John Harvey Adamson v. James G. Ricketts, Director, Arizona Department of Corrections

865 F.2d 1011, 1988 U.S. App. LEXIS 17508, 1988 WL 136463

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 22, 1988
• Docket: 84-2069
• Status: Published

Opinions

FERGUSON, Circuit Judge:

John Harvey Adamson filed a petition for a writ of habeas corpus in district court after exhausting all of his state remedies. He contends that his death sentence after a conviction of first degree murder violated various provisions of the federal Constitution. The district court denied his petition, and a three-judge panel of this court affirmed the denial. Adamson v. Ricketts, 758 F.2d 441 (9th Cir.1985). That decision was vacated when the majority of the judges of the circuit voted to have the appeal determined by an en banc panel. This panel then reversed the district court on double jeopardy grounds and directed the issuance of a writ of habeas corpus. Adamson v. Ricketts, 789 F.2d 722 (9th Cir.1985) (en banc). We specifically declined at that time to decide the other issues presented by the petition. Id. at 725. The Supreme Court granted certiorari and reversed on the double jeopardy issue. Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). We are now required to address the other issues which were reserved for determination. We affirm the district court in part, reverse in part, and remand with instructions.

I.

Adamson was arrested and charged with the June 2, 1976 car bombing murder in Arizona of Donald Bolles, an investigative reporter. A preliminary hearing was held on June 21, 1976, at which time a justice of the peace found probable cause to hold Adamson for first degree murder. In January 1977, after jury selection for his trial was underway, Adamson and the State entered into a plea agreement. Under the terms of the agreement, Adamson would testify against two other individuals who allegedly had hired him to commit the murder and would plead guilty to second degree murder. In exchange, Adamson would receive a sentence of 48-49 years imprisonment, with a total incarceration time of 20 years and 2 months.

On January 15, 1977, a hearing was held before Superior Court Judge Ben Birdsall. At that time, Judge Birdsall stated that he had reviewed the preliminary hearing transcript, police reports, supplements, and witness statements in the case. He questioned Adamson as to the factual basis, of his guilt, and accepted the plea of guilty to second degree murder. He delayed acceptance of the sentencing provisions of the plea agreement, however, until he could determine the appropriateness of the sentence. Four days later, after having reviewed the presentence report, the preliminary hearing transcript, and the other information before him, Judge Birdsall concluded that the negotiated term of years was appropriate and accepted the sentence.

For three years following the court’s acceptance of Adamson’s plea and the provisions of the plea agreement, Adamson cooperated with authorities. On the basis of Adamson’s testimony, Max Dunlap and James Robison were convicted of conspiracy and first degree murder, for which they were each sentenced to 29-30 yearfe and the death penalty, respectively. While the Dunlap and Robison convictions were pending on appeal, the State moved to have Adamson’s sentence imposed. Judge Bird-sall sentenced Adamson to the agreed term of 48-49 years on December 7, 1978.

On February 25, 1980, the Arizona Supreme Court reversed the convictions of Dunlap and Robison and remanded the cases for new trials. State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980); State v. Robison, 125 Ariz. 107, 608 P.2d 44 (1980). When the State sought to secure Adam-son’s testimony in the retrials, Adamson’s lawyer responded with a letter to the State dated April 3, 1980, which stated that his client believed that his obligations under the plea agreement were terminated once he was sentenced. The letter further stated that Adamson requested additional consideration, including release, in exchange for his testimony at the retrials. The State, in a letter to Adamson’s attorneys dated April 9, 1980, stated that it considered the plea agreement to still be in effect. The State further wrote that Adamson’s refusal to comply with its terms constituted a breach of the agreement. It also stated that, due to this refusal, “the state may now institute proceedings necessary to carry into effect those things noted in the plea agreement that result from a violation,” including reinstatement of the first degree murder charge and “its possible punishment of death.”

Shortly thereafter, on April 18, 1980, and again on April 22, 1980, the State called Adamson as a witness at a pretrial proceeding for the Dunlap and Robison retrials. Adamson reconfirmed his previous testimony concerning the Bolles killing, but asserted a Fifth Amendment privilege when questioned about another crime. After examining the State’s letter of April 9, 1980, Superior Court Judge Robert L. Myers denied the State’s motion to compel Adamson to testify. Judge Myers concluded that Adamson could legitimately assert his Fifth Amendment rights unless the State granted him immunity from prosecution. Although the State sought review of Judge Myers’ denial of the motion to compel Adamson to testify, the Arizona Supreme Court declined to accept jurisdiction of the Special Action Petition. Adamson v. Superior Court, 125 Ariz. 579, 582, 611 P.2d 932, 935 (1980).

Following this, on May 8, 1980, the State filed a new information charging Adamson with first degree murder. Id. Adamson challenged this by a Special Action in the Arizona Supreme Court. 125 Ariz. at 579, 611 P.2d at 933. The court held that Adamson, by refusing to testify, breached the plea agreement and that he had waived the defense of double jeopardy. Id. at 584, 611 P.2d at 937. The court vacated Adam-son’s second degree murder sentence, judgment of conviction, and guilty plea and reinstated the open murder charge. Following that decision, Adamson offered to accept the State’s version of the agreement and testify against Dunlap and Robison. The State refused Adamson’s offer and proceeded with the charge of first degree murder while apparently dropping its efforts to retry Dunlap and Robison.¹

Adamson unsuccessfully sought federal habeas corpus review pursuant to 28 U.S.C. § 2254. This court affirmed in an unpublished memorandum disposition the district court’s denial of the petition. Thereafter, on October 17, 1980, Adamson was convicted by a jury of first degree murder. A sentencing hearing was held on November 14, 1980.

At the hearing, Judge Birdsall, acting pursuant to Arizona Revised Statute Annotated (“A.R.S.”) § 13-703,² concluded that two aggravating circumstances were present. Those circumstances were: (1) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value, A.R.S. § 13-703(F)(5), and (2) the defendant committed the offense in an “especially cruel, heinous and depraved manner,” § 13-703(F)(6). Judge Birdsall also found that Adamson had not established the existence of any mitigating circumstances beyond a reasonable doubt. He then sentenced Adamson to death. The Arizona Supreme Court affirmed Adam-son’s death sentence, holding that the facts adduced at the sentencing proceeding supported the finding of both the (F)(5) pecuniary gain aggravating circumstance and the “cruelty” portion of (F)(6)’s “heinous, cruel, or depraved” circumstance. State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983). Adamson then instituted the present federal habeas corpus proceeding.

The issues before this court are: (1) whether seeking or imposing the death penalty following Adamson’s assertion of his Fifth Amendment right constitutes prose-cutorial or judicial vindictiveness, respectively; (2) whether imposition of a death sentence by the judge who earlier found imprisonment an appropriate penalty for the same acts violated the Eighth Amendment prohibition against arbitrary and capricious sentencing in capital cases; (3) whether the Arizona statute violates the Sixth Amendment right to a jury determination of the elements of an offense by requiring the judge to make factual findings regarding aggravating circumstances; (4) whether the Arizona statute’s aggravating factor that the offense was committed in an especially heinous, cruel or depraved manner is unconstitutionally vague as construed by the Arizona Supreme Court; (5) whether the Arizona statute violates the Eighth Amendment by precluding meaningful consideration of all mitigating evidence and by imposing a presumption of death; and (6) whether the admission of certain evidence at trial violated the Confrontation Clause.

II.

The Due Process Clause of the Fourteenth Amendment guarantees against judicial and prosecutorial vindictiveness. Thus, a defendant may not be penalized by the imposition of a harsher sentence simply for exercising a right to appeal. North Carolina v. Pearce, 395 U.S. 711, 723-26, 89 S.Ct. 2072, 2079-81, 23 L.Ed.2d 656 (1969). Similarly, a prosecutor cannot increase the charges against a defendant in retaliation for the defendant’s assertion of a statutory right. Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (extending the rule in Pearce to protect the accused against prosecutorial vindictiveness).

Adamson contends the 1980 decisions to seek and impose the death penalty against him for the same acts that earlier merited a term of years were vindictively motivated. We find the evidence insufficient to show that Adamson’s death sentence was vindictively imposed by the sentencing judge. We thus reject his claim of judicial vindictiveness.³ We do find merit, however, in his claim that the circumstances surrounding the State’s decision to seek the death penalty raise a presumption of prosecutorial vindictiveness sufficient to require an evidentiary hearing on the matter.⁴

No actual showing of malice or retaliatory motive is necessary to assert a vindictive prosecution claim. Blackledge, 417 U.S. at 28, 94 S.Ct. at 2102; see also United States v. Burt, 619 F.2d 831, 836 (9th Cir.1980). Rather, vindictiveness will be presumed when the circumstances surrounding the prosecutorial decision at issue create the appearance of vindictiveness.⁵ United States v. Robison, 644 F.2d 1270, 1272 (9th Cir.1981); see also United States v. Griffin, 617 F.2d 1342, 1347 (9th Cir.), cert. denied, 449 U.S. 863, 101 S.Ct. 167, 66 L.Ed.2d 80 (1980) (mere appearance of vindictiveness may give rise to presumption sufficient to establish due process violation); United States v. Groves, 571 F.2d 450, 453 (9th Cir.1978) (“it is the appearance of vindictiveness rather than vindictiveness, in fact, which controls”) (emphasis in original). A presumption arises whenever “it reflects the very real likelihood of actual vindictiveness” on the part of the prosecution. United States v. Martinez, 785 F.2d 663, 668 (9th Cir.1986) (quoting United States v. Gallegos-Curiel, 681 F.2d 1164, 1167 (9th Cir.1982)).

The circumstances surrounding the State’s decision to seek the death penalty for Adamson clearly reflect the real likelihood of actual vindictiveness and thus give rise to a presumption of vindictiveness. The State sought the death penalty against Adamson for the very same conduct for which it had three years earlier found a lesser charge and a sentence of 48-49 years appropriate. See Martinez, 785 F.2d at 669 (presumption of vindictiveness raised when the increased charges arise from the same nucleus of operative facts as the earlier charge); Robison, 644 F.2d at 1272-73 (prosecutor’s attempt to seek a heavier penalty for the same acts is inherently suspect). The same sovereign and the same set of facts were involved in both decisions. Cf. United States v. Ballester, 763 F.2d 368, 370 (9th Cir.), cert. denied, 474 U.S. 842, 106 S.Ct. 126, 88 L.Ed.2d 103 (1985) (likelihood of prosecutorial abuse is diminished when a separate sovereign brings the increased charges); Robison, 644 F.2d at 1272 (vindictive prosecution claim weakened when different facts and different sovereigns involved). Most importantly, the decision to file the increased charges directly followed Adamson’s assertion of his constitutional right against self-incrimination.⁶ See Blackledge, 417 U.S. at 27-28, 94 S.Ct. at 2102; United States v. Shaw, 655 F.2d 168, 171-72 (9th Cir.1981) (appearance of vindictiveness shown by prosecutor increasing severity of charges after the defendant exercised a protected right). These circumstances create the appearance that the State, “faced with a disappointing result, act[ed] so as to ‘up the ante’ for the defendant.”⁷ Martinez, 785 F.2d at 669. Thus, a presumption of vindictiveness is warranted in this case.⁸ Id.; see also Shaw, 655 F.2d at 171 (prima facie case of vindictiveness created when government upped the ante by vacating guilty plea in retaliation for exercise of protected right); Robison, 644 F.2d at 1273 (stating it is the prosecution’s “attempt or threat to ‘up the ante’ by bringing new or more serious charges in response to the exercise of protected rights that violates the due process guarantee”); United States v. DeMarco, 550 F.2d 1224, 1227 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977) (constitutionally impermissible for government to up the ante to discourage defendant from exercising his right to change of venue).

Once the presumption of vindictiveness is raised, the burden shifts to the prosecution to rebut it by presenting evidence of independent reasons or intervening circumstances which demonstrate that the prosecutor’s decision was motivated by a legitimate purpose. Gallegos-Curiel, 681 F.2d at 1167; United States v. Thurnhuber, 572 F.2d 1307, 1310 (9th Cir.1977) (state has a “heavy burden of proving that any increase in the severity of the alleged charges was not motivated by a vindictive motive”) (quoting United States v. Ruesga-Martinez, 534 F.2d 1367, 1369 (9th Cir.1976) (footnote omitted)). Thus, the State must rebut the presumption that its reinstatement of the first degree murder charge and pursuit of the death penalty against Adamson was improperly motivated. To date it has not done so.

None of the arguments the State presents are sufficient to rebut the presumption of vindictiveness. The State’s first contention, that “no one upped the ante” because it simply filed first degree murder charges as the plea agreement reinstatement provisions allowed it to do, wholly misses the point. Vindictive prosecution cases always involve circumstances where the prosecution is acting within its power.⁹ The issue in such cases, however, is whether the exercise of that power was improperly motivated. Thus, just because the State in this case could seek the death penalty against Adamson does not resolve the issue of whether it did so with a vindictive or retaliatory motive.

The State’s related argument that its actions fall within the sphere of prosecutorial discretion is equally unpersuasive. The vindictive prosecution doctrine is “a limit on prosecutorial discretion,.and goes to the very authority of the prosecutor to hale the defendant into court in the first place.” Griffin, 617 F.2d at 1345-46. Thus, while a prosecutor has great discretion to choose which charges it will bring against a particular defendant, “when there is ‘a significant possibility that such discretion may have been exercised with a vindictive motive or purpose,’ the reasons for the prosecutor’s decision to increase the stakes for the accused ‘must be made to appear.’” Id. at 1346-47 (quoting Ruesga-Martinez, 534 F.2d at 1369). In Adamson’s case, there is a significant possibility of actua.1 vindictiveness surrounding the State’s decision to seek the death penalty, coupled with an apparent absence of legitimate reasons to justify it.

