Here's the part of the jury instruction I was talking about above:
You individually determine whether mitigation exists. In light of the aggravating
circumstance you have found, you must then individually determine if the total of the
mitigation is sufficiently substantial to call for leniency. “Sufficiently substantial to call for
leniency” means that mitigation must be of such quality or value that it is adequate, in the
opinion of an individual juror, to persuade that juror to vote for a sentence of life in prison.
Even if a juror believes that the aggravating and mitigating circumstances are of the same
quality or value, that juror is not required to vote for a sentence of death and may instead
vote for a sentence of life in prison. A juror may find mitigation and impose a life sentence
even if the defendant does not present any mitigation evidence.
A mitigating factor that motivates one juror to vote for a sentence of life in prison may
be evaluated by another juror as not having been proved or, if proved, as not significant to
the assessment of the appropriate penalty. In other words, each of you must determine
whether, in your individual assessment, the mitigation is of such quality or value that it
warrants leniency in this case.
The law does not presume what is the appropriate sentence. The defendant does not
have the burden of proving that life is the appropriate sentence. The State does not have the
burden of proving that death is the appropriate sentence. It is for you, as jurors, to decide
what you individually believe is the appropriate sentence.
In reaching a reasoned, moral judgment about which sentence is justified and
appropriate, you must decide how compelling or persuasive the totality of the mitigating
factors is when compared against the totality of the aggravating factors and the facts and
circumstances of the case. This assessment is not a mathematical one, but instead must be
made in light of each juror’s individual, qualitative evaluation of the facts of the case, the
severity of the aggravating factors, and the quality of the mitigating factors found by each
juror.
