concurring in part and dissenting.
That the Supreme Court of the United States did not grant certiorari in this case was not unusual or unexpected. Seldom does that Court do so until the convicted petitioner defendant has exhausted his state remedies and then established a satisfactory record in federal habeas corpus proceedings in district court and appeals in the circuit courts. A ready and recent example is Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
In my dissent in State v. Sivak, 105 Idaho 900, 674 P.2d 396, (1983) (Sivak I)—now a full three years gone by while Sivak languishes on death row—I questioned the absolute lack of proportionality as compared to the Major case, and the Bainbridge case—the latter having been a companion case to Sivak, and both defendants having been jointly charged, but separately tried by reason of a judicial quirk. See Sivak I, supra, where I concluded as follows on the proportionality question:
Now, a large difficulty with these two cases and the disparity in penalties imposed, is an inability to see how it would make any genuine difference which of the two defendants delivered the more telling blows, knife wounds, or shots against and into their helpless victim. The cold inescapable fact is that they murdered her, and that the two district judges, neither of whom ever heard Bainbridge testify as to the circumstances of the crime, and only one who heard Sivak testify, could both to a degree exonerate Bainbridge at Sivak’s fatal expense is regrettably to my mind unacceptable. Moreover, it highlights the bizarre results of having two separate trials where there should have been a single trial, and drives home the importance of adhering to jury death sentencing as is a defendant’s right under the Idaho Constitution.
Sivak I, supra, 105 Idaho at 916, 674 P.2d at 412 (emphasis original).
Then, at 105 Idaho 917, 674 P.2d 413, et seq., I decried the Sivak sentencing court’s use of Bainbridge’s out-of-court, unsworn testimony naming Sivak as the only inflieter of wounds.1 This the sentencing judge did despite the fact that Sivak’s jury believed his sworn testimony contradicting Bainbridge; the jury convicted Sivak only of felony murder, but acquitted him of first degree premeditated murder.
Beginning with a discussion of State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969), the *218genesis of the use of presentence report materials, including hearsay, beginning in 1969, was reviewed. It was noted that it started out as a beneficence to convicted defendants who were seeking probation— which was the view of a compassionate court. Time goes by, and even justices forget. The rule of Moore has since been turned into a vicious prosecutorial and judicial tool for destroying constitutional rights of convicted criminal defendants at sentencing proceedings.
When Sivak’s petition for a rehearing was denied by the same 3-2 majority which had upheld the death sentence, in dissenting from that denial I enumerated ten well-presented and well-briefed issues which were summarily turned away:
(1) Whether the Idaho Supreme Court has denied Sivak the opportunity to raise important constitutional questions by consolidating Case No. 15022, which appealed the refusal of the trial judge to allow Sivak the opportunity to present additional evidence in mitigation of sentencing, with Case No. 14435, which appealed a decision denying Sivak the opportunity to submit additional briefing or arguments in Case No. 15022.
(2) Whether the trial court erred in refusing to hear evidence in mitigation of Sivak’s sentence on resentencing in contravention of the United States Supreme Court’s decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).
(3) Whether this Court’s procedure of vacating and remanding for resentencing, while purporting to retain jurisdiction, a procedure absolutely without precedent, and not provided for in rule or statute, was proper.
(4) Whether this Court’s proportionality review was incomplete and constitutionally defective as the majority opinion contains no specific reference to particular cases it examined. Of discussion, there is none.
(5) Whether I.C. § 19-2827 is constitutionally defective in that it apparently only requires the Court to compare death sentences with other death sentences rather than considering those cases in which an intentional killing was involved but which did not result in imposition of death.
(6) Whether I.C. § 19-2515(f)(8) which this Court narrowly construed in State v. Creech in order to preserve its constitutionality could have been properly applied in Sivak’s sentencing which occurred before this Court’s decision in Creech.
(7) Whether a death sentence can be premised on a condition found to exist with a certainty less than beyond a reasonable doubt as I.C. § 19 — 2515(f)(8) allows as an aggravating circumstance that “The defendant ... has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.”
(8) Whether the jury instruction on criminal liability for aiding and abetting was improper when it implied that Sivak could be found guilty thereunder for possession of a firearm which is not in and of itself a crime.
(9) Whether Sivak’s constitutional right to confrontation and cross-examination of witnesses was violated by the use of the unsworn and uncross-examined statement of Randall Bainbridge in a presentence report for the district court’s finding that “[t]he defendant dominates his co-defendant, and is primarily responsible for all that occurred,” which served as a basis for the trial court’s imposition of the death penalty.
(10) Whether Sivak may be punished for both robbery and for murder premised on a felony murder theory when the robbery count did not require proof of an additional fact which the murder did.
Sivak I, supra, 105 Idaho at 922-23, 674 P.2d at 418-19.
Today it is somewhat of an empty gratification in the eyes of counsel for Sivak that the Court belatedly takes up issues which it *219spurned so long ago that they would all but be forgotten except for the printed reports. Those issues, of the ten above enumerated, which the Court now deigns to address, appear to be Nos. 2 (including 1), 9, and 10. In addition, the Court considers the additional issue involving the state’s nondisclosure at trial of an arrangement which the prosecutor had made at the 1981 trial for a convict’s testimony which would place before the jury a supposed confession which Sivak purportedly made to the convict.
I.
The Court finds that the trial court erred at the resentencing. This is true, but the majority should be a little shamefaced in saying: “Inherent in the order that the district judge ‘impose such sentence upon the defendant Lacey M. Sivak as to the said District Judge may appear to be just and appropriate,’ was the obligation of the judge not to ignore any relevant motions or arguments made by the defendant or his counsel which would affect the justness and appropriateness of the sentence.” Majority op., at 194-195.
A sense of fairness to the trial judge, however, requires two observations as to that comment. One is that the sentencing court was by the same order put under time constraints that would not seem to admit of allowing time enough for a new full-fledged hearing. The balance of that order reads the same as in Creech’s case— where the identical procedure was taking place, and is:
“IT IS FURTHER ORDERED that on the completion of said proceedings a transcript thereof shall be immediately prepared, delivered and lodged with this Court not later than five (5) days from the completion of said proceedings; and
“IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this cause pending compliance with this Order and thereafter will determine the issues on appeal; and
“IT IS FURTHER ORDERED that this Order be served upon the Honorable Robert G. Newhouse, District Judge of the Fourth Judicial District, the Office of the Attorney General, and counsel for the defendant.”
State v. Creech, 105 Idaho 362, 415, 670 P.2d 463, 516 (1983) (emphasis added).
And, as in Creech, so the same trial judge had the benefit of an identical press release in Sivak’s case.2 As I wrote in Creech, and is equally applicable in Sivak:
The district judge read it as simply requiring the formality of having Creech present in court for imposition of the same death penalty previously imposed. In that regard the view of the district judge was amply sustained by a “press release” which the Court prepared and issued along with its order, which was as follows:
“The Idaho Supreme Court issued an Order today remanding the death sentence of Thomas Eugene Creech to the district court.
“The Court pointed out in its Order that the trial judge had imposed the death sentence by a written document rather than imposing the sentence in open court in the presence of Creech and his attorney as required by statute and court rule. Therefore, the Court vacated the death sentence and remanded the case to the district court with instructions that it again impose a sentence upon Creech in open court in the presence of Creech and his attorney.
