less than the court has routinely failed to consider whether particular evidence establishes a nonstatutory mitigator and has routinely assessed such evidence solely in terms of whether the evidence rises to the level of a statutory mitigating factor. See generally, Brown v. State, 577 N.E.2d 221, 234 (Ind. 1991) (assessing mental health mitigation solely in terms of whether it rose to the level of statutory mitigation without considering whether, even if it did not rise to level specified there, it was nevertheless nonstatutory mitigation under (c)(8)); Lowery v. State, 547 N.E.2d 1046, 1059 (Ind. 1989) (same), but see, Evans v. State, 598 N.E.2d 516 (Ind. 1992) (even though defendant's psychiatric disturbance did not qualify for consideration as statutory mitigation, based on its long-standing, documented history, it must be considered as nonstatutory mitigation). This pattern of failing to assign any weight whatsoever to relevant, constitutionally mitigating circumstances demonstrates the unconstitutional application of Ind. Code § 355029(c). The pattern of Indiana's trial and appellate courts is contrary to the specific language of Lockett, Eddings, Hitchcock, and Skipper. VII. The Advisory Language Violates Caldwell v. Mississippi Because it Diminishes the Role in Capital Sentencing and is Misleading. The penalty statute retains the advisory description of the role. Five times the statute references the duty as making a
less than the court has routinely failed to consider whether particular evidence establishes a nonstatutory mitigator and has routinely assessed such evidence solely in terms of whether the evidence rises to the level of a statutory mitigating factor. See generally, Brown v. State, 577 N.E.2d 221, 234 (Ind. 1991) (assessing mental health mitigation solely in terms of whether it rose to the level of statutory mitigation without considering whether, even if it did not rise to level specified there, it was nevertheless nonstatutory mitigation under (c)(8)); Lowery v. State, 547 N.E.2d 1046, 1059 (Ind. 1989) (same), but see, Evans v. State, 598 N.E.2d 516 (Ind. 1992) (even though defendant's psychiatric disturbance did not qualify for consideration as statutory mitigation, based on its long-standing, documented history, it must be considered as nonstatutory mitigation). This pattern of failing to assign any weight whatsoever to relevant, constitutionally mitigating circumstances demonstrates the unconstitutional application of Ind. Code § 355029(c). The pattern of Indiana's trial and appellate courts is contrary to the specific language of Lockett, Eddings, Hitchcock, and Skipper. VII. The Advisory Language Violates Caldwell v. Mississippi Because it Diminishes the Role in Capital Sentencing and is Misleading. The penalty statute retains the advisory description of the role. Five times the statute references the duty as making a
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