dissenting,
with whom Judges BRUNETTI, KOZINSKI, and KLEINFELD join.The question before us is: can we assume the jurors remained confused after the state trial court directed them to an instruction which, in no uncertain terms, stated they could consider the factors listed in their question as mitigating evidence.1 I remain convinced that we cannot make this assumption.
In response to the jury’s question, the state trial court referred the jury to an instruction which listed the factors the jury “shall” consider. One of these factors required the jury to consider:
Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, and any other aspect of the defendant’s character or personal history that the defendant offers as a basis for a sentence less than death.
There is no question that this instruction accurately set forth the law. See Boyde v. California, 494 U.S. 370, 381-82, 110 S.Ct. 1190, 1198-99, 108 L.Ed.2d 316 (1990). The instruction also is directly responsive to the jury’s question because the instruction clearly tells the jurors they can consider anything in McDowell’s background as mitigating evidence.
The majority assumes the jury remained confused after being directed to. this instruction. Such an assumption requires us, as a federal court, to speculate that the state court jurors either did not read the instruction to which they were referred, or if they read it they were too ignorant to understand it. This not only usurps the function of the jury, it denigrates the state trial process, and it is plainly wrong.
Jurors are presumed to follow the instructions. See United States v. Span, 75 F.3d 1383, 1390 (9th Cir.1996). There is nothing complicated about the instruction to which they were referred. It tells the jurors quite simply that they can consider not only the matters specifically listed in the instruction, but “any other aspect of the defendant’s character or personal history that the defendant offers as a basis for a sentence less than death.” What could be clearer than that? The majority either concludes “any” doesn’t mean “any,” or the majority simply erases this part of the instruction from the record.
It is no answer to speculate that the admittedly correct instruction confused the jury. How often in human experience have we proved true the admonition: “When all else fails, read the instructions!” Who hasn’t, when stymied by some task, finally read or reread the instructions and then understood what to do? This bit of common sense applies here. We know the state trial judge read the instructions to the jury before they retired to deliberate. We know the jury had the instructions in the jury room. We don’t *843know, however, whether, at the time the jurors returned to court with their question, they had focused on the instruction to which the court referred them. We do know that after the court referred them to this instruction and told them to go back and read it, they returned to court thereafter, not with a further question, but with a unanimous verdict calling for the death penalty. In the face of all of these facts, the majority engages in a series of speculations in order to set aside the defendant’s sentence of death.
The majority’s conclusion is wrong. Moreover, it forces state trial courts to deviate from accepted, correct instructions. This forced deviation compels state courts to embark upon unfamiliar seas fraught with peril. The majority opinion illustrates this.
The majority states that in responding to the jury’s question, the trial judge should have instructed “the jury that it was free to consider any aspect of a defendant’s background or character which defendant offered as a mitigating circumstance, and that some, if not all, of the listed factors [in the jury’s question], reasonably could fall within the category.” (Emphasis added). This won’t do.
The first part of the majority’s suggested instruction, of course, is precisely the instruction to which the state trial court referred the jury when it told them they could consider “any other aspect of the defendant’s character or personal history that the defendant offers as a basis for a sentence less than death.” The rest of the majority’s suggested instruction, however, illustrates the problem of deviating from jury instructions which correctly instruct the jury on the applicable law. The majority’s suggested instruction would have caused the jury to wonder which “some” of the factors on their list they could consider and whether they could or could not consider all of the factors. The trial judge wisely did not give such an instruction. Instead, he referred the jurors to the correct instruction that told them they could consider any factor offered by the defendant.
For sound reasons, we have approved a practice of referring the jury to an original instruction when that instruction is responsive to the jury’s question and correctly instructs the jury on the applicable law. See United States v. Collom, 614 F.2d 624, 631 (9th Cir.1979). This is what the state trial court did in this case and it did not err when it did so.
I respectfully dissent.
. It is questionable whether the jurors were confused at all. Their question can easily be read as one indicating disagreement about whether the matters they listed, such as "rejection of mother’s love during teenage years,” were of sufficient mitigating force to extenuate the defendant’s grisly crimes of sexually assaulting and stabbing to death Ms. Rodriguez. In response, the trial court correctly told the jurors he could not decide this for them.