“The Order indicated that the Supreme Court would retain jurisdiction of the case and that the district court, after resentencing, should immediately furnish the Supreme Court with a transcript of the proceedings.”
If there was any uncertainty in the order itself, the press release clearly told the district judge that the Supreme Court was, notwithstanding the vacating of the *220death sentence, continuing to lay hold of the case. In other words, the district judge was all at one time being told to conduct a sentencing hearing and arrive at a ‘just and appropriate” sentence and also to reimpose the death sentence. This is exactly what the judge’ did, and as I have said there was no hearing. Although the district court cannot be faulted for obeying a clear mandate from this Court, there simply was no authority or precedent whereby and whereunder this Court could reverse and remand for resentencing and yet retain jurisdiction in the case. Better that this Court would have agreed with the solicitor general than to have created such a convoluted situation as the one remanded to the district court. Other than for the language of the order and the press release it is hardly to be doubted that a district judge on reversal or vacation of a judgment imposing sentence should not in a capital case conduct the type of a hearing which is statutorily mandated, or as was so in another recent case, flatly defy the mandate of this Court. State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), and State v. Osborn, 104 Idaho 809, 663 P.2d 1111 (1983).
Creech, supra, 105 Idaho at 416, 670 P.2d at 517 (emphasis added).3
To which I now add the observation that the second paragraph of this Court’s Order as above set out was a strong intimation from this Court that as soon as the sentencing court imposed a sentence on Sivak — with him being present — the other remaining and yet undecided appeal issues would then be determined. The prosecuting attorney so construed the order. When the district court convened on April 4,1983, in compliance with this Court’s order, the prosecutor remarked as follows to the court after defense counsel had advised the court of witnesses present who would testify in mitigation:
THE COURT: Does the prosecutor have any statement he would like to make with regard to these motions?
MR. BOWER: Yes, Judge.
I think we need to remember here that we are present today to correct a technical problem with rule 43(a) pursuant to the Supreme Court’s directive.
This is not a procedure, to my understanding of the Supreme Court’s order, where we are to reopen these proceedings and give counsel an opportunity to hold a mitigation hearing again.
We have had aggravation and mitigation in this case and the Court made a determination.
The purpose of a death sentence is not rehabilitation, and I think most of these matters that counsel speaks to have very little relevance to the Court’s initial decision.
I would note for the record that we got all of counsel’s motions last Friday afternoon. For the record, I would waive the five days customarily given counsel to respond to these motions and simply respond by saying that if in fact these motions are granted, it is in effect leave to reopen this matter, leave to proceed to a new and general sort of aggravation and mitigation which has not been the Court’s custom in the past.
And I believe that in consonance with the Supreme Court’s order that simply proceeding as the Court has in other 43(a) cases, by following that directive to, and I quote, enter a judgment of conviction and impose such sentence upon the defendant Lacey Sivak as the district court may appear to be just and *221appropriate, close quotes, isn’t a direction by the Supreme Court to start it all over again by way of mitigation.
Case No. 14435, Tr., Vol. 10, pp. 12-13 (emphasis added).
The court agreed with the prosecutor, and all that transpired thereafter was the reading into the record of the findings which the court had previously signed and entered sixteen months earlier (December 16, 1981) with the defendant not present. There was one interruption when Mr. Nev-in, defense counsel, moved for a new trial on the firearms count. The motion was filed but not ruled on. Mr. Sivak was allowed to address the court briefly, and thereafter the same sentences were imposed as had been imposed in the defendant’s absence sixteen months earlier: Death for felony murder; fixed life term for robbery; fixed fifteen year term for use of firearm.
The majority opinion released today properly portrays, for the first time, the nature of the mitigation evidence which the defense proposed to offer in mitigation. That information was available to us, however, prior to the release of the Sivak I opinions on August 15, 1983. On denial of Sivak’s petition for rehearing, December 27, 1983, mine was the sole opinion written. Therein, in dissenting, I pointed to the issues (ten in number, set out supra), which Sivak wanted to have addressed, and which had not been, and which the majority ruled would not be. Foremost of those was “whether the trial court erred in refusing to hear evidence in mitigation of Sivak’s sentence on resentencing in light of Lockett v. Ohio and Eddings v. Oklahoma” (citations omitted).
Today, some 40 months after this Court’s decision upholding the death sentence, the opinion for the Court cites those cases, plus the more recent case of Skipper v. South Carolina, and now holds that the second sentencing was invalid. I concur in that much of the majority opinion, adding also my belief that the final sentence to footnote 3 is wholly inappropriate.
II.
Although Part II of the majority opinion reads well, I do not subscribe to its content. If it is true, as is stated at page 14 of the slip opinion, that at least three members of this Court “do not doubt that the unsolicited phone calls and letters were properly disregarded by Judge Newhouse when he made his sentencing decision,” then, in my view at least, and putting aside this ipse dixit factfinding by an appellate court, that should be the end of Part II of the majority opinion, and there should be no need “to clear the air completely” on the remand. Moreover, I am singularly unimpressed with the intimation the majority makes that Judge Newhouse might (perhaps conveniently) forget that which was urged upon him by telephone and letter. In my trial court experience, a particularly offensive trial judge comment in the middle of pressing cross-examination of a difficult witness was of the same ilk — that the witness should answer “if he can remember.” It is in either case, and at either level, an improper judicial coaching of the witness which advises him of an easy way to duck answering a question which the witness is attempting to avoid doing.
What does impress me in Part II is the majority’s recollection that five years have gone by. It apparently being the sense of the majority that the trial and sentencing judge should be the same judge to preside at post-conviction proceedings, as well intimated in the Court’s Rule 40(d)(1), the elapse of five years negates that as any sort of reasonable imperative. In other opinions, I have suggested that better reasoning and case law recognizes that a post-conviction proceeding should be presided over by a judge who has been independent of the trial and sentencing.
The majority recognizes an “impropriety” of the judges interview with the reporter on the matter of Sivak’s sentence, and quickly drops that subject. It is not that easily put aside, however. A well-known fact is that in all capital cases there will be an automatic review, as well as an appeal. This Court has now reversed four death *222sentences and set aside two others, sometimes on direct appeal, and this time on petition for post-conviction relief. It is, therefore, a no-no for a trial judge to discuss with reporters any case which may come before him, and likewise impermissible for a trial judge to discuss any case which has been before him, and is pending on appeal and may be remanded, or, as here, will surely come back into district court on a petition for post-conviction relief.
The majority apparently has forgotten the colloquies which took place at oral argument:
JUSTICE SHEPARD: Mr. Thomas, I have to — I’ve tried to curb myself, but you use this phrase extraneous information. You’ve drawn parallels with this case as contrasted with a case, or similar to situations of a judge’s life experiences. Let me ask you very bluntly, if I told you that yesterday Mr. Nevin and I had an hour long conversation relating to the disposition of the case that’s at hand today, would you be offended and would you think that I had violated some judicial ethics?
