238
Stevens, J., dissenting
clarity—clarity in the judge's instructions when there is a reasonable likelihood that the jury may misunderstand the governing rule of law. In this case, as in Boyde v. California, 494 U. S. 370, 380 (1990), we are confronted with a claim that an instruction, though not erroneous, is sufficiently ambiguous to be "subject to an erroneous interpretation." In Boyde, we held that "the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Ibid.
The record in this case establishes, not just a "reasonable likelihood" of jury confusion, but a virtual certainty that the jury did not realize that there were two distinct legal bases for concluding that a death sentence was not "justified." The jurors understood that such a sentence would not be justified unless they found at least one of the two alleged aggravating circumstances. Despite their specific request for enlightenment, however, the judge refused to tell them that even if they found one of those circumstances, they did not have a "duty as a jury to issue the death penalty." App. 217.
Because the Court creatively suggests that petitioner's claim has "the earmarks of an afterthought," ante, at 237, it is appropriate to note that his trial counsel specifically and repeatedly argued that both the instructions and the verdict forms were inadequate because " 'the jury has to be instructed that . . . even if they find the aggravating factors beyond a reasonable doubt, . . . they can still give effect to the evidence in mitigation by sentencing the defendant to life, as opposed to death.' " App. 178. See also id., at 179, 180, 185-186, 223.
Four different aspects of the record cumulatively provide compelling support for the conclusion that this jury did not understand that the law authorized it "not to issue the death penalty" even though it found petitioner "guilty
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