PENRY v. JOHNSON

No. 006677. Argued March 27, 2001 Decided June 4, 2001

PENRY v. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
certiorari to the united states court of appeals for the fifth circuit
No. 006677. Argued March 27, 2001Decided 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 Penrys first Texas capital murder trial, the jury was instructed to
answer three statutorily mandated special issues: (1) whether Penrys 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 (1989) (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 Penrys 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
Penrys then-counsel to determine Penrys 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 Penrys 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] circumstances , you must decide how much weight they
deserve, if any, and therefore, give effect and consideration to them in
assessing the defendants 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 [Penrys] 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 Penrys claims that the admission of language from
the Peebles report violated Penrys 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 Is 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 courts conclusions on both of
Penrys claims were neither contrary to, nor an unreasonable application of,
clearly established federal law. The Fifth Circuit denied a certificate of
appealability.
Held:
     1.Penrys 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 psychiatrists testimony on the topic of future
dangerousness, based on a defendants 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 Penrys
claim. Rather, the question is whether the Texas courts decision was
contrary to or an unreasonable application of this Courts 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 Courts
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 Estelles Fifth Amendment holding beyond its particular
facts. Cf., e.g., Buchanan v. Kentucky, 483 U.S. 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 Courts precedent were to establish
squarely that use of the Peebles report violated the Fifth Amendment, that
error would justify overturning Penrys sentence only if he could establish
that the error had a substantial and injurious effect or influence in
determining the jurys 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 States case on future dangerousness. Pp.912.
     2.The jury instructions at Penrys resentencing, however, did not comply
with the Courts 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 defendants 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 Penrys 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
jurys two choices with respect to each special issue. In the States view,
however, the jury was also told that it could ignore these clear guidelines
andeven 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. 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 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.1220.
215 F.3d 504, affirmed in part, reversed in part, and remanded.
     OConnor, J., delivered the opinion of the Court, Parts I, II, and IIIA
of which were unanimous, and Part IIIB 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.

JOHNNY PAUL PENRY, PETITIONER v. GARY L.
JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
on writ of certiorari to the united states court of
appeals for the fifth circuit
[June 4, 2001]

     Justice OConnor 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 Penrys 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 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 310311.
     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 322325.
While Penrys mental retardation was potentially relevant to the first
special issuewhether he had acted deliberatelywe found no way to be sure
that the jurors fully considered the mitigating evidence as it bore on the
broader question of Penrys moral culpability. Id., at 322323. As to the
second issuewhether Penry would be a future dangerthe 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 324325.
     The comments of counsel also failed to clarify the jurys 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 prosecutors argument, and in the absence of
instructions informing the jury that it could consider and give effect to
the mitigating evidence of Penrys 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, 328. We thus vacated Penrys 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 defendants
background, character, and crime. Id., at 319 (quoting California v. Brown,
479 U.S. 538, 545 (1987) (OConnor, 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 Penrys mental impairments and childhood abuse. One defense witness
on the subject of Penrys 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. 276279; 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 Penrys then-counsel to
determine Penrys competency to stand trial on a 1977 rape chargeunrelated to
the rape and murder of Pamela Carpenter. Id., at 5560, 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 Penrys sentence by answering three special issuesthe
same three issues that had been put before the jury in Penry I.
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. 676678. 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.
672673.
The court explained the consequences of the jurys 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 674675.
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 defendants 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 defendants 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. 676678.
     After deliberating for approximately 2 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. 676678. In accordance with state law, the court
sentenced Penry to death.
     The Texas Court of Criminal Appeals affirmed Penrys conviction and
sentence. The court rejected Penrys claim that the admission of language
from the 1977 Peebles report violated Penrys 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, 759760 (1995) (internal quotation marks and
citation omitted).
     The court also rejected Penrys 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
defendants 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 Penrys second trial, see supra, at 56, the court
overruled Penrys 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 Penrys
claims, finding that the Texas Court of Criminal Appeals conclusions on both
points were neither contrary 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 Penrys execution and granted certiorari to consider Penrys
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 405406. 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 prisoners case. Id., at 407408.
     [A] federal habeas court making the unreasonable application inquiry
should ask whether the state courts 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 410411.
     Although the District Court evaluated the Texas Court of Criminal
Appeals disposition of Penrys 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
Penrys claims.
III
A
     Penry contends that the admission into evidence of the portion of the
1977 Peebles report that referred to Penrys 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 ostensibly neutral competency examination of a
capital defendant, but drew conclusions from the defendants 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 psychiatrists 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 Carpenters 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
456457. Here, however, it was Penrys 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
Penrys 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 Penrys Fifth Amendment claim. Rather, the question is whether the
Texas courts 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 Estelles 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 prosecutions
use of the Peebles report violated Penrys Fifth Amendment privilege against
self-incrimination, that error would justify overturning Penrys sentence
only if Penry could establish that the error had substantial and injurious
effect or influence in determining the jurys 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 States 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 testified that Penry was a dangerous
individual and likely to remain so. Two were the States own witnesses. See
App. 487, 557. The third was Dr. Pricethe 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 States 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 Penrys 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 Penrys 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 defendants 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 Penrys 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 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 I.
     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 defendants mitigating] evidence in imposing sentence.
492 U.S., at 319 (emphasis added). See also Johnson v. Texas, 509 U.S. 350,
381 (1993) (OConnor, 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 Penrys 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 defendants 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. 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 Penrys 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 Penrys mental retardation and childhood
abuse. Cf. 492 U.S., at 322325. In the words of Judge Dennis below, the
jurys ability to consider and give effect to Penrys 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 Penrys 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 instruction 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 jurys 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 676678. 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 States view, however, the jury was also told that it could
ignore these clear guidelines andeven 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 Penrys 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 instruction. 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. Crim. Proc. Code
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 Penrys 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 Penrys mitigating
evidence.
     Even though the Texas Court of Criminal Appeals focused solely on the
supplemental instruction in affirming Penrys 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 wouldwith 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 325326. 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 veniremembersincluding each of the 12 jurors who was eventually
empaneledreceived 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] dont 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 answergoing back and changing an answer from yes to
a no).
     While these comments reinforce the States construction of the
supplemental instruction, they do not bolster our confidence in the jurors
ability to give effect to Penrys 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 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 2 hours of deliberations with respect to Penrys 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 Penrys sentence.
     The State also contends that the closing arguments in the penalty phase
clarified matters. Penrys counsel attempted to describe the jurys 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 Penrys
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 counsels argument, as did the prosecutor in
Penry I, by stressing the jurys 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 Penrys second sentencing
hearing to comply with our 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 Penrys 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, 1415.
     A clearly drafted catchall instruction on mitigating evidence also
might have complied with Penry I. Texas current capital sentencing scheme
(revised after Penrys 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 defendants 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., Art. 37.071(2)(e)(1)
(Vernon Supp. 2001).** Penrys 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 Penrys trial.
     Thus, to the extent the Texas Court of Criminal Appeals concluded that
the substance of the jury instructions given at Penrys second sentencing
hearing satisfied our mandate in Penry I, that determination was objectively
unreasonable. Cf. Shafer v. South Carolina, 532 U.S. ___, ___ (2001) (slip
op., at 2, 12) (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 States 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 I. 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.


FOOTNOTES

Footnote *
*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.