MR. THOMAS: I would have to obviously respond to that affirmatively. But I think there’s a very big difference between that and—
JUSTICE SHEPARD: Fine. Now, it seems to me that there is something essentially wrong when a judge in the middle of criminal proceedings, particularly involving a death penalty, but not excluding other criminal cases, has a telephone conversation with people regarding how that judge should pass sentence upon a particular defendant. Now that seems to, in my mind at least, be offensive. Now, the obvious response to that is that we don’t know that the judge had that telephone conversation, as Judge Bakes pointed out earlier. Perhaps only telephone calls were made to his office and were screened by his secretary and when the secretary found out that they related to the sentencing, she refused to put them through to the judge, and the same way with the alleged letters. It’s possible the judge, never saw them. But what I’m having difficulty struggling with is that if that might be the case, why didn’t the judge say so? That I never took these telephone calls, I never conversed with anyone. I never read any letter, although albeit they were received in my office. If that was the case, why didn’t he say so?
MR. THOMAS: I think, your Honor, he did say so. He said, I paid no attention to this material. I think the only inference that can be drawn from that is that this material, whatever it was, had no bearing on the sentencing decision. I think the fair inference is that these were unsolicited suggestions, and they’re the same kind of thing that would happen if a judge were stopped on the street against his will by somebody who wanted to say I think you ought to sentence this man to death. And this Court opens a Pandora’s Box that will never be closed if you adopt a rule to the effect that all of that kind of material must be disclosed in advance.
JUSTICE SHEPARD: Well, I would suggest to you, Mr. Thomas, that insofar as the Pandora’s Box is concerned, I agree that one has been opened in this case, that it was opened at the time when the trial judge consented to have an interview with a newspaper reporter as to how he decided to pass judgment on this defendant and on the defendant Creech, well knowing that since a death penalty had been imposed that he was going to have to sit in the future on post-conviction cases. Now, that’s where I think the Pandora’s Box was opened.
MR. THOMAS: Well, I would have to agree with you, your Honor. That didn’t help us any. But, the question is, is that a constitutionally sufficient reason to reverse this case and send it back. I would suggest to you that as far as Gardner v. Florida, is concerned, as far as the other cases bearing on this question are concerned, they do not establish that that’s the case here. They don’t establish that *223this, whether it’s ill-advised or not, amounts to a constitutional violation, and that’s the real question here. The court said he did didn’t rely on it. That’s what the record establishes. It establishes nothing else. If the defendant means to prevail, he has to establish something more than that.
JUSTICE SHEPARD: How can he establish it, Mr. Thomas, when he can’t examine the person who makes the assertion?
State’s Presentation at Oral argument,
March 19, 1986.
JUSTICE SHEPARD: Let’s assume that there is error, and that Judge New-house, at least on the record here, did receive information. Let’s put it that way, because that’s what you’re urging.
MR. NEVIN: That’s right.
JUSTICE SHEPARD: And that’s in spite of Judge Bakes’s question about how do we know he actually did receive. Putting that aside, let’s assume that he did receive some information. And you were not permitted to examine Judge Newhouse as you wanted to. Now, if he had granted you that and allowed himself to be placed on the witness stand, then it would appear to me that he would have had to have disqualified himself in further proceedings of the case. Now, again I don’t ask you to agree with that.
MR. NEVIN: I agree with that. It seems that way to me too.
JUSTICE SHEPARD: Now, with the direct appeal out of the way and the conviction affirmed in the direct appeal, who would have sat if you had been allowed to place Judge Newhouse on the stand. Who would have sat as the trial judge during the continuance of the post-conviction proceedings?
MR. NEVIN: Another district judge. Just the way if Judge Newhouse had died, or resigned from the bench.
JUSTICE SHEPARD: Can you think of a case here, or anywhere else, where a death penalty has been imposed by a sitting judge who has then died or then been disqualified and different trial judge was brought in to review on post-conviction?
JUSTICE BISTINE: Just to speed things up, I can answer that. Paradise and Gibson, both. Hammon and Prather were the district judges. Cogswell was the reviewing judge on post-conviction relief. Both of them.4
MR. NEVIN: I didn’t know that.
JUSTICE SHEPARD: Aside from those, can you think of any, counsel?
MR. NEVIN: I can’t, your Honor,—
JUSTICE SHEPARD: What I’m having trouble with is, as I indicated initially, the practicalities of the situation.
MR. NEVIN: Yeah, and that’s something I should talk about, because the state’s first argument in response to my argument was that applying Gardner here is just unworkable because what am I going to do, every time I get in a situation like this I’m going to move to disqualify and the state even makes that statement. The only thing counsel could do if he knew about this was move to disqualify the district judge. And that is just not the case. I did it here cause I felt I had a burden of proof and I was unsure about carrying it through calling the newspaper reporter. And I wanted to put Judge Newhouse on the stand for the purpose of establishing that he received information. But, all Judge New-house’s obligation to do at the time of the first case, when we were going to *224sentencing for the first time, is to reveal, that’s all.
Sivak’s Presentation at Oral argument, March 19, 1986, Case No. 15864.
III.
Part III of the majority opinion is first noted for its chronological inaccuracy. The prosecutor did not simply put Leytham on the stand and put the questions to him which the majority recites. The prosecutor was not so naive as to not be the first to bring out that his star witness had a criminal record, but immediately brought out that, although he was then residing at Twin Falls, Idaho, in the spring of 1981 he was living in the county jail where he faced felony charges on a Boise County burglary charge and and Idaho County escape charge.5 The majority also omits testimony elicited by the prosecutor which disclosed absolutely no prior acquaintance with Sivak at the time of the supposed conversation where Sivak admitted his guilt to the unknown Leytham:
Q. During your incarceration at the [Ada] County jail, did you come into contact with an individual by the name of Lacey Sivak?
A. Yes, I have.
Q. Is that same Lacey Sivak present in court here today?
A. Yes, he is.
Q. Could you point to him and describe what he is wearing, please.
. A. He is at the defense table with a yellow shirt on.
Q. Okay. Is he the man directly in front of you?
A. Yes, he is.
Q. When did you first come into contact with this individual, Lacey Sivak?
A. April the 9th.
Q. What occasioned your contact with Mr. Sivak?
A. What was that again?
Q. What caused your contact with him; what occasioned it?
A. Well, every newcomer that comes to the Ada County jail, we usually get acquainted or whatever.
Q. What tier or area in the jail were you incarcerated in at that time?
A. D Tank.
Q. What cell number were you in; do you remember?
A. Five.
Q. When did you first observe Mr. Sivak come into the jail?
A. April the 9th, about — I’d say, about 9:00 o’clock.
Q. A.m. or p.m.?
A. P.m.
Q. What tank did he go into?
A. D Tank.
Q. What is a tank?
A. It’s a maximum security tank; holds eight people.
Q. Why were you in D Tank?
A. Because of my escape.
Q. Did you have an opportunity on or after the 9th of April to talk to Lacey Sivak?
A. Yes. We talked April the 10th.
Q. About what time did you talk with Mr. Sivak?
A. 8:30 in the morning.
Q. Okay. Was anyone else present at the time you had your conversation with him?
A. People in the tier; but nobody was in the room, no.
Q. Okay. Explain what you mean by “room”; what do you mean? What is that?
A. Well, my cell.
Q. Okay. Was that in an individual cell, or did you share that with someone?
A. Individual.
*225Q. Okay. How did it come to pass that Mr. Sivak was in your cell?
