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A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a) Final Other  ##  ( ( ( (  # P['A>P#')  dd^_  R SUPREME COURT OF THE UNITED STATESА uB  -(  ^_dd #T P[:+AdP# <<  I A 1 a (1)(a) i) a) I A 1 a (1)(a) i) a)-#[ P['CdP# ( ( , , 4 C  39 C No. 91!1738 4 !   J & #o P['Cn&P# ddd < Ӌ%ib uB  ddd < #[ P['CdP#"191!1738"DISSENT  uBn 0GILMORE v. TAYLOR%jb uB  ddd < #[ P['CdP#"191!1738"DISSENT  uBn 0GILMORE v. TAYLOR`Q؃ C JERRY D. GILMORE, PETITIONER v. KEVIN 5fTAYLOR    on writ of certiorari to the united states court 'T of appeals for the seventh circuit 1#[ P['CdP# d [June 7, 1993] -,   #o P['Cn&P#  J gFootnotes#[ P['CdP# dd X01Í Í01Í Í , , #o P['Cn&P#X` hp x (#%'0*,.8135@8:N ~BQ d  ( , ,  H3 82؃  8 C  By equating voluntary manslaughter with murder and  JS thereby, in effect, applying an ex post facto murder law to Taylor, the instructions in this case made it highly likely that the jury would return an inaccurate murder conviction.  As explained above, under Illinois law at the time of Taylor's offense, the presence of provocation reduced murder to voluntary manslaughter. This meant that state law defined the category of murder to exclude voluntary manslaughter and therefore considered a person who was guilty of voluntary manslaughter also to be innocent of murder. Any procedure that increased the likelihood of a murder conviction despite the presence of provocation, thus also decreasing the likelihood of a manslaughter conviction, was therefore a procedure that diminished the likelihood of an accurate conviction by the jury. Because the procedure in this case prevented the jury from even  J considering the voluntary manslaughter option, it severely diminished the likelihood of an accurate conviction. See  J Butler v. McKellar, 494 U.S. 407, 416 (1990). The instructions given in this case essentially ensured that a person guilty of voluntary manslaughter would be convicted, wrongly, of murder.  Returning to the hypothetical example set forth above, the omission of a selfdefense instruction in Jane Doe's case would distort the definition of murder by causing the "   jury to include killings in selfdefense within that definition. A person who kills in selfdefense, however, like a person who kills under provocation, is not guilty of murder under state law and is therefore not subject to the penalties prescribed for murder. Any conviction that results from the omission of a state law affirmative defense is therefore, in the case of provocation and in the case of selfdefense, an inaccurate conviction.  The State suggests that the right asserted by Taylor is  J the same as that recognized by this Court in Beck v.  Jp Alabama, 447 U.S. 625 (1980). See Brief for Petitioner  JH 17. In Beck, this Court held that a capital defendant is entitled to a lesser included offense instruction if there is evidence in the record to support such an instruction. We  J left open the question whether Beck applies in the non J capital context. Id., at 638, n. 14. The State here asserts that because many courts of appeals have rejected such a right in the noncapital context, this Court could do the  J0 same with respect to Taylor's claim. See Brief for Petitioner 17 and n. 7. This assertion is without merit.  J  Like the right Taylor claims, Beck entitles certain defendants to have the jury consider less drastic alternatives to murder. This, however, is where the similarity  Jh between the two rights ends. In Beck, the Court's concern and the reason for the required lesser included offense instruction was that jurors might ignore their reasonabledoubt instruction. Where the defendant is  ! `plainly guilty  J of some offense,' !  447 U.S., at 634, quoting Keeble v.  J United States, 412 U.S. 205, 213 (1973) (emphasis in original), there is a risk that absent a lesser included offense instruction, the jurors will convict a defendant of capital murder, thereby exposing him to the death penalty, because they do not want to set a guilty person free. In other words, the failure to provide a lesser included  J offense instruction in the capital context is a problem only to the extent that we fear that jurors will choose to disregard or nullify their reasonabledoubt instruction.` "  Ԍ In Taylor's case, the concern is just the opposite"that  J the jurors will follow their instructions and thereby convict the defendant of murder because they are ignorant of the fact that provocation reduces the offense to voluntary manslaughter. The failure to include a proper voluntary manslaughter instruction literally distorts the definition of murder by extending it to include voluntary manslaughter and thereby misinforming the jury.  J  Whether or not we would choose to extend Beck and its presumption of jury nullification to the noncapital defendant has no bearing on the outcome of this case. The right at issue here is one premised upon the notion that jurors faithfully follow what they understand to be their instructions. This premise clearly operates in the capital  J and noncapital contexts alike. See Richardson v. Marsh, 481 U.S. 200, 211 (1987).  