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BROWN v. SANDERS Stevens, J., dissenting
of three, and invalidation of one is presumptively harmless. See Stringer v. Black, 503 U. S. 222, 232 (1992) (“In a non weighing State, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty”). By contrast, when a jury is told to weigh aggravating circum stances against mitigating evidence in making its penalty de cision, four aggravators presumptively are more weighty than three. See ibid. (“[W]hen the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale”). For example, when a jury, as here, is incorrectly informed that its finding that a killing was “heinous, atrocious, or cruel” provides a reason for imposing death, see generally Cal. Penal Code Ann. § 190.2(a)(14) (West Supp. 2005), that error may well affect the jury’s deliberations. Having been told to weigh “[t]he circumstances of the crime . . . and the existence of any [aggravating] circumstances found to be true,” § 190.3(a) (West 1999) (emphasis added), the jury may consider its conclusion that the killing was heinous sepa rately from the “circumstances of the crime” underlying that erroneous conclusion, improperly counting the nature of the crime twice in determining whether a sentence of death is warranted. Or the jury, recognizing that the legislature has decided that a “heinous, atrocious, or cruel” murder, without more, can be worthy of the death penalty, may consider this a legislative imprimatur on a decision to impose death and therefore give greater weight to its improper heinousness finding than the circumstances of the crime would otherwise dictate. Under either scenario a weight has been added to death’s side of the scale, and one cannot presume that this weight made no difference to the jury’s ultimate conclusion. There are, of course, different weighing systems. If a jury is told that only those specific aggravating circum