The facts before us also do not support a finding that the State’s charging decision resulted from “the prosecutor’s normal assessment of the societal interest in prosecution.” Goodwin, 457 U.S. at 380 n. 11, 102 S.Ct. at 2492 n. 11. While we agree that the State has a legitimate and compelling interest in punishing and prosecuting the murder of Donald Bolles, that interest was present at the time the State made its original bargain with Adamson. An interest in punishing all concerned was the apparent motivation for the State’s entering into the original agreement. That agreement resulted in a sentence of a term of years for Adamson and — before their convictions were overturned — the imposition of the death penalty for Robison and Dunlap. We fail to see how the State’s interest in punishing those connected with Bolles’ murder was advanced, three years later, by seeking to penalize one rather than all three.

Furthermore, the State’s argument that it increased the charges against Adamson because his credibility was destroyed “once he made his famous non-negotiable demands” is contradicted by its own actions. It continued to try to compel Adamson to testify on several occasions following receipt of the April 3, 1980 letter. In addition, the State’s position is undermined by the record of Adamson’s extensive cooperation with state and federal authorities. Adamson had testified for hundreds of hours and cooperated in more than two hundred interrogation sessions during the three year period between the plea agreement and his subsequent claim that he had fulfilled his obligations under the terms of that agreement. There is no evidence — nor does the State even argue — that at any time he testified less than credibly. The earlier convictions of Robison and Dunlap in fact support the contrary conclusion.

We also find no merit in the State’s claim that it sought the death penalty against Adamson because Adamson might refuse to testify at a retrial of Robison and Dunlap. The State defends its actions on the grounds that such a refusal would be “the definitive end of any case against Robison and Dunlap” since double jeopardy would attach.¹⁰ Nothing, however, could more definitively end the case against Robison and Dunlap than ending Adamson’s life and silencing forever the key prosecution witness against them.¹¹

In addition, there was little indication that Adamson would refuse to testify.¹² He proved his willingness to testify at the original trial of Robison and Dunlap, where his testimony was largely, if not entirely, responsible for their convictions. He also agreed, as soon as the Arizona Supreme Court rejected his interpretation of the provisions of the plea agreement, to testify at the retrial. Moreover, since the Arizona Supreme Court decision made clear that the State could refuse Adamson’s demands, he had no further incentive for not testifying.¹³

Because we find that Adamson has made an initial showing to raise a presumption of vindictiveness that the State has not thus far rebutted, we hold that the district court erred in denying Adamson’s request for an evidentiary hearing on the matter. We therefore reverse the district court and remand for such a hearing.¹⁴

III.

Given that the judge originally determined that a sentence of 48-49 years was an appropriate penalty for the acts constituting the murder, we also hold that the judge’s subsequent imposition of the death penalty following Adamson’s trial was arbitrary in violation of the Eighth and Fourteenth Amendments.

The death penalty qualitatively differs from any other sentence. California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983); Zant v. Stephens, 462 U.S. 862, 884, 103 , 77 L.Ed.2d 235 (1983); Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3377, 73 L.Ed.2d 1140 (1982); Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). Thus, we must accord a “greater degree of scrutiny” to capital sentencing determinations. Ramos, 463 U.S. at 999, 103 S.Ct. at 3452.

To pass constitutional scrutiny under this heightened standard, the death penalty must not be applied in an arbitrary or capricious manner. Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). Rather, there must be “an ‘individualized determination’ of whether the defendant in question should be executed, based on ‘the character of the individual and the circumstances of the crime.’” Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 2532, 96 L.Ed.2d 440 (1987) (quoting Zant, 462 U.S. at 879, 103 S.Ct. at 2744 (emphasis in original)). A sentence of death may not be imposed unless there is a determination that death is the appropriate punishment in the specific case under consideration. Woodson, 428 U.S. at 304, 96 S.Ct. at 2991. “[A]ny decision to impose the death sentence must ‘be, and appear to be, based on reason rather than caprice or emotion.’” Booth, 107 S.Ct. at 2536 (quoting Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (opinion of Stevens, J.)).

Whether or not á capital sentence is involved, in Arizona the sentencing function does not lie with the parties to a plea agreement but “rests primarily with the Judge, whose ultimate obligation is to impose an appropriate sentence_” Dominguez v. Meehan, 140 Ariz. 329, 332, 681 P.2d 912, 915 (App.1983) (quoting People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864 (1981)), approved, 140 Ariz. 328, 681 P.2d 911 (1984). Thus, the wide discretion accorded a judge regarding whether to accept or reject a plea extends to the sentencing provisions of the plea agreement. See State v. De Nistor, 143 Ariz. 407, 411-12, 694 P.2d 237, 241 (1985). The judge therefore has complete authority to reject the sentence negotiated by the parties. See Ariz.R.Crim.P. 17.4(d); Williams v. Superior Court, 130 Ariz. 209, 210, 635 P.2d 497, 498 (1981); (Frank) Smith v. Superior Court, 130 Ariz. 210, 212, 635 P.2d 498, 500 (1981); see also De Nistor, 143 Ariz. at 412, 694 P.2d at 241. Even after accepting a plea agreement, a judge may reject the stipulated sentence if he or she finds it inappropriate.¹⁵ De Nistor, 143 Ariz. at 410, 694 P.2d at 241; see also (Frank) Smith, 130 Ariz. at 212, 635 P.2d at 500.

In Adamson’s case, the judge held two hearings and reviewed extensive information in order to determine whether he would accept the plea and sentence negotiated between Adamson and the State. At the first hearing, on January 15, 1977, the judge stated that he had read and examined the preliminary hearing transcript, police reports and supplements, and the written statements of witnesses. The judge also elicited additional information from Adamson regarding his role in Bolles’ murder “to further establish a factual basis” for the guilty plea. He then accepted Adamson’s plea of guilty to second degree murder, but postponed acceptance of the stipulated sentence pending review and receipt of the presentence report.

At the next hearing four days later, the judge indicated that he had now considered the presentence report, the matters in the file, the preliminary hearing transcript, the plea agreement, and the proceedings at the previous hearing. Having reviewed and considered all of this information, the judge accepted the 48-49 year sentence proposed in the plea agreement.

The judge’s acceptance of Adamson’s negotiated guilty plea to second degree murder and sentence thus reflected his judicial determination that such was an “appropriate” punishment for all of Adamson’s actions. Because second degree murder under Arizona law carries a maximum penalty of life imprisonment, the judge’s acceptance of Adamson’s plea agreement also signified his belief that Adamson would be appropriately punished by a prison sentence rather than death.

Notwithstanding this previous determination, in November 1980, following Adam-son’s subsequent trial and conviction for Bolles’ murder, the judge imposed the death penalty for the same conduct for which he had previously found a prison term “appropriate.” No information was cited to justify the imposition of the death penalty that had not been available at the first sentencing hearing. Indeed, the aggravating and mitigating circumstances listed in the sentencing findings were based on the same facts that the judge had used three years earlier to determine that a prison term was the “appropriate” penalty for Adamson.¹⁶ Thus, there is no evidence that the death sentence was “based on reason rather than caprice or emotion.” Gardner, 430 U.S. at 358, 97 S.Ct. at 1204. It therefore appears, based on the record before us, that the judge acted arbitrarily in imposing the death penalty in Adamson’s case. Since the only change of circumstances between the imposition of the prison sentence and the imposition of the death sentence was that Adamson breached the plea agreement, there emerges the inescapable conclusion that Adamson was sen-fenced to death because he violated a contract.

The State counters that, when the judge originally sentenced Adamson to a term of years, he had no power to do anything other than to accept or reject the plea, and thus no authority to examine aggravating or mitigating factors. This argument has no merit. As we have already indicated, under Arizona law the sentencing judge has the power to accept the plea, reject the plea, or accept the plea yet reject the negotiated sentence if it is determined that it was not appropriate.¹⁷ See, e.g., De Nistor, 143 Ariz. at 411, 694 P.2d at 241. The record here shows that, in determining whether to accept the plea and the proposed sentence of 48-49 years as appropriate, the judge considered the same information that he subsequently used to find aggravating circumstances sufficient to justify a sentence of death.

The dissent attempts to justify Adamson’s death sentence by concluding that, in light of the reinstatement provisions of the plea agreement, such a sentence was simply the logical and predictable result of his refusal to testify. Whatever may be said for the propriety of increasing prison sentences following the breach of a plea agreement, the imposition of the death penalty for such circumstances offends the constitutional principle that capital sentencing determinations require special treatment. See, e.g., Ramos, 463 -99 & n. 9, 103 S.Ct. at 3451-52 & n. 9. While in agreement with the dissent that Adamson’s death sentence followed his breach, we do not share the dissent’s view that this sort of predictability passes constitutional muster. When the predictable result of the breach of a plea bargain is the death penalty, the imposition of that penalty is arbitrary and in violation of the Constitution. The Constitution requires an individualized determination of whether a defendant should be executed, and not a prediction of death.

We hold that the state trial judge acted arbitrarily in imposing the death penalty. We reverse the district court and remand to that court with instructions to grant the writ of habeas corpus unless the State, within a reasonable time, resentences Adamson to a sentence other than death.

IV.

Adamson also contends that the Arizona statutory scheme for imposing the death penalty erroneously lists elements of the offense as factors to be determined by the sentencing judge, thus depriving him of his right to a jury decision on the elements of the crime in violation of the Sixth and Fourteenth Amendments. We agree.

The historic roots of the right to jury trial provide an essential backdrop to this discussion. The Framers of the Bill of Rights included the Sixth Amendment’s guarantee of a right to jury trial as an essential protection against government oppression. “Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.” Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968). The cornerstone of this protection is the right to have the jury determine the existence of the facts necessary to determine guilt or innocence of a given crime. Only by maintaining the integrity of the factfinding function does the jury “stand between the accused and a potentially arbitrary or abusive Government that is in command of the United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977). criminal sanction;

The Court has recognized that the defendant’s right to a jury trial and the concomitant factfinding responsibilities of the jury merit greater protection as the potential punishment increases. See, e.g., Duncan, 391 U.S. at 160-61, 88 S.Ct. at 1453 (jury trial not constitutionally mandated for petty offenses; seriousness of punishment determines when right attaches). As we have previously stated, the Supreme Court has repeatedly held that the death penalty is qualitatively different from all other punishments and that heightened scrutiny of death sentencing decisions is required. Thus, when the death penalty is implicated courts must be particularly careful to prevent the infringement of Sixth Amendment rights.

To avoid the dangers of government oppression recognized in Duncan and reaffirmed in later cases, there must be strict separation of determinations of guilt or innocence (factfinding) and determinations of the appropriate punishment (sentencing). To otherwise blur the distinctions between those concepts would result in the ultimate tyranny feared by the Founders and condemned by Duncan: the unchecked power of the government to execute at will.

A.

Adamson was found guilty of first degree murder by a jury. Since Arizona’s death penalty statute requires that a judge find at least one aggravating circumstance before a defendant convicted of first degree murder is death-eligible, however, the jury’s verdict by itself did not qualify him for a death sentence. Accordingly, Adam-son argues that the death sentence was imposed only after he had been found guilty of a higher degree of murder — “capital murder” — by virtue of the judge finding two additional factors, specifically, aggravating circumstances A.R.S. §§ 13-703(F)(5) (a motive of “pecuniary gain”) (“(F)(5)”), and 13-703(F)(6) (murder committed in an “especially heinous, cruel or depraved” manner) (“(F)(6)”). Adamson thus concludes that because a judge made these findings he was deprived of his Sixth Amendment right to have a jury decide the facts of his guilt or innocence. The logic of Adamson’s argument, however, is sound only if the Arizona statutory aggravating circumstances are actually elements of a distinct crime.

The Constitution requires that the state prove beyond a reasonable doubt all elements of the offense with which the defendant is charged. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970). Yet the parameters of what constitutes an “element” — so as to fall within the jury’s factfinding responsibility — remain elusive. A line of due process cases considering such contours has failed to produce concrete guidelines. Cf. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 2417, 91 L.Ed.2d 67 (1986) (Court has “never attempted to define precisely the constitutional limits [of] the extent to which due process forbids the reallocation or reduction of burdens of proof in criminal cases, and do[es] not do so today....”); see also Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1969). We find, however, that a framework for analysis emerges from these cases. Thus, in assessing Adamson’s claim, we examine (1) the legislative history of Arizona’s death penalty statutes; (2) the actual role played by aggravating circumstances under Arizona’s revised statute § 13-703; and (3) the application of McMillan v. Pennsylvania, the Supreme Court’s most recent pronouncement on the distinction between elements and sentencing factors, to this case.

1.

From 1901 to 1973 Arizona placed the sentencing decision of “death or imprisonment” on the jury:¹⁸

A person guilty of murder in the first degree shall suffer death or imprisonment in the state prison for life, at the discretion of the jury trying the person charged therewith, or upon a plea of guilty, the court shall determine the punishment.

State v. Nielsen, 108 Ariz. 251, 254, 495 P.2d 847, 850 (1972) (quoting A.R.S. of 1956 § 13-453(A)) (emphasis added); see also A.R.S. of 1955 § 13-453; Ariz.Code of 1939 § 43-2903; Rev.Code of Ariz. of 1928 § 4585; A.R.S. of 1913, 13 Penal Code § 173; Ariz.Penal Code of 1901 § 174. In addition, Arizona allocated the burden of proof of the elements of the homicide — including the burden of proving mitigation— between the prosecution and defendant at trial:

Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.

Ariz.Penal Code of 1901 § 938; A.R.S. of 1913, 13 Penal Code § 1046; Rev.Code of Ariz. of 1928 § 5050; Ariz.Code of 1939 § 44-1814; A.R.S. of 1955 § 13-454; A.R.S. of 1956 § 13-454.