A. Well, I just got out of the shower and stuff, and I was in my room and getting ready. And he just walked by.
Q. Okay. Are people free to walk around through that tank, D Tank?
A. Yes, they are.
Q. Can they come and go out of individual cells as they please?
A. Yes.
Q. And about what time in the morning was this when Mr. Sivak came to visit?
A. About 8:30.
Q. Did you have an occasion to discuss any matters with Mr. Sivak at that time?
A. Well, we — I asked him a few questions.
Q. Why did you ask him some questions?
A. Because the nightly news and stuff, I heard they arrested a person from the Garden City case.
Q. What case was that?
A. A homicide case at the service station.
Q. Why were you interested in finding out about it?
A. Because, to my understanding, that lady right there, she always helped convicts and stuff.
Q. Is that why you were interested?
A. Yes.
Q. If you could now, Mr. Leytham, relate to the Court as clearly as you can recall what that conversation with Mr. Sivak was.
Tr., Case No. 14435, Vol. 4, pp. 529-34.
The majority’s assertion that it was defense counsel who first impeached Leytham with his past criminal record is thus patently inaccurate, and hence grossly unfair. The majority does accurately portray some of the testimony given by the prosecutor when called as a witness for the state at the post-conviction trial.
But, on the other hand, the majority opinion then makes the statement that defense counsel had (somehow) had “the full opportunity to impeach Leytham on his expectations of future lenient treatments.” Majority op., at 203.
The majority’s conclusion against Sivak is without doubt the most unsubstantiated and distorted holding in the case as I will briefly illustrate.
The issue, of course, is the prosecutor’s failure to disclose to defense counsel that an understanding had been reached between his office and Leytham. The understanding was that the witness, a convicted criminal, would receive lenient future treatment from Mr. Harris’s office in exchange for satisfactory testimony. To state it more precisely, the issue is whether Harris as prosecutor allowed false testimony by Leytham to stand uncorrected.
An early witness for the prosecution’s case, Leytham stated that although, after having testified at the preliminary hearing, two charges pending against him were dismissed, he did not know if the prosecutor’s office had anything to do with it. Apparently, he was never returned to the penitentiary to serve out his time on the two Elmore County felony convictions. But, for certain until his testimony was given at Sivak’s preliminary hearing, Leytham had been housed in the Ada County jail for almost a full year — June 4, 1980 through May of 1981. When asked on direct examination what motivated him to testify regarding his alleged conversations with Sivak, portraying himself as a public-spirited family man he answered only: “Because I have a wife and kids out on the streets, and I wouldn’t want anything to happen to them.”6
The prosecutor let stand the impression that Leytham’s incriminating testimony against Sivak had no connection with an *226understanding emanating from the prosecutor’s office, although transmitted through police personnel. Harris went so far as to espouse Leytham’s credibility and neutrality in his closing statement to the jury: “This business about my office letting Leytham out of three felonies is poppycock, and I think I’ll rely again on Leytham[’s] ... testimony with regard to the so-called deals we may have made in that regard.” The prosecutor featured Leytham’s testimony prominently in his summation.
Four years later, Harris, a sworn witness, told a different story. Part of his testimony at the post-conviction proceeding, cited in the majority opinion, is as follows:
I do recall specifically again informing Mr. Killeen and Mr. Pfeiffer that we would make no deals with Mr. Leytham regarding his testimony and would trade nothing with them regarding it, but that in fact we would consider his testimony with regard to other sentencing decisions we had to make regarding his cases later in the office.
And to the best of my recollection, subsequent to his testimony, we did end up either reducing the charge or dismissing the charge pending against Mr. Leytham. But that, to the best of my recollection, was based as much on his cooperation on other cases as it was on this case.
And it was never done on the basis of a deal. It was only done on the basis that we would give consideration to his testimony during any process which followed that testimony for purposes of considering his good faith and his good citizenship with regard to those pending charges. (Emphasis added.)
On cross-examination, Mr. Harris specified more precisely the manner in which his office communicated with Leytham prior to his testimony:
Well, again ... to answer your question, I do not intend to testify that there were any arrangements made other than to represent to Mr. Leytham through the investigators that there would be potentially consideration given to him at some later date regarding his cooperation in this and other cases. (Emphasis added.)
The majority recites only the direct testimony and then states rather disingenuously: “It is clear from both Leytham’s testimony at trial and the prosecutor’s comments at the post-conviction proceeding that the state made no specific agreement with Leytham whereby his cooperation in Sivak’s case would result in future lenient treatment.” To borrow an expression used by Mr. Harris in arguing to the jury: “Poppycock.”
Apparently the majority would require as a “specific agreement” something more explicit between'the witness and the prosecutor himself personally — presumably in writing, witnessed and notarized. This ignores the case law ably briefed by Sivak’s counsel and conveniently omitted from the majority opinion. It is the possibility of future benefit, keyed to the quality and results of the witness’s testimony, which provides the most significant inducement to falsify. In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985), the Court, in commenting on the existence of such an arrangement, observed:
“The fact that the stake was not guaranteed through a promise or binding contract, but was expressly contingent on the Government’s satisfaction with the end result, served only to strengthen any incentive to testify falsely in order to secure a conviction.”
As another court put it succinctly: “The more uncertain the agreement, the greater the incentive to make the testimony pleasing to the promisor.” Blanton v. Blackburn, 494 F.Supp. 895, 901 (M.D.La.1980), quoting Boone v. Paderick, 541 F.2d 447 (4th Cir.1976). In this case, Leytham had a tremendous incentive to falsify. Obviously, although he belonged in the penitentiary to serve out his sentence, officialdom had made arrangements to house him instead in the county jail where he served the purpose *227of a snitch and a ready witness — all with the connivance and agreement of the involved officials. He was a prime candidate for life imprisonment as a recidivist, if one plus one plus one plus one plus one equals three or more felony convictions.7 Before testifying at Sivak’s district court trial, he had already testified at the preliminary hearing and had been rewarded with dismissal of escape and burglary charges totaling a potential 20 years in prison.
Only the majority’s reading of Harris’s testimony with blinders in place allows it the luxury of saying that Sivak did not carry his burden of establishing a constitutional violation. A more fair stateent would first concede that the “arrangement” with Leytham was not disclosed, and then properly evaluate that transaction with a judicial regard for the law, and then consider whether the state established beyond a reasonable doubt that there is no reasonable likelihood that the result could have been different had the state not used Leytham, or had Sivak’s counsel at trial had the opportunity to cross-examine Leytham with the true facts at his disposal. To date, the state has not undertaken that burden. Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The knowing use of the false testimony involve “a corruption of the truth-seeking function of the trial process,” United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).
In this case, as in Napue, supra, the Court should protect the integrity of the system by reversing the conviction and ordering a new trial; “a conviction obtained through use of false evidence” is a due process violation. Napue, supra, 360 U.S. at 269, 79 S.Ct. at 1177. We have already done as much in the companion case of Bainbridge. See also, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
IV.
I neither concur nor dissent in Part IV of the Court’s opinion. In my view the legislature should attend to rewriting the sentencing standards in more understandable language, while at the same time it returns sentencing to a jury of a defendant’s peers and removes that awesome responsibility from judges alone — which would put the law back where it was before the solicitor-general was successful in stampeding through the legislature an act which, though thought to be required by the Burger Court, was a giant constitutional step backward. That is old ground well covered in previous discussions by Justice Huntley and myself. The present legislature is seemingly unaware of the problem, notwithstanding the reactions of two extremely respected Idaho trial jurists to the operations of the present scheme.
V.
