McKoy v. North Carolina

PETITIONER:McKoy
RESPONDENT:North Carolina
LOCATION:Congress

DOCKET NO.: 88-5909
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: North Carolina Supreme Court

CITATION: 494 US 433 (1990)
ARGUED: Oct 10, 1989
DECIDED: Mar 05, 1990

ADVOCATES:
Joan Herre Byers – on behalf of the Respondent
Malcolm Ray Hunter, Jr. – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 10, 1989 in McKoy v. North Carolina

William H. Rehnquist:

We’ll hear argument now in Number 88-5909, Dock McKoy, Jr. v. North Carolina.

Mr. Hunter.

Malcolm Ray Hunter, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

This case is before the Court on certiorari for the Supreme Court of North Carolina to review the Supreme Court of North Carolina’s decision affirming Dock McKoy’s death sentence.

This case is about the penalty phase instructions in that trial, and whether those instructions violated the Eighth Amendment to the United States Constitution.

At the penalty phase trial in that case, the court instructed the jury that it must be unanimous to find a mitigating circumstance, and that if the jury was not unanimous on a particular circumstance it should answer that issue no.

Further, the court offered no instruction to the jury at the penalty phase urging them to try to agree if there were any disagreements, initial disagreements, about a mitigating circumstance.

Thus, the question that divided this Court in Mills is not present here.

The state concedes, and the North Carolina Supreme Court held, that the instructions in this case would require 12 jurors to find mitigation, but only one to reject it.

North Carolina, after Mills, is the only jurisdiction in the United States where this method of finding and excluding mitigation is still allowed.

In Mills this Court applied a well established rule.

Antonin Scalia:

Excuse me, what… what do you mean is still allowed?

Did some states previously use this method?

Malcolm Ray Hunter, Jr.:

Well, Maryland previously used this method, and–

Antonin Scalia:

Well, maybe, right.

Malcolm Ray Hunter, Jr.:

–I think they were the only ones.

William H. Rehnquist:

Mr. Hunter, is it your position that the Constitution requires the state to prove lack of mitigating circumstances?

Malcolm Ray Hunter, Jr.:

No, Your Honor.

No, it is not.

It is simply our position that it is unconstitutional to allow one juror to preclude the rest of the jurors from considering mitigating circumstances at… at the penalty, at the final sentencing stage.

William H. Rehnquist:

But you do feel that the state may say to the defendant, you bear the burden as to the existence of mitigating circumstances?

Malcolm Ray Hunter, Jr.:

I, frankly, I don’t know the answer to that question, Your Honor.

I know this Court is considering that question.

We’re… there is a burden of proof in North Carolina on the defendant.

It is a preponderance of the evidence which we have not contested in this case.

William H. Rehnquist:

So you don’t… you don’t disagree with, at least in your position here, that North Carolina may place the burden of proof on the defendant by a preponderance of the evidence to show mitigating circumstance?

Malcolm Ray Hunter, Jr.:

We… we are not disagreeing in this case, no sir.

There… there is… was a burden in this case, and that is not the subject of our complaint.

Our complaint is that… is that that question can be resolved by one juror for the other 12, as it was in Mills.

William H. Rehnquist:

Well, but it… it does seem to me, perhaps I am wrong, that there is a certain inconsistency if you say that the state may place the burden on the defendant to prove it, but… but then you say the question should be addressed to each juror.

Malcolm Ray Hunter, Jr.:

No, I think it may be addressed to the entire jury, Your Honor, but then the entire jury has to find that fact truly unanimously.

The… the system that we have here is… as I understood the dissent in Mills, for example, the… the dissenters in Mills understood Mills to have a scheme where the jury had to be unanimous to find or to reject mitigation.

In other words, they had to agree about whether a mitigating fact either existed… it was either true or it was not true.

They had to agree.

And on that basis the dissenters felt that that was a constitutional instruction in the constitutional scheme.

In the North Carolina scheme, on the other hand, and as I think the… the Court in the Mills decision held the Maryland scheme, they interpret it to mean that 12 jurors were required to find that a mitigating circumstance was present, but only one juror could upset that mitigating circumstance… that is, to unfind it or to reject that mitigating circumstance.

Antonin Scalia:

One… one could–

Malcolm Ray Hunter, Jr.:

And it’s that one-way unanimity that was the problem in… in Mills, I think, and is… is clearly, there is no debate about it, the problem in North Carolina.

Antonin Scalia:

–Of course, one… one could upset an aggravating circumstance in North Carolina as well, couldn’t it?

Malcolm Ray Hunter, Jr.:

That is exactly right, I think, and that’s–

Antonin Scalia:

So why isn’t that even handed enough?

Malcolm Ray Hunter, Jr.:

–Well, Your Honor, it’s… it’s even handed in a certain sense, but in… in one sense you’re letting some defendants in some trials get arbitrary life sentences perhaps because the jury can… one juror can reject aggravation for whatever reason.

It is unreviewable.

And that–

Antonin Scalia:

You think that is bad too.

You think maybe… maybe aggravating circumstances should just be majority… majority vote.

Malcolm Ray Hunter, Jr.:

–Well, if the state… I think that’s up to the state as to exactly how they found.

The state may decide that they should be unanimous, but it should be true unanimity.

Byron R. White:

Well, why… why shouldn’t that be the same rule about a mitigating circumstance?

How are you going to prove something by a preponderance of the evidence if you only get 11 votes?

You haven’t proved it any more than you have proved an aggravating circumstance if you only get 11 votes.

Malcolm Ray Hunter, Jr.:

Well, my complaint, and… and the complaint in Mills, was not so much about unanimity.

It was about the fact that it could be rejected by one juror.

In every other way that we consider unanimity, unanimity is when everybody agrees, that is we all agree that a fact is found or we all agree that a fact is not found.

That’s… that’s the problem in this case.

It was the same problem that existed in Mills.

Byron R. White:

Well, you don’t need a unanimous vote to acquit somebody in a criminal trial.

All you need is a… failure to have 12 people vote for guilt.

Malcolm Ray Hunter, Jr.:

Well, if… if… if the jury… if all 12 don’t agree that the appropriate judgment is not guilty, then it is a hung jury.

Byron R. White:

Well?

Malcolm Ray Hunter, Jr.:

And I think that–

Byron R. White:

Then you don’t need… well, that may be so.

That may be so, but you don’t need a… but, you… you have to… if you are going to prove something, by any normal understanding, you say that the jury has to be unanimous.

Unless there is some rule of less than unanimous.

