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After the Ninth Circuit Court of Appeals held that this was an Eddings violation, it sent the case back to the state courts for appropriate relief. Rather than remand the matter to the trial court for resentencing on a constitutionally complete record, the Arizona Supreme Court reweighed the aggravating and mitigating evidence itself on a cold record, and voted to sentence Mr. McKinney to death. The ACLU filed an amicus brief arguing that this decision violates the Eight Amendment because it subverts the critical role of the trier of fact in ensuring the non-arbitrary imposition of the death penalty because it unacceptably curtails the sentencer’s consideration of a capital defendant’s humanity. We also argue that a jury, not a judge, should assess all mitigating circumstances and make the initial determination whether a defendant shall be sentenced to death because reliance on juries for life-or-death decisions is essential to the fairness and reliability of capital sentencing.