Condemned killer Jay D. Scott has survived two dates with death. He soon will face his third.

        The U.S. 6th Circuit Court of Appeals in Cincinnati decided Wednesday it will no longer stand in the way of Mr. Scott's execution. A one-page announcement said a majority of the court's 11 judges was not willing to reconsider Mr. Scott's insanity appeal.

        The decision clears the way for the state to ask the Ohio Supreme Court to set a new execution date. A request from Cuyahoga County Prosecutor Bill Mason is expected within two weeks.

Scott

        Convicted of killing Cleveland delicatessen owner Vinnie M. Prince in 1983, Mr. Scott has twice seen courts delay his execution to ponder his plea that it's morally wrong to execute someone who is insane.

        The 6th Circuit is now the fourth court to find Mr. Scott competent to be executed despite his diagnosed schizophrenia. Though no one disputes he's mentally ill, courts ruled he meets a state standard that says condemned prisoners must understand they will die as punishment for crimes they committed.

        Mr. Scott came within an hour of being executed by lethal injection April 17, before prison officials learned the Ohio Supreme Court issued a stay. He came within 10 minutes of execution May 15 when the 6th Circuit issued a stay.

        A panel of three 6th Circuit judges initially refused Mr. Scott's appeal earlier May 15. The court issued its stay at 8:50 p.m. after fellow Judge Ransey Guy Cole Jr. asked the 11 active judges if they would reconsider the case.

        Judge Cole, an appointee of President Clinton, has declined to comment on the case. He did not offer any written dissent to the court's decision rescinding the stay.

        One of Mr. Scott's attorneys said he will file a new appeal at the U.S. Supreme Court and might also ask Gov. Bob Taft to reconsider granting clemency.

        Timothy F. Sweeney said Mr. Taft should grant clemency based on the fact that Mr. Scott's two close brushes with death amount to a kind of torture. The governor, however, has denied one clemency petition and at least two requests for reprieves.

        The appeal to the U.S. Supreme Court essentially would ask that the nine justices reconsider the defense challenge that society's evolving standards of decency should bar executions of the insane. The nation's highest court refused to hear that request earlier this month.

        “We do have the right to go to the U.S. Supreme Court,” Mr. Sweeney said. “Admittedly it's a bit of a long shot, as any case is before the high court. It's something we can do and we probably will do it.”

        Joe Case, a spokesman for Ohio Attorney General Betty Montgomery, said the state has not flagged in its commitment to execute Mr. Scott despite the two previous delays.

        “The system is working and we have to live with that,” Mr. Case said.

        Meanwhile, Ohio's next scheduled execution is that of John Byrd Jr., who is to die Sept. 12 for the 1983 stabbing death of Colerain Township convenience-store clerk Monte Tewksbury.

        The Ohio Public Defender's Office will ask the 1st District Ohio Appellate Court to consider Mr. Byrd's claim that an accomplice stabbed Mr. Tewksbury.

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