Malcolm Ray Hunter, Jr.:

–And again, our, Your Honor, our problem, the unconstitutionality in North Carolina, does not have to do with requiring the jury to be unanimous to find mitigation.

It is allowing them to reject that mitigation by only one juror.

And I think the examples that were given in Mills v. Maryland really illustrate the problem that also exists in North Carolina.

In Mills v. Maryland the two hypotheticals that were suggested there was that 11 jurors could believe that there was mitigation in the case, be convinced of it by a preponderance of the evidence, Your Honor, and yet one juror could say I am not convinced by a preponderance of the evidence.

Byron R. White:

Sure.

Malcolm Ray Hunter, Jr.:

Further, those 11 jurors, if they were allowed to consider that mitigation, would have found that life was the appropriate decision in this case.

Byron R. White:

So you just don’t think that they have to… that they should be able to require proof of a mitigating circumstance by a preponderance of the evidence.

Malcolm Ray Hunter, Jr.:

Yes, sir, I agree that they can require proof of a mitigating circumstance by a preponderance of the evidence, but I don’t agree–

Byron R. White:

Well, you haven’t proved it if only 11 people vote for it.

Malcolm Ray Hunter, Jr.:

–That’s right.

But at that point… the question is what do you do at that point where there is disagreement.

Byron R. White:

Well, you haven’t proved it.

Malcolm Ray Hunter, Jr.:

It hasn’t been proved yet, and it hasn’t been, I would say, disproved yet.

William H. Rehnquist:

But so the party that carries the burden of the proof loses at that… the party that has to carry the burden of proof ordinarily we would say loses at that point.

Malcolm Ray Hunter, Jr.:

They haven’t convinced all 12 at that point, but they don’t lose, Your Honor.

In a… in a criminal case where the state has the burden, if they convince 11 people by a… by whatever the standard is, that the defendant is guilty, and one doesn’t agree, the result is not an acquittal.

William H. Rehnquist:

No.

Malcolm Ray Hunter, Jr.:

The result is… is that the defendant gets a new trial, there is a hung jury or whatever happens.

Antonin Scalia:

Hung jury.

Well, if they convince 11 that there are aggravating circumstance and they don’t convince one that there is an aggravating circumstance, they haven’t carried their burden, and the result in North Carolina is that the defendant cannot be given death.

Isn’t that right?

Malcolm Ray Hunter, Jr.:

That is exactly right, Your Honor.

Antonin Scalia:

He gets a life sentence instead.

Malcolm Ray Hunter, Jr.:

And that’s–

Antonin Scalia:

So this is perfectly parallel.

Malcolm Ray Hunter, Jr.:

–It is perfectly parallel, but it is also perfectly arbitrary.

Malcolm Ray Hunter, Jr.:

I think, and as I was… I was trying to answer this question earlier–

Antonin Scalia:

Or is it perfectly parallel?

Let me interrupt there a minute.

In the aggravating circumstance category, the aggravating circumstances are statutorily defined, are they not?

Malcolm Ray Hunter, Jr.:

–Yes, they are.

John Paul Stevens:

So that if the fact is proved, there is no issue about whether it was aggravating.

But in the mitigating circumstance category there are two things the defendant must prove: one, that the fact exists, and, two, that it is mitigating.

So they are not parallel.

Malcolm Ray Hunter, Jr.:

Your Honor, as… that is correct, Your Honor.

As to the nonstatutory mitigating circumstances which may be considered, and also as to the statutory mitigating circumstance of age that was submitted in this case, the jury did have to find two things.

So that, in this case, different from Mills, there are really two layers of possible arbitrary action by the jury.

All 12 jurors could agree that a fact is proven… they… so that the defendant has… has made his burden of proof on the question of fact, and 11 of them could find that it is extremely mitigating.

And in fact, so mitigating that they would impose a life sentence if they could consider that evidence.

But one juror can find, in the jury room, in secret, that that circumstance, to his mind, is not mitigating.

And on that basis, the evidence… the jury has to decide the case without considering that evidence.

And that can be so even though that 12th juror might believe there is some other mitigating circumstance in the case upon which basis that juror would vote for life.

But because that is not unanimous, all 12, if they were allowed to consider the mitigation each of the 12 believes, would vote for life.

But because of the unanimity requirement none of them would be able to consider that mitigation.

Antonin Scalia:

This happens all the time with respect to subissues that are… that… that are within one major issue.

Even on the issue of guilt.

You might have… you might have 11 jurors who believe that… that the defendant was there at… the scene, one who doesn’t believe he was at the scene.

Perhaps all 12 believe that if he was at the scene he pulled the trigger.

You… you have an odd result, since only… they all believe he pulled the trigger, since only one of them believed he wasn’t there, even the one that… every… everybody’s vote is… is distorted when you have subissues like this.

That happens all the time.

Malcolm Ray Hunter, Jr.:

Your Honor–

Antonin Scalia:

I don’t know why this is such… such an extraordinary thing.

Malcolm Ray Hunter, Jr.:

–The difference is, Your Honor, is that in this case when jurors disagree, the 11 have to look at the case from that point on through the eyes of… of the one.

That… that’s the difference.

If they could disagree and then bring that down to the final sentencing stage and say well, we disagree as to the basis, but we’ll talk about it, and here is what we think the appropriate sentence is in the case, after being directed through the aggravating and mitigating circumstance.

That is the scheme that the vast majority of states, I believe, have.

Antonin Scalia:

But… but very often, if… if you need one additional element for first degree murder, for example, only one juror believes that that element does not exist, all of the other 11 therefore have to regard the rest of the case as a second degree case–

Malcolm Ray Hunter, Jr.:

Only–

Antonin Scalia:

–and proceed on that basis.

Isn’t that right?

Malcolm Ray Hunter, Jr.:

–Only if those 11 decide to join that one and say yes, it’s second degree murder.

Only if they do that.

Now, if you have a system that requires the jury to be unanimous as to all the points, then there’s going to be give and take, and one may convince the other 11.

But I submit to you that that is a much different case than the case where one can take a position, he has no duty or no interest in trying to convince the other 11 that his position is correct.

He can just black ball, he can just literally prevent them from considering that mitigation at the sentencing stage without any convincing.

If we had a true unanimity system in North Carolina then I think it would be like the system that the dissenters approved in Mills.

But the problem is–

Antonin Scalia:

But that… that argument would apply to aggravating circumstances as well, necessarily.

Malcolm Ray Hunter, Jr.:

–That’s exactly right, Your Honor.

