OCTOBER TERM, 2000
Syllabus
PENRY
v. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 00-6677. Argued March 27, 200l-Decided June 4, 2001
In 1989, this Court held that petitioner Penry had been
sentenced to death in violation of the Eighth Amendment. At the
close of the penalty hearing during Penry's first Texas capital
murder trial, the jury was instructed to answer three statutorily
mandated "special issues": (1) whether Penry's conduct was
committed deliberately and with the reasonable expectation that
death would result; (2) whether it was probable that he would be a
continuing threat to society; and (3) whether the killing was
unreasonable in response to any provocation by the deceased.
Although Penry had offered extensive evidence that he was mentally
retarded and had been severely abused as a child, the jury was
never told it could consider and give mitigating effect to that
evidence in imposing sentence. In holding that the jury had not
been adequately instructed with respect to the mitigating evidence,
the Court found, among other things, that none of the special
issues was broad enough to allow the jury to consider and give
effect to that evidence.
Penry v.
Lynaugh, 492 U. S. 302 (Penry
I). When Texas retried Penry in 1990, he was 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. On direct examination by the defense, a clinical
neuropsychologist, Dr. Price, testified that he believed Penry
suffered from organic brain impairment and mental retardation.
During cross-examination, Price cited as one of the records he had
reviewed in preparing his testimony a psychiatric evaluation
prepared by Dr. Peebles in 1977 at the request of Penry's
then-counsel to determine Penry's competency to stand trial on an
earlier charge unrelated to the murder at issue. Over a defense
objection, Price recited a portion of that evaluation which stated
that it was Peebles' professional opinion that if Penry were
released, he would be dangerous to others. When it came time to
submit the case to the jury, the trial court instructed the jury to
determine Penry's sentence by answering the same three special
issues that were at issue in
Penry I. The trial court then
gave a "supplemental instruction": "[W]hen you deliberate on the
... special issues, you are to consider mitigating circumstances,
if any, supported by the evidence .... If you find [such]
783
circumstances ... , 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
[Penry's] personal culpability ... , a negative finding should be
given to one of the special issues." The verdict form itself,
however, contained only the text of the three special issues, and
gave the jury two choices with respect to each: "Yes" or "No."
Because the jury unanimously answered "yes" to each special issue,
the court sentenced Penry to death in accordance with state law. In
affirming, the Texas Court of Criminal Appeals rejected Penry's
claims that the admission of language from the Peebles report
violated Penry's Fifth Amendment privilege against
self-incrimination, and that the jury instructions were
constitutionally inadequate because they did not permit the jury to
consider and give effect to his particular mitigating evidence.
With respect to the latter, the court held that the supplemental
instruction met
Penry fs constitutional requirements. After
his petition for state habeas corpus relief was denied, Penry
petitioned for federal habeas relief under 28 U. S. C. § 2254. The
District Court found that the state appellate court's conclusions
on both of Penry's claims were neither contrary to, nor an
unreasonable application of, clearly established federal law. The
Fifth Circuit denied a certificate of appealability.
Held:
1. Penry's argument is unavailing that the admission into
evidence of the portion of the Peebles report referring to his
future dangerousness violated his Fifth Amendment privilege against
self-incrimination. This case is distinguishable from
Estelle v.
Smith, 451 U. S. 454, in which
the Court held that the admission of a psychiatrist's testimony on
the topic of future dangerousness, based on a defendant's
uncounseled statements, violated the Fifth Amendment. The Court
need not and does not decide whether the several respects in which
this case differs from
Estelle affect the merits of Penry's
claim. Rather, the question is whether the Texas court's decision
was "contrary to" or an "unreasonable application" of this Court's
precedent. 28 U. S. C. § 2254(d)(1); see
Williams v.
Taylor, 529 U.
S. 362. It was not. The differences between this case and
Estelle are substantial, and the Court's
Estelle
opinion suggested that its holding was limited to the "distinct
circumstances" presented there. 451 U. S., at 466. It also
indicated that the Fifth Amendment analysis might be different
where a defendant introduces psychiatric evidence at the penalty
phase.
