Saturday, January 27, 2001

Surprise affidavit divides lawyers

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS - Whether convicted killer John W. Byrd Jr. lives or dies depends on a legal question that is unprecedented in Ohio courts.

        Mr. Byrd faces execution for stabbing convenience store clerk Monte Tewksbury during a 1983 robbery in Colerain Township.

        Friday, the state public defender's office filed a new appeal at the Ohio Supreme Court, in which an accomplice, John Brewer, claims he was the man who plunged the knife into Mr. Tewksbury's side.

        The defender's office had that confession on file 12 years, never revealing it in court until Friday, weeks after the U.S. Supreme Court denied Mr. Byrd's final guaranteed appeal.

        The question before the Ohio Supreme Court pits a state death-penalty law against an unprecedented claim of “actual innocence.”

        The fact that defenders waited 12 years to produce the statement runs up against a state law that forbids all last-minute appeals unless attorneys can show they've discovered new and important evidence.

[photo] Sharon Tewksbury, the wife of stabbing victim Monte, who was killed 18 years ago, says she wants John Byrd's sentence carried out
(Glenn Hartong photo)
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        In two sworn statements, Mr. Brewer says he stabbed Mr. Tewksbury. He made the first statement in 1988 to the defender's office and the second Jan. 24.

        “I freed my left arm and got my knife from my waist and stabbed him in the side,” Mr. Brewer wrote in the most recent affidavit.

        Those statements, argue Mr. Byrd's lawyers, show that while Mr. Byrd shares responsibility in the crime, the death penalty does not apply because he was not the man who wielded the knife. That claim is called actual innocence.

        Legal experts are divided over whether Mr. Byrd would get a new hearing based on Mr. Brewer's evidence.

        “If they see it as really trying to delay the obvious, they won't allow it,” said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. “They don't want to decide a case on the facts. That was for the jury to decide.”

        Christo Lassiter, a University of Cincinnati law professor who teaches criminal procedure, thinks the high court's seven justices may have no choice but to consider the evidence.

        “From what I've heard right now, they can't (execute him) yet,” Mr. Lassiter said.

        Mr. Lassiter points to a 1993 U.S. Supreme Court decision that he says orders all courts to consider actual innocence claims.

        “It does not matter if they sat on it,” he said of the public defenders.

        Hamilton County Prosecutor Mike Allen and Ohio Attorney General Betty Montgomery disagree.

        “To fail to disclose evidence they claim demonstrates their client's innocence for nearly 12 years is unconscionable at best and unethical at its worst,” Ms. Montgomery said in a written statement.

        “The bottom line is, we're going to fight this with everything we've got,” Mr. Allen said.

        David Bodiker, the state public defender, angrily denied that his office was negligent. He said the decision to withhold the statements was based in part on a strong belief that other appeals already filed on Mr. Byrd's behalf would overturn his death sentence.

        “We were absolutely convinced we would win,” Mr. Bodiker said.

        He also said it may have been a mistake for the public-defender team handling the case in 1989 not to bring it forward then.

        “The people in 1989 thought they were being shrewd,” he said. “But the timing, which may be questionable, should not be used to question the validity of (Mr. Brewer's) affidavit.”

        Mr. Allen said he would challenge the worthiness of statements made by Mr. Brewer, who cannot be tried again for the crime.

        “His allegations are worthless,” Mr. Allen said Friday. “They are garbage. He has no credibility whatsoever.”

        Serving a sentence of 20 years to life for his part in the crime, Mr. Brewer is up for parole in 2015. During his own trial, Mr. Brewer testified he did not stab Mr. Tewksbury.

        “No sir,” Mr. Brewer said to the question, asked by his lawyer.

        Clutching a photo of her murdered husband at a news conference Friday, Sharon Tewksbury vented her frustration.

        “I've been waiting 18 years, not to see the death penalty carried out, but to see the sentence carried out,” she said. “Eighteen years is long enough.”

        Enquirer reporter Dan Horn contributed to this story.

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