But because North Carolina… and I don’t believe the system for deciding aggravation is a reliable one either.

Because we have a system that in some cases would allow one juror to black ball aggravation in some cases, and therefore that defendant might get a life sentence who doesn’t deserve it.

I don’t think the cure for that is to allow black ball of mitigation in another case, in Dock McKoy’s case, and… and allow a defendant to get a death sentence in a case where it is not appropriate.

You know, the… the requirement that the jury be unanimous as to aggravation and the requirement that the jury be unanimous as to mitigation was a decision that is not in our statute; it was a decision that was made by the North Carolina Supreme Court.

It is essentially judicial gloss on our statute; it is not required by the statute.

They… they simply made the decision in Kirkley, back in 1983, that that would be the appropriate way to go.

The problem with it, though, as shown in Mills, decided by this Court, is that it allows preclusion of mitigation.

It could allow the imposition of the death penalty despite the existence of factors which would call for a lesser penalty.

That was exactly the problem that was seen in Mills, decided last term–

Antonin Scalia:

Now, how… how would a majority vote solve this problem?

I mean, you… you could still have the same kind of extortion on the part of one juror if you… if you say only a majority has to find both aggravation and mitigation, and the jury is split six-six.

What incentive is there for any of the six to change their mind?

They… they know that if they don’t change their mind there is no aggravation found.

Malcolm Ray Hunter, Jr.:

–Well, I think there are problems with even having a majority system, Your Honor.

I… I think you are correct.

The three things that I think can be… can be done–

Antonin Scalia:

We can’t run a legal system; there are problems with everything.

Malcolm Ray Hunter, Jr.:

–is one, you have true unanimity.

Unanimity both ways, which is the way the dissenters in Mills interpreted the statute in… in Maryland.

Sandra Day O’Connor:

So, in your view, if the jurors had to be unanimous either to find or to reject mitigating circumstances, you would find no objection?

Malcolm Ray Hunter, Jr.:

There would be no preclusion in that instance, because all… all 12 jurors, they would have thought it out and agreed as to what was… whether a fact was true or not.

It seems to me that if–

Sandra Day O’Connor:

And what if they can’t agree?

Then under that system what happens?

Malcolm Ray Hunter, Jr.:

–Under that system there would be a hung jury, and I should add that in North Carolina where the jury can’t agree the… the legislature has decided that that defendant should get a life sentence.

Maryland also used to have this same statutory scheme.

They thought better of it and changed it so that now in Maryland if there is a hung jury they go back and have another sentencing hearing.

If the state is concerned about reliability and concerned to the extent that they think that unanimity is required for a finding of mitigating circumstances, then there’s a… there’s a certain cost to that, I think, in efficiency.

There are going to be more hung juries if you have true unanimity.

But our point is simply if it is very important, for instance for this jury to decide whether Dock McKoy had a mental disturbance at the time that this crime occurred… well, it’s important, the jury’s decision that that is true is important, but the jury’s decision that that is not true is equally important.

Because what they are deciding is not merely that a burden has not been met.

They are deciding Dock McKoy’s life without consideration of any mental disturbance in the case.

So I think there should be equal concern for reliability in the decision that that mitigating circumstance is not present.

It… it seems to me all together arbitrary to allow one juror to dictate to the other 11 that… that fact, that question of fact, and that all 12 should either have to agree.

Or there is another suggestion that would be more efficient, and that is to allow… continue to direct the jurors to the mitigating circumstances, even let the jurors vote on the mitigating circumstances, but those jurors who do not command a unanimous verdict on a mitigating circumstance can simply consider that in steps 3 and 4.

In other words, just simply allow those jurors to consider the mitigation that those jurors would find, those 11 jurors would find, allow them to consider it at the final sentencing stage.

That, it seems to me, you lose nothing in reliability, and in fact I think that is a more reliable determination.

I think that determination about… about the defendant, where 11 of the 12 jurors agree on the fact, is much more reliable than a determination where only one of 12 agree.

John Paul Stevens:

Mr. Hunter, you keep emphasizing agree on the fact.

But am I not correct that, say… how… how young… what is the youngest age at which a person can be executed in North Carolina?

Malcolm Ray Hunter, Jr.:

6… 17, now, Your Honor.

John Paul Stevens:

Well, supposing there is uncontradicted evidence that the defendant was 17 years old, and all 12 agree to that fact, and one of the 12 says that may be true, but I don’t think that is any mitigation.

I think a 17-year old should be treated the same as a 30-year old, so I don’t consider it mitigating.

Now that means, as I understand it, the other 11 may not treat it as mitigating.

Malcolm Ray Hunter, Jr.:

That is correct, Your Honor, and–

John Paul Stevens:

It seems to me that is much more significant than the question of whether they disagree on whether he is 17 or not.

Malcolm Ray Hunter, Jr.:

–That is… that is really the second layer of arbitrariness that exists in the North Carolina system that did not exist in… in the Maryland system, as least as I read footnote 8 in… in the Mills decision, where all the jury was deciding in the Maryland case is… was whether the fact was proven or not.

Malcolm Ray Hunter, Jr.:

And if they couldn’t agree, then it was… the fact was out of the case.

But in this case a juror can do exactly what the judge did in Skipper, for example.

He can decide that some piece of evidence, some non statutory mitigating circumstance, is not relevant in his mind.

But instead of being done out in open court where every, where it will be recorded by a trained judge and where we can review it and decide that in fact that judge made an error, all we have is a… is a jury sheet that says the answer is no.

We don’t know if it was on the basis of the facts or on the basis of the law.

And so it seems to me that, if anything, these jury sentencing states, like Maryland and like North Carolina, we should be more careful with the scheme so as not to allow this sort of preclusion, because it’s essentially unreviewable.

If we have a scheme that allows it, there is no way to prove it after the fact.

William H. Rehnquist:

Do you think the Constitution requires that it be a set of questions and answers, rather than a judge’s charge to the jury outlining the steps they should go through, and then just a verdict of death or life?

Malcolm Ray Hunter, Jr.:

No, Your Honor, and I think–

William H. Rehnquist:

No, no what?

Malcolm Ray Hunter, Jr.:

–No, the Constitution does not require it.

I think, in fact, North Carolina’s system is a lot more elaborate than it needs to be, but elaborate… being elaborate and being formal is not the same as being fair and being… being more careful about the defendant’s rights.

And I think the way the North Carolina system can work is an example of that fact.

In fact, the statute itself does not even require any formal findings of mitigation.

