Cite as: 522 U. S. 269 (1998)
Breyer, J., dissenting
make the defendant eligible for the death penalty means that the jury must fix the punishment at life imprisonment. It is the position of the paragraph, coming just after the key phrase "or if you believe from all the evidence that the death penalty is not justified," that suggests reading it as a further explanation of when the death penalty is not "justified." So read, this paragraph reinforces the misconception that paragraph 3 creates.
Were the jury made up of experienced death penalty lawyers, it might understand these instructions differently—in the way that the Court understands them. Lawyers who represent capital defendants are aware of the differences between the "eligibility" phase, with its "aggravators," and the "selection" phase, with its mitigating evidence. Thus, they might read Paragraph 2 as setting forth the "eligibility" criteria, Paragraph 3 as setting forth what happens next should the jury find the defendant death eligible, and Paragraph 4 as setting forth what happens next should the jury find the defendant ineligible for death. Such lawyers might then read Paragraph 3's "or" as connecting the two "selection phase" alternatives—the first (death) if there is insufficient mitigation, and the second (life imprisonment) if there is sufficient mitigation. These lawyers, however, would be parsing the instructions in a highly complicated, technical way that they alone are likely to understand. Theirs is not the meaning that a natural reading of the language suggests, either to lawyers who are not well versed in death penalty litigation, or to jurors who are not lawyers.
A further explanation of the special sense of "not justified"—so that the jury did not read those words as referring to the absence of Paragraph 2's "aggravators"—would have cleared matters up. So would some mention of mitigating evidence anywhere in the instructions. But there was no clarification of "not justified," and the instructions say nothing at all about mitigating evidence. Why then would a lay jury, trying to follow the instructions, not have believed that
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