In 1973, in response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (death penalty may not be imposed arbitrarily or capriciously), the Arizona legislature adopted a new procedure for determination of the appropriate sentence.¹⁹ The responsibility for deciding whether a defendant would receive a sentence of life or death was taken from the jury²⁰ and reassigned to the judge who presided over a separate, statutorily mandated, aggravation-mitigation hearing.²¹ The legislature similarly removed the consideration of mitigating circumstances from the jury at trial and allocated it to the judge at sentencing.²² This abbreviated legislative history thus reveals that for at least 72 years, the Arizona legislature believed (1) a jury should decide between life or death and (2) mitigating factors, as well as elements establishing higher degrees of murder, had to be proved or disproved at trial before the trier-of-fact.²³

If this were the end of the analysis, however, Adamson’s argument would fail. Simply because Arizona previously assigned this decisionmaking responsibility to a jury does not mean, of course, that the State must continue to do so. Cf. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3163, 82 L.Ed.2d 340 (1984). However, the Supreme Court has not hesitated to invalidate sentencing procedures when the process violates constitutional rights. See, e.g., Mullaney, 421 U.S. at 698, 95 S.Ct. at 1889 (states may not simply “redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment”). Thus we recognize that the mere use of labels such as “determinations of guilt” and “sentencing” to compartmentalize the functions of judge and jury, does not negate the very real possibility that what are called “sentencing” decisions may in fact usurp jury factfinding responsibilities. While a “state legislature’s definition of the elements of the offense is usually dis-positive,” McMillan, 477 U.S. at 85, 106 S.Ct. at 2416, its decision in this regard is subject to proscription under the Due Process Clause if it “offends some principle of justice so rooted in the traditions and conscience of our people so as to be ranked as fundamental.” Speiser v. Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958) (quoted in McMillan, 477 U.S. at 85, 106 S.Ct. at 2416). The Sixth Amendment right to have a jury determine whether the State has proven every element of the charged offense is such a principle. Thus, a scrutinizing examination of the Arizona statutory scheme is necessary to determine if its assignment of responsibilities violates the fundamental right to a jury trial.

2.

Under Arizona’s revised code, all murder is not capital murder. Since 1973, Arizona has required that before a death sentence may be imposed the trial judge must find beyond a reasonable doubt that at least one statutory aggravating circumstance exists.²⁴ While Arizona has formally subdivided murder into at least four categories —first degree murder, second degree murder, manslaughter and negligent homicide ²⁵ — it appears that aggravating circumstances in fact operate to create an additional category of murder. While the statute’s nomenclature (“aggravating circumstances”) suggests they are mere factors guiding the judge in his or her determination of the appropriate penalty, all other indicators confirm that aggravating circumstances are additional elements necessary for a finding that a defendant is guilty of the distinctive offense of capital murder.²⁶ Finding aggravating circumstances results in the only crime in Arizona for which a defendant may receive a death sentence.

An aggravating “circumstance” which elevates a murder to a “death-eligible” murder in the penalty phase, remarkably mirrors the attributes of an essential element of the offense during the guilt phase of a trial. Like an element of a crime, an aggravating circumstance in the Arizona scheme informs the prosecutor what facts must be proven to obtain a conviction. The circumstance must be proven beyond a reasonable doubt. The hearing is adversarial, with oral argument and the prosecution’s presentation of evidence governed by the usual rules of evidence. The presiding trial judge must make findings on the existence or nonexistence of each of the statutory aggravating and mitigating circumstances. If the judge finds an aggravating circumstance, the burden then shifts to the defendant who must put on sufficient evidence of mitigation or the death penalty will be imposed. A.R.S. § 13-703; see also Arizona v. Rumsey, 467 U.S. 203, 210, 104 S.Ct. 2305, 2309, 81 L.Ed.2d 164 (1984). If the prosecution is unable to prove the existence of a single aggravating circumstance, like not proving an essential element, the defendant cannot be put to death. Cf. Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 1755-56, 90 L.Ed.2d 123 (1986) (Court framed the relevant inquiry as “whether the sentencing judge or the reviewing court has ‘decid[ed] that the prosecution has not proved its case’ for the death penalty and hence has ‘acquitted’ petitioners”); Rumsey, 467 U.S. at 212, 104 S.Ct. at 2310 (where findings of fact at sentencing hearing were all favorable to defendant, he was “acquitted” of the death penalty).

Moreover, to determine the existence of the aggravating circumstances at issue here requires subjective and complex inquiries into the defendant’s state of mind before, during and after the perpetration of the crime.²⁷ An (F)(5) finding obligates the judge — not the jury — to draw conclusions regarding whether the defendant had the “expectation of the receipt, of anything of pecuniary value.” A.R.S. § 13-703(F)(5) (emphasis added). The (F)(6) factor— whether the offense was committed in an “especially heinous, cruel or depraved manner” — requires assessments of “the mental state and attitude of the perpetrator as reflected in his words and actions” at the time of the offense. State v. Gretzler, 135 , 659 P.2d 1, 10, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). These assessments directly measure a defendant’s “moral guilt” and overall culpability—traditionally the jury’s domain of decision. See Enmund v. Florida, 458 U.S. 782, 800, 102 S.Ct. 3368, 3378, 73 L.Ed.2d 1140 (1982) (“American criminal law has long considered a defendant’s intention — and therefore his moral guilt — to be critical to the ‘degree of [his] criminal culpability’_”) (quoting Mullaney, 421 U.S. at 698, 95 S.Ct. at 1889).²⁸

We therefore hold that Arizona’s aggravating circumstances function as elements of the crime of capital murder requiring a jury’s determination.

3.

Further support for our conclusion is found in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which contains the Supreme Court’s most recent pronouncement on what constitutes an element of a criminal offense requiring proof beyond a reasonable doubt, and to which the right to a jury determination attaches. The Court in McMillan upheld a Pennsylvania statute which increases the minimum sentence a judge can impose upon finding, by a preponderance of the evidence, that the person “visibly possessed a firearm” during the commission of the underlying offense. The statute at issue required a mandatory minimum sentence of five years’ imprisonment for certain felony convictions. 106 S.Ct. at 2414. The petitioners argued that visible possession was an element of the crime, demanding attendant constitutional protections. The Court disagreed, concluding that the “visible possession of a firearm” factor did not require proof beyond a reasonable doubt to satisfy due process, nor a jury determination necessary in order to conform with the Sixth Amendment.

The Court’s conclusion in McMillan, however, turned upon facts not present in the instant case. For instance, the Court found it significant that Pennsylvania had defined the elements of the enumerated offenses, as well as their maximum allowable sentences, at least ten years prior to passing the statute at issue. Id. at 2416-17. The majority also noted that the legislature could have chosen to add visible possession as an element of the enumerated offenses. It did not, however, and thus the new statute affected only sentencing. Id. at 2417. Thus, the Court concluded that “the specter raised by petitioners of States restructuring existing crimes in order to ‘evade’ the commands of Winship just does not appear in this case.” Id. at 2418.

In contrast, Arizona’s is a totally revised statutory scheme which, when enacted in 1973, in essence withdrew from the definition of its homicide crimes various “elements” traditionally preserved in Arizona for jury determination and reclassified them as judicial sentencing circumstances. The confluence of the elements and circumstances, combined with the simultaneous repeal of the statute allocating the burden of proving mitigation at trial and enactment of the statute allocating this burden at judicial sentencing, distinguishes Arizona’s scheme from the one in McMillan.29

Most significantly, however, the Court stated in McMillan that its result could be different “if a finding of visible possession exposed [defendants] to greater or additional punishment_” Id. at 2418. The Court placed great emphasis on the fact that the Pennsylvania statute

neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.

Id. at 2417-18 (emphasis added).³⁰ The Arizona statutes at issue however, operate very differently. Although first degree murder in Arizona is punishable by life imprisonment or death, see A.R.S. § 13-703(A), a defendant cannot, under any circumstances, be sentenced to death unless at least one aggravating circumstance is found to exist. Consequently, the finding of aggravating circumstances “exposes [defendants] to greater or additional punishment.” Id. at 2418.³¹ Further, because proof of at least one “aggravating circumstance” is required, capital murder becomes a distinct offense calling for a separate punishment not otherwise available— the penalty of death.

B.

While a defendant is entitled to a jury’s determination regarding the existence of elements of a crime, a defendant is not, however, constitutionally entitled to have a jury determine the appropriate punishment. In Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), the Supreme Court upheld Florida’s “over-ride” provision which allows a judge to impose a death sentence despite a jury recommendation of life imprisonment. Never challenging the fundamental principle that criminal defendants are entitled to a jury trial, see Duncan, 391 U.S. at 156, 88 S.Ct. at 1451, the Court’s examination in Spaziano was limited to the constitutionality of judicial “sentencing” and evaluation of “the appropriate punishment to be imposed.” 468 U.S. at 458-59, 104 S.Ct. at 3160-61. The Court never addressed a claim of judicial fact-finding as to an element of the offense. Thus the Court never reached the particular contention Adamson has raised: that Arizona’s capital sentencing statute requires the judge to determine elements of the offense charged, thereby taking this factual element out of the jury’s hands in violation of the Sixth Amendment.³² Sentencing, or the ultimate determination of an appropriate penalty, involves the weighing of factors. Such weighing is completely distinct from threshold findings of whether requisite elements even exist from which the trier-of-fact draws conclusions on guilt or innocence.

Thus, Spaziano is not controlling in this case, as it left untouched the question of the right to a jury trial where the aggravating circumstances of a state’s death penalty statute are elements of a capital offense.

C.

We therefore conclude that the function of Arizona’s aggravating circumstances, considered in light of the development of Arizona’s revised statutory scheme and McMillan, demand that the veil of the sentencing factor label be lifted. We hold that Arizona has impermissibly identified elements of the crime of capital murder as sentencing factors for determination by a judge, thereby removing their consideration from a jury, in violation of the Sixth Amendment. We reverse the district court on this issue and remand with instructions to grant the writ of habeas corpus unless the State, within a reasonable time, imposes a sentence other than death.

V.

Not only must a jury determine the existence of the elements — including those mislabeled as aggravating circumstances — which constitute the crime, but the Constitution also requires that there be guidelines to channel discretion in making these findings. Adamson received the death penalty after the trial judge found the presence of two aggravating circumstances: A.R.S. §§ 13-703(F)(5) (“pecuniary gain” motive)³³ and (F)(6) (“especially heinous, cruel, or depraved” murder). We conclude that the (F)(6) circumstance violates the Eighth and Fourteenth Amendments by failing to channel adequately the decisionmaker’s discretion when determining whether the (F)(6) circumstance exists.

Arizona, like many other states, responded to Furman v. Georgia, by implementing specific guidelines intended to narrow the trier of fact’s discretion. See Cartwright v. Maynard, 822 F.2d 1477, 1484 (10th Cir.1987) (en banc), aff'd, _ U.S. _, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (noting' that thirty-five states enacted new death penalty statutes after Furman). The Supreme Court has upheld against limited attack statutory schemes designed to ensure channeled decisionmaking by consideration of aggravating and mitigating circumstances. See, e.g., Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

Several Supreme Court decisions have addressed the constitutionality of aggravating circumstances in which the key terms are similar — or identical — to those selected by the Arizona legislature for the (F)(6) circumstance. In Gregg, the Court considered the constitutionality of an aggravating circumstance in the revised Georgia death penalty statute. That circumstance applied if a murder was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” 428 U.S. at 165 n. 9, 96 S.Ct. at 2922 n. 9. The Court held that although all murders could be characterized so as to fall within the circumstance the statutory “language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.” 428 U.S. at 201, 96 S.Ct. at 2938; see also Proffitt, 428 U.S. at 255-56, 96 S.Ct. at 2968 (reviewing a Florida aggravating circumstance which allowed the death penalty if “the capital felony was especially heinous, atrocious, or cruel”).

Several years later in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), a plurality of the Court held that Georgia had in fact given a sufficiently narrowing construction to the broad statutory terms attacked in Gregg.34 The Court also reaffirmed its previous mandate that the states “channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’” Godfrey, 446 U.S. at 428, 100 S.Ct. at 1765 (quoting Gregg, 428 U.S. at 198, 96 S.Ct. at 2936; Profitt, 428 U.S. at 253, 96 S.Ct. at 2967; Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976)).

In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Court cautioned that aggravating circumstances, while intended to direct discretion, could be “so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” Id. at 877, 103 S.Ct. at 2742 (citation omitted). The Court thus instructed states to genuinely narrow the class of persons eligible for the death penalty. Id.; see also California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987) (Constitution requires that “death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion”).

Most recently, the Supreme Court in Maynard v. Cartwright, — U.S. -, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), unanimously affirmed the Tenth Circuit’s holding that Oklahoma’s “especially heinous, atrocious, or cruel” aggravating circumstance was unconstitutionally vague. The Tenth Circuit sitting en banc had conducted an exhaustive inquiry of Oklahoma’s case law. It concluded that, while Oklahoma’s highest court had held that the attitude of the killer, the manner of the killing, and the suffering of the victim were relevant and could support the aggravating circumstance, the Oklahoma court had “ ‘refused to hold that any one of those factors must be present for a murder to satisfy this aggravating circumstance.’ ” Id. 108 S.Ct. at 1857 (quoting Cartwright, 822 F.2d at 1491 (emphasis in original)). The Supreme Court agreed with the Tenth Circuit that such an open-ended approach was unconstitutional under Godfrey, where the Court had “rejected the submission that a particular set of facts surrounding a murder, however shocking they might be, were enough in themselves, and without some narrowing principle to apply to those facts, to warrant the imposition of the death penalty.” Id. at 1859. Thus, the Court found Oklahoma’s application of its aggravating circumstance unconstitutional for two reasons:

First, the language of the Oklahoma aggravating circumstance at issue — “especially heinous, atrocious, or cruel” — gave no more guidance than the “outrageously or wantonly vile, horrible or inhuman” language that the jury returned in its verdict in Godfrey. The State’s contention that the addition of the word “especially” somehow guides the jury’s discretion, even if the term “heinous” does not, is untenable. To say that something is “especially heinous” merely suggests that the individual jurors should determine that the murder is more than just “heinous,” whatever that means, and an ordinary person could honestly believe that every unjustified, intentional taking of human life is “especially heinous.”