Again that was decided by our North Carolina Supreme Court.

You could simply find an aggravating circumstance, narrow the case, ask the jury to consider the mitigation, and then go on and make your ultimate decisions.

The problem with the North Carolina–

William H. Rehnquist:

If you had a system without any findings, where the judge just charged on all the points and the jury came back with a simple verdict of either death or life, you… wouldn’t have the basis for review that you’re talking about.

Malcolm Ray Hunter, Jr.:

–That is right, Your Honor.

That… and that would be one reason to perhaps have another scheme.

But I think a scheme that allowed the… either required the jury to be unanimous all the way or a scheme that said where you are not unanimous, those jurors can bring it down, it seems to me the North Carolina Supreme Court in reviewing the case would be interested to know, for example, that they were 11 to one in favor of one mitigator that they didn’t consider.

And that they were nine to three in favor of another mitigator that they didn’t consider.

That would just be additional information.

So, if the concern is for better recordkeeping, then… then… then that could certainly be accomplished by–

John Paul Stevens:

Mr. Hunter, do you think that the question whether an age of 16 is a mitigating factor or not is a question of law or a question of fact?

Malcolm Ray Hunter, Jr.:

–I think it’s a question of law, Your Honor.

John Paul Stevens:

Thank you.

Tell me, what if… what if… I mean, we’re dealing with a situation where there are no enumerated mitigating factors in the law, right?

Malcolm Ray Hunter, Jr.:

There are some enumerated mitigating factors.

Antonin Scalia:

Right.

Antonin Scalia:

And perhaps constitutionally there can’t be a closed list of mitigating factors.

Malcolm Ray Hunter, Jr.:

There is no enclosed list, there are some enumerated, and then there are additional nonstatutory mitigators–

Antonin Scalia:

And you expect a jury to be unanimous in… some cases, that in the whole scope of whatever might be considered mitigating by anybody in the world, none exists in this case.

That is the kind of unanimity factor you think the Constitution requires the jury in North Carolina to be asked.

Malcolm Ray Hunter, Jr.:

–No, Your Honor–

Antonin Scalia:

All it takes is one juror who thinks that… that one thing… I don’t know… one thing is a mitigating factor which nobody else in the world conceives of.

Malcolm Ray Hunter, Jr.:

–The way that Maryland changed its sentencing scheme, even before Mills was decided, to allow… if it is just one juror, let that one juror bring it down and consider it in the ultimate sentencing phase.

And then there would be no exclusion.

In other words, you don’t have to require unanimity both ways, that is not the only way the Constitution can be satisfied.

Another way the Constitution could be satisfied would be to allow the jurors to vote on mitigation, and then those that don’t have a unanimous verdict, those jurors can still consider that mitigation at the ultimate sentencing phase.

In other words, it doesn’t… and as I… as I said to the Chief Justice, I don’t believe that you even have to have formal findings of mitigation at all to have a constitutional sentencing scheme, but what you can’t have, what Mills held last term you can’t have, is a scheme that allows the preclusion of mitigation by as few as one juror for all the rest.

That, it seems to me, is… and as the Court said, was the height of arbitrariness.

You know, if… if we look back at the Lockett cases, if… if we’re making a decision as to who is better to make a decision about whether a circumstance is mitigating, for example, we won’t let a judge do it for the… for the jury.

The… the… the… a single hold-out juror, it seems to me, is the worst possible person, if you are thinking of all the decision makers.

We won’t let the legislature do it.

A single hold-out juror, it seems, is the worst possible decision maker to be in the position to make that decision.

If… if there are no further questions I would like to reserve the remainder of my time for rebuttal.

Thank you very much.

William H. Rehnquist:

Very well, Mr. Hunter.

Mrs. Byers.

Joan Herre Byers:

Mr. Chief Justice, and may it please the Court:

The issue here, as in several other cases now before this Court, deals with the state’s right to have a sentencer rationally assess evidence, or plead for life sentence instead of death.

McKoy versus North Carolina specifically involves whether a state may hold the defendant to a burden of proving his mitigation with a reasonable certainty to the entire sentencing body, the jury.

In North Carolina, just as aggravating factors must be found by all jurors or they are considered not to exist, North Carolina has made the policy determination to have symmetry, so that likewise the mitigation must be found by all jurors, or it likewise does not exist.

Sandra Day O’Connor:

Mrs. Byers, if the Mills case applies here, how do you distinguish the North Carolina scheme?

Joan Herre Byers:

Justice O’Connor, I do not read the Mills case as holding that this type of system is per se bad.

I understood Mills to be concerned with the issue of ambiguous jury instructions in a very different system, a system where the no vote by one juror on mitigation could force a death penalty without any kind of further consideration of the appropriateness of the death penalty by the rest of the jury.

This is not present in North Carolina.

One juror in North Carolina can, at best, say that mitigation… that… that… that juror does not find that mitigation exists by a preponderance of the evidence.

One juror in North Carolina cannot mandate a death sentence.

Joan Herre Byers:

I think that is a significant difference, because just as there is no one way to reach–

Sandra Day O’Connor:

What happens in North Carolina if one out of 12 jurors finds no mitigating circumstances proven?

Joan Herre Byers:

–If one juror, pursuant to their instructions, finds that the evidence does not rise to a preponderance of the evidence, and after deliberation does not, cannot agree, then the mitigation is deemed insufficiently reliably proved and does not exist.

However, that–

Sandra Day O’Connor:

So, that would result, if there is an aggravating circumstance, in an instruction that tells the jury to impose the death sentence?

Joan Herre Byers:

–No, Justice O’Connor.

There is yet one more step, where the jury must determine unanimously and beyond a reasonable doubt, that the aggravating factor found by the jury… or factors found by the jury to exist, is sufficiently substantial to warrant imposition of the death penalty in this case.

So the jury still has that vehicle through which to give their reasoned, moral response, and determine whether or not, given the substantiality of the aggravating factor, death is in fact appropriate in this case.

Sandra Day O’Connor:

And you say that was absent in Maryland.

Joan Herre Byers:

Yes, in Maryland the failure to find mitigation mechanistically forces a sentence of death.

The jury cannot even vote about whether they consider the aggravating sufficiently substantial.

In Maryland the statute ends with the weighing process and does not go on to that fourth step.

North Carolina is unique, or almost unique, among the states in having this type of step.

Therefore, we feel that this kind of burden of proof does not raise any of the dangers of arbitrariness which possibly could have resulted from a Maryland burden of proof of this type.

