20
Ginsburg, J., dissenting
at 333 ("[O]ne can easily imagine that in a case in which the jury is divided on the proper sentence, the presence of appellate review could effectively be used as an argument for why those jurors who are reluctant to invoke the death sentence should nevertheless give in.").
Respondent State of Oklahoma correctly observes, however, that evidence of a prior death sentence may not produce a unidirectional bias toward death. Brief for Respondent 23. Some jurors, otherwise inclined to believe the defendant deserved the death penalty for the crime in the case before them, might nonetheless be anxious to avoid any feeling of responsibility for the defendant's execution. Jurors so minded might vote for a life sentence, relying on the prior jury's determination to secure defendant's death. See ante, at 14. The offending prosecutorial comments in Caldwell, by contrast, created an apparently unidirectional "bias toward a death sentence," for the appellate review that the Caldwell jurors were encouraged to consider could occur only if the jury sentenced the defendant to death, not if it voted for life. 472 U. S., at 331-332. Oklahoma maintains that Romano remains outside the Caldwell principle, because he is unable to demonstrate that the evidence of his prior death sentence tilted the jurors toward death.
Romano's prosecutor, at least, seems to have believed that informing the jurors of the prior death sentence would incline them toward death, for otherwise, he probably would not have insisted upon introducing the "Judgment and Sentence" itself, over Romano's objection, and despite Romano's offer to stipulate to the underlying conviction. Most critically, Caldwell, as I comprehend that decision, does not require Romano to prove that the prosecutor's hunch was correct, either in Romano's case in particular or in death penalty cases generally.
Caldwell dominantly concerns the capital sentencing jury's awareness and acceptance of its " 'awesome responsibility.' " Id., at 341. To assure that acceptance, this Court's Eighth
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