Page:United States Reports 546.pdf/451

 546US1

240

Unit: $U17

[08-22-08 15:50:12] PAGES PGT: OPIN

BROWN v. SANDERS Breyer, J., dissenting

aggravating factor, a reviewing court need not apply harmless-error review). Common sense suggests, however, and this Court has ex­ plicitly held, that the problem before us is not a problem of the admissibility of certain evidence. It is a problem of the emphasis given to that evidence by the State or the trial court. If that improper emphasis is strong enough, it can wrongly place a “thumb on death’s side of the scale” at Stage Two (sentencing). That is what the Court said in Stringer, that is what the Court necessarily implied in Zant, and that is what the Court held in Clemons. I believe the Court is right to depart from the implication of an errant sentence in Stringer. But it is wrong to depart without explanation from Clemons’ unanimous holding—a holding that at least two Members of this Court have explicitly recognized as such. See Pensinger v. California, 502 U. S. 930, 931 (1991) (O’Connor, J., joined by Kennedy, J., dissenting from denial of certiorari) (noting that the “ ‘especially heinous’ instruc­ tion did not change the mix of evidence presented to the jury in [Clemons]” and “that fact alone did not support a ﬁnding of harmlessness”). The Court cannot reconcile its holding with Clemons. That opinion makes clear that the issue is one of emphasis, not of evidence. Indeed, the Court explicitly disavowed the suggestion that Mississippi’s “reliance on the ‘especially hei­ nous’ factor led to the introduction of any evidence that was not otherwise admissible in either the guilt or sentencing phases of the proceeding. All of the circumstances sur­ rounding the murder already had been aired during the guilt phase of the trial and a jury clearly is entitled to consider such evidence in imposing [the] sentence.” 494 U. S., at 754– 755, n. 5. And the entire Court agreed that the potentially improper emphasis consisted of the fact that “the State re­ peatedly emphasized and argued the ‘especially heinous’ fac­ tor during the sentencing hearing,” while placing “little em­