concurring in part and dissenting in part:
Because I agree with the district court that Payton was deprived of his due process rights in the penalty phase of his trial, I respectfully dissent from Section II of the opinion.1
This is a case of compound error involving a serious and repeated misrepresentation of law by the prosecutor. The initial error occurred when the prosecutor was permitted, in effect, to instruct the jury that it could not legally consider Payton’s mitigating evidence — evidence that the California appellate courts acknowledge was completely admissible. Bad enough that this should happen, but in a nearly complete abdication of its responsibility to properly explain the law to the jury, the state trial court not only failed to correct the misinformation, it permitted the prosecutor to argue his own interpretation of a sentencing factor as if it were the law. Because the prosecutor’s “instructions” told the jury it must ignore the only mitigation evidence that Payton offered, the decision whether to consider it made the difference, quite literally, between life and death. All this was done without ever correctly instructing the jurors that the evidence was fully admissible and that they were required to consider it. The result of this deadly combination of prose-cutorial misleading and judicial abdication “fundamentally affected the fairness” of the penalty phase of Payton’s murder trial and violated his due process rights. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The district court was quite right to determine that the proper remedy was to order the state to conduct a new penalty phase hearing for Payton or commute his death sentence to life without possibility of parole.
In its so-called “unadorned version,” factor (k) instructed the members of the jury that they could consider: “Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”2 Although in a chambers conference the trial court agreed with Payton’s counsel that factor (k) was a “wide open,” “catch-all” provision, Payton’s request for an instruction to make clear to the jury that his mitigating evidence should be considered was refused. Were this the end of the story, I might agree with the majority that Payton’s case is *927quite similar to Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), which addressed the constitutionality of former CALJIC 8.84.1.
Unlike the prosecutor in Boyde, however, who “ ‘never suggested that the [defendant’s] background and character evidence could not be considered,’ ” id. at 384, 110 S.Ct. 1190 (quoting People v. Boyde, 46 Cal.3d 212, 250 Cal.Rptr. 83, 758 P.2d 25, 47 (1988)), the prosecutor in Payton’s case, armed with the authorization of the trial court, told the jury it could not legally consider Payton’s only mitigation evidence, the evidence of his religious conversion. First, the prosecutor argued that factor (k) referred only to:
some factor at the time of the offense that somehow operates to reduce the gravity for what the defendant did. It doesn’t refer to anything after the fact or later. That’s particularly important here because the only defense evidence you have heard has been about this new bom Christianity. (Emphasis added).
Although Payton’s counsel objected to this argument as inconsistent with the agreement reached in chambers regarding factor (k), the judge decided to let the attorneys “make that argument either way.” The prosecutor then resumed his attack on the legality of Payton’s mitigation evidence:
The only defense evidence you’ve heard had to do with defendant’s new Christianity and that he helped the module deputies in the jail while he was in custody. The problem with that is that evidence is well after the fact of the crime and cannot seem to me in any way to logically lessen the gravity of the offense that the defendant has committed. ... What I am getting at, you have not heard during the past few days any legal evidence [of] mitigation. What you’ve heard is just some jailhouse evidence to win your sympathy, and that’s all. You have not heard any evidence of mitigation in this trial. (Emphasis added).
The prosecutor continued this theme throughout the closing, noting later on that “You’ve heard no evidence of any mitigating factors” and then, even later, addressing Payton’s evidence but reiterating that “I don’t think it’s really applicable and I don’t think it comes under any of the eleven factors.”
The majority concedes that the prosecutor’s argument was improper but argues that it did not so infect the penalty phase with unfairness as to deprive Payton of due process. First, the majority argues that the impact of the prosecutor’s initial statement was diluted by a “curative” instruction from the judge. Once the prosecutor began suggesting that Payton’s mitigation evidence was inapplicable, Payton’s attorney immediately objected. The judge overruled this objection, however, and indicated he was going to let each side “argue it.” He then simply commented to the jury that “the comments by both the prosecution and the defense are not evidence. You’ve heard the evidence and, as I said, this is argument.” With that, the judge permitted the prosecutor to continue to admonish the jurors that the California sentencing factors simply did not let them consider any mitigating evidence pertaining to events after the crime. It is difficult to determine how the court’s limited intervention did anything to correct the error; if anything, it expressly permitted the error to be repeated.
Next, the majority argues that the prosecution discussed the defense’s evidence in mitigation and “conceded” it had at least some merit. Again, I disagree. The prosecution put very little emphasis on the defendant’s evidence and then did so without ever conceding it could or should be *928considered.3 His limited discussion of Payton’s evidence also pales in comparison to the prosecutor’s repeated arguments to the jury that it could not consider the only evidence in mitigation offered by Payton.
