282
Breyer, J., dissenting
no more—is to tell the jury that evidence of mitigating circumstances (concerning, say, the defendant's childhood and his troubled relationships with the victims) is not relevant to their sentencing decision.
The reader might now review the instructions themselves with the following paraphrase in mind: Paragraph 1 tells the jury that it must decide between death or life imprisonment. Paragraph 2 sets forth potential aggravating circumstances of the crime, thereby explaining to the jury what experienced death penalty lawyers would understand as "aggravators" (i. e., the criteria for "death eligibility"). This paragraph says that the jury cannot impose the death penalty unless the Commonwealth proves (beyond a reasonable doubt) that at least one of the murders was "outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery."
Paragraph 3—the key paragraph—repeats that, if the jury finds that the Commonwealth has proved death eligibility, the jury "may fix the punishment . . . at death." It immediately adds in the same sentence "or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment . . . at life imprisonment." It is the stringing together of these two phrases, along with the use of the connective "or," that leads to a potential understanding of the paragraph as saying, "If you find the defendant eligible for death, you may impose the death penalty, but if you find (on the basis of 'all the evidence') that the death penalty is not 'justified,' which is to say that the defendant is not eligible for the death penalty, then you must impose life imprisonment." Without any further explanation, the jury might well believe that whether death is, or is not, "justified" turns on the presence or absence of Paragraph 2's aggravating circumstances of the crime—not upon the defendant's mitigating evidence about his upbringing and other factors.
Paragraph 4 makes matters worse. It adds that the Commonwealth's failure to prove the aggravating factors which
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