David Lewis Rice v. Tana Wood, Superintendent, David Lewis Rice v. Tana Wood, Superintendent

D.W. NELSON, Circuit Judge,

with whom Circuit Judges JAMES R. BROWNING, SCHROEDER, FLETCHER, and DAVID R. THOMPSON, join, dissenting:

In Snyder v. Massachusetts, Justice Cardozo established that a state court cannot violate any constitutional right “ranked as fundamental” by “the traditions and conscience of our people.” 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). The majority claims that state and federal case law give little reason to believe that a court violates a fundamental constitutional right when it allows a jury to render its sentence in the defendant’s absence. I…