So, for that reason alone we find it, a difference.

Further, North Carolina, as a matter of state policy unlike Maryland, has determined, as a matter of our state law, that evidence ceases to be used in the balancing process once it is found insufficiently reliable to support a mitigating factor.

And, as Justice Blackmun noted in footnote 7, the Maryland court had taken the opposite tack on that, so we say that this is another state law rule which does distinguish these cases.

John Paul Stevens:

May I question you a moment about the distinction, because, supposing you have a case in which if you just look at the aggravating side you feel quite confident the jury would say this is a sufficiently serious crime that it justifies the death penalty.

But if the jury were to consider the fact that the defendant was 16 years old and had military service, say… or maybe he couldn’t do that if he was just 16… but say two or three factors like that, and… and if they were in the balance there would be great doubt about whether there would, the aggravating would outweigh the mitigating.

In such a case, as I understand it, if one juror agrees that the facts exists but the… thinks they have no mitigating significance, that juror can require the others not to consider them, and therefore requires the death penalty be imposed.

Joan Herre Byers:

Well, again, no, Your Honor.

We have a specific… an absolutely specific statutory instruction in our issue 4.

John Paul Stevens:

I understand.

I am assuming you satisfy issue four if you don’t consider mitigating circumstances.

Joan Herre Byers:

Oh, okay.

I apologize.

John Paul Stevens:

But that is not sufficient if they were to consider youth, military service, the fact he was intoxicated, three or four things like that, but one juror says I don’t care about those things, I don’t consider it mitigating, even though I agree all those facts are correct.

That juror will therefore cause the death penalty to be imposed, if I understand it.

Joan Herre Byers:

No, you do not understand our system totally correctly, then, sir.

Justice Stevens, the North Carolina statute sets out eight specific mitigating factors, much like Maryland did.

John Paul Stevens:

I understand.

Age is one of them.

Joan Herre Byers:

And… age is one of them.

And if they are found to exist, they must be given mitigating effect, that is–

John Paul Stevens:

Well, you always have some age.

You always have some age.

And a juror can say I don’t think that age is mitigating.

You don’t always get mitigating… maybe he’s 35 years old.

Joan Herre Byers:

–Well–

John Paul Stevens:

And everybody agrees on his age… but the only issue is whether that age is a mitigating factor or not.

Joan Herre Byers:

–That is probably the only one of the statutory mitigating circumstances where we could even talk about the–

John Paul Stevens:

Well, suppose the significant, no significant past… criminal history.

Supposing he has three speeding tickets.

One juror could say that is significant.

The other 11 could say that is silly; that’s not significant.

But if one thinks it is significant, that cannot be counted as a mitigating circumstance.

Is that not correct?

Joan Herre Byers:

–That’s correct, but again it is an issue of a burden of persuasion and the defendant has not reached it, and he carries it, just as we carry the burden of proving that aggravating factors exist beyond a reasonable doubt to all 12 of the jurors, or they don’t exist.

And again, here we also have the same kind of line drawing you have in mitigation, because we have the especially heinous, atrocious or cruel aggravating circumstance which also brings into… to bear a mixed issue of fact and… and law.

So, this is not just on the mitigating side, necessarily, where these… these lines are drawn.

Likewise–

John Paul Stevens:

Yes, but on the mitigating side, the Lockett case imposes a duty on the state to allow its jurors to consider all mitigating circumstances.

And how can you reconcile that case with a system which allows one juror to say age and significant history and so forth can’t be considered?

Joan Herre Byers:

–If it please the Court, I believe this is not a Lockett problem.

Lockett, Eddings, Hitchcock, Skipper, Penry, all deal with exclusion of types of evidence or limitation on the ability to give the proved mitigation full effect.

That is not what we have here.

We are simply dealing with a vehicle by which this mitigation is proved.

We do not in any way in North Carolina limit what the jury can hear, what can be put in beyond the… the wildest realm of just the ordinary evidentiary requirements.

The only thing that North Carolina does, and we believe properly does, is we require the defendant to prove his mitigating factors to the satisfaction of the whole jury so that we can have an understanding and a belief that the evidence in mitigation, like the aggravation in aggravation, is reliably proven.

And we believe this is different from Lockett.

Joan Herre Byers:

Lockett dealt with a jury not being allowed to hear certain types of evidence or give any consideration to types of evidence.

John Paul Stevens:

You have to use the words may not consider.

It says the jury must be able to consider it.

Joan Herre Byers:

There is full consideration with our jury.

Sandra Day O’Connor:

Mrs. Byers–

–How is your… excuse me–

–Go ahead.

Well… what if the jury… all the jurors think that there is some mitigating circumstance, but they don’t agree unanimously on what it is.

They have different reasons.

Some think age, some think mental capacity, some think different things.

Now, under the North Carolina system, none of the mitigating evidence could be given effect then.

Is that correct?

Joan Herre Byers:

I would… well, obviously, under the North Carolina system, all must agree as to the presence of the various ones.

Sandra Day O’Connor:

Well, and they… as I have posited to you, that they all find there is some mitigating circumstance, but they disagree on what it would be.

Joan Herre Byers:

Under those–

Sandra Day O’Connor:

How do they give effect to that if they think that the defendant should not be given the death penalty?

Joan Herre Byers:

–Well, again, Justice O’Connor, the sentencer here is the jury, not the jurors.

And if the entire jury is not convinced of these factors in mitigation, then it ought not use them in its weighing and balancing process.

Now, the–

Anthony M. Kennedy:

So… so that it cannot be considered by the jury as a mitigating factor.

Let’s just get this very clear.

Joan Herre Byers:

–It… it–

Anthony M. Kennedy:

In Justice O’Connor’s hypothetical there are three different possible mitigating factors that the jury discusses.

Each one has one juror object to it.

As of that point a conscientious jury, following the laws of North Carolina, cannot consider any one of those as a mitigating factor under North Carolina law.

Correct?

Joan Herre Byers:

–That is correct, because, again, there was full consideration of the evidence which supports these factors, and if the defendant has not carried his burden of proving these factors to this jury, then it ought not use them in the balancing against those aggravating factors which–

Anthony M. Kennedy:

The problem with that is, it seems to me, is there really, as Justice Stevens’ earlier question pointed out, two aspects to mitigation.

One is, did the historical fact exist.

Was he drunk?

Anthony M. Kennedy:

Did he have mental retardation?

As to that, I can see that a preponderance of the evidence by a unanimous jury may be relevant.

