Cite as: 510 U. S. 222 (1994)
Stevens, J., dissenting
finding the defendant not responsible by reason of insanity, three finding him guilty of murder or lesser offenses but mentally ill, and one finding him not guilty of anything), rejected two alternatives favorable to the prosecution (guilty on Counts I and III), and ultimately recorded their conclusion that he was guilty on Count II.2 The jurors therefore found Schiro guilty on Count II and not guilty on the remainder of the charges. Notably, only the fourth verdict form provided for a not guilty verdict, and that form could not be executed unless the defendant was not guilty of all charges. The only way the jurors could return a verdict of guilty on Count II and not guilty on the other counts was to check the fifth form and leave the others blank—which is exactly what they did.
Even if the record were less clear, the governing rule of law would lead to the same conclusion. After a full trial, the jury was given the opportunity to find Schiro guilty on each of three counts of murder, on just two of those counts, or on just one. As in the similar situation in Green v. United States, 355 U. S. 184 (1957), the jury's silence on two counts
2 Each form began: "We, the jury, find the defendant . . . ." The 10 alternatives were: (1) ". . . not responsible by reason of insanity at the time of the death . . . ." (2) ". . . guilty of Murder but mentally ill . . . ." (3) ". . . guilty of the Murder of Laura Luebbehusen as charged in Count I of the information." (4) ". . . not guilty." (5) ". . . guilty of Murder while the said Thomas N. Schiro was committing and attempting the crime of rape as charged in Count II of the information." (6) ". . . guilty while . . . committing and attempting to commit the crime of criminal deviate conduct as charged in Count III of the information." (7) ". . . guilty of . . . the included offense of Voluntary Manslaughter." (8) ". . . guilty of . . . the included offense of Involuntary Manslaughter." (9) ". . . guilty of . . . Voluntary Manslaughter, but mentally ill." (10) ". . . guilty of . . . Involuntary Manslaughter, but mentally ill." App. 37-38.
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