PENRY v. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
No. 00-6677
Supreme Court of the United States
Argued March 27, 2001—Decided June 4, 2001
532 U.S. 782
Andy Taylor, First Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were John Cornyn, Attorney General, Gregory S. Coleman, Solicitor General, Michael T. McCaul, Deputy Attorney General, Edward L. Marshall, Senior Assistant Attorney General, and Gena Blount Bunn and Tommy L. Skaggs, Assistant Attorneys General.
Gene C. Schaerr argued the cause for the State of Alabama as amicus curiae urging affirmance. With him on the brief were Bill Pryor, Attorney General, J. Clayton Crenshaw, Assistant Attorney General, Carter G. Phillips, and Rebecca K. Smith.*
In 1989, we held that Johnny Paul Penry had been sentenced to death in violation of the Eighth Amendment because his jury had not been adequately instructed with respect to mitigating evidence. See Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I). The State of Texas retried Penry in 1990, and that jury also found him guilty of capital murder and sentenced him to death. We now consider whether the jury instructions at Penry‘s resentencing complied with our mandate in Penry I. We also consider whether the admission into evidence of statements from a psychiatric report based on an uncounseled interview with Penry ran afoul of the Fifth Amendment.
I
Johnny Paul Penry brutally raped and murdered Pamela Carpenter on October 25, 1979. In 1980, a Texas jury found him guilty of capital murder. At the close of the penalty hearing, the jury was instructed to answer three statutorily mandated “special issues“:
“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”
Id., at 310 (quoting
The jury answered “yes” to each issue and, as required by statute, the trial court sentenced Penry to death. 492 U.S., at 310-311.
The comments of counsel also failed to clarify the jury‘s role. Defense counsel had urged the jurors to vote “no” on one of the special issues if they believed that Penry, because of the mitigating evidence, did not deserve to be put to death. The prosecutor, however, had reminded them of their “oath to follow the law and . . . answe[r] these questions based on the evidence and following the law.” Id., at 325 (internal quotation marks omitted).
“In light of the prosecutor‘s argument, and . . . in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry‘s mental retardation and abused background by declining to impose the death penalty,” we concluded that “a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” Id., at 326,
Penry was retried in 1990 and again found guilty of capital murder. During the penalty phase, the defense again put on extensive evidence regarding Penry‘s mental impairments and childhood abuse. One defense witness on the subject of Penry‘s mental impairments was Dr. Randall Price, a clinical neuropsychologist. On direct examination, Dr. Price testified that he believed Penry suffered from organic brain impairment and mental retardation. App. 276-279; 878. In the course of cross-examining Dr. Price, the prosecutor asked what records Price had reviewed in preparing his testimony. Price cited 14 reports, including a psychiatric evaluation of Penry prepared by Dr. Felix Peebles on May 19, 1977. Id., at 327. The Peebles report had been prepared at the request of Penry‘s then-counsel to determine Penry‘s competency to stand trial on a 1977 rape charge—unrelated to the rape and murder of Pamela Carpenter. Id., at 55-60, 125. The prosecutor asked Dr. Price to read a specific portion of the Peebles report for the jury. Over the objection of defense counsel, Dr. Price recited that it was Dr. Peebles’ “professional opinion that if Johnny Paul Penry were released from custody, that he would be dangerous to other persons.” Id., at 413. The prosecutor again recited this portion of the Peebles report during his closing argument. Id., at 668.
When it came time to submit the case to the jury, the court instructed the jury to determine Penry‘s sentence by answering three special issues—the same three issues that
The court told the jury how to determine its answers to those issues:
“[B]efore any issue may be answered ‘Yes,’ all jurors must be convinced by the evidence beyond a reasonable doubt that the answer to such issue should be ‘Yes.’ . . . [I]f any juror, after considering the evidence and these instructions, has a reasonable doubt as to whether the answer to a Special Issue should be answered ‘Yes,’ then such juror should vote ‘No’ to that Special Issue.” App. 672-673.