But the next question is whether or not, as a matter of judgment, this should bear on the sentence.

And it seems to me, that if you require unanimity as to that before any juror may consider it, that you are violating the rule we set forth in Mills.

Joan Herre Byers:

–Again, Your Honor, I would come back with the fact that the… it’s not each juror; it is the jury that is the sentencer.

And we put the same type of burden, in fact more heinous burden, on the state to prove the aggravation, which also calls into question not only historical facts, but judgments.

And if we are going to have symmetry, if we’re going to have balancing where the sentencers are balancing off the same sheet, or using the same factors, then we have to have this type of rule.

And, again, we believe that we have not violated Lockett because there is full consideration–

Anthony M. Kennedy:

Well, of course I was talking initially about Mills.

It… it seems to me you may be right, as an abstract matter, that symmetry is… is an appropriate goal, and that what is fair for the state is fair for the defendant.

But I think we did not follow that principle in Mills.

Joan Herre Byers:

–And, if it please the Court, I would suggest that… that Mills did not go that far.

And further, I think one of the problems in Mills was that, unlike North Carolina, the danger of having an otherwise reasonable burden of proof is that suddenly the jury was faced with a fact where the decision was taken entirely out of their hands and they could not give any type of… reasoned approach, or discretion, to giving the death penalty.

Anthony M. Kennedy:

But… but that is your system, too.

If one juror says in these circumstances I do not consider mental capacity to be a mitigating factor, the conscientious jury may not consider that as mitigating circumstance.

And that is exactly what you’ve described.

Joan Herre Byers:

No… no… that… that is not correct, Justice Kennedy.

If that factor, if a mental capacity is found, it is one of our statutory mitigating factors, and it must be given effect.

And in fact, it was given in… effect in this case under the capacity to appreciate the criminality if his conduct was impaired.

So, again, as to the statutory mitigating factors, it… it was given full effect here.

The–

Anthony M. Kennedy:

Well, I was speaking in a hypothetical case.

If one juror could have prevented that from being considered by all the rest of the jurors.

Joan Herre Byers:

–Yes, that’s true.

But, by the same token, one juror can force the aggravating factors not to be found.

We must prove it to all jurors unanimously and beyond a reasonable doubt, or those factors do not exist.

Mitigating factors, the defendant merely carries a preponderance of the evidence.

That is hardly an onerous standard.

Then… and then we go to the balancing.

If all 12 do not agree beyond a reasonable doubt that the mitigating factors found are insufficient to outweigh the aggravating factors found, again, a… a life sentence is forced by that one juror.

Joan Herre Byers:

Indeed, at the balancing stage there is a presumption of life, since it goes to the state to prove beyond a reasonable doubt that the… that the aggravating factors really do outweigh that… that mitigation.

Sandra Day O’Connor:

Well, what if there is no mitigating circumstance found, and there is an aggravating circumstance found?

How are they instructed?

Joan Herre Byers:

Then we go to… then we go to issue 4 of the instructions, and on page 14 of the Joint Appendix, or page 14 and 15 of the Joint Appendix, the jury is told to

“unanimously find beyond reasonable doubt that the aggravating circumstance found by you is or are sufficiently substantial to call for imposition of the death penalty. “

And again, they are to look at this in light of the case.

They are to find it beyond a reasonable doubt, and they’re told an aggravating… circumstance, may exist in a particular case and still not be sufficiently substantial to call for the death penalty.

Therefore, it is not enough for the state to prove from the evidence beyond a reasonable doubt the existence of one or more aggravating circumstances.

It must still… also prove beyond a reasonable doubt–

Sandra Day O’Connor:

Well, I asked you what happened if there were no mitigating circumstances–

Joan Herre Byers:

–And when there are no mitigating circumstances–

Sandra Day O’Connor:

–found by unanimous jury.

Joan Herre Byers:

–Then… then the jury still must determine in that fourth issue whether the aggravating factors found are sufficiently substantial to warrant imposition of the death penalty, and they are specifically told the mere fact of finding an aggravating factor does not mandate death.

They still have to find that death is deserved in this case.

And they look at it in light of the case, and not in light of… you know, in any kind of abstract form.

They don’t just say heinous, atrocious or cruel; that sounds bad to me, therefore death.

They are to look at it under the facts of that case and in light of the case.

The… as… as I said, the burden of proof that we place upon the defendants to prove their mitigation is not onerous.

And it’s an easy one, it is one traditionally placed on defendants to prove matters, particularly within their own knowledge.

It is suggested that there is a hold-out juror; this has been the hypotheticals.

There clearly was no hold-out juror here, since two matters in mitigation were found unanimously.

So, the issue of the hold-out juror precluding all mitigation and forcing a death sentence simply does not exist in this case.

Further, the… I think what this Court needs to look at is the risk of arbitrary action.

And in looking at that, your other cases would suggest that the danger of the hold-out juror is more illusory than real.

This Court, in Johnson v. Louisiana and several other cases, have looked to the fact that jurors take the responsibility seriously and deliberate together.

There is… so there is no real issue of one not listening to the 12, or we certainly can’t assume that on a… on an empty record such as this.

Further, through the… through the use of voir dire, cause and preemptories, full instructions on the burdens and how to find the individual factors in mitigation, reminders to the jury to deliberate together, something which was done in this case,–

Thurgood Marshall:

Ms. Byers,–

Joan Herre Byers:

–Yes.

Thurgood Marshall:

–Is there anything in the record to show that this juror did give reasons?

Joan Herre Byers:

That the… that the jury gave reasons?

Thurgood Marshall:

The juror that wouldn’t go along.

Joan Herre Byers:

There… there’s no showing in this… record that there was a juror that wouldn’t go along.

There is no showing at all that there was any problem whatsoever.

Thurgood Marshall:

Is there any way of having that known?

Joan Herre Byers:

Well–

Thurgood Marshall:

Of course not.

Joan Herre Byers:

–I would… I would not be sure, Your Honor.

I would think that if there is a substantial problem within the jury that there would start being notes coming out–

Thurgood Marshall:

Would you have a problem if a juror, when he walked into jury room, said I am not going on this mitigating business?

Is there anything you could do about that?

Joan Herre Byers:

–Well, there’s nothing, of course, that I can do about that, except–

Thurgood Marshall:

Is there anything anybody could do about that in North Carolina?

Joan Herre Byers:

–Well, yes, sir.

The other 12… the other 11 could refuse to go along with the rest of the process.

I think that we can’t presume that we have this type of arbitrary jury action.