Id., at 472. Indeed, the Court has never extended
Estelle's Fifth Amendment holding beyond its particular
facts. Cf.,
e. g.,
Buchanan v.
Kentucky, 483
U. S.
784
Syllabus
402. It therefore cannot be said that it was objectively
unreasonable for the Texas court to conclude that Penry is not
entitled to relief on his Fifth Amendment claim. See
Williams,
supra, at 409. Even if the Court's precedent were to establish
squarely that use of the Peebles report violated the Fifth
Amendment, that error would justify overturning Penry's sentence
only if he could establish that the error had a substantial and
injurious effect or influence in determining the jury's verdict.
E. g., Brecht v.
Abrahamson, 507 U. S. 619, 637. There
is considerable doubt that Penry could make such a showing. The
excerpt from the Peebles report was neither the first nor the last
expert opinion the jury heard to the effect that Penry posed a
future danger and was by no means the key to the State's case on
future dangerousness. Pp. 793-796.
2. The jury instructions at Penry's resentencing, however, did
not comply with the Court's mandate in
Penry I. To the
extent the Texas appellate court believed that
Penry I was
satisfied merely because a supplemental instruction was given, the
court clearly misapprehended that prior decision. 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. To the extent the state court
concluded that the substance of the jury instructions given at
Penry's resentencing satisfied
Penry I, that determination
was objectively unreasonable. The three special issues submitted to
the jury were identical to the ones found inadequate in
Penry
I. Although the supplemental instruction mentioned mitigating
evidence, the mechanism it purported to create for the jurors to
give effect to that evidence was ineffective and illogical. 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, and that a "no" answer was appropriate only when
there was a reasonable doubt as to whether the answer to a special
issue should be "yes." 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. 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. The supplemental
instruction thereby made the jury charge as a whole internally
contradictory, and placed law-abiding jurors in an impossible
situation. The comments of the prosecutor and defense counsel, as
well as the comments of the court during
voir dire, did
785
little to clarify the confusion caused by the instructions
themselves. Any realistic assessment of the manner in which the
supplemental instruction operated would therefore lead to the same
conclusion the Court reached in
Penry I: "[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." 492 U. S., at 326. Pp.
796-804.
215 F.3d
504, affirmed in part, reversed in part, and remanded.
O'CONNOR, J., delivered the opinion of the Court, Parts I, II,
and III-A of which were unanimous, and Part III-B of which was
joined by STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ.
THOMAS, J., filed an opinion concurring in part and dissenting in
part, in which REHNQUIST, C. J., and SCALIA, J., joined,
post, p. 804.
Robert S.
Smith argued the cause for petitioner.
With him on the briefs were
Julia Tarver and
John E.
Wright.
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.*
*Briefs of
amici curiae urging reversal were filed for
the American Association on Mental Retardation et al. by
James W
Ellis, Michael B. Browde, Jeffrey J.
Pokorak, and
Stanley S.
Herr; and for the National Association of
Criminal Defense Lawyers by
Edward M. Chikofsky, Lisa
Briefs of
amici curiae urging affirmance were filed for
the Criminal Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson; and for Justice
for All by
Patrick F.
Philbin.
Richard Wilson and
William J.
Edwards filed
a brief for the International Association for the Scientific Study
of Intellectual Disabilities et al. as
amici curiae.
786
JUSTICE O'CONNOR delivered the opinion of the Court.
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 1. 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 Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981
and Supp. 1989)).
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.
787
Although Penry had offered extensive evidence that he was
mentally retarded and had been severely abused as a child, the jury
was never instructed that it could consider and give mitigating
effect to that evidence in imposing sentence.
Id., at 320.
Nor was any of the three special issues broad enough in scope that
the jury could consider and give effect to the mitigating evidence
in answering the special issue.
