specially concurring
I concur in both the court’s analysis and result. I write separately to emphasize one point continually ignored by bench and bar when presenting victims’ testimony at sentencing in capital cases. As the court’s opinion states, the survivors’ recommendation on the “appropriate sentence is not relevant to any of our statutory aggravating factors.” Op. at 386, 904 P.2d at 455, citing State v. Bolton, 182 Ariz. 290, 315, 896 P.2d 830, 855 (1995). In fact, such testimony in capital cases is forbidden. Booth v. Maryland, 482 U.S. 496, 502-03, 107 S.Ct. 2529, 2533, 96 L.Ed.2d 440 (1987). This part of Booth was not overruled by Payne v. Tennessee, 501 U.S. 808, 830 n. 2, 111 S.Ct. 2597, 2611 n. 2, 115 L.Ed.2d 720 (1991).
As the court says, “we have in the past assumed that the trial judge ... is capable of focusing on the relevant sentencing factors and setting aside the irrelevant, inflammatory and emotional factors.” Op. at 386, 904 P.2d at 455, citing Bolton, 182 Ariz. at 315, 896 P.2d at 855. The court correctly notes that the record does not indicate that the trial judge “considered or gave any weight to the victims’ recommendations when he sentenced Defendant on the capital count.” It is also true, however, that the record does not indicate that the trial judge did not give any weight to this evidence. The record is silent. We have presumed that trial judges will ignore such testimony, but one must wonder how accurate such an assumption may be. The sentencing decision in many capital cases is difficult enough without subjecting the trial judge to the emotional pressure of listening to the victims’ understandable but legally inadmissible recommendations, often motivated by the need for catharsis and sometimes by the desire for revenge.
I do not overlook or denigrate the plight of the victims or their needs. But courts sit as neutral, impartial tribunals to administer justice. We must decide cases according to law and logic, not emotion. We do not sit to provide revenge, or even solace or catharsis. These must come from other sources.
I believe the time is near for the court to take a position forbidding the introduction of evidence calculated to influence the sentencing judge in a manner forbidden by the law. *387It should not be offered by the prosecution or permitted by the court.