(concurring in part and dissenting in part):
This case has had an unfortunately long and tortured history. I continue to disagree with the majority as to its holding that appellant received ineffective assistance of counsel at sentencing. United States v. Curtis, 46 MJ 129,131 (1997) (Crawford, J., dissenting). *170As to the certified issues presented before this Court, I agree with the majority that the court below had the authority to reassess appellant’s sentence and did not abuse its discretion in so doing. However, it is the action of the majority of this Court in the decretal paragraph of its decision on reconsideration, Id. at 130, that is unwise. Accordingly, we have only added to the tortured history of the case.
We now have, however unintended, a significant difference in the treatment of death penalty cases before this Court where the findings have been affirmed and the sentence of death has been set aside. Compare United States v. Curtis, supra, with United States v. Simoy, 50 MJ 1, 3 (1998), and United States v. Thomas, 46 MJ 311, 316 (1997).
The majority’s action was unwise because it tied the hands of the Judge Advocate General by directing him to remand this case to the Court of Criminal Appeals. In so doing, the majority (1) bypassed the normal comprehensive process by which to determine whether to impose the mandatory life sentence or order a rehearing on sentence, and (2) assured that there would only be a limited review of the sentencing considerations. The .unintended consequence of the majority’s limiting treatment of this case is to leave us with a tainted outcome. This action seriously undermines public confidence in the result reached in this case and in our judicial system as a whole. But, as noted by the majority, “Neither the Government’s petition for reconsideration nor the certificate for review questioned the wisdom or propriety of vesting the decision whether to order a sentence rehearing in the Court of Criminal Appeals instead of the Judge Advocate General.” 52 MJ at 167.
When contrasting the role of the Court of Criminal Appeals in determining whether to impose a mandatory life sentence or order a rehearing on sentence with the roles of the Judge Advocate General and a convening authority in this process, it is readily apparent that the majority restricted the scope of consideration that could be given to this decision. Following this Court’s reversal of appellant’s sentence, the Judge Advocate General should have been allowed to fulfill his role of making an informed decision whether to send this case to the Court of Criminal Appeals or to a convening authority. The first step in the process is to decide how to direct the case. The Judge Advocate General stands at the fork in the road and, contrary to this Court or the court below, is in the best position to decide which path — that leading to the Court of Criminal Appeals or to a convening authority — to follow.
In deciding how to direct a case such as this, the Judge Advocate General has many resources available that are not available either to the court below or this Court. The Judge Advocate General can use these resources to review a wide variety of factors. These factors may include newly discovered evidence, post-trial developments such as clarification of the evidentiary and procedural rules, new scientific procedures, availability of witnesses, victim-impact considerations, and the philosbphy or purpose behind sentencing. The Court of Criminal Appeals, on the other hand, is limited to the record of trial and cannot fully consider all of the factors available to the Judge Advocate General.
Following this review, the Judge Advocate General may decide that the record of trial is sufficient for any sentencing decision and, in the interests of judicial economy or for other reasons, send a case to the Court of Criminal Appeals for a decision to impose a mandatory life sentence or order a sentence rehearing. But in so directing the case to the Court of Criminal Appeals, the Judge Advocate General has had the benefit of an unrestricted and comprehensive review that cannot be conducted by either the Court of Criminal Appeals or this Court.
In the alternative, and I submit in the vast majority of cases such as this, the Judge Advocate General may decide to send the case to a convening authority to conduct an additional, unrestricted and comprehensive review in determining whether to impose a mandatory life sentence or order a rehearing on sentence. In so directing the ease, the Judge Advocate General has the flexibility to *171consider factors such as availability and location of witnesses in deciding which convening authority should review the case. By directing the Judge Advocate General to remand this case to the Court of Criminal Appeals, the majority usurped the role of the Judge Advocate General in deciding how to direct the case and limited the scope of factors that could be considered.
