BY MICHAEL HAWTHORNE
The Cincinnati Enquirer
COLUMBUS - This time there is nothing stopping Wilford Lee Berry from satisfying his wish to die.
The Ohio Supreme Court on Monday set a Feb. 19 execution date for Mr. Berry, a convicted murderer nicknamed "The Volunteer" because he would rather die by lethal injection than spend his life in prison.
Barring any successful appeals from the Ohio public defender's office, Mr. Berry would become the first person executed in Ohio since 1963.
It appears defense attorneys may be running out of options.
The U.S. Supreme Court earlier this month refused to consider an appeal from Mr. Berry's family, a decision that let stand an appellate ruling that he is competent to drop his appeals and be executed. Ohio Attorney General Betty Montgomery, who has fought efforts to block the execution, moved quickly to seek the new date.
"This is just the next step," said Todd Boyer, a spokesman for Ms. Montgomery. "Her desire first and foremost is to see that the process is followed and state law is carried out."
Mr. Berry, 36, was sentenced to die for shooting his boss, Cleveland baker Charles Mitroff, in 1989.
This is the second execution date set for Mr. Berry. On March 3, he was being transported to the execution chamber at the Southern Ohio Correctional Facility in Lucasville when the U.S. Supreme Court stopped the procedure.
Still pending is a motion from defense attorneys that asks U.S. District Judge Algenon Marbley of Columbus to order more tests to determine whether a prison beating Mr. Berry sustained last year impaired his ability to decide his fate.
The public defender's office has obtained photos of a badly beaten Mr. Berry and an incomplete report from the Ohio State Highway Patrol about the September 1997 death row uprising at the Mansfield Correctional Institution.
Mr. Berry needed surgical implants to repair broken bones in his face and might have suffered brain injuries, defense attorneys argue.
Greg Meyers, chief of the public defender's death-penalty section, said he has to meet with other lawyers to decide how to proceed. Also pending is an application for clemency that Ohio's Catholic bishops filed with Gov. George Voinovich. Mr. Voinovich could still act on the plea for mercy, but a decision about Mr. Berry's fate likely will be left to Gov.-elect Bob Taft. He takes office Jan. 11.
"He considers this to be one of the most serious issues he will face during his administration," said Brett Buerck, Mr. Taft's spokesman. "We will conduct a thoughtful and exhaustive review of the facts in this case."
Both Mr. Voinovich and Mr. Taft support the death penalty.
