Rehearing Denied April 27, 1987.
See ___ U.S. ___.
On petition for writ of
certiorari to the Supreme Court of Ohio.
The petition for a writ of certiorari is denied.
Page 480 U.S.
923 , 924
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting
from denial of certiorari.
Petitioner was convicted and sentenced to death by a jury that
heard the trial judge indicate that, on the basis of newspaper
accounts he had read, he believed petitioner was involved in the
crime. Because the judge's statement deprived petitioner of a fair
trial, I would grant certiorari in this case.
During voir dire, the trial judge stated to the jury:
"Not only was Mr. Scott-at least from
the newspaper reports that I think that I had read-was involved in
this, there were three other . . . individuals who . . ." 26 Ohio
St.3d 92, 95, 497 N.E.2d 55 ( 1986).
Defense counsel interrupted to object to this comment on
petitioner's involvement in the crime. He subsequently made a
motion for a mistrial, in which the prosecutor joined. The trial
court denied the motion, but delivered a cautionary instruction
admonishing the jury to base its verdict only on the evidence
introduced at trial. The judge also told the jury, "[Y]ou must not
take any impression from anything I have done or said as to what
your decision should be." App. to Pet. for Cert. 33-34.
The Ohio Supreme Court attempted to excuse the remark. The court
insisted that "[t]he judge's comment did not concern [petitioner's]
guilt or innocence, but, rather, noted the fact that the news media
had reported [ petitioner's] involvement with the crime." 26 Ohio
St.3d, at 96, 497 N.E.2d 55. This is a ludicrous reading of the
statement. How the jury could reasonably have interpreted and
applied the comment determines whether it should be considered
prejudicial. See, e.g., Sandstrom v. Montana,
442 U.S.
510, 516-519, 2455-2456 (1978). In this case, the jury could
reasonably take the comment at face value, namely, as a statement
that, based on what he had read in the newspapers, the judge
believed petitioner was a participant in the crime. Before the jury
had even heard any the evidence, the judge had effectively become a
witness against petitioner. See United States v. Murdock,
290 U.S.
389, 393, 54 S. Ct. 223, 224 (1933).
Moreover, even under the Ohio Supreme Court's dubious
interpretation, the judge's comment deprived petitioner of a fair
trial. The only legitimate judicial references to pretrial
publicity would have been inquiries about exposure to pretrial
publicity or warnings
Page 480 U.S.
923 , 925
against it. Instead, the judge actually reported to the jurors
the media's conclusion that petitioner was guilty. That the source
of this prejudicial publicity was the trial judge magnifies, rather
than eliminates, the problem. The jury could reasonably assume
that, since the judge had read about the crime, it was acceptable
for them to do so as well.
The Ohio Supreme Court relied on the cautionary instruction
given to the prospective jurors, maintaining that it "minimize[d]
any prejudicial effect this comment may have had. . . ." Id., 26
Ohio St.3d at 96, 497 N.E.2d 55. This reliance is misplaced.
Because "the influence of the trial judge on the jury is
necessarily and properly of great weight, and . . . his lightest
word or intimation is received with deference, and may prove
controlling," Starr v. United States,
153 U.S.
614, 626, 923 (1894), some errors are so fundamental that no
instruction can undo the damage they cause. See Quercia v. United
States,
289 U.S.
466, 472, 700 (1933). A comment on petitioner's guilt is
certainly such a fundamental error; it is "most likely to remain
firmly lodged in the memory of the jury and to excite the prejudice
which would preclude a fair and dispassionate consideration of the
evidence." Ibid. Moreover, any reference to extrajudicial evidence
by the trial judge destroys the fundamental premise of any
trial-that the ultimate decision rests solely upon evidence
presented by the parties within the confines of the rules of
evidence.
The remedy for this extraordinary error was close at hand. No
witness had yet been sworn. The panel of prospective jurors might
have been discharged and a new venire called without difficulty.
Nonetheless, the trial judge plunged ahead and petitioner was tried
by a jury exposed to comments that overwhelmed the presumption of
innocence. Because we cannot tolerate such interference with
petitioner's right to a fair trial in a capital case, I would grant
the petition for certiorari.
In addition, petitioner's death sentence was founded on a
statutory aggravating circumstance that repeats an element of the
underlying capital offense. As in No. 86-5307, Williams v. Ohio,
and No. 86-6015, Bradley v. Alabama, ___ U.S. ___, 107 S.Ct. ___,
93 L.Ed.2d ___, I would grant review for reasons stated in my
dissent from denial of certiorari in Wiley v. Mississippi, ___ U.S.
___ (1986).
Comments
Be the first to comment
Leave a Comment