(concurring):
I
I concur in the majority opinion. I write separately only because I think it important to respond to Justice Durham’s criticism of the integrity of the judgment in this case. This case has generated much inflammatory criticism by the public at large, the press, ■ and others, who have, almost without exception, no knowledge of the difficult legal issues that have had to be ironed out as a consequence of the case being the first to be tried under Utah’s capital punishment statute. In dealing with the issues before the Court now, some eighteen years after the crime was committed, it is of the utmost importance that they be faced head-on, without making incorrect statements which can only exacerbate the passion and criticism that have surrounded this case from the beginning. Ordinarily, it would not be my practice to respond to Justice Durham’s dissent. Nevertheless, while my own personal sympathies run in the same direction as hers, I think it necessary to respond to some of the assertions that she makes about the history of the case and the legitimacy of the proceedings which have led up to this last appeal.
Central to Justice Durham’s criticism is her conclusion that:
The merging of Andrews’ case with Selby’s, in terms of theory, evidence, and strategy, continued uncorrected and virtually unperceived by the courts until Selby’s death, when a clearer focus of the distinct circumstances affecting Andrews began to emerge. I am convinced that this court, during the direct appeals and the first two reviews on collateral attack, had a minimal basis for evaluating Andrews’ claims independently from Selby’s. Examination of our opinions reveals little or no close analysis of the facts related to Andrews’ actions as distinguished from those of Selby.
Op. at 1036 (emphasis in original) (citations omitted). I submit that those conclusions are incorrect.
The Court’s opinions on the direct appeals from Selby’s (then known as Pierre) and Andrews’ convictions were written by former Justice Frank Wilkins and were based on a review of the entire record, pursuant to our practice in death penalty cases to address manifest errors, even when they are not raised on appeal or presented at trial. From the beginning, attention has been paid to the factual differences between Selby’s and Andrews’ cases. State v. Pierre, 572 P.2d 1338 (Utah 1977), was a lengthy opinion that laid out the basic facts proved at trial against both defendants. In Pierre, Justice Wilkins summarized the evidence in the following fashion:
The evidence at the guilt or innocence stage of the trial (herein “guilt phase”) established that the defendant, Andrews, and Roberts were airmen stationed at Hill Air Force Base, Utah. Stanley Walker, Michelle Ansley, Carol Naisbitt, Cortney Naisbitt (son of Carol Naisbitt), and Orren W. Walker, Jr. (father of Stanley Walker) were tied up, made to lie on the floor, and forced to drink liquid Drano on the evening of April 22, 1974, in the basement of the Hi-Fi Shop in Ogden, Utah, by the defendant in company with Andrews, who aided the defendant by pouring the caustic substance into a plastic cup for accomplishment of these *1032violent acts. The defendant [Selby] and Andrews both had hand guns and defendant finally shot all of the victims in the head with either a .25 caliber or .38 caliber handgun, which caused the deaths, within a brief period of time during that April evening, of Stanley Walker, Michelle Ansley (who had been raped by the defendant just before he shot her) and Carol Naisbitt.
572 P.2d at 1343.
In ruling that the trial court had not erred in refusing to sever Selby’s and Andrews’ trials, the Court in Pierre stated, “We find no merit to defendant’s specific contention that he was denied a fair trial because Andrews and Roberts were attempting to bolster their own defenses by emphasizing certain portions of the eyewitness testimony of Orren Walker, who testified Andrews and Roberts were not present at the time defendant shot the victims as well as raped one of them.” 572 P.2d at 1351. Thus, the Court was aware of the fact that Andrews was not present at the time of the shootings, and the opinion shows that the Court did not confuse or merge the separate factual bases for Andrews’ and Selby’s convictions.
In a separate opinion on the direct appeal of Andrews’ conviction, State v. Andrews, 574 P.2d 709, 709 (Utah 1977), Justice Wilkins stated, “Facts, explanations, and other matters supplemental to those recounted in Pierre are stated in this opinion.” (Emphasis in original.) He then summarized the additional facts relevant to Andrews’ participation in the crime:
Evidence by witness Orren W. Walker, Jr., at the guilt phase revealed that defendant [Andrews] asked Pierre in the basement of the Hi-Fi Shop, after Pierre had discharged his handgun (not at that time shooting anyone), “What did you do that for, man”; that defendant was nervous and upset; that when Walker made no movement after being told by Pierre to administer the Drano to Michelle Ans-ley, Stanley Walker and Cortney Nais-bitt, defendant said to Walker, “Man, there is a gun at your head”; that either before or after the administration of the Drano to the victims the defendant said: “I can’t do it, I’m scared”, though Walker stated he did not know to what this remark of defendant referred; and that Andrews, who left and returned to the basement on more than one occasion during the evening of April 22nd, was not observed firing any gun nor was he present when Michelle was raped and all the victims were shot.
Evidence at the penalty phase of the trial at which the defendant testified demonstrated that he was at the time of trial 20 years of age, was abandoned at birth by his father, left home when he was ten, committed a burglary at 15, went to the Job Corps thereafter, and committed auto theft while in the Job Corps (for which he was placed on probation). While in the United States Air Force, defendant failed to appear for a dental appointment, failed to report for duty, without authorization left a place of duty, and had a separation action from the Air Force commenced against him on the basis he was “minimal productive, and a limited potential airman”, though this action was not completed due to his arrest in this case.