Second, the conclusion of the Oklahoma court [in Cartwright’s case] that the events recited by it “adequately supported the jury’s finding” was indistinguishable from the action of the Georgia court in Godfrey, which failed to cure the unfettered discretion of the jury and to satisfy the commands of the Eighth Amendment.

Id. (citations omitted).

Thus, the Court has expressly conditioned the use of aggravating circumstances upon the state courts’ ability to interpret and apply the statutory guidelines in a narrow and consistent manner. Given that the (F)(6) circumstance is composed of terms that are inherently vague, cf. Godfrey, 446 U.S. at 428, 100 S.Ct. at 1765 (“[t]here is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence”), we must decide whether the (F)(6) circumstance has been given a sufficiently narrow construction by the Arizona Supreme Court.

The Arizona legislature intended that the “especially heinous, cruel or depraved” aggravating circumstance provide guidance to judges presiding over aggravation-mitigation hearings. Moreover, it surely was not meant to be used as a “catch-all for those first degree murders where no other aggravating circumstance applies.” State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983) (quoting State v. Ortiz, 131 Ariz. 195, 206, 639 P.2d 1020, 1031 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982)). It has, however, been used in just this manner.

The (F)(6) aggravating circumstance is by far the most frequently invoked circumstance of all of § 13-703’s nine aggravating circumstances. Out of all first degree murder cases where proof of aggravating circumstances was sought, the “especially heinous, cruel or depraved” option was used over 68% more often than the next most commonly used circumstance, and more than 108% more often than any of the remaining circumstances.³⁵ Although this is not a constitutional violation in and of itself, the popularity of the (F)(6) circumstance appears to be symptomatic of its catch-all function.

Three reasons emerge to explain the frequent use of the (F)(6) circumstance. First, a broad range of definitions have been provided for the terms “heinous,” “cruel,” and “depraved,” each of which tends to employ terms or phrases as prone to subjectivity and ambiguity as those they were meant to define. Second, the Arizona courts have not restricted the creation of new definitions and factors that could constitute an (F)(6) finding. Third, even the most concrete of those definitions have been inconsistently applied.

The (F)(6) circumstance is composed of language that is, without question, the most susceptible to subjective interpretation of all of Arizona’s enumerated statutory aggravating circumstances.³⁶ It is therefore the most difficult to objectively define. Cf. State v. Ortiz, 131 Ariz. at 206, 639 P.2d at 1031 (Godfrey established that states must “objectively define the terms used” in aggravating circumstances). Not surprisingly, then, the Arizona Supreme Court has been unable to arrive at a definition of any of the key terms that can be uniformly applied.

The first published definition of the (F)(6) terms appeared in State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 (1978) (quoting Webster’s Third New International Dictionary):

heinous: hatefully or shockingly evil: grossly bad.

cruel: disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic.

depraved: marked by debasement, corruption, perversion or deterioration.

See also Gretzler, 135 Ariz. at 51, 659 P.2d at 10 (quoting Knapp). Later, in State v. Lujan, 124 Ariz. 365, 604 P.2d 629 (1979), the Arizona Supreme Court identified a difference among the terms. The court stated that cruelty goes to whether the “victim suffered pain,” while “heinous” and “depraved” focus on “the killer’s state of mind at the time of the offense.” Id. at 372, 604 P.2d at 636. Although oft-repeated, both Knapp’s list of amorphous terms and Lu-jan ’s definitional distinction have failed to benefit the trier-of-fact in any meaningful way. Cartwright, 822 F.2d at 1489 (“Vague terms do not suddenly become clear when they are defined by reference to other vague terms.”).

Thus, subsequent cases have set forth definitions for “cruel,” “heinous,” and “depraved” using terms and phrases that are equally vague, broad and open to subjective interpretation. For example, a cruel, heinous and depraved murder is one that is a “ ‘conscienceless or pitiless crime which is unnecessarily torturous to the victim,’” State v. Watson, 120 Ariz. 441, 448, 586 P.2d 1253, 1260 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), whereas a murder can be heinous and depraved if the defendant’s conduct reveals a “callous disregard for human worth,” State v. LaGrand, 153 Ariz. 21, 37, 734 P.2d 563, 579, cert. denied, — U.S. -, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987), or if the defendant had a “vile state of mind at the time of the murder,” State v. McCall, 139 Ariz. 147, 161, 677 P.2d 920, 934 (1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984), or if the defendant had “a shockingly evil and corrupt state of mind,” State v. Zaragoza, 135 Ariz. 63, 69-70, 659 P.2d 22, 28-29, cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983), or “a ‘shockingly evil’ state of mind ‘marked by debasement,’” State v. Ceja, 126 Ariz. 35, 39-40, 612 P.2d 491, 495-96 (1980); whereas a murder can be heinous and/or depraved if it is characterized by “senselessness” and a “savage manner of death,” State v. Gillies, 142 Ariz. 564, 570, 691 P.2d 655, 661 (1984), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985) (“Gillies II”), or by helplessness as to the victim, senselessness as to the crime, and the infliction of “gratuitous pain” on the victim, State v. Carriger, 143 Ariz. 142, 160, 692 P.2d 991, 1009 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985);³⁷ while a murder is depraved — but not heinous or cruel — when the defendant’s actions “reflect a mental state that is ‘marked by debasement,’” State v. Vickers, 129 Ariz. 506, 515, 633 P.2d 315, 324 (1981), or indicate “a total disregard for human life,” State v. Correll, 148 Ariz. 468, 481, 715 P.2d 721, 734 (1986), or “a manifest disregard for the fundamental principles upon which our society is based,” State v. Martinez-Villareal, 145 Ariz. 441, 451, 702 P.2d 670, 680, cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985), or are “totally without regard for human life,” State v. Clark, 126 Ariz. 428, 437, 616 P.2d 888, 897, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), or where the defendant’s conduct is “perverted.” State v. Madsen, 125 Ariz. 346, 352, 609 P.2d 1046, 1052, cert. denied, 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980). These words give precious little guidance as to the meaning of (F)(6)’s key terms.

In 1983, the Arizona Supreme Court in State v. Gretzler reviewed nearly all of its “especially cruel, heinous and depraved” jurisprudence. The Gretzler court explained that, as a general matter, the term “cruelty” focuses on the victim’s suffering while the terms “heinous” and “depraved” involve the mental state and attitude of the defendant at the time of the murder. 135 Ariz. at 51, 659 P.2d at 10. The court then turned to discussing each of these (F)(6) terms in greater detail. With respect to cruelty, the court briefly summarized the then-existing case law on the cruelty concept which had grown to include a victim’s mental and/or physical distress, suffered before and/or after attack by the defendant. Id. With respect to heinousness and depravity, the court went on to note that “[o]ur cases have suggested specific factors which lead to [their] finding,” id., and proceeded to identify five factors which had been held to satisfy these terms:

1. The apparent relishing of the murder by the killer.

2. The infliction of gratuitous violence on the victim.

3. The needless mutilation of the victim.

4. The senselessness of the crime.

5. The helplessness of the victim.

Id. at 52, 659 P.2d at 11. Thus, by offering a checklist for courts considering the (F)(6) circumstance, Gretzler appeared to be an attempt to provide a limiting construction to the (F)(6) terms and their varied definitions that would be able to withstand constitutional attack. See Pulaski, Capital Sentencing in Arizona: A Critical Evaluation, 1984 Ariz.St.LJ. 1, 28-29 [hereinafter Pulaski, Capital Sentencing ].

Gretzler’s attempt to guide the sentencer under (F)(6) has failed, however, in two respects. Although Gretzler reviewed a large number of cases, it did not — nor has any case since — stated what specific factors are necessary for an (F)(6) finding. Moreover, the court did not include any instructions to limit future review to the enumerated factors. As a result, Arizona has failed to provide satisfaction of God-frey’s mandate that aggravating circumstances objectively guide discretion and narrow application of the death penalty.

While Gretzler did suggest two eviden-tiary limitations for (F)(6) determinations, neither has accomplished its narrowing purpose. First, the court stated that where “there is no evidence that the victims actually suffered physical or mental pain prior to death, or where the evidence presented is inconclusive, we have held that cruelty was not shown.” 135 Ariz. at 51, 659 P.2d at 10. Numerous cases have, in fact, reversed a finding of “especially cruel” because such evidence was lacking. If it can be proven, however, that the victim was merely conscious prior to or just after the attack, the cruel criterion can be satisfied. As one commentator concluded, the Arizona Supreme Court’s exposition of the “especially cruel” component “would make the F(6) criterion applicable to almost any first degree murder case unless it involved a single, unsuspecting victim.” Pulaski, Capital Sentencing, 1984 Ariz.St.L.J. at 30. Moreover, since suffering may occur either before or after attack by the defendant, that single unsuspecting victim must die, or be rendered unconscious, instantaneously for this criterion to apply. See State v. Harding, 141 Ariz. 492, 501, 687 P.2d 1247, 1256 (1984) (“The evidence indicates that the victim did not die instantaneously, but rather died slowly, his death being caused by asphyxiation due to his being gagged as he was.”). Indeed, in nearly every case in which a finding of cruelty was reversed, the court concluded only that the prosecution had not proven the victim was conscious. See, e.g., State v. Wallace, 151 Ariz. 362, 367, 728 P.2d 232, 237 (1986), cert. denied, — U.S. —, 107 S.Ct. 3243, 97 L.Ed.2d 748 (1987) (“the record is inconclusive as to whether any of the victims were even conscious following the initial blow to the head”); State v. Poland, 144 Ariz. 388, 405, 698 P.2d 183, 200 (1985), aff'd, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) (“A finding of cruelty cannot stand where the State has failed to prove beyond a reasonable doubt that the victims were conscious at the time of death”); State v. Villafuerte, 142 Ariz. 323, 331, 690 P.2d 42, 50 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1234, 84 L.Ed.2d 371 (1985) (doctor could not “testify as to whether the victim was conscious after she sustained the blow to the head”); State v. Graham, 135 Ariz. 209, 212, 660 P.2d 460, 463 (1983) (“medical examiner testified that in his opinion [the victim] was rendered unconscious immediately”); Zaragoza, 135 Ariz. at 69, 659 P.2d at 28 (cruelty not found because state could not prove the victim was conscious); State v. Jeffers, 135 Ariz. 404, 429, 661 P.2d 1105, 1130, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983) (no cruelty because “it appears from the record that ... the victim lost consciousness”). As such, this alleged limitation has operated instead to include virtually all first degree murders where it can be proven that the victim was conscious.

Gretzler’s other attempt to limit the application of the (F)(6) circumstance can be found in its suggestion that the fourth (senselessness) and fifth (helplessness) factors alone may not be sufficient for a finding of heinousness or depravity. Yet in Zaragoza — decided only four days after Gretzler — it appears that only those two factors were present. See 135 Ariz. at 69-70, 659 P.2d at 28. The facts in Zarago-za identified to support a finding of “heinous and depraved” were the victim’s advanced age and limited mental capabilities to demonstrate that she was “helpless.” The victim was “senselessly killed” because the defendant “could have accomplished whatever criminal goals he desired without killing her.” Id. The court then affirmed the (F)(6) finding. The only cognizable way to explain this deviation from Gretzler without finding it inconsistent, is by interpreting Zaragoza as adding an additional factor to Gretzler’s list of five: heinousness and/or depravity may be shown when the victim is elderly. Such an interpretation would, however, illustrate an additional flaw in Arizona’s construction of the (F)(6) circumstance.

Because Gretzler did not limit (F)(6) review to the factors it identified, the Arizona Supreme Court has been free to fashion additional factors, bringing more defendants within the (F)(6) net. For example, in the court’s Adamson opinion, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983), the court strayed from Gretzler — and all previous cases — regarding a finding of cruelty. Previously, cruelty had focused exclusively on the victim. In Adamson, however, the court — without giving any explanation — expanded the cruelty concept to include a component inquiring into the mental state of the defendant. 136 Ariz. at 266, 665 P.2d at 988 (for a cruelty finding “[t]he defendant must also intend that the victim suffer or reasonably foresee that there is a substantial likelihood that the victim will suffer as a consequence of the defendant’s acts”); see also State v. (Bernard) Smith, 146 Ariz. 491, 504, 707 P.2d 289, 302 (1985) (reversing (F)(6) finding because Adamson “prerequisite” not established by the facts); State v. Bracy, 145 Ariz. 520, 537, 703 P.2d 464, 481 (1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986) (noting Adamson prerequisite); McCall, 139 Ariz. at 161, 677 P.2d at 934 (same); State v. McDaniel, 136 Ariz. 188, 200, 665 P.2d 70, 82 (1983) (same). This additional consideration has not, however, been utilized in all post-Adamson cases. See, e.g., State v. Rossi, 146 Ariz. 359, 365, 706 P.2d 371, 377 (1985) (“Rossi I”) (cruelty found, but no discussion of defendant’s state of mind).

Thus, to establish cruelty, the Arizona courts can rely upon facts showing that the victim was conscious for a period of time before an attack, Correll, 148 Ariz. at 480-81, 715 P.2d at 733 (victims uncertain as to their ultimate fate), or after an attack, Rossi I, 146 Ariz. at 365, 706 P.2d at 377 (“victim remained conscious for a short time” after the second shot and before the third fatal shot), and suffered from either mental, Carriger, 143 Ariz. at 160, 692 P.2d at 1009 (victim pleaded for his life and thus suffered mental distress), or physical pain. State v. Clabourne, 142 Ariz. 335, 348, 690 P.2d 54, 67 (1984) (victim beaten and raped).