Id., at 322-325. While
Penry's mental retardation was potentially relevant to the first
special issue-whether he had acted deliberately-we found no way to
be sure that the jurors fully considered the mitigating evidence as
it bore on the broader question of Penry's moral culpability.
Id., at 322-323. As to the second issue-whether Penry would
be a future danger-the evidence of his mental retardation and
history of abuse was "relevant only as an
aggravating
factor."
Id., at 323 (emphasis in original). And the
evidence was simply not relevant in a mitigating way to the third
issue-whether Penry had unreasonably responded to any provocation.
Id., at 324-325.
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,
788
328. We thus vacated Penry's sentence, confirming that in a
capital case, "[t]he sentencer must ... be able to consider and
give effect to [mitigating] evidence in imposing sentence," so
that" 'the sentence imposed ... reflec[ts] a reasoned
moral
response to the defendant's background, character, and crime.'"
Id., at 319 (quoting
California v.
Brown,
479 U. S. 538,
545 (1987) (O'CONNOR, J., concurring) (emphasis in original)).
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
789
had been put before the jury in
Penry 1. Specifically,
the jury had to determine whether Penry acted deliberately when he
killed Pamela Carpenter; whether there was a probability that Penry
would be dangerous in the future; and whether Penry acted
unreasonably in response to provocation. App. 676-678. Cf.
Penry
I, 492 U. S., at 320.
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
790
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 2lf2 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.
791
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 selfincrimination. 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 28 U. S. C. § 2254 (1994 ed. and Supp. V)
in the United States District Court for the Southern District of
Texas. The District Court rejected both of Penry's claims, finding
that the Texas Court of Criminal Appeals' conclusions on both
points were neither contrary
792
to, nor an unreasonable application of, clearly established
federal law. App. 893, 920. After full briefing and argument, the
United States Court of Appeals for the Fifth Circuit denied a
certificate of appealability.
215 F.3d
504 (2000).
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, 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. V)
prohibits a federal court from granting an application for a writ
of habeas corpus with respect to a claim adjudicated on the merits
in state court unless that adjudication "resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States."
Last Term in
Williams v.
Taylor, 529 U. S. 362 (2000), we
explained that the "contrary to" and "unreasonable application"
clauses of § 2254(d)(1) have independent meaning.
Id., at
404. A state court decision will be "contrary to" our clearly
established precedent if the state court either "applies a rule
that contradicts the governing law set forth in our cases," or
"confronts a set of facts that are materially indistinguishable
from a decision of this Court and nevertheless arrives at a result
different from our precedent."
Id., at 405-406. A state
court decision will be an "unreasonable application of" our clearly
established precedent if it "correctly identifies the governing
legal rule but applies it unreasonably to the facts of a particular
prisoner's case."
Id., at 407-408.
793
"[A] federal habeas court making the 'unreasonable application'
inquiry should ask whether the state court's application of clearly
established federal law was objectively unreasonable."
Id.,
at 409. Distinguishing between an unreasonable and an incorrect
application of federal law, we clarified that even if the federal
habeas court concludes that the state court decision applied
clearly established federal law incorrectly, relief is appropriate
only if that application is also objectively unreasonable.
Id., at 410-411.
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 § 2254(d)(1) and clarified in
Williams, and denied Penry relief. Guided by this same
standard, we now turn to the substance of Penry's claims.
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
794
ostensibly neutral competency examination of a capital
defendant, but drew conclusions from the defendant's uncounseled
statements regarding his future dangerousness, and later testified
for the prosecution on that crucial issue. We likened the
psychiatrist to "an agent of the State recounting unwarned
statements made in a postarrest custodial setting," and held that
"[a] criminal defendant, who neither initiates a psychiatric
evaluation nor attempts to introduce any psychiatric evidence, may
not be compelled to respond to a psychiatrist if his statements can
be used against him at a capital sentencing proceeding."
Id., at 467468. The admission of the psychiatrist's
testimony under those "distinct circumstances" violated the Fifth
Amendment.
Id., at 466.
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 crossexamination 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.
