Wednesday, August 22, 2001

Byrd's time to die set 11 hours earlier




By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — John W. Byrd Jr. lost 11 hours of life Tuesday when Ohio prison officials decided to execute him in the morning of Sept. 12 instead of at night.

        As his public defenders digested that bit of bad news, they got a second helping from Ohio's First District Court of Appeals in Cincinnati.

        The court rejected 3-0 Mr. Byrd's claim of “actual innocence,” calling it unbelievable and ruling his lawyers filed it too late.

Byrd
Byrd
        Mr. Byrd's last hope to halt his execution hangs on accomplice John Brewer, who has confessed to stabbing Colerain Township convenience store clerk Monte Tewksbury during a 1983 robbery. A Hamilton County jury sent Mr. Byrd to death row, believing he was the man who held the knife.

        The Ohio Public Defender will take Mr. Byrd's innocent plea to the Ohio Supreme Court, filing an appeal as early as today. Attorney Greg Meyers also objected to the decision moving Mr. Byrd's Sept. 12 execution from 9 p.m. to 10 a.m.

        “They're trying to make this the mundane business of death,” Mr. Meyers said. “After breakfast and before lunch, let's get this done.”

        Prison officials say it's a dollars-and-cents decision. They say morning executions cut down staff overtime and related costs.

        The Ohio Department of Rehabilitation and Corrections says it
spent $11,137 in overtime on two failed attempts to execute condemned killer Jay D. Scott. It paid another $3,192 in overtime when it executed Mr. Scott June 14.

        “Some of those costs do not occur if we do this during the day,” said agency spokeswoman Andrea Dean.

        Morning executions might also prevent the kinds of last-minute stays of execution Mr. Scott's attorneys were able to win. Courts stopped Mr. Scott's scheduled April 17 and May 15 executions with only minutes to spare to allow more time to weigh his sanity.

        Mr. Meyers speculated the time change may be an attempt to get judges to accept or reject all appeals one day before executions take place.

        “I think it insulates those in favor of John's death from that last full day of litigation,” he said. “We've now lost that court work time.”

        No one denies the agency has the legal authority to hold Mr. Byrd's execution any time within the Sept. 12 death warrant. Ms. Dean said several states execute condemned prisoners at 12:01 a.m. — the first possible moment allowed by death warrants.

        “The Federal Bureau of Prisons executes at 8 a.m.,” she added.

        Despite the shortened schedule, Mr. Meyers remains optimistic the Ohio Supreme Court, a federal court or Gov. Bob Taft will take a long look at Mr. Byrd's innocence plea and stop the execution.

        The Hamilton County Court of Appeals, however, ruled Mr. Brewer's confessions cannot be heard because the public defender waited too long to use it.

        Mr. Byrd's lawyers first heard Mr. Brewer's confession in 1989, but they decided not to use it while they were pursuing other appeals. The Public Defender's office got a second written confession from Mr. Brewer earlier this year after Mr. Byrd's guaranteed appeals ran out.

        The appellate court judges also sided with a Hamilton County trial court and with Prosecutor Mike Allen, who call the confessions unbelievable.

        Mr. Allen argues Mr. Brewer is lying to help a fellow inmate escape punishment. Mr. Brewer is serving a life sentence for the robbery and murder and cannot be tried again.

        As the case shifts to the Ohio Supreme Court and possibly the federal court system, even Mr. Allen agrees a court-ordered stay of execution is still possible.

        “I've pretty much given up trying to anticipate what the public defenders' next move will be,” Mr. Allen said.

        In addition to the legal appeal, Mr. Byrd also hopes Gov. Bob Taft will use his clemency power to commute his death sentence to life imprisonment. The Ohio Parole Board is expected to release its recommendation on the clemency plea Friday.

       



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