DePew v. Ohio

Background

A person convicted of aggravated murder in Ohio was sentenced to death. The Ohio Supreme Court found four instances of prosecutorial misconduct but ruled that, because the crime was brutal, those errors did not require overturning the sentence. The misconduct included an improper question about an unrelated “knife fight,” a comment about asking the defendant about later criminal convictions, a penalty-phase photograph of the defendant by a marijuana plant, and closing arguments that referred to parole and facts not in evidence.

Reasoning

The core question was whether the prosecutor’s actions so infected the trial that the defendant was denied a fair trial. Justice Marshall (joined by Justice Brennan) argued the comments and actions cumulatively deprived the defendant of a fair trial and would have granted review and vacated the death sentence. The Ohio court treated the errors as harmless because of the crime’s brutality. The Supreme Court declined to take the case, leaving the state-court decision and the death sentence intact.

Real world impact

Because the high Court denied review, the Ohio conviction and death sentence remain in effect and the defendant stays sentenced to death. The decision does not resolve the underlying dispute about whether the prosecutor’s conduct was constitutionally unacceptable; that argument was urged by the dissent and would have been addressed only if the Court had agreed to review the case.

Dissents or concurrances

Justice Marshall’s dissent (joined by Justice Brennan) said the death penalty is always unconstitutional and argued the prosecutor’s conduct “so infected” the trial that it violated the defendant’s right to a fair trial; a state-court dissent called the misconduct “of the worst sort.”