Jurors are assumed to follow their oaths, and part of the requirement–

Thurgood Marshall:

Well, if a juror violates his oath, what can you do about it, if he does it in the jury room?

Joan Herre Byers:

–You can do nothing about it in the jury room if someone violates their oath, but I would… I would think that this Court has–

Thurgood Marshall:

Wait a minute.

Then you agree that if one juror, one juror can stop that mitigating evidence without giving a reason.

Joan Herre Byers:

–One juror… theoretically one juror could stop mitigating evidence without giving a reason, but I think that it takes–

Thurgood Marshall:

Well, why do you need the word theoretical?

Give me a reason where they can.

Joan Herre Byers:

–Well, when I say theoretically, Your Honor, I think that the dynamics of the jury system suggest that that is simply not the way jurors behave, and I believe that this Court has written a series of opinions that say that the jurors are presumed to follow their oaths, and are presumed to act in a responsible manner, Johnson v. Louisiana, and the Oregon case that I can’t pronounce the first name of.

The… but again, you have so many issues along the way to winnow out those irresponsible jurors.

You have the use of wide-ranging voir dire, which was done in this case.

All jurors agreed that they could understand and give attention to ideas of… of mental problems.

If… you get full instructions on how they are to behave.

And indeed, this case, I think, Your Honor, exemplifies the remoteness of the concern you brought out, because here two factors were found.

Joan Herre Byers:

So they were clearly no hold-out jurors.

The state has a significant stake in having the type of line-drawing that we have in this case, and one of the things that is important to our system are… and promotes its rationality, is we have a searching proportionality review, and the listing of this mitigating evidence helps us with this proportionality review.

Our court looks not only to the aggravating factors found in determining whether this is a proportionate sentence, but they also look to all of the issues found in mitigation.

Indeed, this is probably why they started urging us to keep these findings, so that they could look to the cases where life was found, as well as the cases where death was returned, to ensure that this case fell within that core of cases, more appropriately life or more appropriately death.

The issue of unanimity is important because burdens on the defendant, as well as on the state, tend to force the jury at both places to follow channeling, follow reliable standards.

So that… so that those people who get life, and those people who get death, get that in accordance with rules, as opposed to a free-floating whimsy.

The failure to allow the state to allow burdens of proof will… in mitigation as well as aggravation, will really open one end of the sentencing equation to complete open-endedness, complete… complete arbitrary… it… what could be complete arbitrariness.

The Eighth Amendment has never said that its goal was the minimum number of death sentences possible, but rather, to the extent we can, the issues that we’re trying to deal with by these sentences… by these… these evidentiary rules, are to ensure that one person doesn’t get the death penalty on the same basis that another person would, trying to bring rationality into the system.

The jury, after hearing an individual’s evidence, by having this… this standard, and if we are going to have aggravation found by this standard, the need for symmetry is such that we do need this type of rule, the jury, after hearing an individual’s evidence, will have a standard to follow in assessing the evidence’s believability.

And so while each jury of necessity will hear the different evidence that each defendant presents, the… the uniqueness of his circumstances which he brings forth in… in suggestion of a sentence less than death.

Nevertheless, we have in North Carolina, a… a belief and an appreciation that jury to jury, county to county, defendant to defendant, the same standards are being used.

This reliability, this rationality in the process, the systemwide rationality is a very important thing to the North Carolina jury system.

John Paul Stevens:

Let me just ask you one question there.

You say you have the same result in every county in every trial.

In this case, the defendant was 65 and he asked the jury to find that was mitigating, and they didn’t, so 65 is not a mitigating circumstance in this trial.

Is it not possible that another 65-year old defendant, in another county, might persuade the jury that that’s mitigating?

Joan Herre Byers:

I know of no case where a 65-year old has convinced them that that is–

John Paul Stevens:

No, but I’m just saying it’s possible, is it not?

Joan Herre Byers:

–It’s possible–

John Paul Stevens:

And it would not violate any North Carolina rule.

Joan Herre Byers:

–It would not violate any North Carolina rule, but again, giving these types of standards to the jury in finding these mitigating factors helps eliminate the arbitrariness inherent in having different juries determining different cases.

John Paul Stevens:

I don’t understand why the fact that this jury so found in this case will have any impact whatsoever on another trial.

The other jury won’t even know about this one, will it?

Joan Herre Byers:

Well, no, they won’t.

But again, they’ll be using the same mechanisms to reach the end, so they will be gauging the… the worthiness of the evidence by the same standards.

And we think that that is a very important part of what we consider to be a systemwide reliability.

John Paul Stevens:

Well, the standard, as I understand it, is if one juror thinks it is not mitigating, it is not mitigating.

That is the standard.

Joan Herre Byers:

I think it is more that the… that the defendant has not proved to the entire jury and–

John Paul Stevens:

That’s right.

John Paul Stevens:

He… he only convinced 11 of them, but he might convince 12 in the next case.

That is what, I don’t see how you can say this enhances uniformity.

Under your system, as I understand it, the defendant would have to convince all 12 that… that a bizarre factor like the fact that he is 65, or 60, or 53, is mitigating.

Joan Herre Byers:

–That is correct.

Antonin Scalia:

He possibly could, but he would have to convince all 12.

Joan Herre Byers:

That is right.

Antonin Scalia:

Whereas under the system urged by… by the Petitioner here, if he convinces just one that the fact that he is 53 should be mitigating, that alone will justify that juror in using that factor to prevent the others from imposing the death penalty.

Joan Herre Byers:

Well, that… that’s correct, Your Honor.

And to take that–

Antonin Scalia:

And your point is that that seems much more bizarre.

Joan Herre Byers:

–That is right.

And we… we basically, when we have people weighing and things like that, we want them using the same list, both in aggravation and mitigation.

There is no real principled way… the unanimity requirement forces people to gauge the weight and worthiness of this evidence as they go through the deliberative process.

We are concerned that telling every juror that they can find what they want will cause us simply to have laundry lists of mitigation, and where it will simply not have so much a jury verdict, and that is after all the sentencer, as a consensus, a… a listing of what everyone thought they believed to be mitigating.

The… the jury is the cross-section of the community.

They are the community’s voice.

We believe that what the entire cross section of the community does not believe as mitigating should not be found to be mitigating, because they are, after all, the expression of the community’s voice.

This Court has said that there is really no one right way to reach a sentencing decision.

Spaziano and Pulley, and many other cases, have emphasized that everyone has a different way of doing things.

North Carolina’s system meets all of the Eighth Amendment concerns.

