Wednesday, March 21, 2001

Appeal ordered, date set for death

Killer claims accomplice actually stabbed store clerk

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — Condemned killer John Byrd Jr. still has a chance to stop his execution, but the clock is now ticking toward a Sept. 12 date in the state's death chamber.

        On Tuesday, the Ohio Supreme Court ordered a Hamilton County court to hear Mr. Byrd's appeal that he was not the man who stabbed Colerain Township convenience-store clerk Monte Tewksbury during a 1983 robbery.

        In a nod to prosecutors who convicted Mr. Byrd more than 18 years ago, the high court also set his execution date, essentially giving Mr. Byrd 180 days to live.

        While lawyers on both sides of the case said they are unsure of what's next, they also declared partial victories.

        Hamilton County Prosecutor Mike Allen predicted the trial court would reject Mr. Byrd's appeal, which seeks to stop the execution because an accomplice, John Brewer, confessed to the killing.

        “We don't feel that the "actual innocence' claim is a problem,” Mr. Allen said of the appeal. “It's bogus.”

        David Bodiker, the Ohio Public Defender, said the high court gave Mr. Byrd the chance he needs to prove he's innocent.

        “We will undeniably be in Cincinnati very soon,” Mr. Bodiker said. “If we're going to have a hearing, we need to have one as soon as possible.”

        Neither side got exactly what it wanted.

        Mr. Allen and Ohio Attorney General Betty Montgomery urged the high court to simply reject the appeal and get on with the execution. The public defender's office wanted the high court to halt the execution so that Mr. Byrd's claim would be heard.

        Without any further explanation from the justices, all eyes turn to Hamilton County courts. Mr. Bodiker and Mr. Allen, who almost never agree, said they are unsure what will happen.

        “This did not help us,” Mr. Bodiker said. “I don't know if it hurts us.”

        Said Mr. Allen: “We're in uncharted territory here.”

        At the center of the issue is Mr. Byrd's claim of “actual innocence,” which is unprecedented in an Ohio death penalty case. Most appeals are based on procedural flaws.

        In January, the public defender filed two sworn statements at the Ohio Supreme Court, in which accomplice John Brewer swore he was the man who stabbed Mr. Tewksbury.

        Mr. Allen said Mr. Brewer is lying. In February, prosecutors interviewed the third accomplice in the fatal robbery, getaway driver William Danny Woodall.

        Mr. Woodall told prosecutors Mr. Brewer never said he stabbed Mr. Tewksbury. He also said Mr. Byrd was holding the knife when the two men left the King Kwik convenience store.

        Who will hear the case, and when, are other questions.

        The judge who sentenced Mr. Byrd to death in 1983, Donald Schott, is no longer a judge. Mr. Allen did not know who will pick up the case.

        “That will be easy enough to do,” Mr. Allen said. “There is always a successor judge.”

        Faced with so many questions, Mr. Allen and Mr. Bodiker said they may ask the Ohio Supreme Court for more guidance on how to proceed. Whether the court would respond to those requests isn't known.

        “We've got to stake out on what we think is our best chance,” Mr. Bodiker said.


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