In State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980), although Donaldson, C.J., concurred in the Court’s opinion, my vote was to concur and dissent, the latter on the basis of what Justice Donaldson had writ*228ten in State v. Brusseau, 96 Idaho 558, 532 P.2d 563 (1975), other than in one area which I explained at p. 198 of 101 Idaho, 610 P.2d at 557. Today, I see what Chief Justice Donaldson has written in his Part V as being more in line with my earlier-expressed views, and accordingly join his Part V.
VI.
On Sivak’s direct appeal, Sivak I, supra, the Court as a whole could and should have considered that which it now discusses almost four years later. Ordinarily, a soundly functioning appellate court not only responds to the argument and authority of respective counsel, but of equal importance endeavors to face up to contrary views of a member of the Court itself. There, believing the proposition a serious one, I wrote:
I am also greatly troubled by some of the testimony that was offered and accepted at the “live” portion of Sivak’s sentencing hearing. In particular, there was little reason or justification for the prosecutor to put on the stand a Mr. Frank Sattler. His testimony, in my view, transgresses beyond that which a sentencing jury, or judge, should hear— having nothing to do with the circumstances of the crime, or the character of the defendant. If any one private citizen can be allowed to advise the sentencer to impose the death penalty, then why not fifty such witnesses? Or five hundred, or the entire community? And, here, is it not to be legitimately presumed that the prosecutor called this particular witness knowing or believing that the witness could and would be the deciding factor when the judge made his determination. Who is to say it was not the swinging factor?
And, was it proper to place the victim’s husband, Harry Wilson on the stand and beseech of the judge the death penalty? I believe that it was totally wrong, and here again may have been the single precipitating factor which tipped the scales. Did Harry Wilson know, any better than the judge, who it was, Bainbridge or Sivak, who was the sole heartless murderer? Or, whether it was both who struck, stabbed, and shot her to death. I am at a loss to see from this record how Harry Wilson could know that.
Sivak I, supra, 105 Idaho at 918-20, 674 P.2d at 414-15 (footnotes omitted).
Response from the author of the majority opinion? There was none.
So the same question comes again before the Court. Today’s response: “on remand for resentencing, we decline Sivak’s invitation to restrict the sentencing judge’s ability to hear such relevant evidence.” This is incomprehensible in light of the majority’s own admission that “Sivak correctly notes that this testimony does not directly relate to the statutory aggravating circumstances enumerated in I.C. § 19-2515(g)”. Katie, bar the door; the Supreme Court has opened the floodgates! If a prosecutor thinks any given judge is susceptible to such testimony as was given and can be given again, there will be fifty to five hundred witnesses paraded before the court, including grandmothers and wee children. I know not what others might believe, but I did not think that I would live to see the day where a court would display such a lack of judicial temperament. Whether that testimony was wholly irrelevant, I leave not only to the judgment just of those learned in the law, but to any one of common sense:
FRANK SATTLER,
produced as a witness at the instance of the State, having been first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. HARRIS:
Q. Frank, would you state your full name, please, and spell your last name?
A. Frank Sattler, S-a-t-t-l-e-r.
Q. Mr. Sattler, how are you employed?
*229A. I’m director of the Oil Heat Institute for Southern Idaho and Eastern Oregon.
Q. Okay. You reside here in Ada County, do you?
A. Ido.
Q. Can you describe what that association is?
A. It is an association of all the dealers in Southern Idaho in which markets petroleum products.
Q. Were you employed in that capacity on and after April 6th of this year, 1981?
A. I was.
Q. Do you recall the incidents as reported in the press that occurred on April 6th, 1981 at a gas station owned by Claud Baird here in Boise?
A. I do.
Q. What I would like you to do, Mr. Sattler, if you would, is just describe the ramifications throughout your industry that were felt based upon that criminal act on that day.
A. I didn’t bring my notes. I don’t recall the exact dates, but shortly thereafter we had a meeting at my home concerning the murder of Dixie Wilson.
Q. What kind of people attended that meeting?
A. Well, the Stinker service chain was represented, the Shell service station, the Husky, the American Oil — I think all the major service station owners were at the meeting.
Q. All right. Go ahead.
A. And at the meeting Mr. Baird briefed the people that were there on what he had found at his particular station.
Obviously, the emotions were quite high. And the meeting progressed as to what action, if any, we could take to prevent future occurrences and just how we could protect our people, frankly.
Q. What kind of feelings resulted from that crime as were evidence by the retail dealers in Ada County at that time?
A. Well, several of the people that were there had — their employees had expressed to them the desire to take weapons to work with them. We discussed that at length and rule it out with the obvious intent that somebody innocent would get hurt.
We went to the manuals to find whatever safety devices were available to us, which some have been installed, like, bullet-proof glass and the like in those stations when the teller is inaccessible to the people.
But where the teller is accessible, we can’t use that, obviously.
Q. All right. What kind of people generally are tellers in gas stations in this community?
A. The cashier types are primarily housewives trying to make a few extra dollars.
Q. Would you say that they are vulnerable to this type of criminal activity?
A. Totally vulnerable.
Q. Mr. Sattler, if you were in a position to pass down a sentence in this case, what would that sentence be?
A. My personal opinion?
Q. Yes.
A. I’d hang him.
MR. HARRIS: That’s all I have Judge.
CROSS-EXAMINATION
BY MR. KEHNE:
Q. Mr. Sattler, do you know anything about the facts of the case other than what was reported in the press?
A. Nothing.
Q. You don’t know who actually killed Dixie Wilson, do you?
A. I do not. Other than what was reported in the press and what the Court found.
Q. Were you aware that the jury acquitted Mr. Sivak for premeditated murder?
A. Was I aware of that?
Q. Yes.
A. No, I don’t recall reading that.
Q. Would that change your opinion?
*230A. Negative.
Q. You don’t think it is something that should be considered?
A. I wouldn’t — I don’t consider taking a human life as something that just—
Q. He was acquitted of that, Mr. Sattler.
MR. HARRIS: I object, Your Honor. He wasn’t acquitted of that.
THE COURT: Well, it’s cross-examination. You may proceed, Mr. Kehne.
Q. BY MR. KEHNE: About how many robberies have there been in gas stations around this valley in, say, the last three years?
A. I don’t keep the statistics on that.
Q. How, often does it happen; can you give me an approximation?
A. I think we probably average about two a month. I think Mr. Harris probably has the statistics on that.
Sivak I, supra, 105 Idaho at 918 n. 6, 674 P.2d at 414 n. 6.
HARRY R. WILSON
produced as a witness at the instance of the State, having been first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. HARRIS:
Q. Mr. Wilson, try to make yourself as comfortable as you can there, and would you state your full name for the record.
A. Harry R. Wilson.
Q. Do you reside in Ada County, Mr. Wilson?
A. Yes.
Q. How long have you lived in Ada County?
A. Since ’69.
Q. And how are you employed?
A. For Baird Oil.
Q. What do you do for them?
A. I drive delivery truck.
Q. Are you the same Harry Wilson who testified in the trial of this defendant, Lacey Sivak, in September?
A. Yes.
Q. Could you describe for the court, please, Mr. Wilson, your family setting and general family life prior to April 6th, 1981?
A. It was a pretty happy family life. Everything went pretty smooth. We had our disagreement, which anybody does, but it was a happy life.
