416
Ginsburg, J., dissenting
would be sentenced to life without possibility of release if the jury did not agree on death, see supra, at 409, and nn. 9, 10—should have made it apparent that he sought to close the door the flawed charge left open.18
There is, at least, a reasonable likelihood that the flawed charge tainted the jury deliberations. See Boyde v. California, 494 U. S. 370, 380 (1990) (where "[t]he claim is that the instruction is . . . subject to an erroneous interpretation," the "proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged instruction" erroneously). As recently noted, a jury may be swayed toward death if it believes the defendant otherwise may serve less than life in prison. See Simmons v. South Carolina, 512 U. S. 154, 163 (1994) (plurality opinion) ("[I]t is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not."). Jurors may have been persuaded to switch from life to death to ward off what no juror wanted, i. e., any chance of a lesser sentence by the judge.19
18 It is the general rule, as the Government observes, and the Court repeats, that " '[a] party who has requested an instruction that has not been given is not relieved of the requirement that he state distinctly his objection to the instruction that is given.' " Brief for United States 24 (quoting 2 C. Wright, Federal Practice and Procedure § 484, p. 702 (2d ed. 1982)); see also ante, at 388. It is also true, however, that "the requirement of objections should not be employed woodenly, but should be applied where its application will serve the ends for which it was designed, rather than being made into a trap for the unwary." 2 Wright, supra, § 484, at 699-701. Here, Jones's proposed instruction that his default sentence was life without possibility of release apprised the District Court and the Government of his essential position.
19 While precedent supports the Fifth Circuit's affirmation that statements attesting to the juror's understanding of the instructions are inadmissible, see 132 F. 3d, at 245-246, the statements Jones submitted do assert that apprehension of a lesser sentence the judge might impose in fact caused jurors to vote for a death sentence, see App. 68, 79. On a matter so grave, I would not discount those statements altogether. Cf. Jorgensen v. York Ice Machinery Corp., 160 F. 2d 432, 435 (CA2 1947)
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