Cite as: 528 U. S. 225 (2000)
Stevens, J., dissenting
objected to the verdict forms because they "do not expressly provide for a sentence of life imprisonment, upon finding beyond a reasonable doubt, on one or both of the aggravating factors," id., at 185-186, the judge failed to use forms that would have answered the question that the jury asked during its deliberations.
The ambiguity of the forms also helps further explain why the Court is wrong in its speculation as to the jury's final hours of deliberation following the judge's response to its question. The Court postulates that before the jury asked whether it had a duty to issue the death penalty "[i]f we believe that Lonnie Weeks, Jr. is guilty of at least 1 of the alternatives," the jury had already so decided. Thus, the remaining hours of deliberation must have been spent weighing the mitigating circumstances against the aggravating circumstance. Ante, at 235. Of course, the text of the question, which used the word "if" rather than the word "since," does not itself support that speculation. More important, however—inasmuch as we cannot know for certain what transpired during those deliberations—is the fact that after it eliminated the first two verdict options, the remaining forms identified a choice between a death sentence based on a guilty finding on "1 of the alternatives" and a life sentence without any such finding. In my judgment, it is thus far more likely that the conscientious jurors were struggling with the question whether the mitigating evidence not only precluded a finding that petitioner was a continuing threat to society, but also precluded a finding "that his conduct in committing the offense is outrageously or wantonly vile, horrible or inhuman in that it involved depravity of mind and/or aggravated battery." App. 228. And that question was answered neither by the instruction itself, nor by the judge's reference to the instruction again, nor, we now see, by the text of the jury forms with which the jury was finally faced.
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