The majority also contends the prosecutor implicitly conceded the validity of Pay-ton’s defense when he said: “If you wanted to distribute a thousand points over the factors, 900 would have to go to what he did to Mrs. Montgomery.” The majority reads this as conceding Payton’s religious conversion evidence was worth at least 100 points. The more logical interpretation is that the prosecutor was telling the jury that 900 points would go to the rape/murder, with the other 100 points going to other aggravating factors, such as prior felonies. Whatever the interpretation, it is highly unlikely a jury would (1) view such an obtuse “concession” as undermining the prosecutor’s explicit, repeated argument that the evidence could not be considered, or (2) disregard the prosecutor’s caveat that even though he was discussing the religion evidence, he still did not believe it could be considered.
The majority also asserts the effect of the prosecutor’s argument was blunted because the defense was permitted to argue for its own interpretation of factor (k). Although defense counsel told the jury it could consider Payton’s evidence, he could point to no language in the statute or instruction that supported this claim. He instead was left with arguing that factor (k) was “awkwardly worded,” but that it did not preclude consideration of the post-crime religious conversion. This is in stark contrast to the repeated argument of the prosecution, referring to the language in factor (k) — “extenuates or lessens the gravity of the crime” — to bolster the argument that the language of factor (k) refers only to some fact in operation at the time of the offense. Cf. Penry v. Johnson, 531 U.S. 1003, 121 S.Ct. 1910, 150 L.Ed.2d 9, (2001) (rejecting argument that defense counsel had sufficiently clarified application of jury instruction because prosecutor had “effectively neutralized defense counsel’s argument” and “[a]t best, the jury received mixed signals”).
The majority also relies on the “consider all the evidence” instruction given to the jury. More precisely, the jury was instructed to consider “all the evidence ... except as you may be hereafter instructed.” (emphasis added). The very next instruction the jurors heard was CALJIC 8.84.1 regarding aggravating and mitigating factors, including factor (k), which the prosecution had told them precluded consideration of Payton’s evidence. The generic “consider all the evidence” instruction did nothing to undo the damage.
The majority relies heavily on Boyde, in which the Supreme Court determined that the context of the proceedings in that case would have led reasonable jurors to the proper interpretation of factor (k). 494 U.S. at 383, 110 S.Ct. 1190. However, Boyde is different in several significant respects. First, Boyde’s mitigating evidence involved his background and character, pre-crime evidence which more readily fits within factor (k). Payton’s only evidence was post-crime, a distinction the prosecutor brought home again and again. Second, Boyde presented “four days of testimony consuming over 400 pages of trial transcript,” which led the Supreme Court to conclude a reasonable jury would not disregard such “volumes” of mitigating evidence without more specific direction. *929Id. at 384, 110 S.Ct. 1190. The Supreme Court also noted, however, that “(presentation of mitigating evidence alone, of course, does not guarantee that a jury will feel entitled to consider that evidence.” Id. In Payton’s case, his mitigating evidence was much less voluminous — it was presented in one day and took only seventy-three pages of transcript.
Finally, and most importantly, the prosecutor in Boyde never suggested that the defendant’s mitigation evidence could not be considered. Id. at 385, 110 S.Ct. 1190. The Supreme Court emphasized that the prosecutor’s principal theme was not that Boyde’s mitigation evidence could not be considered, but that it should be given minimal weight in light of the aggravating circumstances. Id. The exact opposite is the case here. In fact, in oral argument before the Supreme Court in Boyde, the California Attorney General discussed this very case and conceded that Payton’s prosecutor had “misled the jurors.” See Trans. Oral Argument, Nov. 28, 1989, Boyde, 1989 U.S. Trans. Lexis 124, *10-11, *26-28;4 see also Boyde, 494 U.S. at 386 n. 6, 110 S.Ct. 1190 (noting that “prosecutors in other cases may have pressed a construction of factor (k) that would cause the sentencing proceedings to violate the Eighth Amendment” but that did not mean the jury in Boyde arrived at the same conclusion).
This is not a case where the prosecutor made an offhand remark during the course of trial. The prosecutor’s erroneous argument was far from subtle. It was explicit, deliberate, consistent and repeated. Certainly, arguments of counsel generally carry less weight than instructions from the court. Boyde, 494 U.S. at 384, 110 S.Ct. 1190. But when the court expressly permits counsel to argue the legal meaning of an instruction, without ever instructing the jury which interpretation is correct, the arguments of counsel obviously take on significant importance. A lay jury is ill-equipped to determine which view of the law is correct. See Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (if “jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think their own intelligence and expertise will save them from that error”).
