808
Opinion of Thomas, J.
effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues." Ibid. (emphasis added). Without performing legal acrobatics, I cannot make the instruction confusing. And I certainly cannot do the contortions necessary to find the Texas appellate court's decision "objectively unreasonable." 4 I simply do not share the Court's confusion as to how a juror could consider mitigating evidence, decide whether it makes a death sentence inappropriate, and respond with a "yes" or "no" depending on the answer.
4 I think we need not look beyond the court's instructions in evaluating the Texas appellate court's decision. But even if there were any doubt as to whether the instruction led the jurors to believe there was a vehicle for giving mitigating effect to Penry's evidence, the instruction was made clear " 'in the light of all that ha[d] taken place at the trial.' " Johnson v. Texas, 509 U. S. 350, 368 (1993). The judge and prosecutor fully explained how to give effect to mitigating evidence during the voir dire process, and defense counsel made the instruction clear in closing: "[i]f, 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," App. 640. Even if the jurors had forgotten what they had been told at voir dire, see ante, at 801-802, an assumption that I find questionable given our presumptions about jurors' ability to remember and follow instructions, see, e. g., Weeks v. Ange-lone, 528 U. S. 225, 234 (2000), the defense counsel's explanation from closing arguments would have been fresh on their minds.
Despite the Court's assertion that defense counsel told the jurors to answer the questions dishonestly, ante, at 802, it seems to me that the jurors reasonably could have believed that they could honestly answer any question "no" if they found that the death sentence would be inappropriate given the mitigating evidence. They could follow their " 'oath, the evidence and the law,' " ibid. (quoting the prosecutor's statement, App. 616), by truthfully concluding that the evidence of Penry's childhood and mental status did not warrant the death penalty and by writing "no" next to one of the special issues.
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