244
Stevens, J., dissenting
But given the Court's apt recognition that we cannot, of course, actually know what occupied the jury during its final deliberations, ante, at 235, and in light of the explanation I have just offered, it is at the very least equally likely that the two hours of deliberation following the judge's answer were devoted to continuing debate about the same instruction, as they were to weighing aggravating and mitigating evidence (having been magically satisfied by the repetition of the instruction that had not theretofore answered its question).
When it comes to the imposition of the death penalty, we have held repeatedly that justice and " 'the fundamental respect for humanity underlying the Eighth Amendment' " require jurors to give full effect to their assessment of the defendant's character, circumstances, and individual worth. Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). In this context, even if one finds the explanations of the jury's conduct here in equipoise, a 50-50 chance that the jury has not carried out this mandate seems to me overwhelming grounds for reversal.
Other than the Court's reliance on inapplicable presumptions and speculation, there is no reason to believe that the jury understood the judge's answer to its question. As we squarely held in Boyde, the "defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction" to satisfy the clearly established "reasonable likelihood" standard. 494 U. S., at 380. The Court's application of that standard in this case effectively drains it of meaning.
requires that the issue be resolved, not on the basis of a presumption that flows from the positing of any single question, but by deciding whether, under all of the circumstances, there was a "reasonable likelihood" that the jury was confused as to the relevance of mitigating evidence in its decision. The Court's fear of constant reversal in this regard is thus vastly overstated.
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