Id. at 709-10.
On direct appeal, Andrews’ counsel raised those issues raised in Selby’s appeal that attacked the constitutionality of the Utah death penalty statute. In addition, Andrews’ appeal asserted that the trial court had erred in refusing to sequester the jury. After disposing of that contention, this Court undertook a “comprehensive review of the case,” according to our general practice in capital cases. Among other points, the Court addressed whether the death penalty was “disproportionate and excessive in relation to the offenses for which he [Andrews] was convicted and his involvement therein.” Id. at 710. The Court stated:
As to the matter of alleged dispropor-tionality between the capital offenses and the sentence of death imposed against the defendant, this Court recited in detail in Pierre the nature and circumstances of the three murders. We have briefly supplemented here these recitals *1033by enumerating the particularized characteristics of the defendant and his involvement in these murders. And we conclude that so far as the verdict for death is concerned, the evidence discloses overwhelmingly that the jury could reasonably and unarbitrarily find as it did; and after our review of the matter, we hold that because of defendant’s involvement in these murders and his background and characteristics, dispropor-tionality between the crimes of murder and the death sentence does not exist.
Id. at 710-11.
At the time these appeals were decided, I was not a member of this Court, but I was at the time of the first habeas review proceedings. There, I was concerned as to whether the evidence was sufficient to support a verdict of capital homicide against Andrews. Not having been here on direct appeal, I evaluated the evidence myself and wrote a concurring opinion addressing Andrews’ contention that the death penalty was inappropriate because “it [had] never been alleged or proved that he personally took a life.” Andrews v. Morris, 607 P.2d 816, 826 (Utah 1980) (Stewart, J., concurring). My opinion concluded:
In the instant case, however, the trial judge instructed the jury with great care that the death penalty could be imposed only if the jury found that each defendant personally intended that one or more of the victims be killed. In my view the evidence in this case amply supports the implied jury finding that the appellant did in fact harbor such an intention.
Justice Durham’s assertion that this Court has never focused on the facts as they pertain to Andrews is simply incorrect. She asserts:
As an example of this obscured perspective, I cite to the fact summary appended to my own opinion in Andrews v. Morris, 677 P.2d 81, 98-99 (Utah 1983). In that summary, the court described the horrifying details of the crime, including the rape of a teenage girl and acts of vicious torture, and then said: “Petitioner Andrews was present and either assisted or observed Pierre [Selby] during all of the events described herein.” Id. at 98 (emphasis added). There is now reason to believe that statement is inaccurate, and exaggerates the degree and nature of Andrews’ complicity in the torture of the victims and the shootings themselves.
Op. at 1036-1037. While I agree that the statement in her prior opinion is incorrect, no consequence flowed from the misstatement. Her opinion dealt solely with the question of whether the standard of persuasion established in State v. Wood, 648 P.2d 71 (Utah 1981), governing the imposition of the death penalty, should have been held retroactive and applicable to Selby and Andrews. That was solely an issue of law; the facts of the case were irrelevant. Undoubtedly for that reason, the error was not picked up by other members of the Court. As shown above, however, where the facts were critical to the outcome of the determination, this Court has stated the facts accurately as to Andrews’ participation and has assessed their significance apart from Selby’s participation.
Justice Durham also contends that Andrews has never had an adjudication before this Court of his broad-based claim that he was denied effective assistance of counsel. While that is technically true, Justice Durham fails to note that the United States Court of Appeals for the Tenth Circuit in Andrews v. DeLand, 943 F.2d 1162 (10th Cir.1991), addressed on the merits the contention that Andrews was denied the effective assistance of counsel in the trial and direct appeal of his case. Id. at 1193-96. Although Justice Durham states that the court had declared those claims to be procedurally barred, in truth, the Tenth Circuit undertook a careful review of the record and concluded that the ineffective assistance claim was without merit. Furthermore, that issue has not been presented or argued on this appeal, contrary to Justice Durham’s assumption.
II
Although I see no legal reason why the judgment in this case can be set aside, I feel constrained to say that if I were a *1034member of the Board of Pardons, I would vote to commute the death sentence to a sentence of life imprisonment. William Andrews today is not the same person he was in 1974 when he fell in with Dale Selby. He was young then, having come from a terribly deprived childhood. Unlike any other person who has been sentenced to death in Utah, he did not himself kill. Because of his participation in the crime, the law holds him accountable, but he was not the driving force behind the homicides. His moral culpability was less than that of Selby, who now has paid the ultimate price for those crimes. In addition, the law has changed in a number of respects since Andrews was convicted. Not the least of those changes was our intervening decision in State v. Wood, 648 P.2d 71 (Utah 1981). Now even the statutory sentencing scheme has been modified.
I think that the purposes of the criminal law will not now be furthered by carrying out the sentence of death. A society that values life as this society does, ought not to feel compelled to push the legal process to its ultimate end. To do that in this case would, perhaps, fulfill the requirements of formal justice, but pure justice sometimes requires that formal justice be tempered with mercy and compassion. As a judge, I am constrained to apply the law; that I have sought to do. The law does not allow me to act solely on grounds of compassion. But I believe that this is a proper case for the application of compassion, one of the highest of human qualities.