The list of factors regarding what may constitute an especially heinous or depraved murder has similarly grown since Gretzler.38 Post-Gretzler cases have, for example, held that depravity exists when a defendant murdered the victim to eliminate a potential witness.³⁹ State v. (Roger Lynn) Smith, 141 Ariz. 510, 511-12, 687 P.2d 1265, 1266-67 (1984) (citing McCall, 139 Ariz. at 162, 677 P.2d at 935); Correll, 148 Ariz. at 481, 715 P.2d at 734; see also Gillies II, 142 Ariz. at 570, 691 P.2d at 661 (elimination of witnesses illustrates depravity and heinousness),⁴⁰ and when the victims had been kind to the defendant. State v. Fisher, 141 Ariz. 227, 242, 686 P.2d 750, 775, cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984). Decisions have also stated that the defendant committed the murder in a heinous and depraved manner when the defendant showed a “total disregard for human life.” A defendant kills totally without regard for human life if that person: (1) chooses a particular method of murder when “less violent alternatives were readily available to him,” Wallace, 151 Ariz. at 368, 728 P.2d at 238 (defendant chose not to use a loaded gun he had with him because he feared the noise would alert neighbors); (2) kills when there is no other motive except to eliminate witnesses to a robbery, Correll, 148 Ariz. at 481, 715 P.2d at 734; or (3) knowingly uses special bullets designed to cause greater tissue damage than regular bullets and then gives spent bullets as “souvenirs” to a friend. Rossi I, 146 Ariz. at 365, 706 P.2d at 377.

Thus, for a finding that a murder was especially heinous and/or depraved the possibilities appear endless. Such conclusions have been supported in part by the victim being too young, Roscoe, 145 Ariz. at 226, 700 P.2d at 1326 (victim was a “helpless seven year old child”), or too old, Fisher, 141 Ariz. at 252, 686 P.2d at 775 (victim was seventy-three years old); the defendant having no apparent motive for the murder, Wallace, 151 Ariz. at 368, 728 P.2d at 237, or having a motive the court did not approve of, Correll, 148 Ariz. at 481, 715 P.2d at 734 (motive to eliminate witnesses to a robbery); the defendant used more force than was necessary to kill the victim, State v. Summerlin, 138 Ariz. 426, 436, 675 P.2d 686, 696 (1983), or not enough, Chaney, 141 Ariz. at 312, 686 P.2d at 1282 (“[w]hen Chaney left he knew the victim was not dead and Chaney knew the victim was suffering”); the “murder in no way furthered the plan of the killers,” McCall, 139 Ariz. at 162, 677 P.2d at 935, or facilitated the defendant’s escape, Villafuerte, 142 Ariz. at 313, 690 P.2d at 50 (defendant indicated that his purpose “was to prevent the victim from calling the police”); or when the court could imagine a less violent alternative. Chaney, 141 Ariz. at 313, 686 P.2d at 1282 (defendant “could have taken the victim’s guns and disabled the two-way radio” rather than fire fatal shots); Wallace, 151 Ariz. at 368, 728 P.2d at 237 (defendant could have used a loaded gun he was carrying but did not because he feared “the noise would alert neighbors”).

Gretzler’s attempt to limit the broad scope of heinous and depraved has thus proven unsuccessful at preventing the un-channeled imposition of death sentences. Apparently the dissent shares this view, as noticeably absent from the dissent’s (F)(6) discussion is any defense for these two aggravating factors. Even the dissent cannot muster a principled justification for such factors which, in essence, allow the sentencing court to make subjective determinations as to the offensiveness of a particular murder. Rather, the dissent attempts to save Adamson’s death sentence by arguing that any constitutional infirmities in the State’s limiting construction of (F)(6)’s heinous and depraved factors should not otherwise taint Adamson’s death sentence since the Arizona Supreme Court affirmed his sentence on “cruelty” grounds.

The dissent’s argument is flawed in two respects. First, the dissent’s alternative argument begs the underlying question of the constitutionality of the limiting construction given cruelty by the Arizona courts which, as we have already noted, suffers from the same constitutional infirmities as those limiting instructions given heinous and depraved.

Moreover, even accepting the dissent’s characterization of cruelty as appropriately limited by the Arizona courts, Adamson’s death sentence still fails Eighth Amendment principles. That the Arizona Supreme Court affirmed Adamson’s death sentence based on cruelty grounds in no way cures the sentencing judge’s failure to apply this allegedly constitutional cruelty construction in Adamson’s sentencing proceeding. With respect to the (F)(6) aggravating circumstance, Judge Birdsall’s special verdict simply states in conclusory terms that “the aggravating circumstance[ ] ... exists [since Adamson] committed the offense in an especially cruel, heinous and depraved manner,” and then briefly describes Bolles’ murder. Absent from the special verdict is any discussion or application of the “actual suffering” cruelty standard on which the dissent relies to justify the court’s (F)(6) finding. Yet as the Supreme Court has repeatedly emphasized, it is the suitably directed discretion of the sentencing body which protects against arbitrary and capricious capital sentencing. Maynard, 108 S.Ct. at 1858; Godfrey, 446 U.S. at 428-29, 100 S.Ct. at 1765; Gregg, 428 U.S. at 189, 96 S.Ct. at 2932; Furman, 408 U.S. at 313, 92 S.Ct. at 2764 (White, J., concurring). Post hoc appellate rationalizations for death sentences cannot save improperly channeled determinations by a sentencing court. Not only are appellate courts institutionally ill-equipped to perform the sort of factual balancing called for at the aggravation-mitigation stage of the sentencing proceedings,⁴¹ but, more importantly, a reviewing court has no way to determine how a particular sentencing body would have exercised its discretion had it considered and applied appropriately limited statutory terms. See Caldwell v. Mississippi, 472 U.S. 320, 330, 105 S.Ct. 2633, 2640, 86 L.Ed.2d 231 (1984) (“[state] appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance”); Presnell v. Georgia, 439 U.S. 14, 16-17, 99 S.Ct. 235, 236, 58 L.Ed.2d 207 (1978) (reversing state appellate court affirmance of death sentence based on state court’s own finding of an aggravating circumstance that had not been found by the sentencing jury) (per curiam). This is particularly significant under Arizona’s capital sentencing scheme since double jeopardy principles prevent the State from appealing a defendant’s sentence of life imprisonment (rather than death) after a capital sentencing hearing. Rumsey, 467 U.S. at 211, 104 S.Ct. at 2310.

In sum, Arizona has been unable to provide clearly discernable parameters to establish what kind of conduct falls within the (F)(6) circumstance. The court appears to rely on whatever events are presented to it. The court is therefore free to review the record for any actions or events that it believes to be especially heinous, cruel or depraved. Given the complete lack of any objective standards that guide the court in its decisionmaking, and its unlimited authority to consider any and all facts present in a particular case, we can only conclude that the Arizona Supreme Court’s attempts to constitutionally narrow the (F)(6) circumstance have failed. Accord, Rosen, Especially Heinous Aggravating Circumstance, 64 N.C.L.Rev. at 981 (“The list of considerations that the Arizona Supreme Court has been willing to use to support one of the three terms that comprise its especially heinous aggravating factor is extremely broad.”).

The problem of unlimited discretion is compounded by the Arizona Supreme Court’s construction of the (F)(6) circumstance in the disjunctive so that the prosecution’s burden is satisfied upon a showing that a murder is either heinous or cruel or depraved. State v. Castaneda, 150 Ariz. 382, 393, 724 P.2d 1, 12 (1986); Gretzler, 135 Ariz. at 51, 659 P.2d at 10. This construction has invited the courts to approve or disapprove an (F)(6) aggravating circumstance finding by a sentencing judge based on any of this subsection’s three ill-defined terms. Arizona appellate courts have, in a number of cases, reversed a lower court’s finding with respect to one of the (F)(6) terms, yet affirmed the defendant’s death penalty — without returning the case for reweighing⁴² — because the court confirmed the presence of at least one other (F)(6) term. Cf. Wallace, 151 Ariz. at 362, 728 P.2d at 237 (reversed finding of cruelty but affirmed as to heinous and depraved); Villafuerte, 142 Ariz. at 323, 690 P.2d at 50 (reversed finding of cruelty but affirmed as to depravity); State v. (Robert) Smith, 138 Ariz. 79, 85-86, 673 P.2d 17, 23 (1983) (affirmed finding of cruelty but reversed as to heinous and depraved). See also Godfrey, 446 U.S. at 454, 100 S.Ct. at 1778 (White, J., dissenting) (disjunctive reading of key terms in aggravating circumstance “would arguably be assailable on constitutional grounds”). Thus, neither cruelty nor heinousness nor depravity is necessary, but any one will suffice to sustain an (F)(6) finding.

Finally, we note that within the plethora of factors the Arizona Courts may consider there has been much contradiction and inconsistency in the application of the (F)(6) circumstance. Compare (Bernard) Smith, 146 Ariz. at 504, 707 P.2d at 292, 302 (not cruel even though time passed between defendant’s demand for money in the cash register and time of shooting, and victim did not die for two weeks), with Chaney, 141 Ariz. at 312, 686 P.2d at 1282 (cruel because victim suffered mental anguish prior to being shot as evidenced by his call for help and because victim “was conscious for approximately thirty minutes”); compare Lujan, 124 Ariz. at 372-73, 604 P.2d at 637 ((F)(6) reversed even though victims were helpless, killing was unnecessary to accomplish defendant’s plan, and victims’ wounds were severe), with Correll, 148 Ariz. at 481, 715 P.2d at 734 (depravity affirmed because victims helpless, killing was unnecessary to accomplish the robbery, victims bound and gagged); compare Graham, 135 Ariz. at 212, 660 P.2d at 463 ((F)(6) reversed even though defendant “smiled” as he told friends that “the victim ‘squealed like a rabbit’ when he was shot”), and Madsen, 125 Ariz. at 353, 609 P.2d at 1052-53 ((F)(6) reversed even though defendant bragged it was “easy to get money, you just blow someone away” and collect insurance money), with Martinez-Villareal, 145 Ariz. at 451, 702 P.2d at 680 (depravity affirmed because defendant bragged to a friend that he murdered to show “machismo”), and Clark, 126 Ariz. at 437, 616 P.2d at 897 (depravity affirmed where defendant told friend, “you should have seen Charley when I hit him with those cutters”); compare Fisher, 141 Ariz. at 252, 686 P.2d at 775 (heinousness and depravity upheld because defendant used more violence than was necessary to rob or kill his victim and victim had shown defendant “generosity and concern”), with State v. Johnson, 147 Ariz. 395, 401, 710 P.2d 1050, 1052, 1056 (1985) (reversed on heinous and depraved even though murder was senseless and victims had allowed defendant to stay with them for two weeks and one of victims was a childhood friend of the defendant); compare State v. Brookover, 124 Ariz. 38, 41, 601 P.2d 1322, 1324-25 (1979) (not cruel or depraved even where victim shot twice in the back — the second time after falling to the floor and crying out to the defendant — and later abandoned in a parking lot), with Bracy, 145 Ariz. at 538, 703 P.2d at 482 (heinousness and depravity affirmed where victim shot twice and throat slashed); compare Watson, 120 Ariz. at 448, 586 P.2d at 1260 (not heinous, cruel or depraved even where victim shot four times in the back, the last time when face down on the floor), with Ceja, 126 Ariz. at 40, 612 P.2d at 493 (heinousness and depravity affirmed where victim shot twice, then shot four more times). Such cases plainly demonstrate that the (F)(6) circumstance has been applied in an arbitrary and capricious manner in violation of the most basic principles of death penalty jurisprudence.

The State contends that because this court previously upheld the constitutionality of Arizona’s (F)(6) circumstance we need not address the issue. We disagree. In Chaney v. Lewis, 801 F.2d 1191 (9th Cir.1987), we considered a challenge to (F)(6) both on its face and in its application to the defendant. A three judge panel concluded that the (F)(6) circumstance was not unconstitutional because

[t]he Arizona Supreme Court appears to have sufficiently channeled sentencing discretion to prevent arbitrary and capricious capital sentencing decisions. The court has defined each of the factors set forth in section 13-703(F)(6). See State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, 9-12, cert. denied, 461 U.S. 971 [103 S.Ct. 2444, 77 L.Ed.2d 1327] (1983) (“cruelty” involves infliction of physical and/or mental pain on victim and “depraved” and “heinous” involves [sic] killer’s state of mind).

Id. at 1195 (emphasis added). The panel then cited four Arizona Supreme Court cases — all decided after Gretzler — to show that the definitions of cruel, heinous and depraved have since been applied consistently. Id.

We believe, however, that an analysis of the (F)(6) circumstance cannot begin and end with Gretzler. The Chaney panel’s statement that Arizona “appears” to have limited discretion — supported by citation to a total of only five cases — suggests that it deferred to Arizona’s analysis of its own decisions. Our analysis of all of Arizona’s death penalty opinions since 1973 leads us to a conclusion different from that in Chaney.

D.

In summary, we conclude that the (F)(6) .circumstance has not been given a sufficiently narrow construction by the Arizona Supreme Court such that its application will be kept within identifiable boundaries. Among the more than fifty cases in which an (F)(6) finding was appealed, we are unable to distinguish rationally those cases in which the Arizona Supreme Court upheld the finding from the few in which it did not. Because neither the legislative standard nor the case law has properly channeled decisionmaking on the imposition of the “especially heinous, cruel or depraved” aggravating circumstance, we find that this circumstance has been arbitrarily and capriciously applied by the Arizona courts. Because the Arizona Supreme Court returns a case to the appropriate trial court for reweighing when it reverses at least one of several aggravating circumstances found by the lower court and there are mitigating circumstances,⁴³ see, e.g., Wallace, 151 Ariz. at 370, 728 P.2d at 239; accord Cartwright, 822 F.2d at 1482 (“the particular function of an aggravating circumstance in a state’s capital punishment system determines the effect of reliance upon an unconstitutional aggravating circumstance”), we reverse the district court and remand with instructions to grant the writ of habeas corpus unless the State, within a reasonable time, resentences Adamson.

VI.

Thus, it is clear the Constitution requires that a statute assure individualized consideration through specific guidelines for determining the existence of aggravating circumstances. The Constitution’s mandate, however, is not limited to aggravating circumstances. A capital sentencing scheme also must assure individualized sentencing both through provisions for the consideration of mitigating evidence and in its assignment of the ultimate burden of persuasion as to whether death is the appropriate penalty.

