holding that “the physical condition and circumstances of the victims are relevant to the crime as a whole” and are admissible as evidence illustrating the nature and circumstances of a crime
How later courts described this case
- holding that “the physical condition and circumstances of the victims are relevant to the crime as a whole” and are admissible as evidence illustrating the nature and circumstances of a crime
- defendant did not demonstrate on record how he was prejudiced by the Public Defender Commission’s prior representation of a prosecution witness
- “the ‘circumstances of the victims are relevant to the crime as a whole. The victims cannot be separated from the crime.”
- “Mercy, like bias, prejudice, and sympathy, is irrelevant to the duty of the jurors”
Written by the judges who cited it.
The opinion
Wright, J.,
concurring. Why we see a continuing pattern of prosecutorial misconduct in capital cases is beyond me. There is simply no rational or just reason for prosecutors to overtry these cases. Trial tactics such as were used in this case are deplorable and reflect no credit on our criminal justice system.
Yet, I find that I must join the majority opinion, albeit reluctantly, because the evidence of Lorraine’s guilt was so strong and the prosecutor’s misconduct did not render the trial as a whole fundamentally unfair.
But, prosecutors be warned. This court is not averse to confronting misconduct and dealing with it appropriately. As outlined by this court in State v. DePew (1988), 38 Ohio St.3d 275 , 528 N.E.2d 542 , there are essentially two ways for us to respond to prosecutorial misconduct. The first is to vacate the conviction and/or sentence and remand for a new trial or resentencing. This was the result in State v. Keenan (1993), 66 Ohio St.3d 402 , 613 N.E.2d 203 , in which we concluded that the prosecutor’s misconduct was so egregious that a fundamentally fair trial was impossible. In cases in which the prosecutor’s behavior causes us to doubt that the conviction or sentence was based on the admissible evidence alone, we should not hesitate to order the case to be retried or the defendant resentenced. See, e.g., State v. Thompson (1987), 33 Ohio St.3d 1 , 514 N.E.2d 407 ; State v. Liberatore (1982), 69 Ohio St.2d 583 , 23 O.O.3d 489 , 433 N.E.2d 561 ; State v. Combs (1991), 62 Ohio St.3d 278, 294 , 581 N.E.2d 1071, 1084 (Wright, J., dissenting); State v. Bedford (1988), 39 Ohio St.3d 122, 134 , 529 N.E.2d 913, 925 (Wright, J., dissenting); State v. Beuke (1988), 38 Ohio St.3d 29, 45 , 526 N.E.2d 274, 291 (Wright, J., dissenting).
Our second option is to focus on the prosecutor’s behavior under the Disciplinary Rules. In DePew, supra, the court observed that the rules prohibit attorneys from purposefully engaging in conduct that taints the fairness of the judicial process. We then announced the following policy:
“In order to preserve the fairness of trial proceedings and to deter further misconduct, it is henceforth the intention of this court to refer matters of misconduct to the Disciplinary Counsel in those cases where we find it necessary and proper to do so. We encourage all trial courts and appellate courts to take similar steps where appropriate.” Id., 38 Ohio St.3d at 289, 528 N.E.2d at 557 .
*431 I am sorely tempted to propose such a referral in this case. Just as we were willing to deal with the problem of misconduct in Keenan by remanding for a new trial, we should also be willing to deal with the problem through the use of the Disciplinary Counsel — even in those cases in which the misconduct amounts only to harmless error.
It is crucial that attorneys demonstrate a proper regard for the constitutional requirement that trials be fair. The right to a fair trial is a hallmark of our democracy and something of which we are rightly proud. It is reprehensible for prosecutors, as agents of our government, to disregard this essential right for any reason. Prosecutors can be assured that in the future I will encourage the court to use the Disciplinary Rules as a way to protect the integrity of the trial process.