The court explained the consequences of the jury‘s decision:
“[I]f you return an affirmative finding on each of the special issues submitted to you, the court shall sentence the defendant to death. You are further instructed that if you return a negative finding on any special issue submitted to you, the court shall sentence the defendant to the Texas Department of Corrections for life. You are therefore instructed that your answers to the special issues, which determine the punishment to be assessed the defendant by the court, should be reflective of your finding as to the personal culpability of the defendant, JOHNNY PAUL PENRY, in this case.” Id., at 674-675.
The court then gave the following “supplemental instruction“:
“You are instructed that when you deliberate on the questions posed in the special issues, you are to consider
mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant‘s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant‘s personal culpability at the time you answer the special issue. If you determine, when giving 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.” Id., at 675.
A complete copy of the instructions was attached to the verdict form, and the jury took the entire packet into the deliberation room. Tr. of Oral Arg. 31. The verdict form itself, however, contained only the text of the three special issues, and gave the jury two choices with respect to each special issue: “We, the jury, unanimously find and determine beyond a reasonable doubt that the answer to this Special Issue is ‘Yes,‘” or “We, the jury, because at least ten (10) jurors have a reasonable doubt as to the matter inquired about in this Special Issue, find and determine that the answer to this Special Issue is ‘No.‘” App. 676-678.
After deliberating for approximately 2½ hours, the jury returned its punishment verdict. See 51 Record 1948, 1950. The signed verdict form confirmed that the jury had unanimously agreed that the answer to each special issue was “yes.” App. 676-678. In accordance with state law, the court sentenced Penry to death.
The Texas Court of Criminal Appeals affirmed Penry‘s conviction and sentence. The court rejected Penry‘s claim that the admission of language from the 1977 Peebles report violated Penry‘s Fifth Amendment privilege against self-incrimination. The court reasoned that because Dr. Peebles had examined Penry two years prior to the murder of Pamela Carpenter, Penry had not at that time been “confronted with someone who was essentially an agent for the State whose function was to gather evidence that might be used against him in connection with the crime for which he was incarcerated.” Penry v. State, 903 S.W.2d 715, 759-760 (1995) (internal quotation marks and citation omitted).
The court also rejected Penry‘s claim that the jury instructions given at his second sentencing hearing were constitutionally inadequate because they did not permit the jury to consider and give effect to his mitigating evidence of mental retardation and childhood abuse. The court cited Penry I for the proposition that when a defendant proffers “mitigating evidence that is not relevant to the special issues or that has relevance to the defendant‘s moral culpability beyond the scope of the special issues . . . the jury must be given a special instruction in order to allow it to consider and give effect to such evidence.” 903 S.W.2d, at 765. Quoting the supplemental jury instruction given at Penry‘s second trial, see supra, at 789-790, the court overruled Penry‘s claim of error. The court stated that “a nullification instruction such as this one is sufficient to meet the constitutional requirements of [Penry I].” 903 S.W.2d, at 765.
In 1998, after his petition for state habeas corpus relief was denied, see App. 841 (trial court order); id., at 863 (Court of Criminal Appeals order), Penry filed a petition for a writ of habeas corpus pursuant to
We stayed Penry‘s execution and granted certiorari to consider Penry‘s constitutional arguments regarding the admission of the Peebles report and the adequacy of the jury instructions. 531 U.S. 1010 (2000).
II
Because Penry filed his federal habeas petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the provisions of that law govern the scope of our review. Specifically,
Last Term in Williams v. Taylor, 529 U.S. 362 (2000), we explained that the “contrary to” and “unreasonable application” clauses of
Although the District Court evaluated the Texas Court of Criminal Appeals’ disposition of Penry‘s claims under a standard we later rejected in Williams, see App. 882 (stating that an application of law to facts is “unreasonable ‘only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect‘” (citation omitted)), the Fifth Circuit articulated the proper standard of review, as set forth in
III
A
Penry contends that the admission into evidence of the portion of the 1977 Peebles report that referred to Penry‘s future dangerousness violated his Fifth Amendment privilege against self-incrimination because he was never warned that the statements he made to Dr. Peebles might later be used against him. The Texas Court of Criminal Appeals disagreed, concluding that when Dr. Peebles interviewed Penry, Peebles was not acting as an agent for the State in order to gather evidence that might be used against Penry. 903 S.W.2d, at 759.
