The Supreme Court yesterday agreed to decide whether an Oregon trial judge who reminded a jury of a defendant's decision not to testify violated the man's constitutional protection against self-incrimination as well as his right to a fair trial.
The court also will review the death sentence imposed on an Ohio woman convicted of the aggravated murder of an Akron pawnbroker although she was waiting in a car outside his shop when he was shot by one of three men inside.
In addition, the court said it will hear arguments in a District of Columbia case involving wiretapping by federal narcotics agents.
In the Oregon case, the defense attorney for Ensio R. Lakeside advised him not to testify at his jury trial on a charge of escape in the second degree.
At the end of the trial, the judge instructed the jury that state law gives a defendant an option whether to testify, and that a decision to be silent gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence."
The judge issued the instruction after, out of the jurors' presence, the defense lawyer had protested that it was "like waving a red flag in front of the jury."
The jury convicted Lakeside. The Supreme Court of Oregon affirmed the conviction.
In the Ohio murder case, Sandra Lockett stayed in a car while three men who had been with her entered the pawn shop of Sidney Cohen. One of the men, shown a pistol by Cohen, loaded it with his own bullets and announced a stickup. Cohen grabbed for the gun and was killed when it went off.
The Ohio Supreme Court upheld Lockett's conviction and death sentence.Her lawyers say she never intended to kill anyone, that the prosecutor improperly commented at trial of her refusal to testify and that Ohio's capital punishment law is invalid.
None of the men is on death row. The gunmen pleaded guilty after agreeing to testify about the others. The death sentence of Lockett's brother was invalidated because of the exclusion at trial of a tape in which the gunman exonerated the others. The third man was spared because of a finding that attributed his conduct mainly to mental deficiency.
In the District of Columbia case, a federal judge in 1970 approved a wire tapping order for a residential telephone, but directed narcotics agents to minimize their electronic intrusion.Later, another judge held that the agents knowingly and willfully had failed even to try to comply.
The U.S. Court of Appeals reversed, saying that a review of intercepted conversations showed none that reasonably might not have been tapped. Frank R. Scott and Bernis L. Thurmon challenged the appellate ruling.