795
Rather, the question is whether the Texas court's decision was
contrary to or an unreasonable application of our precedent. 28 U.
S. C. § 2254(d)(1) (1994 ed., Supp. V). We think it was not. The
differences between this case and
Estelle are substantial,
and our opinion in
Estelle suggested that our holding was
limited to the "distinct circumstances" presented there. It also
indicated that the Fifth Amendment analysis might be different
where a defendant "intends to introduce psychiatric evidence at the
penalty phase." 451 U. S., at 472. Indeed, we have never extended
Estelle's Fifth Amendment holding beyond its particular
facts. Cf.,
e. g.,
Buchanan v.
Kentucky,
483 U. S. 402
(1987)
(Estelle does not apply, and it does not violate the
Fifth Amendment, where a prosecutor uses portions of a psychiatric
evaluation requested by a defendant to rebut psychiatric evidence
presented by the defendant at trial). We therefore cannot say that
it was objectively unreasonable for the Texas court to conclude
that Penry is not entitled to relief on his 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-
796
tified that Penry was a dangerous individual and likely to
remain so. Two were the State's own witnesses. See App. 487, 557.
The third was Dr. Price-the same defense witness whom the
prosecutor had asked to read from the Peebles report. Before that
recitation, Dr. Price had stated his own opinion that "[i]f [Penry]
was in the free world, I would consider him dangerous."
Id.,
at 392.
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
797
a supplemental instruction had been given. On the other hand, it
might have believed that it was the substance of that instruction
which satisfied
Penry 1.
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[gJ' 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-
798
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 1. 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 1.
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-
799
tion to operate in this way, the instruction was not as simple
to implement as the State contends. Rather, it made the jury charge
as a whole internally contradictory, and placed law-abiding jurors
in an impossible situation.
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 aboutanswer 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-
800
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.
801
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 membersincluding 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 966967 ("[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
802
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 2lf2 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
803
mandate. We specifically indicated that our concerns would have
been alleviated by a jury instruction defining the term
"deliberately" in the first special issue "in a way that would
clearly direct the jury to consider fully Penry's mitigating
evidence as it bears on his personal culpability." 492 U. S., at
323. The trial court surely could have drafted an instruction to
this effect. Indeed, Penry offered two definitions of
"deliberately" that the trial court refused to give. See Tr. of
Oral Arg. 12, 14-15.
A clearly drafted catchall instruction on mitigating evidence
also might have complied with
Penry 1. 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." Tex. Code
Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon Supp. 2001). *
Penry's counsel, while not conceding the issue, admitted that he
"would have a tough time saying that
[Penry I] was not
complied with under the new Texas procedure." Tr. of Oral Arg. 16.
At the very least, the brevity and clarity of this instruction
highlight the confusing nature of the supplemental instruction
actually given, and indicate that the trial court had adequate
alternatives available to it as it drafted the instructions for
Penry's trial.
Thus, to the extent the Texas Court of Criminal Appeals
concluded that the substance of the jury instructions given
* Another recent development in Texas is the passage of a bill
banning the execution of mentally retarded persons. See Babineck,
Perry:
Death-penalty measure needs analyzing, Dallas Morning News, May
31, 2001, p. 27A. As this opinion goes to press, Texas Governor
Rick Perry is still in the process of deciding whether to sign the
bill.
Ibid.
804
Opinion of THOMAS, J.
at Penry's second sentencing hearing satisfied our mandate in
Penry I, that determination was objectively unreasonable.
Cf.
Shafer v.
South Carolina, ante, at 40, 50
(holding on direct review that the South Carolina Supreme Court
"incorrectly limited" our holding in
Simmons v.
South
Carolina, 512 U.
