Harry Blackmun

“ Indeed, the Court's reliance on Spaziano -reflecting an implicit assumption that trial and appellate judges somehow are interchangeable-is symptomatic of the confusion that seems to me to characterize the majority opinion. To support its conclusion that appellate reweighing is permissible, the majority notes: "It is a routine task of appellate courts to decide whether the evidence supports a jury verdict and in capital cases in 'weighing' States, to consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed. ”

“ An appellate court is ill suited to undertake the task of capital sentencing, not simply because of its general deficiencies as a factfinder, or because the costs of erroneous factfinding are so high, but also because the capital sentencing decision by its very nature is peculiarly likely to turn on considerations that cannot adequately be conveyed through the medium of a written record. ”

“ Our recognition that trial-level sentencing plus appellate review is better than trial-level sentencing alone does not support the Court's conclusion that appellate sentencing itself is sufficient to satisfy constitutional requirements.↑ Indeed, in another section of its opinion in the case before us, the Supreme Court of Mississippi rejected petitioner's claim that the evidence failed to support the jury's sentence. ”

“ Though the victim did not die instantaneously, there is no evidence of prolonged physical suffering; there is no evidence that petitioner intended the victim to suffer; and there is no finding that petitioner was the triggerman. In arguing for this aggravating circumstance, the prosecutor relied in part on the physical pain suffered by the victim, but also stressed the victim's youth and industriousness-characteristics that have nothing to do with the Coleman definition. ”

“ It would be the rare case, however, in which it could truly be said beyond a reasonable doubt that a sentencing decision would have been the same in the absence of an invalid aggravating circumstance. Harmless-error analysis would be especially problematic (if not impossible) in Mississippi, where the jury is not required to make written findings concerning mitigating circumstances, and where the jury need not impose a death sentence even if aggravating factors outweigh those in mitigation. ”

“ To begin with, the court has disavowed the Coleman definition in sustaining capital sentences. See Irving v. State, 441 So.2d 846, 850 (1983) (aggravating circumstance held to be supported by the record even though victim died instantly: "While the great majority of death penalty cases affirmed by this Court involve some type of physical and/or mental torture to the victim, we have never specifically held that a finding of [this aggravating factor] must be supported by evidence of prolonged suffering") , cert. ”

“ Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) , this Court considered Georgia's "outrageously or wantonly vile, horrible or inhuman" aggravating circumstance. The plurality stated: "There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman.' " Id., at 428-429, 100 S.Ct., at 1764-1765. ”

“ Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. ”

“ The possibility that such cases falling within the § 2254 (d) (2) exception may exist, however, does not excuse the habeas court of its obligation to examine the entire state process to determine whether the Enmund findings have been made, for it is by no means apparent that appellate factfinding will always be inadequate. For example, in some cases it may be possible to determine the Enmund issue adversely to the defendant even if credibility issues and other ambiguities in the record are resolved in his or her favor. ”

“ State, 539 So.2d 1378, 1389 (Miss.1989) ("It matters not, however, whether the record is now complete, for the [evidence] must first be presented to the circuit court jury. The circuit court jury sits as factfinder and sentencer, and it is that body, not this Court, which should make all of the credibility determinations that go along with the exercise of that duty") ”