240
Stevens, J., dissenting
the punishment of the defendant at life imprisonment, or imprisonment for life and a fine of a specific amount, but not more than $100,000.' " App. 199-200.
The first paragraph and the first half of the second are perfectly clear. They unambiguously tell the jury: "In order to justify the death penalty, you must find an aggravating circumstance." 2 The second clause in the second paragraph is, however, ambiguous. It could mean either:
(1) "even if you find one of the two aggravating alternatives, if you believe from all the evidence that the death penalty is not justified because the mitigating evidence outweighs the aggravating evidence, then you shall fix the punishment [at life]"; or (2) "if you believe from all the evidence that the death penalty is not justified because neither of the aggravating circumstances has been proven beyond a reasonable doubt, then you shall fix the punishment [at life]."
It is not necessary to reiterate Justice Breyer's reasons for believing that the latter message is the one a nonlawyer would be most likely to receive. See Buchanan, 522 U. S., at 281-284 (dissenting opinion). Nor is it necessary to disagree with the Court's view in Buchanan that trained lawyers and logicians could create a "simple decisional tree" that would enable them to decipher the intended meaning of the instruction, see id., at 277-278, n. 4, to identify a serious risk that this jury failed to do so.
That risk was magnified by the fact that the instructions did not explain that there were two reasons why mitigating evidence was relevant to its penalty determination. The instructions did make it clear that mitigating evidence concerning the history and background of the defendant should
2 That message was reiterated later in the instructions, see ante, at 229- 230, n. 1; ante, at 233-234, n. 3. Reiterating what has already been clearly stated does not serve to clarify an ambiguous statement.
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