Whether the Eighth Amendment allows a jury's non-unanimous advisory verdict to serve as the predicate for a death sentence, when the jurors were told it was merely a recommendation

QUESTIONS PRESENTED After petitioner Alan Miller was convicted of murder, the trial judge instructed the jurors that their penalty-phase verdict was merely an advisory recommendation to the judge, who would ultimately decide the sentence. The jurors voted ten-to-two to recommend death. Their advisory verdict did not say they had unanimously found an aggravating factor, as state law required. The judge entered a death sentence based on his own findings. This Court then held that the Sixth Amendment requires a jury, not a judge, to find an aggravating factor that triggers death eligibility. Ring v. Arizona, 536 U.S. 584, 609 (2002). The court below upheld Mr. Miller’s sentence under Ring because, in its view, the split jury must have unanimously found an aggravating factor. It thus held that his sentence depends on the jury’s advisory verdict, even though the jurors were told the opposite. And the court found this result compatible with the Eighth Amendment’s rule that a capital sentencing jury must understand its “awesome responsibility,” Caldwell v. Mississippi, 472 U.S. 320, 330 (1985), because the court construed Caldwell merely to bar misstatements of state law. The questions presented are: 1. Whether the Eighth Amendment allows ajury’s non-unanimous advisory verdict to serve as the predicate for a death sentence, when the jurors were told it was merely a recommendation. 2. Whether a jury’s death sentence recommendation establishes that the jury unanimously found an aggravating factor, as the Sixth Amendment requires, where two jurors voted against death and the verdict stated no findings. (i)