Cite as: 505 U. S. 333 (1992)
Blackmun, J., concurring in judgment
Smith, 477 U. S., at 537 (applying Carrier standard to constitutional error at sentencing phase of capital trial). See also McCleskey, 499 U. S., at 493 (applying Carrier standard in "abuse of the writ" context).
The Court itself has acknowledged that "the concept of 'actual,' as distinct from 'legal,' innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense." Smith, 477 U. S., at 537. Undaunted by its own illogic, however, the Court adopted just such an approach in Smith. There, the Court was confronted with a claim that the introduction at sentencing of inculpatory statements made by Smith to a court-appointed psychiatrist violated the Fifth Amendment because Smith had not been informed that his statements might be used against him or that he had the right to remain silent and to have counsel present. Although the Court assumed the validity of Smith's Fifth Amendment claim 1 and recognized the potential impact of the statement on the jury, which found the aggravating circumstance of "future dangerousness" satisfied, see id., at 538, it nonetheless concluded, remarkably and summarily, that admission of the statement did not "pervert the jury's deliberations concerning the ultimate question whether in fact petitioner constituted a continuing threat to society," ibid. (emphasis in original). Because Michael Smith could not demonstrate cause for his procedural default, and because, in the Court's view, he had not made a substantial showing that the alleged constitutional violation "undermined the accuracy of the guilt or sentencing determination," id., at 539, his Fifth Amendment claim went unaddressed and he was executed on July 31, 1986.
1 Justice Stevens explained in his dissenting opinion in Smith, 477 U. S., at 551-553, that the introduction of the inculpatory statement clearly violated Smith's rights as established in Estelle v. Smith, 451 U. S. 454 (1981).
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