Sunday, September 02, 2001

Clock ticks for killer


Byrd case still divisive as execution nears

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — When Monte Tewksbury announced that he had taken a job at a convenience store to earn extra money, he told his wife and daughter not to worry.

        If the place were robbed, “I wouldn't do anything to jeopardize my life,” he said. “It's not my store.”

        That didn't matter the night of April 17, 1983, when two masked men entered the King Kwik at 9870 Pippin Road.

        The men grabbed $133.97 from the register. They took Mr. Tewksbury's money, credit cards, wristwatch and wedding ring. Then one of the men plunged a 5-inch knife into Mr. Tewksbury's side, puncturing his liver.

        Minutes after he managed to call her, Sharon Tewksbury was kneeling beside her husband, holding his hand as he slowly bled to death on the store floor. Struggling to breathe, he told her he gave the robbers everything they asked for.

        “He cried about how they'd taken his wedding ring,” Mrs. Tewksbury said.

        Eighteen years later, prosecutors say, the wait for justice is almost over. Mr. Tewksbury's convicted killer, John William Byrd Jr., faces execution Sept. 12 in the electric chair.

        Mr. Byrd's attorneys, however, insist the wrong man is on death row. Mr. Byrd did rob the King Kwik, but they say the other man, John Eastle Brewer, held the knife.

        “I totally believe that John Brewer did it,” says David Bodiker, the Ohio public defender. “I know beyond any question of any doubt that Mr. Byrd's trial was a travesty.”

        Two confessions from Mr. Brewer that he stabbed Mr. Tewksbury may be Mr. Byrd's last chance for life. Two state courts have so far dismissed Mr. Brewer as unbelievable, and a divided Ohio Supreme Court has refused to look at his confessions.

        “This "wrong man' defense has been exposed for what it is, and that's a sham,” said Hamilton County Prosecutor Mike Allen. “The right man is on death row.”

Divisive case

        Questions of guilt or innocence are supposed to be settled years before an execution takes place.

        No one said Jay D. Scott did not kill a Cleveland delicatessen owner in 1983. In the days leading up to his June 14 lethal injection, Mr. Scott's lawyers argued it would be inhumane to execute a diagnosed schizophrenic.

        When the state executed Wilford Berry on Feb. 19, 1999, the issue was whether he could waive his appeals and volunteer for death. Courts decided he could.

        Howard Tolley Jr., a University of Cincinnati professor, lawyer and anti-death penalty activist, said the Byrd case divides onlookers into three camps: Those who believe Mr. Byrd did it, those who say Mr. Brewer did it, and others who can't decide between them.

        “I don't think you can, to a real certainty, say it was (Mr.) Brewer or it was (Mr.) Byrd,” