480 U.S. 923 (1987)

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U.S. Supreme Court

SCOTT v. OHIO , 480 U.S. 923 (1987)

480 U.S. 923

No. 86-5953

Supreme Court of the United States

March 9, 1987

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 [480 U.S. 923 , 925]

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