We hold that in these two areas the Arizona statute is constitutionally flawed. The statute violates the Eighth and Fourteenth Amendments in that (1) Arizona courts are precluded from considering all pertinent mitigating evidence when determining the appropriate penalty, and (2) the statute impermissibly places the burden on the defendant to prove the existence of mitigating circumstances sufficiently substantial to merit leniency, thereby imposing a presumption that death is the appropriate penalty.

The Supreme Court has consistently held that the Eighth and Fourteenth Amendments require the sentencer in a capital case to be free to consider all relevant evidence in determining the appropriate penalty. This is because “[penalties in capital cases ultimately will turn on mitigating evidence and on the advocate’s ability to marshal and present that evidence.” Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 315 (1983). The Court has recognized that there is an “essential difference” between guiding the care with which the sentencer determines how much weight to accord evidence, and requiring that as a predicate to consideration of that evidence, it must be found true beyond a reasonable doubt, or by some other evidentiary standard. See Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972). Thus, beginning with Woodson v. North Carolina, the Court has struck down statutory sentencing schemes which excluded or restricted consideration of mitigating evidence. See 428 U.S. at 304, 96 S.Ct. at 2991 (opinion of Stewart, Powell, and Stevens, JJ.) (“[A] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.”); see also Roberts v. Louisiana, 428 U.S. 325, 333-34, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (a statute must afford “meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender”); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion) (sentencer may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”) (emphasis in original).

The Court has held that restricting the sentencer’s ability to consider all relevant mitigating evidence “creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” Lockett, 438 U.S. at 605, 98 S.Ct. at 2965.

Applying this principle, the Court in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), vacated a death sentence where the trial court had refused to weigh against the aggravating circumstances established by the State, mitigating evidence regarding traumatic events during the defendant’s childhood. The Court stated that “the trial judge did not evaluate the evidence in mitigation and find it wanting as a matter of fact; rather he found that as a matter of law he was unable even to consider the evidence.” Id. at 113, 102 S.Ct. at 876 (emphasis in original). The Court held that this limitation violated the rule set forth in Lockett:

Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence .... The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.... On remand, the state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances.

Id. at 113-15, 102 S.Ct. at 876-77 (emphasis added).

Thus, it is well established that the Constitution requires that the weighing of all relevant mitigating evidence against aggravating circumstances. Id. See also Turner v. Murray, 476 U.S. 28, 34, 106 S.Ct. 1683, 1687, 90 L.Ed.2d 27 (1986) (“our cases establish that every capital sentencer must be free to weigh relevant mitigating evidence before deciding whether to impose the death penalty ... ”) (citing Eddings and Lockett) (emphasis added).⁴⁴ This is not permitted, however, under Arizona’s capital sentencing scheme, as applied by its courts.

Section 13-703, as applied by the Arizona courts, has yielded a three-stage sentencing process. First, the state must offer evidence to establish beyond a reasonable doubt the existence of one or more aggravating circumstances. See State v. Jordan, 126 Ariz. 283, 286, 614 P.2d 825, 828 (1980) (“Jordan II”); see also LaGrand, 153 Ariz. at 34, 734 P.2d at 576. If the court finds such aggravating circumstance^), the defendant must then offer mitigating evidence to establish by a preponderance of the evidence the existence of any mitigating circumstance(s).⁴⁵ Finally, the court must weigh the aggravating circumstance^) against the mitigating circumstance(s).

The constitutional defect at issue lies in the second stage of Arizona’s sentencing process. When the defendant offers evidence at the mitigation stage of the sentencing hearing, the court must make two determinations before it moves onto the weighing stage. First, it must determine whether the evidence is relevant to mitigation. If it answers this question in the affirmative, then it must decide whether the evidence presented proves, by a preponderance, that a mitigating circumstance or factor exists. Contrary to the dissent’s implications, we do not question the court’s ability to determine the relevance of the evidence presented. Rather, our objection lies in the fact that once evidence is deemed relevant to mitigation, in Arizona it will not be weighed against the aggravating circumstance^) unless that evidence establishes a mitigating circumstance by a preponderance.⁴⁶ See Pulaski, Capital Sentencing, 1984 Ariz.St.L.J. at 44 (“Under the current Arizona legislation, a sentencing judge cannot consider claimed events or conditions proffered in mitigation unless satisfied by the required standard of proof that they, in fact, occurred.”).

Thus, the Arizona courts are precluded from weighing evidence of mitigation that, while not satisfying the evidentiary standard, nonetheless may give the sentencer reservations about the appropriateness of imposing a sentence of death. This exclusion of relevant evidence at the weighing stage violates the principle established by Woodson, Roberts, Lockett, Eddings, and reaffirmed in Turner that a sentencing court must weigh all relevant mitigating evidence against the aggravating circumstances. Thus, the process established by the Arizona death penalty statute is unconstitutional as a matter of law.

We also hold A.R.S. § 13-703 unconstitutional on its face, to the extent that it imposes a presumption of death on the defendant. Under the statute, once any single statutory aggravating circumstance has been established, the defendant must not only establish the existence of a mitigating circumstance,⁴⁷ but must also bear the risk of nonpersuasion that any mitigating circumstance will not outweigh the aggravating circumstance(s). See Gretzler, 135 Ariz. at 54, 659 P.2d at 13 (A.R.S. § 13-703(E) requires that the court find mitigating circumstances outweigh aggravating circumstances in order to impose life sentence).⁴⁸ The relevant clause in the statute — “sufficiently substantial to call for leniency” — thus imposes a presumption of death⁴⁹ once the court has found the existence of any single statutory aggravating circumstance.

Recently, the Eleventh Circuit held in Jackson v. Dugger, 837 F.2d 1469 (11th Cir.1988), that a presumption of death violates the Eighth Amendment. The trial judge, applying Florida’s death penalty statute, had instructed the jury to presume that death was to be recommended as the appropriate penalty if the mitigating circumstances did not outweigh the aggravating circumstances. Examining the jury instructions, the Eleventh Circuit held that a presumption that death is the appropriate sentence impermissibly “tilts the scales by which the [sentencer] is to balance aggravating and mitigating circumstances in favor of the state.” Id. at 1474. The court further held that a presumption of death “if employed at the level of the sentencer, vitiates the individualized sentencing determination required by the Eighth Amendment.” Id. at 1473.

The Constitution “requires consideration of the character and record of the individual offender and the circumstances of the particular offense,” Woodson, 428 U.S. at 304, 96 S.Ct. at 2991, because the punishment of death is “unique in its severity and irrevocability,” Gregg, 428 U.S. at 187, 96 S.Ct. at 2931, and because there is “fundamental respect for humanity underlying the Eighth Amendment.” Woodson, 428 U.S. at 304, 96 S.Ct. at 2991 (citation omitted). A defendant facing the possibility of death has the right to an assessment of the appropriateness of death as a penalty for the crime the person was convicted of. Thus, the Supreme Court has held that statutory schemes which lack an individualized evaluation, thereby functioning to impose a mandatory death penalty, are unconstitutional. See, e.g., Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 2723, 97 L.Ed.2d 56 (1987); Roberts, 428 U.S. at 332-33, 96 S.Ct. at 3005-06; see also Poulos, Mandatory Capital Punishment, 28 Ariz.L.Rev. at 232 (“In simple terms, the cruel and unusual punishments clause requires individualized sentencing for capital punishment, and mandatory death penalty statutes by definition reject that very idea.”).

In addition to precluding individualized sentencing, a presumption of death conflicts with the requirement that a sentencer have discretion when faced with the ultimate determination of what constitutes the appropriate penalty. See Comment, Deadly Mistakes: Harmless Error in Capital Sentencing, 54 U.Chi.L.Rev. 740, 754 (1987) (“The sentencer’s authority to dispense mercy ... ensures that the punishment fits the individual circumstances of the case and reflects society’s interests.”).

Arizona Revised Statute § 13-703(E) reads, in relevant part: “the court ... shall impose a sentence of death if the court finds one or more of the aggravating circumstances ... and that there are no mitigating circumstances sufficiently substantial to call for leniency.” Thus, the Arizona statute presumes that death is the appropriate penalty unless the defendant can sufficiently overcome this presumption with mitigating evidence.⁵⁰ In imposing this presumption, the statute precludes the individualized sentencing required by the Constitution. It also removes the sentencing judge’s discretion by requiring the judge to sentence the defendant to death if the defendant fails to establish mitigating circumstances by the requisite evidentiary standard, which outweigh the aggravating circumstances. See Arizona v. Rumsey, 467 U.S. 203, 210, 104 S.Ct. 2305, 2309, 81 L.Ed.2d 164 (1984) (“death must be imposed if there is one aggravating circumstance and no mitigating circumstance sufficiently substantial to call for leniency”); State v. Jordan, 137 Ariz. 504, 508, 672 P.2d 169, 173 (1983) (“Jordan III”) (§ 13-703 requires the death penalty if no mitigating circumstances exist).⁵¹

The State relies on the holdings of its courts that the statute’s assignment of the burden of proof does not violate the Constitution. The Arizona Supreme Court reasons that “[o]nce the defendant has been found guilty beyond a reasonable doubt, due process is not offended by requiring the defendant to establish mitigating circumstances.” Richmond, 136 Ariz. at 316, 666 P.2d at 61.⁵² Yet this reasoning falls short of the real issue — that is, whether the presumption in favor of death that arises from requiring that the defendant prove that mitigating circumstances outweigh aggravating circumstances, offends federal due process by effectively mandating death.⁵³

In addition, while acknowledging that A.R.S. § 13-703 places the burden on the defendant to prove the existence of mitigating circumstances which would show that person’s situation merits leniency, State v. Poland, 144 Ariz. 388, 406, 698 P.2d 183, 201 (1985), aff'd, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), the State suggests that its statute does not violate the Eighth Amendment because subsection (E) requires the court to balance the aggravating against the mitigating circumstances before it may conclude that death is the appropriate penalty. While the statute does require balancing, it nonetheless deprives the sentencer of the discretion mandated by the Constitution’s individualized sentencing requirement.⁵⁴ This is because in situations where the mitigating and aggravating circumstances are in balance, or, where the mitigating circumstances give the court reservation but still fall below the weight of the aggravating circumstances, the statute bars the court from imposing a sentence less than death. Thus, the presumption can preclude individualized sentencing as it can operate to mandate a death sentence,⁵⁵ and we note that “[presumptions in the context of criminal proceedings have traditionally been viewed as constitutionally suspect.” Jackson, 837 F.2d at 1474 (citing Francis and Sandstrom).

Thus, we hold that the Arizona statute, which imposes a presumption of death, is unconstitutional as a matter of law.⁵⁶ We reverse the district court and remand with instructions to grant the writ of habeas corpus unless the State, within a reasonable time, resentences Adamson to a sentence other than death.

VII.

The final issue we must address is whether certain hearsay statements admitted by the trial court violated the Confrontation Clause. We hold that the statements were improperly admitted but that the error was harmless for the reasons stated in Adamson v. Ricketts, 758 F.2d at 445-47.

CONCLUSION

In Part II, we affirm the district court on the issue of judicial vindictiveness. We reverse the district court with regard to the issue of prosecutorial vindictiveness and remand with instructions to conduct an evi-dentiary hearing on that issue.

In Part III, we reverse the district court and hold that the death penalty was imposed arbitrarily, in violation of the Eighth and Fourteenth Amendments. We remand to the district court with instructions to grant the writ of habeas corpus unless the State, within a reasonable time, resentenc-es Adamson to a sentence other than death.

In Part IV, we hold that the Arizona death penalty statute deprived Adamson of his right to a jury decision on the elements of the crime, in violation of the Sixth and Fourteenth Amendments. We reverse the district court on this issue and remand to the district court to grant the writ of habe-as corpus unless the State, within a reasonable time, imposes a sentence other than death.

In Part V, we hold that the state, in violation of the Eighth and Fourteenth Amendments, has failed to define the aggravating circumstances set forth in A.R.S. § 13-703(F)(6) (especially heinous, cruel or depraved) so that its application will be kept within identifiable boundaries. We reverse the district court and remand with instructions to grant the writ of habeas corpus unless the State, within a reasonable time, resentences Adamson in accordance with the rule set forth in State v. Gillies, 135 Ariz. 500, 516, 662 P.2d 1007, 1023 (1983) (en banc), (supplemental opinion).

In Part VI, we hold that the Arizona death penalty statute violates the Eighth and Fourteenth Amendments in that (1) the Arizona courts are precluded from considering all relevant mitigating evidence, and (2) the burden of proof placed on a defendant creates a presumption that death is the appropriate penalty. We reverse the district court and remand with instructions to grant the writ of habeas corpus unless the State, within a reasonable time, imposes a sentence other than death.

In Part VII, we hold that although certain hearsay statements admitted at trial constituted error, the error was harmless, and thus we affirm the district court on that issue.

We AFFIRM the district court in part, REVERSE in part, and REMAND with instructions.

1 . Neither Dunlap or Robison have ever been retried in connection with Bolles’ murder.

2 . The statute reads in full, as follows:

A. A person guilty of first degree murder as defined in § 13-1105, shall suffer death or imprisonment in the custody of the department of corrections for life, without possibility of release on any basis until the completion of the service of twenty-five calendar years if the victim was fifteen or more years of age and thirty-five years if the victim was under fifteen years of age, as determined and in accordance with the procedures provided in subsections B through G of this section.

B. When a defendant is found guilty of or pleads guilty to first degree murder as defined in § 13-1105, the judge who presided at the trial or before whom the guilty plea was entered, or any other judge in the event of the death, resignation, incapacity or disqualification of the judge who presided at the trial or before whom the guilty plea was entered, shall conduct a separate sentencing hearing to determine the existence or nonexistence of the circumstances included in subsections F and G of this section, for the purpose of determining the sentence to be imposed. The hearing shall be conducted before the court alone.