Penry argues that this case is indistinguishable from Estelle v. Smith, 451 U.S. 454 (1981). In Estelle, we considered a situation in which a psychiatrist conducted an
This case differs from Estelle in several respects. First, the defendant in Estelle had not placed his mental condition at issue, id., at 457, n. 1, whereas Penry himself made his mental status a central issue in both the 1977 rape case and his trials for Pamela Carpenter‘s rape and murder. Second, in Estelle, the trial court had called for the competency evaluation and the State had chosen the examining psychiatrist. Id., at 456-457. Here, however, it was Penry‘s own counsel in the 1977 case who requested the psychiatric exam performed by Dr. Peebles. Third, in Estelle, the State had called the psychiatrist to testify as a part of its affirmative case. Id., at 459. Here, it was during the cross-examination of Penry‘s own psychological witness that the prosecutor elicited the quotation from the Peebles report. And fourth, in Estelle, the defendant was charged with a capital crime at the time of his competency exam, and it was thus clear that his future dangerousness would be a specific issue at sentencing. Penry, however, had not yet murdered Pamela Carpenter at the time of his interview with Dr. Peebles.
We need not and do not decide whether these differences affect the merits of Penry‘s Fifth Amendment claim.
Even if our precedent were to establish squarely that the prosecution‘s use of the Peebles report violated Penry‘s Fifth Amendment privilege against self-incrimination, that error would justify overturning Penry‘s sentence only if Penry could establish that the error “‘had substantial and injurious effect or influence in determining the jury‘s verdict.‘” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We think it unlikely that Penry could make such a showing.
The excerpt from the Peebles report bolstered the State‘s argument that Penry posed a future danger, but it was neither the first nor the last opinion the jury heard on that point. Four prison officials testified that they were of the opinion that Penry “would commit criminal acts of violence that would constitute a continuing threat to society.” App. 94, 104, 138; 47 Record 970. Three psychiatrists tes-
While the Peebles report was an effective rhetorical tool, it was by no means the key to the State‘s case on the question whether Penry was likely to commit future acts of violence. We therefore have considerable doubt that the admission of the Peebles report, even if erroneous, had a “substantial and injurious effect” on the verdict. Brecht v. Abrahamson, supra, at 637. Accordingly, we will not disturb the Texas Court of Criminal Appeals’ rejection of Penry‘s Fifth Amendment claim.
B
Penry also contends that the jury instructions given at his second sentencing hearing did not comport with our holding in Penry I because they did not provide the jury with a vehicle for expressing its reasoned moral response to the mitigating evidence of Penry‘s mental retardation and childhood abuse. The Texas Court of Criminal Appeals disagreed. The court summarized Penry I as holding that when a defendant proffers “mitigating evidence that is not relevant to the special issues or that has relevance to the defendant‘s moral culpability beyond the scope of the special issues . . . the jury must be given a special instruction in order to allow it to consider and give effect to such evidence.” 903 S.W.2d, at 765. The court then stated that the supplemental jury instruction given at Penry‘s second sentencing hearing satisfied that mandate. Ibid.
The Texas court did not make the rationale of its holding entirely clear. On one hand, it might have believed that Penry I was satisfied merely by virtue of the fact that
While the latter seems to be more likely, to the extent it was the former, the Texas court clearly misapprehended our prior decision. Penry I did not hold that the mere mention of “mitigating circumstances” to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may “consider” mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry I is that the jury be able to “consider and give effect to [a defendant‘s mitigating] evidence in imposing sentence.” 492 U.S., at 319 (emphasis added). See also Johnson v. Texas, 509 U.S. 350, 381 (1993) (O‘CONNOR, J., dissenting) (“[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances” (emphasis in original)). For it is only when the jury is given a “vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision,” Penry I, 492 U.S., at 328, that we can be sure that the jury “has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence,” id., at 319 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 305 (1976)).
The State contends that the substance of the supplemental instruction satisfied Penry I because it provided the jury with the requisite vehicle for expressing its reasoned moral response to Penry‘s particular mitigating evidence. Specifically, the State points to the admittedly “less than artful” portion of the supplemental instruction which says:
“If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant‘s personal culpability at the time you answer the special issue. If you de-
termine, when giving 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.” App. 675 (emphasis added). See also Brief for Respondent 16.
