546US1
230
Unit: $U17
[08-22-08 15:50:12] PAGES PGT: OPIN
BROWN v. SANDERS Breyer, J., dissenting
weighing” States (for the jury can weigh everything that is properly admissible), I shall continue to use the traditional terminology. The Court has identified Georgia as the proto typical example of a State that has adopted this complete weighing approach. Ibid. B The question in this case arises under the following circumstances. (1) At Stage One, a jury found several aggravating factors, the presence of any one of which would make the defendant eligible for the death penalty. (2) At least one of those aggravating factors was an “im proper” factor, i. e., a factor that the law forbids the jury from considering as aggravating and that the jury’s use of which (for this purpose) was later invalidated on appeal. The sentencing court made a mistake, indeed a mistake of constitutional dimensions, when it listed the “heinous, atro cious, or cruel,” Cal. Penal Code Ann. § 190.2(a)(14) (West Supp. 2005), aggravating factor as one of the several factors for the jury to consider at Stage One. See Godfrey v. Geor gia, 446 U. S. 420, 433 (1980) (plurality opinion). But that mistake did not, in and of itself, forbid application of the death penalty. After all, the jury also found other listed ag gravating factors, the presence of any one of which made the defendant eligible for the death penalty. (3) All the evidence before the sentencing jury at Stage Two was properly admitted. The evidence that supported the improper heinousness factor, for example, also showed how the crime was committed, and the jury is clearly entitled to consider it. Given this outline of the problem, two questions follow. Question One: Is it possible that the judge’s legal mistake at Stage One—telling the jury that it could determine that the “heinous, atrocious, or cruel” aggravator was present—prej udiced the jury’s decisionmaking at Stage Two? In other words, could that mistake create harmful error, causing the
