In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the jury finds an aggravating factor it must impose the death penalty, or that in that situation it has to make a further decision whether to do so? The first answer is wrong. That is not the law in Virginia, and if it were it might amount to an unconstitutional "mandatory" scheme for imposing death sentences without considering evidence the defendant may offer in mitigation. And yet a jury could easily think the instruction means just that-that a decision that "the death penalty is not justified" means a decision that neither aggravating factor has been proven.
Gross, Samuel R. "Race, Peremptories, and Capital Jury Deliberations." U. Pa. J. Const. L. 3, no. 1 (2001): 283-95.