S. 154 (1994), because the court had mischaracterized "how the
State's new [capital sentencing] scheme works"). The three special
issues submitted to the jury were identical to the ones we found
constitutionally inadequate as applied in
Penry 1. Although
the supplemental instruction made mention of mitigating evidence,
the mechanism it purported to create for the jurors to give effect
to that evidence was ineffective and illogical. The comments of the
court and counsel accomplished little by way of clarification. Any
realistic assessment of the manner in which the supplemental
instruction operated would therefore lead to the same conclusion we
reached in
Penry I: "[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." 492 U. S., at 326.
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
805
an opportunity to consider the evidence Penry presented, I
respectfully dissent.
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 28 U. S. C. § 2254(d)(1) (1994
ed., Supp. V).
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-
1 The special issues are:
"'(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.' "
Penry I,
492 U. S. 302,
310 (1989) (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(b)
(Vernon 1981 and Supp. 1989)).
806
Opinion of THOMAS, J.
gument, and in the absence of appropriate jury instructions, 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.
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)."z 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
2 This Court's suggestion that the Texas court may have believed
that any supplemental instruction, regardless of its substance,
would satisfy
Penry fs requirement, see
ante, at
796-797, is specious. The Texas court explained that a "jury must
be given a special instruction
in order to allow it to consider
and give effect to such evidence"; it quoted the full text of
the supplemental instruction; and it concluded that "a
nullification instruction
such as this one is sufficient to
meet the constitutional requirements of
[Penry Il."
Penry v.
State, 903 S. W. 2d 715, 765 (1995)
(emphasis added). It is quite obvious that the court based its
legal conclusion on the content of the supplemental
instruction.
807
evidence Penry presented as mitigating evidence and that, if
they believe the mitigating evidence makes a death sentence
inappropriate, they should answer "no" to one of the special
issues. Given this straightforward reading of the instructions, it
is objectively reasonable, if not eminently logical, to conclude
that a reasonable juror would have believed he had a "vehicle for
expressing the view that Penry did not deserve to be sentenced to
death based upon his mitigating evidence." 492 U. S., at 326.
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 1. 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
3 I am still bewildered as to why this Court finds it
unconstitutional for Texas to limit consideration of mitigating
evidence to those factors relevant to the three special issues. See
Graham v.
Collins, 506 U. S. 461, 478 (1993)
(THOMAS, J., concurring). But we need not address this broader
issue to uphold Penry's sentence.
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.
Angelone, 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.
809
Curiously, this Court concludes that the supplemental
instruction "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."
Ante, at
800 (quoting
Roberts v.
Louisiana, 428 U. S. 325, 335 (1976)
(plurality opinion)). Any reference to
Roberts, however, is
wholly misplaced.
Roberts involved a situation in which the
jury was told to find the defendant guilty of a lesser included
offense, unsupported by any evidence, if the jury did not want him
to be sentenced to death.
Id., at 334-335. In Penry's case
there was no suggestion, express or implied, made to the jury that
it could
disregard the evidence. On the contrary, it was
instructed on how to
give effect to Penry's proffered
evidence, as required by this Court in
Penry 1. Tellingly,
the
Roberts plurality stated in full that "[t]here is an
element of capriciousness in making the jurors' power to avoid the
death penalty dependent on their willingness to accept this
invitation to
disregard the trial judge's instructions." 428
U. S., at 335 (emphasis added). In Penry's case, the judge's
instructions included an explanation of how to answer the three
special issues and how to give effect to the mitigating
evidence.
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
810
Opinion of THOMAS, J.
273-274 (opinion of Stewart, Powell, and STEVENS, JJ.). Then,
while purporting to distinguish, rather than to overrule,
Jurek, this Court in
Penry I determined that the same
Texas statute was constitutionally insufficient by not permitting
jurors to give effect to mitigating evidence. 492 U. S., at 328.
See also id., at 355-356 (SCALIA, J., dissenting) (explaining how
Penry I contradicts
Jurek's conclusions). According
to the Court, an instruction informing the jury that it could give
effect to the mitigating evidence was necessary. 492 U. S., at 328.
And in to day's decision, this Court yet again has second-guessed
itself and decided that even this supplemental instruction is not
constitutionally sufficient.
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