association, 171 Ariz. 230, 830 P.2d 442 (1992). There, the court affirmed a trial court’s adoption of special rules and procedures to govern a complex civil case, observing that nothing in Lambright precluded such managerial innovation in civil cases. Id. Had the court gone no further, Gila River would have no bearing on this case; but in a footnote, the court invited reappraisal of Lambright in criminal cases as well. The court said of Lambright’s characterization of dual jury usage in criminal cases as an unauthorized local rule:
We are assuming, arguendo, that this conclusion in Lambright has continued vitality given new techniques in case management____ We have not been asked in this case to reexamine the relevant portion of Lambright.
Id. at 243 n. 26, 830 P.2d at 455 n. 26 (citations omitted). Such reexamination would be timely in this case.
Third, there is an ambiguity to Lam-bright that frustrates trial court manage*569ment of cases such as this. The Lam-bright majority wrote that “trial courts must obtain the approval of the Supreme Court before conducting further trials in this manner.” 138 Ariz. at 70, 673 P.2d at 8. Yet as Chief Justice Feldman observed in special concurrence:
[N]o procedure exists whereby a trial judge can obtain the opinion of this court, in advance, before using some technique which, although not prohibited, is not expressly permitted by rule.
Id. at 78, 673 P.2d at 16, Feldman, J., concurring.
The entire body of a court may, of course, petition the supreme court to approve a local rule. That process, however, although satisfactory for courtwide change, does not satisfy the individual trial judge’s need for flexibility to meet the exigencies of a given case. Moreover, many of our rules have evolved from practices first attempted by innovative trial judges; to insist on formal rule making before experimentation denies the bench, the bar, and the public the opportunity to have rules pretested and developed in use.
Here the trial judge, recognizing that time has eroded Lambright, chose his only means to test that case and simultaneously seek appellate approval for a dual jury in this case: He painstakingly detailed the dual jury procedures that he intends to use and left it to the parties through special action to seek review of his decision.
Our adversary system is not so fair and efficient that we can afford to stifle innovative efforts by the trial courts. I would decline to accept jurisdiction and leave the supreme court the option upon further petition to provide discretionary review.