Schiro v. Farley, 510 U.S. 222, 5 (1994)

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226

SCHIRO v. FARLEY

Opinion of the Court

either was not guilty by reason of insanity or was guilty but mentally ill, an alternative verdict permitted under Indiana law.

The jury was given 10 possible verdicts, among them the 3 murder counts described above, the lesser included offenses of voluntary and involuntary manslaughter, guilty but mentally ill, not guilty by reason of insanity, and not guilty. App. 37-38. After five hours of deliberation, the jury returned a verdict of guilty on Count II; it left the remaining verdict sheets blank.

Under Indiana law, to obtain the death penalty the State is required to establish beyond a reasonable doubt the existence of at least one of nine aggravating factors. Ind. Code 35-50-2-9(b) (Supp. 1978). The aggravating factor relevant here is: "[T]he defendant committed the murder by intentionally killing the victim while committing or attempting to commit . . . rape" or another enumerated felony. 35- 50-2-9(b)(1). Upon proof beyond a reasonable doubt of an aggravating factor, the sentencer weighs the factor against any mitigating circumstances. When the initial conviction is by a jury, the "jury . . . reconvene[s] for the sentencing hearing" to "recommend to the court whether the death penalty should be imposed." 35-50-2-9(d), (e). The trial judge makes "the final determination of the sentence, after considering the jury's recommendation." 35-50-2-9(e)(2). "The court is not bound by the jury's recommendation," however. Ibid.

The primary issue at the sentencing hearing was the weight to be given Schiro's mitigating evidence. Defense counsel stated to the jury that "I assume by your verdict [at the guilt phase that] you've probably decided" that the aggravating circumstance was proved. App. to Brief for Respondent 31-32. He therefore confined his argument to a plea for leniency, citing Schiro's mental and emotional problems. After considering the statements of counsel, the jury recommended against the death penalty. The trial judge

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