We see two possible ways to interpret this confusing instruction. First, as the portions italicized above indicate, it can be understood as telling the jurors to take Penry‘s mitigating evidence into account in determining their truthful answers to each special issue. Viewed in this light, however, the supplemental instruction placed the jury in no better position than was the jury in Penry I. As we made clear in Penry I, none of the special issues is broad enough to provide a vehicle for the jury to give mitigating effect to the evidence of Penry‘s mental retardation and childhood abuse. Cf. 492 U.S., at 322-325. In the words of Judge Dennis below, the jury‘s ability to consider and give effect to Penry‘s mitigating evidence was still “shackled and confined within the scope of the three special issues.” 215 F.3d, at 514 (dissenting opinion). Thus, because the supplemental instruction had no practical effect, the jury instructions at Penry‘s second sentencing were not meaningfully different from the ones we found constitutionally inadequate in Penry I.
Alternatively, the State urges, it is possible to understand the supplemental instruction as informing the jury that it could “simply answer one of the special issues ‘no’ if it believed that mitigating circumstances made a life sentence . . . appropriate . . . regardless of its initial answers to the questions.” Brief for Respondent 16. The Texas Court of Criminal Appeals appeared to understand the instruction in this sense, when it termed the supplemental instruction a “nullification instruction.” 903 S.W.2d, at 765. Even assuming the jurors could have understood the instruc-
The jury was clearly instructed that a “yes” answer to a special issue was appropriate only when supported “by the evidence beyond a reasonable doubt.” App. 672. A “no” answer was appropriate only when there was “a reasonable doubt as to whether the answer to a Special Issue should be . . . ‘Yes.‘” Id., at 673. The verdict form listed the three special issues and, with no mention of mitigating circumstances, confirmed and clarified the jury‘s two choices with respect to each special issue. The jury could swear that it had unanimously determined “beyond a reasonable doubt that the answer to this Special Issue is ‘Yes.‘” Id., at 676-678. Or it could swear that at least 10 jurors had “a reasonable doubt as to the matter inquired about in this Special Issue” and that the jury thus had “determin[ed] that the answer to this Special Issue is ‘No.‘” Ibid. (emphasis added).
In the State‘s view, however, the jury was also told that it could ignore these clear guidelines and—even if there was in fact no reasonable doubt as to the matter inquired about—answer any special issue in the negative if the mitigating circumstances warranted a life sentence. In other words, the jury could change one or more truthful “yes” answers to an untruthful “no” answer in order to avoid a death sentence for Penry.
We generally presume that jurors follow their instructions. See, e. g., Richardson v. Marsh, 481 U.S. 200, 211 (1987). Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry‘s mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental in-
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.
Voir dire was a month-long process, during which approximately 90 prospective jurors were interviewed. See 3 Record (index of transcripts). Many of the venire members—including each of the 12 jurors who was eventually empaneled—received a copy of an instruction largely similar to the supplemental instruction ultimately given to the jury. After each juror read the instruction, the judge attempted to explain how it worked. See, e. g., 18 Record 966-967 (“[I]f you thought the mitigating evidence was sufficient . . . you might, even though you really felt those answers [to the three special issues] should be yes, you might answer one or more of them no . . . so [Penry] could get the life sentence rather than the death penalty“). The prosecutor then attempted to explain the instruction. See, e. g., id., at 980 (“[E]ven though [you] believe all three of these answers are yes, [you] don‘t think the death penalty is appropriate for this particular person because of what has happened to him in the past . . . . [The] instruction is to give effect to that belief and answer one or all of these issues no“). And with most of the jurors, defense counsel also gave a similar explanation. See, e. g., id., at 1018 (“[I]f you believe[d] [there] was a mitigating circumstance . . . you [could] apply that mitigation to answer—going back and changing an answer from yes to a no“).
While these comments reinforce the State‘s construction of the supplemental instruction, they do not bolster our confidence in the jurors’ ability to give effect to Penry‘s mitigating evidence in deciding his sentence. Rather, they highlight the arbitrary way in which the supplemental instruction operated, and the fact that the jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence.
