Justice Scalia, with whom Justice Thomas joins, dissenting.

I would affirm the judgment of the Texas Court of Criminal Appeals. See Walton v. Arizona, 497 U. S. 639, 673 (1990) (Scalia, J., concurring in part and concurring in the judgment).

FOOTNOTES

Footnote 1

The text of the special issues given to the jury was as follows: "(1) Was the conduct of the defendant that caused the death of the deceased committed deliberately, and with the reasonable expectation that the death of the deceased or another would result? (2) Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?" Pet. for Cert. 5.

Footnote 2

The supplemental instruction in Penry II stated: " '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 defendant's 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 defendant's 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.' " 532 U. S., at 789-790 (emphasis added).

Footnote 3

Four judges would have found petitioner's claim procedurally defaulted. See 132 S. W. 3d, at 417 (Hervey, J., concurring); id., at 428 (Holcomb, J., concurring). The majority of the court, however, declined to adopt this holding and reached petitioner's claims on the merits.

Footnote 4

The concurring opinions below straightforwardly recognized this problem. See 132 S. W. 3d 407, 427 (Tex. Crim. App. 2004) (Hervey, J., concurring) (concluding that the " 'nullification' instruction would, as a matter of federal constitutional law, suffer from the same defect as the one in Penry II had applicant presented any mitigating evidence that was beyond 'the effective reach of the sentencer' " and conceding that the instruction given to petitioner may have been inadequate "as a matter of federal constitutional law"); id., at 428 (Holcomb, J., concurring) ("The nullification instruction provided to Smith's jury contained the same defects the Supreme Court identified in Penry II. Therefore, the jury was unconstitutionally precluded from considering and giving effect to Smith's mitigating evidence").

Footnote 5

There is another similarity between this case and Penry II. In Penry II, we found it significant that the prosecutor admonished the jury to " 'follow your oath, the evidence and the law' " prior to the deliberations in which the jury was required to fill out the verdict form. We held that this statement sent the jury "mixed signals" and "only reminded the jurors that they had to answer the special issues dishonestly in order to give effect to Penry's mitigating evidence." 532 U. S., at 802. The prosecutor here similarly reminded the jury that each and every one of them had promised to "follow the law" and return a "Yes" answer to the special issues so long as the State met its burden of proof. Pet. for Cert. 6. Thus, the nullification instruction presented the same ethical dilemma here and, what is more, it seems that despite the inclusion of the mandatory "shall" language, the nullification instruction may have been more confusing for the jury to implement in practice than the state court assumed.