Tuesday, May 15, 2001

Ohio execution on for tonight

Cases move slowly through courts

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — The U.S. Supreme Court rejected condemned killer Jay D. Scott's insanity appeal Monday afternoon, erasing what may have been his last best chance to escape execution tonight.

        The high court decision, which came without comment, puts Mr. Scott back on course to become only the second Ohioan executed since the death penalty was reinstated in 1981. Mr. Scott would have been first to die if Wilford Berry had not volunteered for his own 1999 execution.

        With 201 death row in mates — and four failed execution attempts — Ohio has not executed a prisoner against his will since 1963. Ohio ranks last among the 38 states that allow executions, tied at one with Colorado, Idaho, Tennessee and Wyoming.

        Texas, on the other hand, has executed 246 people. Virginia has sent 82 convicted murderers to their deaths.

        One death penalty expert chalks up the vast differences between these states to different legal systems and simple will power in states such as Texas to move death sentences through a complicated maze of courts.

        In Ohio, Attorney General Betty Montgomery points to a big backlog of capital cases in federal courts.

        An annual report released by her office shows 119 death row inmates have appeals working their way through various stages of the federal system. Eleven are on a “watch list” of cases that have gone untouched for at least a year.

        Long-vacant judgeships on the bench of the U.S. Court of Appeals for the Sixth District, which serves Ohio, Kentucky, Michigan and Tennessee, are another contributing factor to Ohio's backlog. The slow-grinding wheels of federal justice apparently stall appeals in state courts, too. The attorney general reports no action for a year or more on another 16 cases, including three at the Ohio Supreme Court.

        “State courts look at the federal court (backlog) and say "What's the rush?'” Ms. Montgomery said. ”

        Hamilton County has a big stake. With 48 death sentences, Hamilton has put more people on death row than any other county in the state.

        Ohio's recent death penalty history also is marked by several failed execution attempts.

        The Ohio Supreme Court stopped Mr. Scott's April 17 execution with less than an hour to spare to consider an insanity appeal. Convicted of killing Cleveland delicatessen owner Vinnie Prince during a 1983 robbery, Mr. Scott is a diagnosed schizophrenic.

        On Friday, the court found Mr. Scott competent for execution under state law. The 1998 statute says a prisoner must understand he will die as punishment for crimes he committed.

        The U.S. Supreme Court also halted planned executions of death row inmates Robert Buell in 1996, John Byrd Jr. in 1994, and Mr. Berry in 1998.

        Mr. Byrd now faces a Sept. 12 execution date for killing Colerain Township convenience-store clerk Monte Tewksbury during a 1983 robbery. His regular appeals are exhausted, but a Hamilton County court is expected to rule on a last-ditch appeal this week.

        Mr. Scott's attorneys filed another appeal before U.S. District Judge Kathleen M. O'Malley in Cleveland. It asks the court to find fault with the state law the Ohio Supreme Court used to throw out his insanity case. Judge O'Malley denied the appeal Monday night. The attorneys are likely to appeal to the 6th Circuit Court of Appeals in Cincinnati today.

        Although attorney Timothy F. Sweeney said he hopes to win a second stay of execution, he also admits time is growing short.

        While Mr. Scott's case moves toward its conclusion, records show Ohio is far from alone when it comes to death-penalty delays.

        With 500 people on its death row, California has performed nine executions. Pennsylvania has 243 condemned inmates but has executed three.

        The U.S. Justice Department set Oklahoma City bomber Timothy McVeigh's execution back one month after the FBI revealed it mistakenly withheld thousands of pages of related documents from defense attorneys.

        Paula Bernstein, an analyst with the Death Penalty Information Center, said the differences between an Ohio and a Texas often come down to their different legal systems. Texas courts do not offer life imprisonment without parole, Ms. Bernstein said.

        “That helps increase the num ber of death sentences in Texas,” she said.

        She also points to a general level of commitment state leaders and courts have for pursuing executions. States with more executions generally have more people and resources pushing death penalty cases through the courts.

        “You look at Texas, it's almost like a factory,” Ms. Bernstein said.

        The Washington-based not-for-profit agency does not oppose the death penalty. It is, however, critical of the legal system used to put people on death rows.

        Back in Ohio, state Supreme Court Chief Justice Thomas J. Moyer defends the system. He says state courts, especially his, are not sitting on death penalty cases.

        “The fact that a case has been here since 1998 doesn't mean we're not working on it,” Justice Moyer said.

        Ms. Montgomery said she didn't mean to single out the Supreme Court. She said this was the first time in six years her study found idle cases there.

        “There are cases sitting for two years,” she said. “I know people are looking at these cases, but don't have them stack up like so much wood.”

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