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Nov. 5 OHIO:
Byrd takes case to federal court
A man who faces execution
for a slaying he says he didn't commit took his
case before a federal magistrate
today.
John W. Byrd Jr. was in court
for a hearing on his claim of innocence in
the knifing of a convenience
store clerk near Cincinnati in 1983.
"The evidence of John Byrd's
culpability in this case simply does not
exist," Ohio Public Defender
David Bodiker told Magistrate Michael Merz
in opening statements. "It
will be clear that Mr. Byrd is actually
innocent of this crime."
Mr. Bodiker said John Brewer,
who was with Mr. Byrd at the store, will
testify that he was the
one who stabbed Monte Tewksbury during a robbery.
Mr. Bodiker said Mr. Brewer's footprints were found on the store counter.
"There was no evidence of
Byrd's fingerprints or footprints," Mr. Bodiker
said.
Mr. Byrd was escorted into
court in handcuffs by 2 corrections officers.
3 U.S. marshals also stood
watch in the courtroom, which was filled with
about 60 people, including
Mr. Byrd's mother and Mr. Tewksbury's widow.
He rested his chin in his
hand as he listened to opening statements.
Mr. Byrd, 37, has acknowledged
that he helped rob the convenience store
where Mr. Tewksbury, a 40-year-old
Procter & Gamble Co. employee, was
moonlighting as a clerk
to pay for his daughter's education. But Mr. Byrd
says he did not stab Mr.
Tewksbury.
Mr. Brewer confessed to the
1983 slaying in a 1989 affidavit, which Mr.
Byrd's attorneys did not
disclose until this year.
Prosecutors say Mr. Brewer,
who also was convicted of murder and serving
over 41 years in prison,
cannot be tried again and is only trying to
spare his friend's life.
Mr. Byrd, Mr. Brewer and
several other prison inmates were called before
Judge Merz to provide a
factual account for court records of what
happened the night Tewksbury
was murdered.
The 6th U.S. Circuit Court
of Appeals in Cincinnati ordered the hearing
after halting Mr. Byrd's
scheduled Sept. 12 execution.
Mr. Byrd, who said he has
chosen to be electrocuted to illustrate the
brutality of capital punishment,
would be the 1st inmate to die in Ohio's
electric chair in 38 years
and the 3rd to be executed since Ohio
reinstated the death penalty
in 1981. Ohio's other form of execution is
lethal injection.
(source: Associated Press)
In Columbus, a U.S. appeals
court on Tuesday called for a federal
magistrate to reopen the
18-year-old case of death row inmate John W.
Byrd Jr. At least 5 judges
on the U.S. Court of Appeals for the 6th
Circuit disagreed.
They ordered a federal magistrate
to hold a hearing to consider the
recently revealed confessions
of John Eastle Brewer, an imprisoned
accomplice who says he stabbed
Mr. Tewksbury.
While some of the court's
9 voting judges called the decision to reopen
the case "lawless," it was
a stunning setback for the state. Prison
officials had planned to
execute Mr. Byrd in the electric chair Sept. 12.
With a new hearing and at
least one more decision from the 6th Circuit on
the way, that execution
will be delayed months - "possibly years," said
Hamilton County Prosecutor
Mike Allen.
"It's an absolute travesty
of justice," Mr. Allen said. "What the 6th
Circuit has done in this
case is beyond belief."
Ohio Public Defender David
Bodiker said he finally will get a chance to
prove Mr. Byrd's death sentence
doesn't hold up.
"This absolutely was not
a fair conviction," Mr. Bodiker said. "We got
what we asked for and we're
delighted."
At the center of the case
are 2 sworn statements in which Mr. Brewer
claims he stabbed Mr. Tewksbury
during a scuffle behind the King Kwik
convenience store counter.
2 state courts dismissed
Mr. Brewer's confessions as unbelievable and the
Ohio Supreme Court refused
to even consider them in a 4-3 decision.
A 3-judge panel on the 6th
Circuit appeared to agree. The panel's 2-1
decision blasted the public
defender for not using Mr. Brewer's 1st
confession in 1989.
In an unusual move, a majority
of the court's 9 active judges granted a
stay of execution until
Oct. 8.
