Carey D. Moore v. Michael L. Kinney, Warden of the Nebraska Penal and Correctional Complex

HEANEY, Circuit Judge,

with whom McMILLIAN, MURPHY, and BYE, Circuit Judges, join, dissenting and with whom MELLOY and SMITH, Circuit Judges, join in Section II.B.2.

Today the majority takes an unprecedented step: it permits trial courts to decide for themselves what criteria would support a death sentence after hearing all the evidence on the matter, and then conclude if the evidence presented fits within their newly-established criteria. I am bewildered that a majority of this court could hold that such a procedure passes constitutional muster. To me, it is a clear due process violation, for…