Q. How many children did you reside with at your residence with Dixie?
A. Three.
Q. How old are they now?
A. 13, 12 and 9.
Q. Who was the mother of those three children?
A. Dixie B. Wilson.
Q. I would like for you now to describe your family circumstances since April 6th, 1981.
A. It has been a hard go. It’s — we started out the day of the funeral.
Their original father, of the two boys that we had, that was hers from a previous marriage, he stuck me with a custody suit. We was in court right after that, and I have been in court four — or five times over that.
Q. Are those children still residing with you, however?
A. Yes. I won my case with them; I’ve got them. And I’ve got one daughter that has been in psychiatric treatment ever since.
Q. How old is she?
A. She is nine.
Q. Is that the natural daughter of both you and Dixie?
A. Yes, that’s our natural daughter.
Q. Tell me about those problems. What kind of problems is she having?
A. Well, she just — she couldn’t accept it — this. And then she’s had other problems; she has been molested twice since then.
Q. Okay.
*231A. She’s just — too many things; she can’t accept it.
Her grades — schoolwork; everything has went down. All the kids went down.
Q. Harry, if you were in a position to pass sentence on Lacey Sivak, what would that sentence be?
A. Death.
MR. HARRIS: That’s all I have, Judge.
MR. KEHNE: We have nothing. Thank you.
Sivak I, supra, 105 Idaho at 919-20 n. 7, 674 P.2d at 415-16 n. 7.
The view I express is not a personal one, but one which is required from having at least some knowledge of the law. “Aggravation” is defined as:
Any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort itself.
Black’s Law Dictionary, 5th ed. (1979) (emphasis added).
Thus, it is clear that the presence of a bereaved family or frightened members of the same line of work have nothing to do with “the commission of a crime.” Bereavement of a victim’s family is not a proper aggravating sentencing factor. Such evidence
bears no rational relationship to [the defendant’s] degree of culpability____ The purpose of sentencing is to punish defendants in accordance with their level of culpability depends not on fortuitous circumstances such as the composition of his victim’s family, but on circumstances over which he has no control____ The fact that a victim’s family is irredeemably bereaved may be attributable to no act of will of the defendant other than his commission of homicide in the first place.
People v. Levitt, 156 Cal.App.3d 500, 203 Cal.Rptr. 276, 287-88 (1984).
Today the majority enshrines in our case law the ill-advised proposition that grieved relatives of murder victims may share their grief with the sentencing judge. Not only will this prolong sentencing hearings with utterly irrelevant testimony, it will increase the likelihood that the judge may be swayed by unavoidable empathy for the victims. Since this has nothing to do with the degree of culpability attending the defendant’s commission of the crime, I cannot join the majority opinion on this point.
VII.
I see no reason to agree or disagree with part VII of the majority opinion. In my view, if a new trial were being awarded today for the state’s misuse of Leytham’s purchased testimony, the problem here presented in all likelihood would not rise again.
VIII. and IX.
Previously, in many cases, including Sivak’s on direct appeal, I have lamented the Court’s adoption of what I have termed “Bakes’ Rule of Different Ranges of Information.” My comments in Sivak I are just as applicable four years later:
Here, in Sivak’s case, the majority with blatant candor approves of the “in-depth interview” of Sivak’s accomplice and its inclusion in the report. This “in-depth interview” of Bainbridge, who had not yet been tried at the time Sivak was being sentenced, was not an interview but a taped police and prosecutor’s interrogation of Bainbridge just three days after the murder. This interrogation occurred while Bainbridge was in custody, having been interrogated the evening before by Mr. Pfeiffer and Mr. Killeen until about 8:25 p.m. at which time he was arrested, given his Miranda rights and booked into the Ada County Jail. Presentence Report, pp. 9-10, Police Report.
The “in-depth interview” of Bainbridge found in the presentence report took place on April 9th and was conducted by Mr. Vaughn Killeen, Mr. Dee Pfeiffer from the Ada County Prosecutor’s Office, John Dutcher, deputy prosecutor for Ada County, and Officer Collins of the Garden City Police Department. The *232transcript of the tape is 75 pages long. No purpose would be served by setting it out, other than to demonstrate the skills of the interrogators. It suffices to say that Bainbridge did, as might be expected, attempt to exonerate himself from both the robbery and the murder and fix all blame on Sivak.[8]
Sivak I, supra, 105 Idaho at 917-18, 674 P.2d at 413-14.
Without dopbt, since Sivak I prosecutors have had a field day with the Bakes Doctrine. Any district judges who questioned it, and I am certain there are some, are at this date given a new impetus to consider anything that a prosecutor can get incorporated into a presentence report.
But, speaking as favorably of part IX as can be done, it is extremely gratifying to now see the majority recognizing that Sivak’s unsworn out of court statement could not have been admitted by Sivak in his jury trial. “This guilt phase of Sivak’s trial obviously is a critical stage of the criminal proceedings against him.” Majority, p. 208.
There may be some member in the majority who can convincingly explain to me why the penalty phase of a convicted first degree murder defendant — i.e., death or life — is not equally critical, but that justice has yet to step forth. Anything offered in the part IX of the majority opinion may satisfy the judicial conscience of the majority members, but not so here. Critical means critical, no matter how embellished with semantical meanderings.
PROPORTIONALITY
The opinion authored by the Chief Justice may not be faulted for not according any guidance to the district court on this very important legal proposition. Although proportionality does not appear to have been raised as an issue on this appeal from denial of post-conviction relief, it assuredly was raised as an issue on the direct appeal, but received rather short shrift in the majority opinion authored by Justice Bakes:
Pursuant to our independent review in death penalty cases, I.C. § 19-2827 requires us to conduct a review of the record to determine if this particular death sentence resulted from any arbitrary factors, such as passion or prejudice. That section also requires us to determine if the sentence imposed in this particular case is excessive or disproportionate to sentences imposed in similar cases. Our independent review of this case does not reveal any indication of existence of arbitrary factors. Our review of similar cases involving the death penalty, while necessarily limited by the lack of such cases, as noted in State v. Creech, supra, does not reveal the presence of any particular excessiveness or disproportionality in this particular case. The heinous nature of the crime committed in this case, and the nature and character of the defendant, makes the imposition of the death penalty in this case both proportionate and just.
The judgment of conviction and sentence imposed are affirmed.
Sivak I, supra, 105 Idaho at 905, 674 P.2d at 401.
This summary and wholly conclusory disposition of an issue which the legislature itself by its mandate deemed highly important did not go unnoticed by counsel for Sivak. In the petition for rehearing filed in this Court, a specific issue presented to us was: “(4) Whether this Court’s proportionality review was incomplete and constitutionally defective as the majority opinion contains no specific reference to particular cases it examined. Of discussion, there is none.” Supra, p. 211. Counsel for Sivak I was aware of Creech, supra (the same year as and just before Sivak I), where Justice Shepard in writing for the *233majority of three did mention and discuss the earlier Creech, Osborn, Needs, and Lindquist — all of which were first degree murder convictions and death sentences, other than Needs9 there being no valid death sentencing statute in place at that time.
But that of which I most vehemently protested in Sivak was the majority author’s refusal to give even the slightest consideration to State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1985), the facts of which were before us, although the opinion would in point of time follow the Sivak I. Sivak, August 1983; Bainbridge, first opinion (later withdrawn) June 1984.
