800
Opinion of the Court
struction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a " 'true verdict.' " Tex. Code Crim. Proc. Ann., Art. 35.22 (Vernon 1989).
The mechanism created by the supplemental instruction thus inserted "an element of capriciousness" into the sentencing decision, "making the jurors' power to avoid the death penalty dependent on their willingness" to elevate the supplemental instruction over the verdict form instructions. Roberts v. Louisiana, 428 U. S. 325, 335 (1976) (plurality opinion). There is, at the very least, "a reasonable likelihood that the jury . . . applied the challenged instruction in a way that prevent[ed] the consideration" of Penry's mental retardation and childhood abuse. Boyde v. California, 494 U. S. 370, 380 (1990). The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Penry's mitigating evidence.
Even though the Texas Court of Criminal Appeals focused solely on the supplemental instruction in affirming Penry's sentence, the State urges us to evaluate the instruction contextually, with reference to the comments of the prosecutor and defense counsel, as well as the comments of the court during voir dire. Indeed, we have said that we will approach jury instructions in the same way a jury would—with a "commonsense understanding of the instructions in the light of all that has taken place at the trial." Id., at 381. Penry I itself illustrates this methodology, as there we evaluated the likely effect on the jury of the comments of the defense counsel and prosecutor. 492 U. S., at 325-326. As we did there, however, we conclude that these comments were insufficient to clarify the confusion caused by the instructions themselves.
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