Cite as: 505 U. S. 333 (1992)
Stevens, J., concurring in judgment
vated arson, and that the murder was especially heinous, atrocious, and cruel. State v. Sawyer, 422 So. 2d 95, 100 (La. 1982). As suggested above, the Thibodeaux affidavit does not show that it is "more likely than not" that Sawyer did not commit aggravated arson. Moreover, Sawyer offers no evidence to undermine the jury's finding that the murder was especially heinous, atrocious, and cruel. In addition, assuming that the new medical evidence would support a finding of a statutory mitigating factor (diminished capacity due to mental disease or defect),4 I cannot say that it would be clear error for a sentencer faced with the two unrefuted aggravating circumstances and that single mitigating circumstance to sentence Sawyer to death.
In sum, in my opinion Sawyer has failed to demonstrate that it is more likely than not that his death sentence was clearly erroneous. Accordingly, I conclude that the court below was correct in declining to reach the merits of Sawyer's successive and abusive claims.
V
The Court rejects an "innocence of death" standard that recognizes constitutional errors affecting mitigating evidence because such a standard "would so broaden the inquiry as to make it anything but a 'narrow' exception to the principle of finality." Ante, at 345. As the foregoing analysis indicates, however, the Court's concerns are unfounded. Indeed, even when federal courts have applied a less restrictive standard than the standard I propose, those courts have rarely found "innocence of death" and reached the merits of a defaulted, successive, or abusive claim. See Deutscher v. Whitley, 946 F. 2d 1443 (CA9 1991); Stokes v.
4 See La. Code Crim. Proc. Ann., Art. 905.5(e) (West 1984) (defining "mitigating circumstances" to include the fact that "the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect" at the time of the offense).
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