“The Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered” by a defendant. Boyde, 494 U.S. at 377-78, 110 S.Ct. 1190. The prosecutor’s argument in this case flies directly in the face of this constitutional requirement. The context of Payton’s penalty phase as a whole did little, if anything, to mitigate the prosecutor’s error. The district court correctly and properly determined that the prosecutor’s argument so infected the penalty phase with unfairness that Payton was *930denied due process. Darden, 477 U.S. at 181, 106 S.Ct. 2464.
Was the error harmless under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)? Under Brecht, an error is not harmless if it “had a substantial or injurious effect in determining the jury’s verdict.” Id. Quite frankly, if this error was harmless, it is difficult to imagine a sentencing phase error that would not be. The prosecutor told the jury it could not consider the only evidence of mitigation that Payton put forward. Without this evidence, the jury had no alternative but to reach a death verdict.5
Like many of the capital cases we review, Payton’s crimes were certainly heinous. But that does not relieve us of the responsibility to ensure that the jury was properly advised and able to consider all properly admissible evidence. As we have previously explained:
The determination of whether to impose a death sentence is not an ordinary legal determination which turns on the establishment of hard facts. The statutory factors give the jury broad latitude to consider amorphous human factors, in effect, to weigh the worth of one’s life against his culpability. Presumably the imposition of a death sentence is entrusted to a jury because it is a uniquely moral decision....
Hendricks v. Calderon, 70 F.3d 1032, 1044 (9th Cir.1995).
This is not a case where effective but fair argument convinced a jury that the evidence of aggravation outweighed the evidence in mitigation. The prosecutor here was permitted to erroneously tell the jury what it could and could not consider. The trial court’s flippant comment to allow the parties to “argue it” abdicated its responsibility to tell the jurors that Payton’s evidence in mitigation was fully admissible and that they were required to consider it. Under these circumstances, it is difficult to imagine how the prosecutor’s arguments could not have had a substantial and injurious effect on the jury’s verdict.
It is very difficult to have confidence in the outcome of a life and death decision made in these circumstances. The verdict might have been reached through an appropriate weighing of aggravating versus mitigating factors, but it seems much more likely to have been reached because the jury erroneously believed there were no mitigating factors it could legally consider. For the reasons stated, I would affirm the district court’s decision to grant the petition as to the penalty phase of Payton’s trial.
. I concur in the result with respect to the guilt phase, the remaining penalty phase issues and the denial of additional investigative funds.
. In People v. Easley, 34 Cal.3d 858, 196 Cal.Rptr. 309, 671 P.2d 813 (1983), the California Supreme Court recognized the potential for confusion over the meaning of factor (k). Id. at 826 & n. 10. The instruction was later changed to read “Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant’s character or record as a basis for a sentence less than death, whether or not related to the offense for which he is on trial.” Boyde v. California, 494 U.S. 370, 375 n. 2, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (quoting 1 California Jury Instructions, Criminal 8.85(k) (5th ed.1988)). Payton's trial occurred prior to the decision in Easley.
. Specifically, the few comments the prosecutor did make were prefaced as follows:
I want to make a few comments about religion, the only evidence put on by the defendant. I don't really want to spend too much time on it because I don't think it's really applicable and I don't think it comes under any of the eleven factors....
. Although the majority contends it is “impossible to tell from the transcript whether the exchange even referred to Payton," I believe it is quite clear that it did if one reads the entire transcript. Boyde's counsel referenced an amicus brief containing examples of prosecutors misreading section (k), and then asked the Court to consider, specifically, “the case of People versus Payton.” 1989 U.S. Trans. Lexis 124, *10-11. During the State of California's argument, the Court asked counsel to address Boyde's argument concerning Payton. Id. at *26-27, 13 Cal.Rptr.2d 526, 839 P.2d 1035 (“Let me ask you about the prosecutor's argument in the other case that your opponent referred to (emphasis added). It was in this context that the State said that the prosecutor in Payton had misled the jurors. Id. at *27-28, 13 Cal.Rptr.2d 526, 839 P.2d 1035. Moreover, in oral argument before this panel, the State admitted that the exchange occurred and involved Payton, but argued it was improper for the attorney to have made such a statement to the Court because the attorney was not sufficiently familiar with the record in Payton to have reached such a conclusion.
. The jury was instructed “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” (emphasis added).