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O’Connor, J., dissenting
could not have affected the verdict in light of the evidence properly before the jury.” 52 Cal. 3d, at 1272, 805 P. 2d, at 933. In my view, such cursory review is clearly insufficient under Clemons. Mississippi, like California, requires its juries to weigh aggravating and mitigating circumstances. In Clemons, the jury had considered an aggravating circumstance we assumed to be unconstitutionally vague—that the murder was “ ‘especially heinous, atrocious, or cruel.’ ” 494 U. S., at 743. We held that the Mississippi Supreme Court could excise the erroneously considered aggravating circumstance and reweigh the evidence on its own; we did not require the court to remand for reweighing by the jury. Id., at 750. We also permitted the Mississippi Supreme Court to determine whether the jury would beyond a reasonable doubt have imposed the death sentence even in the absence of the error. Id., at 752. But because it was not clear whether the Mississippi Supreme Court had actually performed an independent reweighing of the evidence, and because the court had not engaged in a sufficient harmless error analysis based on the record, we vacated Clemons’ death sentence and remanded, so that the Mississippi Supreme Court could choose one course or the other. Id., at 751–754. I would do the same here. The California Supreme Court did not reweigh the aggravating and mitigating circumstances. The court instead appears to have chosen Clemons’ second option, harmless error analysis. Rather than reviewing the record, however, to determine whether the jury would beyond a reasonable doubt have imposed the death sentence given a finding of one special circumstance rather than two, the California Supreme Court upheld the sentence based solely on the fact that the error did not alter the mix of evidence weighed by the jury at the penalty phase. This holding is irreconcilable with Clemons: The unconstitutional vagueness of the “especially heinous” instruction did not change the mix of evidence presented to the jury in that case either, but that fact alone did not support a finding of harmlessness. The California Supreme Court’s conclusion, moreover, makes little sense: All jury instruction errors would be harmless under this reasoning, because none of them add to or subtract from the evidence considered by the jury. In a different case, the California Supreme Court’s brief discussion of this issue might be interpreted as a finding that the evidence of torture was so overwhelming that the instructional error
