dissenting. This dissent is confined to paragraph two of the syllabus. I believe that this court should decide appellee’s claim because it challenges most seriously the integrity of the administration of justice in Ohio. Appellee claims that he was penalized by the prosecutor for exercising his constitutional right of silence, and that the trial court refused to render a corrective charge. In short, appellee claims that the trial was not fair.
The administration of justice is not a game. A procedural slip should not extinguish the Bill of Rights. In State v. Jones (1965), 4 Ohio St. 2d 13, I stated that this court under Ohio law has discretion to review constitutional claims made in the trial court but not pressed in the Court of Appeals (Section 2505.21, Revised Code). Although this court now accepts that statement unanimously, a majority of the court chose to exercise their discretion only to scan the record, sua sponte, for a waiver of constitutional rights.
1 do not find a waiver in the record. A finding that the failure to hire clairvoyant counsel on appeal to press a claim which this court previously found to be without substance (State v. Howell [1964], 177 Ohio St. 19) is a waiver is an unfair rule. Nor do I find a waiver where an appellee, not yet having heard of the Griffin decision (Griffin v. California [1965], 380 U. S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229), fails to press the claim on a cross-motion to certify. If a fundamental right can be waived in a criminal case, it must be done consciously, not inadvertently.
The state courts have an obligation to safeguard the federal rights of an accused. If the state courts fail in that obligation, I foresee further intrusion by the federal judiciary into the domain of the state courts. See Henry v. Mississippi (1965), 13 L. Ed. 2d 408; Douglas v. Alabama (1965), 13 L. Ed. 2d 934.
O’Neill, J., concurs in the foregoing dissenting opinion.