C.In the sentencing hearing the court shall disclose to the defendant or defendant’s counsel all material contained in any presen-tence report, if one has been prepared, except such material as the court determines is required to be withheld for the protection of human life. Any presentence information withheld from the defendant shall not be considered in determining the existence or nonexistence of the circumstances included in subsection F or G of this section. Any information relevant to any mitigating circumstances included in subsection G of this section may be presented by either the prosecution or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, but the admissibility of ip-formation relevant to any of the aggravating circumstances set forth in subsection F of this section shall be governed by the rules governing the admission of evidence at criminal trials. Evidence admitted at the trial, relating to such aggravating or mitigating circumstances, shall be considered without reintroducing it at the sentencing proceeding. The prosecution and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any of the circumstances included in subsections F and G of this section. The burden of establishing the existence of any of the circumstances included in subsection F of this section is on the prosecution. The burden of establishing the existence of the circumstances set forth in subsection G of this section is on the defendant.

D. The court shall return a special verdict setting forth its findings as to the existence or nonexistence of each of the circumstances set forth in subsection F of this section and as to the existence of any of the circumstances included in subsection G of this section.

E. In determining whether to impose a sentence of death or life imprisonment without possibility of release on any basis until the defendant has served twenty-five calendar years if the victim was fifteen or more years of age or thirty-five calendar years if the victim was under fifteen years of age, the court shall take into account the aggravating and mitigating circumstances included in subsections F and G of this section and shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in subsection F of this section and that there are no mitigating circumstances sufficiently substantial to call for leniency.

F. Aggravating circumstances to be considered shall be the following:

1. The defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable.

2. The defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person.

3. In the commission of the offense the defendant knowingly created a grave risk of death to another person or persons in addition to the victim of the offense.

4. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.

5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.

6. The defendant committed the offense in an especially heinous, cruel or depraved manner.

7. The defendant committed the offense while in the custody of the department of corrections, a law enforcement agency or county or city jail.

8. The defendant has been convicted of one or more other homicides, as defined in § 13-1101, which were committed during the commission of the offense.

9. The defendant was an adult at the time the offense was committed or was tried as an adult and the victim was under fifteen years of age.

G.Mitigating circumstances shall be any factors proffered by the defendant or the state which are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense, including but not limited to the following:

1. The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.

2. The defendant was under unusual and substantial duress, although not such as to constitute a defense to prosecution.

3. The defendant was legally accountable for the conduct of another under the provisions of § 13-303, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution.

4. The defendant could not reasonably have foreseen that his conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person.

5. The defendant’s age.

A.R.S. § 13-703 (Supp. 1983-84).

3 . We do find, however, that the imposition of the death penalty by the sentencing judge was constitutionally impermissible. See infra, section III.

4 . We reject the State’s argument that the Supreme Court’s decision regarding double jeopardy in Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987), disposed of Adam-son’s vindictive prosecution claim. The issue was not discussed in the majority opinion, because it was never reached by the en banc majority in the previous decision. See Adamson v. Ricketts, 789 F.2d 722 (9th Cir. 1986) (en banc). Indeed, the only mention of vindictive prosecution in the Supreme Court's opinion was in the dissent. See Adamson, 107 S.Ct. at 2692 n. 13 (Brennan, J., dissenting) (noting the "curious and as yet unexplained decision of the State to abandon prosecution of Dunlap and Robison in favor of Adamson” relates to the issues of prosecutorial and judicial vindictiveness and thus "should be decided by the Court of Appeals on remand").

5 .The Supreme Court in Pearce recognized the extreme difficulty of showing the existence of an actual vindictive motive in an individual case. 395 U.S. at 726, 89 S.Ct. at 2081. The Court thus held that vindictiveness on the part of the sentencing judge can be presumed whenever a defendant is sentenced more harshly after retrial and no objective reasons for the increased sentence are given. Id. Later, in Black-ledge, the Court extended the holding regarding presumed vindictiveness to situations involving a likelihood of prosecutorial retaliation. See 417 U.S. at 27-28, 94 S.Ct. at 2102.

6 . The State argues that it made the decision to seek the death penalty against Adamson before he had asserted his Fifth Amendment right and refused to testify against Robison and Dunlap. The State, however, has not consistently asserted this position. Moreover, its actions contradict this stance, since the State continued to try to compel Adamson’s testimony after it sent him the letter on April 9, 1980. It was only after the Arizona Supreme Court refused to review Judge Myers’ denial of the motion to compel Adamson to testify — when it had no further legal challenge to Adamson’s constitutional right — that the State filed the increased charges.

7 . Moreover, the State explicitly rejected Adam-son’s offer — made after the Arizona Supreme Court rejected his interpretation of the plea agreement’s terms — to testify against Robison and Dunlap under the original terms of the agreement. Instead, the State chose to still pursue the death penalty for Adamson while letting Robison and Dunlap go untried and unpunished. These facts only increase the likelihood of actual vindictiveness and add to the appearance of an improper motive surrounding the State’s decision to try Adamson alone.

8 . The State's assertion that there is no presumption here is incorrect. Moreover, its reliance on United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), as support for that assertion is misplaced. While Goodwin did limit the application of vindictive prosecution claims in cases involving pretrial procedures or plea negotiations, the Court there did not hold that vindictive prosecution can never occur in a pretrial setting. The Court in fact recognized "that a defendant in an appropriate case might prove objectively that the prosecutor’s charging decision was motivated by a desire to punish him for something that the law plainly allowed him to do.” Id. at 384, 102 S.Ct. at 2494 (footnote omitted); see also United States v. Banks, 682 F.2d 841 (9th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 755, 74 L.Ed.2d 972 (1983) (suggesting that, though the Court in Goodwin refused to apply the presumption of vindictiveness to the pretrial actions of the prosecutor in that case, it did not foreclose the possibility in other circumstances). This circuit has also stated, post-Goodwin, that the presumption can arise from pretrial prosecutorial conduct. See United States v. McWilliams, 730 F.2d 1218, 1221 (9th Cir.1984) (filing of initial indictment can provide basis of vindictive prosecution claim); see also United States v. Heldt, 745 F.2d 1275 (9th Cir.1984) (suggesting increased charges filed in response to motion to suppress could provide basis for vindictive prosecution claim).

9 . If the prosecution did not have the power to bring the charges, there would be no need to reach the question of its motives — the act of bringing unauthorized charges would itself be prohibited.

10 . The State offers no reason as to why Adam-son would choose to risk facing the death penalty in order to give Robison and Dunlap the benefits of double jeopardy protection.

11 . As for the State’s argument that the jury would perceive Adamson as a mercenary for making non-negotiable demands, we see no difference between these demands and Adamson’s original agreement with the State whereby he used his promise to testify to bargain for his life.

12 . Failure to testify is a risk inherent whenever testimony is derived from an immunized witness or pursuant to a plea agreement. There is never any guarantee that the witness will testify —or that the witness will do so truthfully. The State had no such guarantee when it initially made the plea agreement with Adamson.

13 . That Adamson continued to testify in other cases, even after he was convicted by the jury of first-degree murder, is proof of his willingness to testify. Even the sentencing judge recognized Adamson’s extensive cooperation in the past, and his intention to continue to do so in the future.

14 .While the dissent fears that an evidentiary hearing would somehow allow Adamson to "escape” the reinstatement provisions and thus "render the agreement meaningless,” such a hearing in no way compromises the integrity of Adamson’s plea agreement, or plea agreements generally. States remain free to enforce plea agreements via enforcement provisions authorizing the filing of increased charges, including death-eligible charges, following a defendant’s breach. What states may not do, and what appearances indicate was done in Adamson’s case, however, is to pursue a sentence under the guise of plea enforcement when animated by improper motives.

15 . If, however, the judge rejects the sentencing provisions of the plea agreement, he or she must give the defendant the opportunity to withdraw the guilty plea. Ariz.R.Crim.P. 17.4(e); De Nistor, 143 Ariz. at 410, 694 P.2d at 241.

16 . The preliminary hearing transcript contained testimony that (1) Adamson was paid $10,000 for the bombing; (2) Adamson procured components for constructing the bomb; (3) Bolles’ car was severely damaged by the explosion; (4) the area around the car was strewn with pieces of vehicles, glass, lights, electrical wiring, blood and meat tissue; (5) a large pool of blood lay directly beneath the driver’s (Bolles’) door; (6) Bolles was bleeding badly and his legs were mangled and burned (alternatively described as shattered and torn); (7) Bolles was conscious and speaking after the bombing; (8) Bolles identified Adamson as responsible for the bombing; and (9) Bolles died of multiple injuries caused by "violent means, bombing.” In addition, Adamson’s testimony at the plea hearing showed that he had procured and placed the bomb with the intent to kill Bolles, and that Bolles did not die until 11 days after the explosion.

17 . The record refutes any suggestion that the judge thought he had no power to reject the stipulated sentence once he had accepted Adam-son’s plea. The judge knew that he could reject the negotiated sentence, and apparently considered the possibility. He specifically informed Adamson at the January 15, 1977, plea hearing that "the Court shall not be bound by any provision in the plea agreement regarding the sentence.” He also advised that Adamson could withdraw his plea if the judge ultimately rejected the sentence as inappropriate or unsatisfactory. In addition, although he accepted the plea at that time, the judge refused to accept simultaneously the sentence. Instead, he delayed this decision until after he had reviewed all of the information necessary for a determination as to whether the negotiated prison term was an appropriate penalty for Adamson.

18 . For a brief period between 1916 and 1918, Arizona abolished the death penalty. 1917 Ariz. Sess.Laws, Initiative and Referendum Measures, § 1, at 4-5. The death penalty was then reenacted and remained with minor changes until 1973.

19 . "After Furman the legislature amended the criminal code.... The amended statute was intended to remove the deficiencies described by the Furman decision." State v. Murphy, 113 Ariz. 416, 417, 555 P.2d 1110, 1111 (1976).

20 . See 1973 Session Laws of Arizona, 31st Legislature, 1st Regular Sess. Ch. 138 § 2 (deleting the portion of the statute, that delegates this decision to the discretion of the jury or, upon a plea of guilty, to the court).

21 . See 1973 Session Laws of Arizona, 31st Legislature, 1st Regular Sess. Ch. 138 § 5 (adding judicial sentencing scheme utilizing aggravating and mitigating circumstances).

22 . See 1973 Session Laws of Arizona, 31st Legislature, 1st Regular Sess. Ch. 138 § 4 (repealing the entire statute that allocated the burden of proof on mitigating factors at trial).

23 . Prior to the 1973 enactments, the jury had always been able to consider "excuses” to defend against, or lessen the degree of homicide of which the defendant could be found guilty. Among those "excuses” were: accident, misfortune, heat of passion, provocation, and "when the killing is not done in a cruel and unusual manner.” See A.R.S. of 1955 § 13-460; Ariz. Code of 1939 § 43-2906; Rev.Code of Ariz. of 1928 § 4588; A.R.S. of 1913, 13 Penal Code § 178; Ariz.Penal Code of 1901 § 179.

24 . The specific list of aggravating and mitigating circumstances — set forth in § 13-454 from 1973-78 and in § 13-703 from 1978 to the present — has been modified since 1973. The basic procedure and the two aggravating circumstances found in Adamson’s case, however, have remained the same since that time. Arizona currently lists nine aggravating circumstances at least one of which must be found before the death penalty becomes an option.

25 . A.R.S. §§ 13-1105 (first degree murder), 13-1104 (second degree murder), 13-1103 (manslaughter), 13-1102 (negligent homicide).

26 . One commentator explains that those states which, after Furman, graded murder into first and second degree with enumerated "special circumstances" had, in fact, created an additional level of murder:

The post-Furman statutes, however, did not purport to create new offenses, nor did they purport to divide murder or even first degree murder into a capital and non-capital first degree murder offense. Formally, legislatures treated the “special circumstances" as sentencing criteria. Nevertheless, to be subject to the death penalty the culprit had to first be guilty of murder, then be guilty of first degree murder, and finally be found to have committed first degree in one or more of the enumerated special circumstances. Brushing aside the formality of this scheme for a moment, the effect of the special circumstances was to subdivide first degree murder into capital and non-capital first degree murder.

Poulos, The Supreme Court, Capital Punishment and the Substantive Criminal Law: The Rise and Fall of Mandatory Capital Punishment, 28 Ariz.L.Rev. 143, 214 (1986) (footnote omitted) (emphasis in original) [hereinafter Poulos, Mandatory Capital Punishment].

27 . The Oregon Supreme Court invalidated, on a similar rationale, a provision of the Oregon capital punishment statute which permitted imposition of the death penalty only after “the trial court budge] found that the crime was committed with a greater culpable mental state than that found by the jury.” State v. Quinn, 290 Or. 383, 404, 623 P.2d 630, 643 (1981). The court concluded that a judge’s finding of “a mental state different and greater than that found by the jury,” 290 Or. at 384, 623 P.2d at 644, deprived a capital defendant of his or her right to a jury’s determination of the facts of the crime charged. Id.

28 . These inquiries are identical in essence to those required under the formal (statutory) distinctions Arizona makes among homicides. The distinctions turn almost entirely on differences in the defendant’s mental state, as this provides a measure of culpability. See A.R.S. § 13-1102 (negligent homicide involves causing another’s death through criminal negligence), § 13-1103 (manslaughter occurs by, inter alia, recklessness in causing another’s death), § 13-1104 (second degree murder occurs by, inter alia, intentionally causing another’s death), § 13-1105 (first degree murder occurs by, inter alia, intentionally and with premeditation causing another’s death).

29 . Further, as discussed previously, although both Arizona and Pennsylvania have classified the existence of relevant facts as sentencing considerations, Arizona’s aggravating circumstances have all the attributes of an element— except for the right to a jury’s determination.

30 . The McMillan majority distinguished Mulla-ney which struck down a criminal statute requiring proof beyond a reasonable doubt of only those facts comprising the offense as defined by the state, especially where the defendant faced “ ‘a differential in sentencing ranging from a nominal fine to a mandatory life sentence.’” Id. at 2417 (quoting Mullaney, 421 U.S. at 700, 95 S.Ct. at 1890). For Adamson, the alternatives are life and death — the greatest differential available to a court choosing an appropriate penalty.

