dissenting. I wish to applaud the majority’s fine sense of irony. Coupled with an admonition that prosecutors should not comment to juries in capital cases about the finality of their verdicts are citations to no fewer than Jive cases where this court allowed just such comments to be made without any form of sanction.
Permit me to suggest that the message is simply not getting through. Prosecutors continue to emphasize the fact that the jury’s verdict “is only a recommendation.” Consider this: the death sentence has been recommended by juries in one hundred one cases under the Ohio statute, as of February 7, 1991, according to the Ohio Public Defender Commission. Four of those recommendations have been overridden by trial judges, another nine were modified on appeal. If honesty is to be our hallmark — confining ourselves to concern with “accurate statements of the law” — then prosecutors should be compelled to tell juries that nearly ninety percent of the time the jury’s recommendation is followed and upheld on appeal.
A majority of this court repeatedly has misstated Caldwell v. Mississippi (1985), 472 U.S. 320, to the effect that “accurate statements of the law * * * not made to induce reliance on the appellate process” are not error. See State v. Rogers (1985), 17 Ohio St. 3d 174, 17 OBR 414, 478 N.E. 2d 984; State v. Williams (1986), 23 Ohio St. 3d 16, 32, 23 OBR 13, 28, 490 N.E. 2d 906, 920, Wright, J., dissenting. But, see, Rogers v. Ohio (1985), 474 U.S. 1002, peremptorily vacating Rogers in light of Caldwell.
The United States Supreme Court in Caldwell did not confine itself to forbidding only inaccurate or even misleading statements by prosecutors. The prosecutor in Caldwell was being truthful when he told the jury that its decision would be reviewed. The critical point, the court said, comes when a jury “* * * has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” *99Caldwell, supra, at 329. I suppose I should not view the majority too harshly on this point since the United States Supreme Court itself is backing away from Caldwell, limiting the decision to only those cases where “remarks to the jury improperly describe the role assigned to the jury by local law.” Dugger v. Adams (1989), 489 U.S. 401, 407.
Despite a growing feeling of futility, I would like to reiterate what I said in Williams, supra:
“State-induced suggestions that the sentencing jury may shift its sense of responsibility for the imposition of the death penalty create a risk of substantial unreliability as well as potential bias in favor of death sentences.” Id. at 34, 23 OBR at 29, 490 N.E. 2d at 922.