That same majority ordered
Walter Rice, the Chief Judge of the Southern
District of Ohio, to assign
a magistrate to hear Mr. Brewer's
confessions. That magistrate
will also consider claims that a jailhouse
informant who helped prosecutors
convict Mr. Byrd lied on the stand.
The magistrate, who has not
been named, will have 45 days to create a
record that the appeals
court can use to decide if Mr. Byrd should be
awarded further court hearings.
Judge Nathaniel Jones wrote
that a magistrate is needed to fill "serious
gaps" in the case. He also
criticized state courts for "turning a blind
eye" to Mr. Brewer's confession
and to appeals that his trial was tainted.
"The state courts of Ohio
wasted an opportunity to bring all interested
parties closer to fairness
and finality in this matter," Judge Jones
wrote.
Judges Richard F. Suhrheinrich,
Alice Batchelder and Danny J. Boggs said
the decision breaks laws
intended to govern last-minute appeals. Judge
Suhrheinrich questioned
if the overall goal of the court was simply to
create a process that would
ultimately overturn Mr. Byrd's death
sentence.
"All of the orders, previous
decisions by the (full) court and 18 years
of due process for Mr. Byrd
have been thrown out the window," Judge
Suhrheinrich wrote.
Judge Jones wrote that the court's decision was entirely legal.
"A federal court does well
when it refuses to rubber-stamp such
inadequate proceedings in
the state court," he wrote.
Attorney General Betty Montgomery
has not decided how she will respond,
said spokesman Joe Case.
One option could be an appeal to the U.S.
Supreme Court.
"There is an indefinite stay
on this case for no sound legal reason," Mr.
Case said. "It delays justice
for the people of this state who support
the death penalty.
(source: Cincinnati Enquirer)
It's been 18 solid years
now since John W. Byrd was sentenced to death
for killing convenience
store clerk Monte Tewksbury during a robbery.
So it's hardly shocking
news that a court has yet again delayed Byrd's
execution.
But this delay is different - and deeply troubling.
The Byrd case has revealed
a bitter division on the Cincinnati-based 6th
U.S. Circuit Court of Appeals.
It shows that a majority of its active
judges are willing to go
to extraordinary lengths to keep Ohio from
enforcing its duly enacted
death penalty statute.
"Extraordinary" is actually
one of the milder descriptions of the action
the court announced this
week. Some of the dissenting judges used such
terms as "unprecedented,"
"illegal" and "lawless" to describe the court's
order postponing the execution
and naming a special master to gather
fresh evidence.
Byrd was convicted by a Hamilton
County jury in 1983. The conviction
rested on circumstantial
evidence and on the testimony of a Workhouse
inmate who said Byrd had
boasted of the killing.
Byrd's lawyers appealed the
conviction, primarily on grounds the inmate's
testimony wasn't credible.
But the conviction was upheld all the way up
to the Ohio Supreme Court,
and then all the way through the federal
system to the U.S. Supreme
Court. In all, more than 70 judges in 6
separate courts have upheld
the conviction.
But Byrd's attorneys had
been holding a trump card, and in recent months
they've been trying desperately
to win the hand with it.
For 12 solid years - before
Byrd ever filed his 1st appeal with the
federal courts - his lawyers
have been sitting on an affidavit from one
of Byrd's co-defendants,
John Brewer. In it, Brewer (who is serving a
life sentence for the crime,
and hence can't be tried again) asserts that
he, not Byrd, stabbed Tewkesbury.
There are two big problems here for Byrd:
Brewer is a liar. Either
he lied at his own trial, when he testified that
he didn't kill Tewksbury,
or he's lying in the affidavit. And the third
co-defendant, who died recently,
said Brewer concocted the murder
confession in an effort
to help save Byrd.
His lawyers waited too long
to assert this claim. State and federal
courts generally do not
allow such 11th hour (or 18th-year, if you will)
appeals for consideration
of new evidence.
This, in a nutshell, is why
the Ohio Supreme Court rejected Byrd's
request to have his execution
postponed.
In September a divided 3-judge
panel of the 6th Circuit appeals court did
the same thing.
For a while, it began to appear that Byrd's execution was imminent.
But then something peculiar began to happen.
First the lone dissenter
on the 3-judge panel, Nathaniel Jones, secured a
postponement of the order
denying Byrd's request for a stay of execution.