We narrow the class of death-eligible defendants, we allow all mitigating factors to be fully considered, as they are necessarily considered when the… the decision is made whether in fact mitigating factors are found.

There is weighing, and even beyond weighing, we go further and require the jury to still determine, even if the aggravating outweigh the mitigating, that it is really sufficiently substantial to warrant imposition in this death… in that particular case.

This is more than the Constitution requires.

We believe that our system provides a rational basis, a systemwide reliability, and part and parcel of that is our mitigating–

Byron R. White:

Could… couldn’t you live with the notion that you will make… you will require a unanimous verdict for historical facts, like age, or whether he was drunk, or things like that.

But if… if the jury says we unanimously find that these facts exist, wouldn’t you let… would you also have to require that the jury, to a man or to a woman, believes that that fact is mitigating?

Joan Herre Byers:

–Well, the… the statutory–

Byron R. White:

Couldn’t… couldn’t you live with letting each juror give what significance to a… an established fact, that it wants to?

Joan Herre Byers:

–Well, of course that is not the system we have before us here, or even the one that was suggested.

And certainly wasn’t the one that was–

Byron R. White:

Well, why is that the system?

Don’t you require… you require unanimity both as to the existence of the fact and whether it’s mitigating.

Joan Herre Byers:

–We require unanimity as to the existence of the fact and as to the eight mitigating factors.

The legislature has already told us those are mitigating, so there is no judgment made on that.

Byron R. White:

Right.

Joan Herre Byers:

As to the others, we say that the jury also unanimously should determine that, since the jury is the sentencer, is the cross-section of the community, and we believe the whole cross-section of the community should also believe that that in fact mitigates.

Thank you.

William H. Rehnquist:

Thank you, Ms. Byers.

Mr. Hunter, do you have rebuttal?

You have five minutes remaining.

Malcolm Ray Hunter, Jr.:

Thank you very much, Chief Justice.

Anthony M. Kennedy:

Counsel, with reference to Justice White’s last question, North Carolina has never contended, has it, that there must be unanimity only as to the historical fact, but that thereafter jurors can weigh or weigh… not weigh on an individual basis.

They’ve never contended that, have they?

Malcolm Ray Hunter, Jr.:

No, Your Honor.

No, they have not.

Anthony M. Kennedy:

And is… does the North Carolina Supreme Court’s decision explicitly come to grips with this and say that unanimity is required for both?

Malcolm Ray Hunter, Jr.:

They acknowledge the fact that, as to the nonstatutory mitigators and also the statutory mitigator of age, the jury has to find two things, as this jury was explicitly instructed, that it is a fact, number one, and that it is mitigating, as a matter of law, if you will, number two.

Byron R. White:

Well you… you say that it is unconstitutional to… to require the jury to unanimously find and… what a person… what age a person is.

Malcolm Ray Hunter, Jr.:

Well, I think if, for instance–

Byron R. White:

Suppose, well… say it is intoxication.

Malcolm Ray Hunter, Jr.:

–Okay.

Byron R. White:

Say there was a dispute on a fact as to whether the person was intoxicated at the time of the crime.

Now, is it unconstitutional in your view to require that fact, if it is going to be considered in mitigation, to be unanimously found?

Malcolm Ray Hunter, Jr.:

Your Honor, I think if 11 jurors believe he was intoxicated, and that it’s an important mitigator and–

Byron R. White:

So your answer is yes.

It is unconstitutional.

Malcolm Ray Hunter, Jr.:

–My answer is yes.

My answer is yes, with an explanation, Your Honor, as they say in district court.

My… Your Honor, if 11 believe that he was intoxicated and that’s important, and only one believes that he is not intoxicated, I think that it is a less reliable and more arbitrary to decide the case as if the defendant were not intoxicated.

If I have to choose between how that fact is going to be decided in that case, I think if we decide on the basis of the one juror’s vote instead of the 11, that is less reliable.

Malcolm Ray Hunter, Jr.:

So, my answer is yes.

Byron R. White:

What about age?

What if there is an argument about how old the person is?

Malcolm Ray Hunter, Jr.:

If 11 believe that the… the defendant’s age is mitigating, and only one doesn’t–

Byron R. White:

No, no.

There is a fight over… there is a dispute as to how old he is.

And that has happened in this Court, by the way.

Is that… is it wrong then to–

Malcolm Ray Hunter, Jr.:

–I would still… I think that’s what was held in… in Mills, Your Honor, that allowing one juror to decide for the 11… other 11… because in Mills, this second level was not there.

In Mills they were only finding facts.

The jury was only finding facts–

Byron R. White:

–Historical facts, yes.

Malcolm Ray Hunter, Jr.:

–Yes.

And this Court held, in… in Mills, that that was the height of arbitrariness, to let one person essentially veto facts for the others.

I did want to–

William H. Rehnquist:

Well, what if it comes out seven to five?

Are you… are you going to let seven people veto facts for the other five?

Malcolm Ray Hunter, Jr.:

–Well, I would say… my personal belief is no, that still wouldn’t be constitutional, because they could be preclusion, but it is seven times less arbitrary than the system we have in North Carolina now.

As to the question about what the jury does with question 4, Justice, I wanted to be sure and point out that in North Carolina it is very clear in question 4 the only thing that jury can consider is the mitigating circumstances that were found, not the whole case.

They are not doing a… a review of the entire case.

On page 73 of the Joint Appendix, at the top of the page, the North Carolina Supreme Court says it then allows the jury to consider only that evidence which is relevant, which in North Carolina’s definition of the word is that evidence which the jury has unanimously found, in sentencing the defendant.

Sandra Day O’Connor:

Yes, but, apparently the jury is instructed that if there are no mitigating circumstances and there are aggravating circumstances, that they still have to determine whether those aggravating circumstances are sufficiently substantial to justify giving the death penalty.

There is another layer of decision.

Malcolm Ray Hunter, Jr.:

That is true.

There is another layer, but it is only a reconsideration of the aggravating circumstances that were found, plus if any mitigating circumstances were found, consideration of those.

This Court has never held that because we are very solicitous about the consideration of aggravation, for instance in Sumner and Roberts are two cases that… that occur to me, we have never held that because, no matter how narrowly we… we… we treat aggravation, that that excuses the exclusion of mitigating evidence.

That’s, I think, the Lockett doctrine which was violated in Mills, Your Honor, and again in this case.

Thank you very much, Your Honor.

William H. Rehnquist:

Thank you, Mr. Hunter.

The case is submitted.