Following direction of the case down either path of the road, the second step in the process is the decision whether to impose a mandatory life sentence or order a rehearing on sentence. In this step, the old cliché is true: Courts are limited to what is in the record of trial. But litigation, that is, good litigation, requires a planning process. In this instance, it means that the Judge Advocate General should have had the option of directing the case to a convening authority who could (1) look at all the evidence, not only in light of the RCM 1000 series of rules, Manual for Courts-Martial, United States (1998 ed.), but also in light of the rules of evidence, since they apply during sentencing, and (2) decide which evidence was admissible and inadmissible. It may very well be that some evidence admitted at the first trial would not be admitted on resentencing. Likewise, there may have been evidence that was intentionally withheld at the first trial that might be admitted at resentencing. New scientific procedures such as the admissibility of DNA evidence could be important to explain what happened at the crime scene. Neither this Court nor the Court of Criminal Appeals can consider these factors outside of the record.
Additionally, since appellant’s first trial, there have been numerous clarifications, see, e.g., Simoy, 50 MJ 1, setting forth in more detail the procedural rules needed to assist court members in avoiding the arbitrary imposition of the death penalty, as well as rules clarifying what might be admitted in extenuation, mitigation, and aggravation. See, e.g., Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), overruling South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), and Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).
Not only will the convening authority review the evidence that might be presented on resentencing, but also he or she would be in a position to know whether resentencing would serve the philosophical goals of sentencing. There are five principal reasons for sentencing those who violate the law:
They are rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer and those who know of his/her crime(s) and his/her sentence from committing the same or similar offenses.
Military Judges’ Benchbook at 64 (Dept, of the Army Pamphlet 27-9 (30 Sept. 1996)). RCM 1001(g) provides, in part, that in closing argument, the prosecutor “may also refer to generally accepted sentencing philosophies, including rehabilitation of the accused, general deterrence, specific deterrence of misconduct by the accused, and social retribution.”
The convening authority would be mindful that the impact of specific and general deterrence should depend on a sentence by court members, rather than an intermediate appellate court. Furthermore, a convening authority would certainly take into consideration that it is the court members who are in the best position to determine rehabilitation.
While this Court and the court below may not consider affidavits from the victims’ families and the families’ communities, the Judge Advocate General and the convening authority may consider these in determining who would likely testify at a rehearing. Just as the defendant is entitled to have individualized consideration of his evidence, the impact on the victims’ families should also be considered.
In addition to the changes in the rules concerning extenuation, mitigation, and aggravation, the convening authority, unlike the court below, may negotiate a post-trial agreement with the defendant. For example, a defendant convicted in a capital case could offer to accept a life sentence without the possibility of parole in lieu of a sentence *172rehearing. There is no such opportunity for a defendant to bargain with the court below.
The curious question here is why did the majority shortcut the process in this case1 and limit the considerations that could have gone into a decision whether to impose a mandatory life sentence or order a sentence rehearing? While the majority’s action may have been within its legal authority, it is most unwise and should be avoided in the future. Furthermore, no one should assume that a rehearing on sentence would be the automatic result of the more comprehensive review process. Certainly, experience in the military justice system may show us that in similarly situated capital cases, a Judge Advocate General and a convening authority can conduct their respective comprehensive reviews and the result is a decision by the convening authority to impose the mandatory life sentence. See Thomas, 46 MJ at 316; Simoy, 50 MJ at 3. I would submit that the sentencing decision in both of those cases instills far greater public confidence in their outcome and in the military justice system than what we have in this case.
. See also United States v. Murphy, 50 MJ 4 (1998), where the Court ordered a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), to determine whether appellant could form the requisite premeditation required for premeditated murder. While Murphy is in a different posture, this Court stated, if after the DuBay hearing, the Court of Criminal Appeals “determines that a different verdict would not reasonably result as to findings,” then the Court "may either affirm appellant’s sentence only as to life imprisonment and accessory penalties, or it may order a rehearing as to the death sentence.” Id. at 16. Rather than trying to limit the consideration of the sentence in Murphy as it did in this case, this Court should on its own amend its decretal paragraph in Murphy to allow a full review process to take place.