18
Ginsburg, J., dissenting
should live or die, evidence that he was already under sentence of death.
The Oklahoma court rejected that contention and affirmed Romano's conviction and death sentence for the Sarfaty murder. 847 P. 2d 368, 390 (Okla. Crim. App. 1993). In so ruling, the court acknowledged that "[l]earning that the defendant had previously received a death sentence for another murder could diminish the jury's sense of importance of its role and mitigate the consequences of [its] decision." Ibid. The court further recognized that "evidence of the imposition of the death penalty by another jury is not relevant in determining the appropriateness of the death sentence for the instant offense." Id., at 391. Nevertheless, the court concluded, "when the jury is properly instructed as to its role and responsibility in making such a determination we cannot, on appellate review, conclude that the jur[ors] in any way shifted the responsibility for their decision or considered their decision any less significant than they would otherwise." Id., at 390.2 That judgment is now before the Court.3
II
In Caldwell, this Court found constitutionally impermissible a prosecutor's statement, at the penalty phase of a capital trial, that the jury's decision was "not the final decision" because it was "automatically reviewable." The prosecutor's assurances were impermissible, the Court ruled, because they created an unacceptable risk that the jury would "minimize the importance of its role," "believ[ing] that the responsibility for determining the appropriateness of the defend-2 The court also observed that, although death sentences attract "heightened" appellate scrutiny, "a presumption of correctness" attends the jury's determination. 847 P. 2d, at 391.
3 Romano was subsequently reconvicted at his second trial for the Thompson murder and again sentenced to death. See Brief for Petitioner 31, n. 11. The State does not suggest that these events affect the question we consider.
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007