In between the release of the final opinion on direct appeal in Sivak I, and the final opinion on direct appeal in Bainbridge, Justice Bakes would write in State v. Aragon, 107 Idaho 358, 368, 690 P.2d 293, 303 (1984) on the proportionality issue: “In Sivak the defendant and a cohort brutally murdered a female gas station attendant.” That cohort, of course, was Bainbridge. And, of all things, though Bainbridge was not noted by name, but rather by description — “cohort”—his name surfaced in a Creech-type footnote of an examination of the “numerous cases involving the killing of a human being, although not necessarily involving a charge of first degree murder, or a sentence of death.” Bainbridge leads the list. But Bainbridge once again is not discussed — nor would the casual reader know that the Bainbridge mentioned in the footnote is the same “cohort” who with Sivak brutally murdered the gas station attendant. Nor would the casual reader of the majority opinion be made aware that Bainbridge was not declared eligible for the death sentence that befell Sivak’s lot, notwithstanding that, as the casual reader has no way of knowing, the prosecuting attorney in final argument to the Sivak jury said of Bainbridge: “He’s just as guilty of it [the gas attendant’s brutal murder] as Lacey Sivak. That’s why we charged him.”
Proportionality, required by both the decisions of the High Court and the legislature’s statutory mandate, has not functioned in Idaho, and is an illusion at best.
When the sentencing judge considers the proper sentence for Sivak, he will do well to consider that he may be agonizing in vain, as Judge Oliver noted in Osborn II, and as Judge Lodge noted in recusing himself after receiving this Court’s judgment and opinion in Windsor and Scroggins.
Perhaps the day will come when enough of our district judges are disturbed sufficiently to express their own views on the desirability of letting twelve people share the responsibility of sentencing.
CONCLUSION
The unprecedented procedure which this Court utilized, all at the same time vacating the death sentence and declaring that it retained jurisdiction of the appeal (thus putting it on a hold status) not only was a direction responsible for misguiding the trial court, but also played a large part in proceedings in this Court when Sivak appealed from the second death sentence imposed upon him.
It is important to keep in mind the chronology of the events and give due regard to the timing.
Sivak’s trial ended with a jury verdict on September 29, 1981, and the death penalty was imposed in his absence on December 16, 1981. Sivak appealed.
Following receipt of the trial transcripts and clerk records, Sivak’s brief was filed on July 19, 1982. The State’s brief was filed on September 17, 1982, followed by the filing of Sivak’s reply brief on October 22, 1982.
This Court set oral argument for February 1,1983, at which time the appeal was argued, and the cause taken under consideration.
*234Of nine separate issues on appeal, the Court only reached one, the district court’s failure to comply with I.C. § 19-2503, requiring the defendant’s presence at the pronouncement of the judgment imposing the court’s sentence. Court’s order of March 24, 1983. (Final three paragraphs thereof set out earlier herein, Part I, p. 39.)
The trial court complied by having the defendant and his counsel present for a rereading aloud in the court room of the previous judgment imposing the death sentence. Notwithstanding that Sivak was first sentenced to death on December 16, 1981, 459 days later, on April 4, 1983, the trial court, although it heard an offer of proof as to testimony of various witnesses which Sivak would tender in mitigation, the offer was denied, the trial court agreeing with the prosecutor’s argument that “we are present today to correct a technical problem ... not a procedure ... where we are to reopen these proceedings and give counsel an opportunity to hold a mitigation hearing again____” Tr., Vol. 10, pp. 7-14, April 4, 1983. April 4, 1983.
Sivak appealed from that judgment, filing his notice of appeal first in the trial court, April 7, 1983, and then in the Supreme Court, April 11, 1983.
The district court’s court reporter for the hearing of April 4, 1983, expeditiously complied with this Court’s order that a transcript of the proceedings of that hearing be promptly filed. Date of Reporter’s Certificate of Transcription, April 11, 1983. Filed in the Supreme Court, April 11, 1983.
Notwithstanding the notice of appeal from that final determination of April 4, 1983, which was properly filed, Supreme Court No. 15022, and notwithstanding the filing of the transcript which had been specifically ordered by the Supreme Court to be filed by a date certain, the Supreme Court, sua sponte, entered the following order which effectively declared that consideration of the first appeal, Case No. 14435, would resume, and there was no allowance of any further briefs or oral argument:
The Court having entered an Order on March 24, 1983, in Supreme Court No. 14435 referring this case back to the district judge to again pronounce sentence in open court in the presence of the Defendant; and the district judge having pronounced and imposed such sentence on April 4, 1983; and the Defendant having filed a second appeal in Supreme Court No. 15022 from the April 4, 1983, Judgment and Sentence of the district judge; and the Court intending at all times that these proceedings should be considered as a continuation of the original appeal in this matter so that the Court has determined that Supreme Court No. 1435 and Supreme Court No. 15022 should be consolidated for all purposes.
NOW, THEREFORE, IT IS HEREBY ORDERED, that appeal Supreme Court No. 14435 and appeal Supreme Court No. 15022 be, and they are hereby, consolidated for all purposes and the appeal under Supreme Court No. 15022 shall be deemed a part of the original appeal under Supreme Court No. 14435 without the filing of additional briefs or oral argument.
Dated this 21st day of April, 1983.
Sivak’s counsel responded by filing with this Court a Motion to Reconsider its sua sponte order. May 18, 1983.
The motion was supported by an affidavit of counsel:
DAVID Z. NEVIN, being first duly sworn upon his oath, deposes and says:
1. that I am the attorney of record for defendant-appellant, Lacey M. Sivak;
2. that I have appeared as attorney of record for the defendant-appellant in State v. Sivak, Supreme court Number 14435, in the hearing in the district court on April 4, 1983 in State v. Lacey M. Sivak, Fourth Judicial District Criminal Number 10183A, in other matters in the district court subsequent to the hearing on April 4, 1983, and in State v. Sivak, *235Supreme Court Number 15022, the present matter;
3. that this Court’s order consolidating State v. Sivak, Supreme Court Number 14435 and State v. Sivak, Supreme Court Number 15022, and directing that the case be decided without further briefing or argument prevents the defendant-appellant from raising, and this Court from considering certain important error in the record; this error includes, but is not limited to, the district court’s refusal to entertain and consider evidence in mitigation of sentence at the hearing on April 4, 1983, and to weigh such evidence in its sentencing decision; the district court’s action is clear error under the principles enunciated in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), Lockett v. Ohio, 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] (1978), and Eddings v. Oklahoma, [455 U.S. 104] 102 S.Ct. 869 [71 L.Ed.2d 1] (1962); furthermore this Court is also forced to make the grave decision whether the defendant-appellant should live or die without access to important mitigating information regarding him;
4. Because of this Court’s order of consolidation the defendant-appellant is precluded from raising the above and other issues and addressing them by briefing and oral argument.
The motion was denied but not until by Order of the Court dated August 4, 1983. In rapid succession came the Court’s release of its decision upholding both the conviction and the death penalty, August 15, 1983.
The majority opinion, authored by Justice Bakes, relegated all of the foregoing extremely pertinent chronology of interwoven and unprecedented proceedings in the district court and this Supreme Court into one lowly 20 line footnote, 900 Idaho at 901, 674 P.2d at 397. Nowhere in the footnote is there any mention of the attempt which Sivak’s counsel made to obtain the mitígation hearing required by the statutory law. Nor is there the slightest mention of the filing of the transcript which this Court not only specifically ordered, but also by a set deadline. What does stand out is that footnote’s final fourteen words: “and the present opinion disposes of all issues now present in the consolidated cases.”
