abuse.” 492 U.S. at 323. In Abdul-Kabir, the Court interpreted Penry to require
that juries be permitted to give “meaningful effect” to almost all types of
mitigating evidence. 127 S. Ct. at 1675.
A. The Nullification Instruction
To correct the special issues’ inadequacies identified by the Supreme Court
in Penry I, Texas courts temporarily adopted a “nullification instruction,” like
the one presented to the jurors in the instant case. Such an instruction permits
the jurors to answer “no” to one of the special issues, even though the proper
answer is “yes,” if they nonetheless believe that the death penalty is not
warranted. In Penry II, the Supreme Court found this innovation insufficient.
See Penry v. Johnson, 532 U.S. 782, 798-804 (2001).
The Court identified two flaws in the special issues nullification
instruction in Penry II. First, it reasoned that the instruction could be read as
a gloss on the special issues, rather than as a vehicle to override them. See id.
at 798. Thus, the jury might have believed that it was still required to give
“truthful answers to each special issue,” even in light of other mitigating
Second, even if the jury did properly understand the nullification
The instruction Justice O’Connor complained of as ambiguous in Penry II read, in part,
“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,