That gave him time to ask
all the active judges on the appeals court to
intervene, and that is what
produced this week's order which:
Seized jurisdiction from the 3-judge panel.
Referred the case, not to
the district judge who'd been in charge of it
for the past seven years,
but to a special master.
Requires the master to collect
specific evidence, some of it about issues
that were the focus of the
original appeal, some about the Brewer
confession (in effect, laying
the possible groundwork for a 2nd round of
appeals).
What's happening here is
really an extraordinary battle within the
Cincinnati-based 6th Circuit.
One one side are judges who
believe, as we do, that for good or ill
states have the right to
enforce their death penalty laws. On the other
are judges who oppose capital
punishment and who appear willing to do
everything they can to stop
executions in Ohio, Kentucky and Tennessee -
the three states within
the 6th Circuit's jurisdiction that have capital
punishment laws.
Richard Suhreinrich, one
of the appeals court judges who dissented with
this week's order, put it
succinctly, if acidly: "It would be far more
courageous, far more intellectually
honest, if the En Banc Court (the
full court of appeals) would
hold as a matter of policy that the Sixth
Circuit will not uphold
the death penalty."
Ohio Attorney General Betty Montgomery is now studying her options.
We'd like to see her appeal
this one to the U.S. Supreme Court. There's
something ugly going on
within the Sixth Circuit, and the high court
ought to intervene. It should
end this abuse of the judicial process, and
allow Ohio to carry out
the sentence that John W. Byrd earned 18 long
years ago.
(source: Editorial, Cincinnati
Post)
Ohio lawmakers may soon deny
convicted killer John W. Byrd Jr. his final
wish - to die in the electric
chair.
The House passed a bill Wednesday
79-15 that would ban death by
electrocution in Ohio, leaving
lethal injection as the state's sole
method of execution. The
measure goes to the Senate, which could pass it
this month.
The electric chair at Southern
Ohio Correctional Facility has been used
in 315 executions, but could
soon be retired. A bill banning the electric
chair has passed the Ohio
House.
Mr. Byrd, who was convicted
of killing Colerain Township convenience
store clerk Monte Tewksbury
in 1983, asked to die by electrocution to
underscore the cruelty of
the death penalty, according to his attorney,
Ohio Public Defender David
Bodiker.
The bill's sponsor, Rep.
Jim Trakas, R-Independence, said the state
should update its death
penalty policy, pointing to a recent Georgia
Supreme Court decision that
outlawed electrocutions as cruel and unusual
punishment.
"If Ohio's going to be in
the death business, it ought to be done in a
humane and civil way," Mr.
Trakas said. "Using the electric chair just
isn't right anymore."
Mr. Byrd's Sept. 12 execution
was delayed by the U.S. Court of Appeals
for the 6th Circuit in Cincinnati,
so that a federal court in Dayton can
hear the confessions of
John Brewer, an accomplice who says he stabbed
Mr. Tewksbury. If the bill
becomes law before Mr. Byrd's final appeal is
decided, it's likely he
won't be able to die by electrocution.
Over the past 2 decades,
12 states, including Georgia, have outlawed
electrocution, switching
exclusively to lethal injection.
Some Ohio lawmakers, including
Rep. John Willamowski, R-Lima, said the
legislature should let Mr.
Byrd die in the chair.
"The state is jumping through
hoops today because a convicted murderer
who showed no mercy to his
victim and taunted his victim's widow from his
prison cell has chosen the
electric chair," Mr. Willamowski said. "And I
think that we should not
be timid regarding honoring that choice."
Other opponents of the bill
said that electrocution was a better
deterrent to crime and a
more appropriate punishment.
(source: Cincinnati Enquirer)
Ohio Public Defender David
Bodiker's decision to step away from the
hearing involving a condemned
inmate's innocence claim was a good move
given the tension between
him and the federal magistrate conducting the
hearing, say two specialists
in criminal law.
They also said the relationship
between Mr. Bodiker and U.S. Magistrate
Michael Merz should not
affect the hearing's outcome.
Mr. Bodiker asked Mr. Merz
on Friday to allow himself and his team to
withdraw from the case of
John W. Byrd Jr. The move followed disclosures
that Mr. Bodiker's office
earlier failed to reveal several sworn
statements from another
inmate who says he killed a Colerain Township
convenience store clerk
in 1983.
