Harry Blackmun

“ The dissent suggests that the rule announced in Mills is an aberration, a quirk of our Eighth Amendment jurisprudence. In fact, however, it is the North Carolina unanimity requirement which represents an extraordinary departure from the way in which juries customarily operate. Juries are typically called upon to render unanimous verdicts on the ultimate issues of a given case. But it is understood that different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. ”

“ The rejection of a mitigating circumstance, after introduction and full consideration of the evidence, is simply a factual determination. There is no legal impediment to the consideration of the evidence. The requirement of jury unanimity is simply not the type of restriction found unconstitutional in Lockett and Eddings. See State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144, 157 (1983) ." Brief for Respondent in Mills 19-20.
The dissent quotes the first sentence of this passage, characterizing it as a "concession" by the State that a unanimity requirement would be invalid. ”

“ The Court concluded that a rule mandating unanimous agreement before any juror could consider a particular mitigating factor was forbidden by our decisions in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) , and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) . That conclusion was an essential step in the Court's rationale for overturning the Maryland statute. Ambiguous jury instructions, even in a capital case, do not violate the Eighth Amendment simply because they are ambiguous. ”

“ I remain convinced, moreover, that Mills was correctly decided. It is apparent to me that the rule at issue here implicates the concerns expressed in Lockett and Eddings. In my view it is pointless to ask whether the sentencer in this case is the jury or the jurors. The jurors are the jury: and if 11 of them are forbidden to give effect to mitigating evidence which they deem persuasive, then the right guaranteed by Lockett has been effectively negated, even if the restriction is imposed by the 12th member of the sentencing body. ”

“ The State's reliance on the "symmetry" of its law seems to me to be the very antithesis of the constitutional command that the sentencer be allowed to consider the "character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." ”

“ But the injustice of a capital sentence in a case where 11 jurors believe that mitigation outweighs aggravation is hardly compensated for by the possibility that in some other case a defendant will escape the death penalty when 11 jurors believe death to be appropriate. ”

“ If state law provided that all mitigating evidence was first to be presented to the foreperson, who could then decide whatpor tions of it other jurors would be allowed to view, I have no doubt that the sentencer's ability to give effect to the evidence would be impaired. The fact that North Carolina permits any 1 of 12 individuals to exercise the veto hardly makes the impairment less severe. ”