31 . Accord Rosen, The "Especially Heinous" Aggravating Circumstance in Capital Cases — the Standardless Standard, 64 N.C.L.Rev. 941, 958 n. 96 (1986) [hereinafter Rosen, Especially Heinous Aggravating Circumstance ]:

In both situations [finding aggravating circumstances in a penalty trial and elements of a crime in a guilt/innocence trial] the presence of an additional element has the primary effect of increasing punishment. For instance, a person convicted of simple assault is guilty of a crime, and the primary effect of a jury finding that the defendant used a deadly weapon is to increase the authorized punishment. Crimes such as arson, burglary, and murder commonly are divided into degrees, with the severity of punishment increasing if the jury finds the presence of factors that the legislature has determined make the crime more egregious.

32 .The Court went to great lengths in Spaziano to point out that there is no constitutional requirement that a jury determine the appropriate sentence of every death-eligible offender. See 468 U.S. at 460, 462-63, 465, 104 S.Ct. at 3162, 3163, 3165. However, in that we are not addressing the role of a jury in the ultimate determination of appropriate punishment, we find a compelling distinction between Spaziano and the instant case.

Moreover, the Court in Spaziano pointed out what was "not at issue” by noting that “Petitioner does not urge that capital sentencing is so much like a trial on guilt or innocence that it is controlled by the Court’s decision in Duncan v. Louisiana, ... [guaranteeing the right to jury trial].” Id. at 458, 104 S.Ct. at 3161 (citations omitted). The Court stated, as dicta, that where the issue is the determination of appropriate punishment, a sentencing hearing is not trial-like for purposes of the Sixth Amendment, and thus the defendant is not entitled to a jury's determination. Id. at 459, 104 S.Ct. at 3161. In contrast, Adamson makes a contention not urged in Spaziano, focusing on the particular nature of fact-finding regarding elements that are erroneously listed in Arizona’s capital sentencing scheme as aggravating circumstances.

33 . Adamson does not challenge the constitutionality of this circumstance.

34 . The plurality reversed the defendant’s death sentence, however, concluding that Georgia had not followed its own announced guidelines governing application. 446 U.S. at 432-33, 100 S.Ct. at 1766-67.

35 . Out of a total of 72 post-1973 death penalty cases where an aggravating circumstance was involved, 56 of those cases pursued the "especially heinous, cruel or depraved” circumstance —on review to the Arizona Supreme Court there were 43 affirmances, 12 reversals and 1 was not addressed on appeal. The remaining breakdown is as follows: subsection (5) was used in 34 cases — 27 affirmed, 5 reversed and 1 not addressed on appeal; subsection (2) was used in 27 cases — 24 affirmed, 2 reversed and 1 not addressed on appeal; subsection (1) was used in 24 cases — 22 affirmed and 2 reversed; subsection (3) was used in 22 cases — 8 affirmed, 13 reversed and 1 not addressed on appeal; subsection (7) was used in 2 cases — 1 affirmed and 1 reversed; and subsection (4) was used in 1 case and was affirmed on appeal.

From 1973-1978 the aggravating circumstances were listed under A.R.S. § 13 — 454(25). Since 1978 they have been listed under A.R.S. § 13-703(F). Because the content of the enumerated circumstances were identical for circumstances (1) — (6) under both §§ 13-454(E) and 13-703(F), the totals above identify aggravating circumstances by the subsection number only.

36 . See supra note 2 for listing of Arizona’s aggravating circumstances.

37 . "Senselessness” has been defined as a "shockingly evil state of mind.” State v. (Ricky) Tison, 129 Ariz. 526, 543, 633 P.2d 335, 352 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982).

38 . Moreover, the Arizona court has not resolved the difference — if any really exists — between the words "heinous” and "depraved.” In Ortiz, 131 Ariz. at 206, 639 P.2d at 1031, the Arizona Court attempted to distinguish between them by explaining that "depravity focuses on the murderer’s state of mind, and heinousness focuses on society’s view of the murder as compared to other murders.” This specific delineation was also suggested in a post-Gretzler case. State v. Roscoe, 145 Ariz. 212, 226, 700 P.2d 1312, 1326 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1985) (“The words ‘heinous’ and ‘depraved’ refer [respectively] to the nature of the crime and the state of defendant’s mind.’’). It has not, however, been recognized in any subsequent opinion.

39 . It is significant that in Arizona, "killing of a witness” is a judicially-created aggravating circumstance rather than one identified by the legislature. In thirteen other states, killing a witness is a statutory aggravating circumstance. See Note, Capital Punishment in 1984: Abandoning the Pursuit of Fairness and Consistency, 69 Cornell L.Rev. 1129, 1232 and n. 687 (1984).

40 . In State v. Hensley, 142 Ariz. 598, 691 P.2d 689 (1984), the Arizona Court identified this factor in support of A.R.S. § 13-703(F) (motive of pecuniary gain) — rather than (F)(6). 142 Ariz. at 604, 691 P.2d at 694 ("The defendant had the three victims lie on the floor during the robbery and before leaving the bar shot each victim in turn with the intent that no witnesses be left to identify the robbers.”). Thus, it appears that the same behavior can be used to support either of two distinct aggravating circumstances.

41 . As the Supreme Court noted in Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1983), the Arizona capital sentencing scheme does not empower the reviewing court to make trial-like factual determinations:

Nor does the availability of appellate review, including reweighing of aggravating and mitigating circumstances, make the appellate process part of a single continuing sentencing proceeding. The Arizona Supreme Court [has] noted that its role is strictly that of an appellate court, not a trial court.

Id. at 210, 104 S.Ct. at 2309 (citation omitted).

42 . When the Arizona Supreme Court reverses one aggravating circumstance yet affirms others, it will remand for resentencing. State v. Gillies, 135 Ariz. 500, 516, 662 P.2d 1007, 1023 (1983) (supplemental opinion) ("Gillies I").

43 . In section VI, infra, we hold that the judge did not give proper consideration to Adamson's mitigating evidence. Thus the judge’s conclusion that Adamson failed to establish any mitigating circumstances does not bar reconsideration.

44 . The Supreme Court has never directly addressed the constitutionality of requiring that defendants overcome an evidentiary hurdle as they attempt to establish the existence of mitigating circumstances. Justice Marshall dissented to the denial of certiorari in a case presenting precisely this issue. He explained the problem created by placing such a burden on a defendant:

[M]itigating factors ... are not easily proved or disproved. Each one rests on evidence that easily might influence the conclusion that death is proper, even if that evidence does not conclusively prove the statutory mitigating factor.... As a result, the sentencer would be prevented from considering any of the evidence adduced in an effort to meet the burden of proof, because the statute permits consideration only of the factors proved by a preponderance of the evidence. To preclude the sentencer from considering such potentially influential evidence ... is to bar, as a matter of law, consideration of all mitigating evidence and influence and thus to violate Lock-ett and Eddings. Such a result can only enhance ‘the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.’

Stebbing v. Maryland, 469 U.S. 900, 902-03, 105 S.Ct. 276, 278, 83 L.Ed.2d 212 (1984) (Marshall, J., dissenting from denial of certiorari) (emphasis in original) (quoting Lockett, 438 U.S. at 605, 98 S.Ct. at 2965 (plurality opinion)).

45 . Contrast Coleman v. Risley, 839 F.2d 434, 447 (9th Cir.1988) (“Nor under Montana law is the existence of mitigating circumstances a fact which must be ‘proved or presumed’ in obtaining a conviction or even in imposing sentencing.”).

46 . The dissent is in error when it suggests that the evidentiary standard imposed upon the defendant does not preclude evidence, but rather sifts evidence, distinguishing between those facts which are mitigating from those which are not. In fact, the separation of mitigating from non-mitigating evidence is accomplished when the court makes a relevancy determination. Thus, if facts are found relevant to mitigation, then those mitigating facts are indeed precluded from the weighing stage if the defendant is unable to meet the evidentiary burden imposed by the Arizona statute.

47 . Contrast Gregg, 428 U.S. 153, 96 S.Ct. 2909, where the Court upheld the constitutionality of the statutory scheme enacted by the Georgia legislature in response to Furman. Georgia’s bifurcated system required a finding at the sentencing phase of at least one statutory aggravating circumstance before a death sentence could be considered. Id. at 197, 96 S.Ct. at 2936. However, in contrast to the Arizona scheme at issue, Georgia did not require the sentencer (the jury) "to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court....” Id.

48 . In lurek, the Court upheld a Texas death penalty statute which provided for a separate sentencing proceeding wherein the jury was required to answer certain questions. The statute in Jurek differs from Arizona’s in two significant respects. First, the phrasing of the questions asked in Jurek required the jury to make specific findings against the defendánt before a death sentence could be imposed, allowing a presumption in favor of the defendant. In contrast, Arizona forces a defendant to prove that his or her situation "merits leniency.” Moreover, in Jurek, all mitigating evidence was admissible for the jury to consider in answering the questions. 428 U.S. at 271-73, 275-76, 96 S.Ct. at 2956-57, 2958. Only if the jury answered all questions in the affirmative, could a death sentence result. Id. at 269, 96 S.Ct. at 2955. Thus at the stage in which balancing occurred to determine ultimately whether death was the appropriate penalty, all relevant evidence was considered. See id. at 276, 96 S.Ct. at 2958 ("What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.”).

49 .Arizona’s presumption "requires the [sentencer] to find the presumed [fact] unless the defendant persuades the [sentencer] that such a finding is unwarranted.” Francis v. Franklin, 471 U.S. 307, 314 n. 2, 105 S.Ct. 1965, 1971 n. 2, 85 L.Ed.2d 344 (1985) (citing Sandstrom v. Montana, 442 U.S. 510, 517-18, 99 S.Ct. 2450, 2455-56, 61 L.Ed.2d 39 (1979)).

50 . The dissent erroneously suggests that our conclusion that the Arizona statute creates a presumption of death is substantially based on the presence of the word "shall" in § 13-703(E). In fact, it is not primarily the word "shaU" that leads us to our conclusion, but rather the fact that under the Arizona statute, the death sentence will be imposed unless mitigating circumstances outweigh the aggravating circumstances. Thus, the constitutionality of the Montana and Texas death penalty statutes, see Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and McKenzie v. Risley, 842 F.2d 1525 (9th Cir.1988), both of which contain the word “shall” in their sentencing provisions, in no way undermines our position as neither of these statutes require the court to find mitigating circumstances outweigh aggravating circumstances.

51 .Compare Peek v. Kemp, 784 F.2d 1479, 1488 (11th Cir.) (en banc), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986) (noting that in Georgia, the sentencer has "absolute discretion to grant mercy regardless of the existence of ‘aggravating’ evidence”) with Gray v. Lucas, 677 F.2d 1086, 1106 (5th Cir.1982), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983) (noting that in Mississippi, "even if the jury finds that the aggravating circumstances outweigh the mitigating circumstances, it is not required to impose the death penalty”).

A panel of this circuit recently considered whether a death penalty statute imposed a mandatory death sentence by placing the burden of proving mitigating circumstances on the defendant. While posing an issue similar to that of the case at bar, Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987), is distinguishable. In Campbell, this court examined the language of Washington’s death penalty statute and its construction by the state courts. We concluded that “[t]he language of the statute clearly indicates that the burden of proof is on the state to ‘convince’ the jury beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.” Id. at 1466 (emphasis added). We further found that the state’s bearing of the burden of proof resulted in a presumption of leniency. Id.

52 . As the Supreme Court has held that the state is not constitutionally required to prove an absence of mitigating factors, we do not question the constitutionality of the bare requirement that a defendant bring forth evidence in support of mitigation.

53 . The fact that the presumption of death is rebuttable probably would not cure the infirmity of a death sentence brought about by the presumption. See Francis, 471 U.S. at 316, 105 S.Ct. at 1972.

54 . The requirement of individualized sentencing

rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Woodson, 428 U.S. at 305, 96 S.Ct. at 2991 (footnote omitted).

55 . Justice Stevens, writing in Smith v. North Carolina, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982) (opinion respecting the denial of the petition for certiorari), voiced the same objections to a North Carolina death penalty instruction that operated in a manner similar to the Arizona statute. In Smith, the jury was instructed to impose the death penalty if it found that (1) one or more aggravating circumstances existed, (2) one or more aggravating circumstances were sufficiently substantial to call for the death penalty, and (3) that the aggravating circumstances outweighed the mitigating circumstances. Id. at 1056, 103 S.Ct. at 474.

Justice Stevens noted that such instructions may lead a jury to believe it is required to initially answer the question of whether the aggravating circumstances, considered alone, warrant the imposition of the death penalty, and then to respond to the question of whether the aggravating circumstances outweigh the mitigating circumstances. Justice Stevens then argued:

It seems to me entirely possible that a jury might answer both of those questions affirmatively and yet feel that a comparison of the totality of the aggravating factors with the totality of mitigating factors leaves it in doubt as to the proper penalty. But the death penalty can be constitutionally imposed only if the procedure assures reliability in the determination that ‘death is the appropriate punishment in a specific case.’

Id. (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell and Stevens, JJ.)).

56 . One commentator has argued that "the same dictates of text and policy" that ensure the defendant a presumption of innocence, "apply with equal, if not greater, force” to require a "presumption of life.” Note, The Presumption of Life: A Starting Point for a Due Process Analysis of Capital Sentencing, 94 Yale L.J. 351, 360 (1984). Basing her argument not on the Eighth Amendment, but rather on the Due Process Clause of the Fourteenth Amendment, she notes:

The capital sentencing decision, like the determination of guilt and unlike the typical non-capital sentencing decision, is binary. Just as the criminal trial jury must choose to convict or acquit, the capital sentencing authority must choose to impose either life imprisonment or the death penalty. In contrast, a noncapital, sentencing authority can usually strike a balance between the conflicting interests of the parties by adjusting the length or severity of the noncapital sentence.

Id. at 364.