Mr. Merz ruled that only
Mr. Bodiker could step aside and that other
public defenders must continue
to represent Mr. Byrd. The magistrate said
the ruling applied only
to last week's proceedings.
Margery Koosed, a University
of Akron law professor who specializes in
criminal law, procedures
and death penalty cases, said Friday that
courtroom relationships
can turn the focus away from the case.
"It's important for individuals
appearing before the court and the court
itself to be in a position
to work with one another," said Dr. Koosed,
who emphasized she had not
reviewed what occurred during the hearing.
"There are times when lawyers
may conclude they are not the best
individuals to present the
concerns on behalf of their clients."
Twice last week, Mr. Merz
angrily criticized Mr. Bodiker for producing
statements during the hearing
that backed Mr. Byrd's claim that he was
not the man who stabbed
Monte Tewksbury to death during a robbery.
A man with Mr. Byrd the night
of the slaying, Mr. John Brewer, has
confessed to killing Mr.
Tewksbury. 5 affidavits have been taken from Mr.
Brewer. 2 of the statements
were disclosed earlier this year, and 3 were
revealed during the hearing.
Prosecutors say Mr. Brewer,
also convicted of murder in the slaying and
cannot be tried again, is
only trying to spare his friend's life.
"When things get tense between
counsel and the court, I think
conscientious counsel does
whatever it takes to get rid of that tension,"
said David Goldberger, director
of the Ohio State University College of
Law's legal clinic.
If Mr. Merz rules in Mr.
Byrd's favor and the 6th Circuit agrees, Mr.
Byrd will be able to ask
the judges to overturn his death sentence. He
had been scheduled to be
executed on Sept. 12, but the appeals court
postponed it.
Mr. Merz must make his recommendation to the 6th Circuit by Nov. 30.
(source: Cincinnati Enquirer)
Sharon Tewksbury finds solace
in America's global pursuit of justice, but
is angry it remains elusive
in her own back yard.
"I am strengthened by the
fact that our nation and government have united
against the terrorism of
Sept. 11 and vow to hold accountable those who
murdered thousands of people
in New York, Pennsylvania and Washington,
D.C. Yet, one court in the
state of Ohio will not follow the law and hold
accountable one violent
murderer and give justice to the family of Monte
Tewksbury," she said.
Mrs. Tewksbury, the widow
of Monte Tewksbury, said she is "pretty ticked
off" the 6th U.S. Circuit
Court of Appeals Tuesday gave her husband's
convicted killer, John Byrd
Jr., both more time and another chance.
A majority of the active
judges of the Cincinnati-based court ordered a
magistrate to study Byrd's
claims of innocence and forward findings
within 45 days for a decision
whether to allow Byrd a new appeal.
The bitterly split court
castigated each other, with the majority
questioning state court
decisions denying Byrd a hearing despite
"potentially exculpatory
evidence" and dissenters denouncing Tuesday's
ruling as illegal.
Byrd, originally scheduled
to die in the electric chair Sept. 12, was
convicted of stabbing Tewksbury
during a convenience store robbery in
1983, but a co-defendant
belatedly confessed to the murder.
The court also granted Byrd
an indefinite stay of execution pending the
resolution of the case,
which caused one senior judge to question the
court's commitment to enforcing
the death penalty.
"We have some judges on the
6th Circuit who just don't care about
anything other than their
own opinions. This smacks of their agendas not
to enforce the death penalty,"
Mrs. Tewksbury said.
The office of Ohio Attorney
General Betty Montgomery is studying the
ruling to determine whether
to file an appeal with the U.S. Supreme Court
seeking to overturn the
appellate court's ruling.
"We're in uncharted territory.
It's unprecedented for a court to handle a
death penalty case at this
stage in this manner. The bait was put out
there on new delay tactics
and they took it hook, line and sinker," said
Joe Case, Ms. Montgomery's
spokesman.
Hamilton County Prosecutor Mike Allen called the ruling "outrageous."
Instead of ordering the U.S.
District Court judge who has handled the
case for 7 years to study
evidence that Byrd maintains shows his
innocence, the court retained
jurisdiction and ordered a magistrate
appointed.
(source: Cincinnati Post)
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