DH2 8B؃  0C  Through his instructions, then, the trial judge in this  JK case applied an ex post facto murder law to Taylor and thereby misled the jury as to the definition of murder. But the trial judge also violated another of Taylor's constitutional rights. When the judge prevented Taylor's jurors from considering his provocation defense, the judge deprived Taylor of his Sixth Amendment and Fourteenth Amendment right to a fair trial.  The Fifth and Fourteenth Amendments to the Constitution guarantee every criminal defendant the right to remain silent. Our precedents have explained that this right precludes the State from calling the defendant as a  J witness for the prosecution. See, e. ! g., South Dakota v.  Jk Neville, 459 U.S. 553, 563 (1983) (the classic Fifth Amendment violation consists of requiring the defendant  J to testify at his own criminal trial); Malloy v. Hogan, 378 U.S. 1 (1964) (the Fourteenth Amendment Due Process Clause incorporates the Fifth Amendment right to remain silent against the States). The State must provide all "   evidence necessary to a conviction if the defendant chooses not to testify.  Taylor gave up this important right and took the witness stand to testify about his crime. He evidently did so to avail himself of the provocation defense provided by Illinois law. Taylor admitted under oath that he broke into his former wife's home and intentionally and fatally stabbed Scott Siniscalchi. App. 80!81. He also testified,  J however, that he had been provoked by the victim. Id., at 76!81. In its closing argument, the defense therefore asked the jury to find that he had acted under sudden and intense passion when he killed Siniscalchi and  J therefore was not guilty of murder. Id., at 112!121.  When the judge instructed the jurors, he effectively told them to disregard Taylor's provocation testimony. Absent that testimony, of course, the most important evidence before the jurors when they deliberated was that Taylor had taken the stand and had sworn to them that his actions violated both elements of the murder statute. As far as the jurors could tell, Taylor had confessed to the crime of murder in open court.  Taylor never indicated a desire to plead guilty to murder. Indeed, he offered testimony that tended to show  Jh that he was innocent of murder. Yet the trial judge failed to follow the very statute that had prompted Taylor to testify. By so doing, the judge effectively transformed exculpatory testimony into a plea of guilty to murder. When a defendant intentionally pleads guilty to an offense, he has a constitutional right to be informed about  Jx the consequences of his plea. See Mabry v. Johnson, 467  JP U.S. 504, 509 (1984); Marshall v. Lonberger, 459 U.S. 422, 436 (1983). Taylor, however, was never apprised of the consequences of his testimony. Instead, he was affirmatively misled into unknowingly confessing to a crime of which he claimed he was innocent. The judge's erroneous instructions thereby vitiated Taylor's right to a fair trial, guaranteed him by the Sixth and Fourteenth` "   Amendments.  : H1 7IV؃  C  The omission of an adequate affirmativedefense instruction constitutes a profound violation of a defendant's  J{ constitutional rights. It creates an ex post facto law, misinforms the jury as to the governing legal principles, and denies a defendant his right to a fair trial. Although  J the precise contours of [the second Teague] exception may  J be difficult to discern, we have usually cited Gideon v.  J Wainwright, 372 U.S. 335 (1963), holding that a defendant has the right to be represented by counsel in all criminal trials for serious offenses, to illustrate the type  J; of rule coming within the exception. Saffle v. Parks, 494 U.S., at 495. The right to an affirmativedefense instruction that jurors can understand when there is evidence to support an affirmative defense is as significant to the fairness and accuracy of a criminal proceeding as is the right to counsel. It is indeed critical in a case like this one, where the defendant takes the stand and concedes the elements of murder in order to prove his affirmative defense.  Kevin Taylor has not requested a rule that would unreasonably place stumbling blocks in the path of law enforcement nor has he asked this Court to announce a rule that is only marginally related to the underlying right to a fair trial. On the contrary, he has asked that he be convicted of voluntary manslaughter if he is guilty of voluntary manslaughter, that he be spared a sentence for murder if he is innocent of murder, and that his judge not effectively instruct the jury to disregard the exculpatory part of his testimony and attend only to that which would ensure a conviction for murder. If he is denied  J what he asks, he is denied a fair trial.(Jh uB ԍ   XgEp| X  , The Court's footnote 4, ante, at 12, added by The Chief Justice after"## the dissenting opinion circulated, hardly deserves acknowledgment, let  uBG alone comment. I had thought that this was a court of justice and that a criminal defendant in this country could expect to receive a genuine analysis of the constitutional issues in his case rather than the dismissive and conclusory rhetoric with which Kevin Taylor is here treated. I adhere to my derided constitutional stew.( "  Ԍ I respectfully dissent and would affirm the judgment of the Court of Appeals.