In that manner, the Court, having issued its earlier order of April 21, 1983, eliminating any further briefing, was able to avoid giving any consideration, or even mention to the lack of a proper hearing which the trial judge had visited upon Sivak, albeit the trial judge himself opined that he was doing only that which he perceived as being this Court’s mandate.
No strange matter, then, that Sivak petitioned for a rehearing after this Court’s opinion of August 15, 1983. But, perhaps not so strange was it that the majority summarily denied the petition without one word, but, as must be said, nothing in the majority opinion which Justice Bakes authored informed any of us other members of the Court that even a cursory reading of volume eleven, the last of eleven volumes, clearly showed that Sivak simply was not accorded any second sentencing hearing— but merely garnered a day out of the penitentiary so that he could hear the trial judge read aloud in the court room the judgment imposing upon him the same death sentence Sivak had read previously in the solitude of his penitentiary cell.
It is beyond cavil that in this case the system failed. There can be found no justification for this Court’s failure to grant the rehearing which Sivak requested well over three years ago.
As had been intimated before, when a person convicted of a capital crime and sentenced to death is caused, through no fault of his own, to languish an inordinate length of time, that the passage of time alone will mount to the imposition of cruel and inhuman punishment.10 Here, the ma*236jority, however, will allow the same trial judge to go through the same formality yet a third time, and start the appeal route once again. For me, it may be too much to cause a person to serve through the anguish of this many years on the abyss of eternity, and then shove him over — where none of the delay is attributable to him, but to the system as a whole, and especially where there is no justification for this Court’s indifferent carelessness.
. As District Judge Lodge would write in his Order of Disqualification after a majority opinion setting aside his imposition of the death penalty in State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985) and also in State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985):
Despite a record which strongly indicates that in their respective cases both Scroggins and Windsor were the motivating forces behind the commission of the crimes and were in fact the catalysts which set the crimes in motion, a situation has resulted which suggests that "where the death of another is attempted by two people ..., he or she who was less successful must yield the hangman’s noose to the one to whom must go the honor of inflicting the blow or wound which gains the medical credit for producing the victim’s expiration." 85 I.S.C.R. at 2566 (Justice Bistlirte’s separate opinion). In both cases it is clear that Windsor and Scroggins knew that the victim was to be killed, and were actively and inextricably entwined in the victim’s fate.
. The majority opinion in State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), recognized that the procedures in Creech and Sivak were identical.
. The excerpts are borrowed from the Creech case because it was in our opinions there, not in Sivak l, that I laid out the strange orders and press releases, identical in the two cases, which shaped the actions which the lower court would take. The attorney general’s argument had been that the presence of the defendants at sentencing was but a statutory formality, compliance with which was not required. This Court’s unprecedented manner of vacating and remanding in the two cases, and the resuming of proceedings in district court would bear out the validity of the attorney general’s view. But even so, the majority declares an intent on its part that there was to be a full-fledged resentencing procedure. The record does not substantiate such belated assertions.
. State v. Gibson, 110 Idaho 631, 718 P.2d 283 (1986) (post-conviction appeal); Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986) (post-conviction appeal); State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1984) (direct appeal); and State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983) (direct appeal).
Inadvertently, I gave Judge Prather credit for a trial over which he did not preside. Judge Haman presided over both Paradis and Gibson and assigned the post-conviction relief trial to Judge Cogswell. Judge Haman thereby commendably removed from any future controversy the contention that he might be biased in reviewing some of his own rulings in an extremely complex case.
. The prosecutor did leave it to Sivak’s counsel to bring out that the escape charge was an escape from incarceration on an Elmore County 1978 burglary conviction, where probation was violated when he was convicted in Elmore County on yet another felony. After the escape he committed the burglary in Boise County, followed by yet another burglary in Twin Falls County. The witness Leytham was not exactly a carload of nuns.
. Beyond doubt Leytham volunteered to be a witness against Sivak. Mr. Harris testified:
Vaughn Killeen had used Mr. Leytham as essentially a jailhouse snitch on occasions pri- or to his coming forward with information ... regarding a conversation that Leytham had had with Lacey Sivak.
Tr., Case No. 14435, Vol. 6, p. 296.
. Moreover, as the post-conviction trial transcript discloses, Leytham at that time was incarcerated in a Nebraska jail on yet another felony. One of Mr. Harris’s runners who had passed messages to Leytham concerning his testimony in Sivak’s trial supplied that information, and more:
A. Well, Mr. Leytham is currently in jail in Nebraska right now. And I don’t expect him to be in too long. I just had occasion to speak to him the other day, in fact.
Q. When did you speak to him?
A. Within the last week. Probably a week and a half.
Q. BY MR. NEVIN: How did you have occasion to speak to him a week and a half ago?
A. I spoke to him over the telephone. He was in the process of being arrested here in this jurisdiction for an extradition back in Nebraska. And I spoke with him over the telephone and arranged for him to self surrender in Nebraska, and which he did subsequently to my conversation with him.
Q. Did he call you?
A. Well, I was contacted by a peace officer. And then I spoke with him on the telephone.
Tr., Case No. 14435, Vol. 6, pp. 350-52.
. "As mentioned, Bainbridge did not testify at either trial. At his trial the prosecution did not offer his statement in evidence — perhaps because he denied any complicity, and perhaps because of what appears to be a Miranda violation.” Sivak I, supra, 105 Idaho at 918 n. 5, 674 P.2d at 414 n. 5.
. State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981); State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Creech, 99 Idaho 779, 589 P.2d 114 (1979); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979).
. The Honorable Arthur P. Oliver, one of Idaho’s most respected judges, flatly defied the Idaho Supreme Court’s mandate in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), explained:
*236"I don't intend to agonize myself, as I did prior to the 29th of June, by making findings and conclusions that would support a death sentence.
Neither do I intend to make Mr. Osborn agonize for another two or three years incommunicado on death row while the Supreme Court would review findings of fact and conclusions which I endorsed for a death sentence, which I am satisfied would not be upheld. And, for this reason, I refuse at this time to follow the mandate of the Supreme Court and make findings in mitigation.” State v. Osborn, 104 Idaho 809, 823, 663 P.2d 1111, 1125 (1983), quoting Tr., pp. 7-15.
In the first Osborn case, the inexcusable delay in this Court, also attributable to Justice Bakes who was then Chief Justice, although not nearly as long as here, caused me the same concerns as worried Judge Oliver:
[T]here are certain types of cases which come before this Court where there are obvious compelling reasons for according those cases a priority in our deliberative and decision-making processes. One example coming readily to mind is any adoption case and, likewise, any child termination case.
Generally such cases have received preferential treatment, and I do not think that anyone would complain that such takes place. Death penalty cases, like juvenile waiver proceedings, see Dillard v. State, 101 Idaho 917, 623 P.2d 1294 (1981), are of a unique type where lengthy delays in the judicial process cannot be tolerated, and can lead to claims of prejudice or of cruel and inhuman punishment, especially where death row defendants are kept dangling indefinitely in appellate court processes not knowing whether they eventually will or will not be executed.
State v. Osborn, 102 Idaho 405, 433 n. 1, 631 P.2d 187, 215 n. 1 (1981).