dissenting.
I believe that the jury could reasonably have understood its instructions as requiring it to agree unanimously on the existence of a particular mitigating circumstance before any juror could weigh that circumstance against the aggravating circumstances. I therefore dissent from the majority’s reversal of the district court’s grant of relief from the death sentence.
The majority correctly states that our inquiry is how a reasonable jury might have understood the instructions. See Mills v. Maryland, 486 U.S. 367, 375-76, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). In Mills, the jury was required to indicate which mitigating circumstances it had found by marking “yes” or “no” next to each possible mitigator. The verdict form stated, “[W]e unanimously find that each of the following mitigating circumstances which is marked ‘yes’ has been proven to exist ... and each mitigating circumstance marked ‘no’ has not been proven.” Id. at 387, 108 S.Ct. 1860. Although the state claimed that in the event of non-unanimity the jury would leave that space blank, the judge had clearly instructed the jury that, with respect to aggravating circumstances, non-unanimity required a “no” response. See id. at 378, 108 S.Ct. 1860. The Supreme Court held that a reasonable jury could have understood the same rule to apply to mitigating circumstances, since the wording of the verdict form was the same in each section. See id. at 378-79, 108 S.Ct. 1860. Because the trial judge had done nothing to dispel such a belief, the Court could not “rule out the substantial possibility that the jury may have rested its verdict on the ‘improper’ ground.” Id. at 377, 108 S.Ct. 1860.
A majority of this court applied Mills in Kordenbrock v. Scroggy, 919 F.2d 1091, 1120-21 (6th Cir.1990) (en banc) (Kennedy, J., joined by eight others, dissenting from majority opinion that did not reach this issue), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 669 (1991). Kordenbrock characterized the sentencing instructions at issue as requiring unanimity on aggravators but remaining silent as to mitigators. The instructions there stated:
In recommending a sentence ... you shall consider the following aggravating circumstance, if you believe from the evidence beyond a reasonable doubt that it exists ....
In recommending a sentence ... you shall consider such mitigating or extenuating facts and circumstances as have been presented to you in evidence and you believe to be true, including but not limited to such of the following hs you believe from the evidence to be true.
Kordenbrock, 919 F.2d at 1108 (Merritt, J., dissenting in part). This court held that “it cannot be reasonably inferred that silence as to finding a mitigating factor would likely cause the jury to assume that unanimity was also a requirement. Indeed it would indicate the opposite.” Kordenbrock, 919 F.2d at 1121. In explaining its conclusion, the court distinguished the following instructions, which the Seventh Circuit held improper in Kubat v. Thieret, 867 F.2d 351 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989):
If, after your deliberations, you unanimously determine that there is no sufficiently mitigating factor or factors to preclude the imposition of the death sentence on the defendant,....
If, after your deliberations, you unanimously conclude that there is a sufficiently mitigating factor or factors to preclude the imposition of the death sentence,....
Id. at 1121 (quoting Kubat, 867 F.2d at 369) (first emphasis added by Kordenbrock court; second emphasis added by Kubat court). These instructions were not silent but “specifically told [the jury] that they must find mitigating factors unanimously.” Korden-brock, 919 F.2d at 1121. The Kordenbrock court also noted, with apparent approval, Ku-bat ’s holding that these faulty instructions were not cured by other portions of the instructions permitting the jury to state their inability to reach a unanimous verdict. See id. at 1121.
The instructions given at Coe’s trial are virtually indistinguishable from those held unconstitutional in Kubat. Coe’s jury was told:
*357If you unanimously determine that ... [the aggravating circumstances] are not outweighed by any mitigating circumstances, the sentence shall be death----
If you unanimously determine that ... [the aggravating circumstances] are outweighed by one or more mitigating circumstances, the sentence shall be life imprisonment.
Joint Appendix (J.A.) at 1838-39 (emphasis added). Similarly, the verdict form stated, “We, the jury, unanimously find that there are no mitigating circumstances sufficiently substantial to outweigh the [aggravating circumstances].” J.A. at 1839. If one diagrams these sentences, as the state has done, State Reply Br. at 19-20, one can see that they are technically correct, since “unanimously” modifies “determine” (or “find”) and refers to the weighing process rather than to the selection of mitigators. However, the same was true in Kubat. Other than using the word “outweighed” instead of “there is no sufficiently mitigating factor,” the instructions before us are the same as the Kubat instructions. Both sets of instructions use the word “unanimously” when describing the jury’s analysis of mitigating circumstances and are more confusing than mere silence. Three judges of this court recognized this when they expressed their “serious concerns” that these instructions were misleading. Austin v. Bell, 126 F.3d 843, 849 (6th Cir.1997).
The majority believes it significant that the language quoted above “did not appear in the section of the instructions on finding mitigating factors” but in the later “section on weighing.” Ante at 338. The trial judge did not make such a clear division between sections when instructing the jury, and, as Ku-bat held, the presence of a correct instruction does not necessarily cure an improper instruction. Moreover, taking into consideration the “non-weighing” section of the instructions only increases my certainty that a reasonable jury could have improperly interpreted these instructions. The earlier instructions said:
It is now your duty to determine ... the penalty.... In arriving at this determination, you are authorized to weigh and consider any mitigating circumstances and any of the statutory aggravating circumstances which may have been raised by the evidence____
[N]o death penalty shall be imposed by a Jury but upon an unanimous finding of the existence of one or more of the statutory aggravating circumstances, which shall be limited to the following:____
[I]n arriving at the punishment, the Jury shall consider, as heretofore indicated, any mitigating circumstances which shall include but not be limited to the following:
J.A. at 1836-38 (emphasis added). While the sentence that introduces the list of miti-gators does not contain any form of the word “unanimous,” it is not silent about whether unanimity is required. The italicized phrase instructed the jury to consider mitigating circumstances in a manner that had previously been described. This phrase may have been intended to refer generally to the weighing process, which was mentioned in the first quoted sentence. The most natural understanding of this phrase, however, would be that the jury was to apply the parallel instructions it had just received on how to evaluate aggravating circumstances.1 As in Mills, the parallels between the instructions on aggravators and mitigators would lead the jury to believe that the same approach was required unless something in the instructions signaled a difference. Kordenbrock held that the absence of any reference to unanimity in the instructions on mitigators would be a sufficient signal. Here, however, we have not silence but a specific instruction to incorporate earlier instructions. The most natural earlier instructions to incorporate required unanimity.
There is a substantial probability that the jury misunderstood its mandate and thus failed to give proper- weight to mitigating circumstances found by some, but not all, of its members. I would therefore affirm the *358district court’s order insofar as it vacated Coe’s death sentence on this ground.
. The majority notes that the phrase "as heretofore indicated” is quoted from the Tennessee Code. What matters for this case, however, is not what the phrase means in the context of the statute but how it would be understood in the context in which it was presented to the jury.