Cite as: 528 U. S. 225 (2000)
Stevens, J., dissenting
be considered when deciding whether either aggravating circumstance had been proved. The instructions did not, however, explain that mitigating evidence could serve another purpose—to provide a lawful justification for a life sentence even if the jury found at least one aggravating circumstance. Indeed, given the fact that the first task assigned to the jury was to decide whether "after consideration of his history and background, there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society," App. 192-193 (emphasis added), it would have been reasonable for the jury to infer that his history and background were only relevant to the threshold question whether an aggravator had been proved. It is of critical importance in understanding the jury's confusion that the instructions failed to inform the jury that mitigating evidence serves this dual purpose.
II
The jurors had a written copy of the judge's instructions with them in the jury room during their deliberations. The fact that the jurors submitted the following written inquiry to the trial judge after they had been deliberating for several hours demonstrates both that they were uncertain about the meaning of the ambiguous clause that I have identified, and that their uncertainty had not been dissipated by their recollection of anything said by counsel.
"If we believe that Lonnie Weeks, Jr., is guilty of at least 1 of the alternatives, then is it our duty as a jury to issue the death penalty? Or must we decide (even though he is guilty of one of the alternatives) whether or not to issue the death penalty, or one of the life sentences? What is the Rule? Please clarify." Id., at 217.
The only portion of the written instructions that could possibly have prompted this inquiry is the second half of the
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