BY BEN L. KAUFMAN
The Cincinnati Enquirer
Family efforts failed again Wednesday to slam the door on Wilford Lee Berry Jr.'s desire to die in Ohio's electric chair.
The U.S. Court of Appeals for the 6th Circuit in Cincinnati refused to reconsider its decision not to intervene.
Wilford Lee Berry
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There is no execution date.Greg Meyers, chief counsel in the Ohio's Public Defender's death penalty division, promised to appeal to the U.S. Supreme Court and gave the back of his hand to his critics. "If left unchallenged, this decision would allow Wilford Berry to be executed without a reliable evaluation of his competency to give up and die."
As for the time and expense to the taxpayers that this appeal requires, Mr. Meyers said, "Those who would accuse us of delay dishonor the legal system, which creates layers of review precisely to avoid making mistakes in life-or-death cases."
Mr. Berry has become known as "The Volunteer." If he gets his wish, he could be the first person executed in Ohio since 1963.
Neither guilt nor volunteering is an issue. Mr. Berry admitted killing his boss at a Cleveland bakery, and the U.S. Supreme Court allows inmates to die if they are competent to volunteer.
Mr. Berry says he'd rather be executed than grow old in an Ohio prison.
His mother, Jennie Franklin, and sister, Elaine Quigley, refuse to accept that decision.
They asked a federal judge to intervene when the Ohio Supreme Court rejected their argument that Mr. Berry is not mentally competent to make such a decision.
Two issues dominate their efforts to prevent Mr. Berry's electrocution: Did the Ohio Supreme Court properly decide Mr. Berry was competent to choose to die?
Can Mr. Berry's mother and sister pursue appeals for him?
U.S. District Judge Algenon L. Marbley in Columbus delayed execution and ordered further mental tests, saying Ohio's Supreme Court used the wrong standard when it said Mr. Berry was competent. Ohio Attorney General Betty Montgomery appealed and won.
In May, a three-judge panel at the 6th Circuit said Ohio's Supreme Court acted correctly. That means Judge Marbley has no jurisdiction or power to stay the execution, and because Mr. Berry is mentally competent, his family has no right to intervene.
Mr. Berry's family asked all 15 judges on the 6th Circuit to reconsider the panel ruling.
Wednesday, the court issued a two-paragraph order, saying "less than a majority" favored a rehearing, and the original panel concluded the issues "were fully considered" in its earlier ruling.
Jon Woodman, an assistant public defender, found encouragement even in that terse notice. He interpreted it to mean that some of the 6th Circuit judges wanted to review the panel decision.
Mr. Woodman said the Supreme Court appeal would raise the same issues as the petition for rehearing.
