802
Opinion of the Court
began almost two full months before the penalty phase deliberations. In the interim, the jurors had observed the rest of voir dire, listened to a 5-day guilt-phase trial and extensive instructions, participated in 21/2 hours of deliberations with respect to Penry's guilt, and listened to another 5-day trial on punishment. The comments of the court and counsel during voir dire were surely a distant and convoluted memory by the time the jurors began their deliberations on Penry's sentence.
The State also contends that the closing arguments in the penalty phase clarified matters. Penry's counsel attempted to describe the jury's task:
"If, when you thought about mental retardation and the child abuse, you think that this guy deserves a life sentence, and not a death sentence, . . . then, you get to answer one of . . . those questions no. The Judge has not told you which question, and you have to give that answer, even if you decide the literally correct answer is yes. Not the easiest instruction to follow and the law does funny things sometimes." App. 640.
Again, however, this explanation only reminded the jurors that they had to answer the special issues dishonestly in order to give effect to Penry's mitigating evidence. For the reasons discussed above, such a "clarification" provided no real help. Moreover, even if we thought that the arguments of defense counsel could be an adequate substitute for statements of the law by the court, but see Boyde v. California, supra, at 384, the prosecutor effectively neutralized defense counsel's argument, as did the prosecutor in Penry I, by stressing the jury's duty "[t]o follow your oath, the evidence and the law." App. 616. At best, the jury received mixed signals.
Our opinion in Penry I provided sufficient guidance as to how the trial court might have drafted the jury charge for Penry's second sentencing hearing to comply with our
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