Moreover, we are skeptical that, by the time their penalty phase deliberations began, the jurors would have remembered the explanations given during voir dire, much less taken them as a binding statement of the law. Voir dire
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
A clearly drafted catchall instruction on mitigating evidence also might have complied with Penry I. Texas’ current capital sentencing scheme (revised after Penry‘s second trial and sentencing) provides a helpful frame of reference. Texas now requires the jury to decide “[w]hether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant‘s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.”
Thus, to the extent the Texas Court of Criminal Appeals concluded that the substance of the jury instructions given
The judgment of the United States Court of Appeals for the Fifth Circuit is therefore affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, concurring in Parts I, II, and III-A, and dissenting in Part III-B.
Two Texas juries have now deliberated and reasoned that Penry‘s brutal rape and murder of Pamela Carpenter warrants the death penalty under Texas law. And two opinions of this Court have now overruled those decisions on the ground that the sentencing courts should have said more about Penry‘s alleged mitigating evidence. Because I believe the most recent sentencing court gave the jurors
As a habeas reviewing court, we are not called upon to propose what we believe to be the ideal instruction on how a jury should take into account evidence related to Penry‘s childhood and mental status. Our job is much simpler, and it is significantly removed from writing the instruction in the first instance. We must decide merely whether the conclusion of the Texas Court of Criminal Appeals—that the sentencing court‘s supplemental instruction explaining how the jury could give effect to any mitigating value it found in Penry‘s evidence satisfied the requirements of Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I)—was “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000). See also
At Penry‘s first sentencing, the court read to the jury Texas’ three special issues for capital sentencing.1 The court did not instruct the jury that “it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence.” 492 U.S., at 320. The prosecutor also did not offer any way for the jury to give mitigating effect to the evidence, but instead simply reiterated that the jury was to answer the three questions and follow the law. In Penry I, this Court concluded that, “[i]n light of the prosecutor‘s ar-
At Penry‘s second sentencing, the court read to the jury the same three special issues. In contrast to the first sentencing, however, the court instructed the jury at length that it could consider Penry‘s proffered evidence as mitigating evidence and that it could give mitigating effect to that evidence. See ante, at 789-790. The Texas Court of Criminal Appeals concluded that this supplemental instruction “allow[ed] [the jury] to consider and give effect to” Penry‘s proffered mitigating evidence and therefore was “sufficient to meet the constitutional requirements of [Penry I].”2 Penry v. State, 903 S.W.2d 715, 765 (1995). In my view, this decision is not only objectively reasonable but also compelled by this Court‘s precedents and by common sense.
“In evaluating the instructions, [a court should] not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would—with a ‘commonsense understanding of the instructions in the light of all that has taken place at the trial.‘” Johnson v. Texas, 509 U.S. 350, 368 (1993) (quoting Boyde v. California, 494 U.S. 370, 381 (1990)). The Texas court‘s instruction, read for common sense, or, even after a technical parsing, tells jurors that they may consider the
It is true that Penry‘s proffered evidence did not fit neatly into any of the three special issues for imposing the death penalty under Texas law.3 But the sentencing court told the jury in no uncertain terms precisely how to follow this Court‘s directive in Penry I. First, the sentencing court instructed the jury that it could consider such evidence to be mitigating evidence. See App. 675 (“[W]hen you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant‘s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case“). Next, the court explained to the jury how it must give effect to the evidence. Ibid. (“If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant‘s personal culpability at the time you answer the special issue“). And finally, the court unambiguously instructed: “If you determine, when giving
Finally, contrary to the Court‘s claim that the jury received “mixed signals,” ante, at 802, it appears that it is the Texas courts that have received the mixed signals. In Jurek v. Texas, 428 U.S. 262 (1976), this Court upheld the Texas sentencing statute at issue here against attack under the Eighth and Fourteenth Amendments. The joint opinion in Jurek concluded that the statute permits the jury “to consider whatever evidence of mitigating circumstances the defense can bring before it” and “guides and focuses the jury‘s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” Id., at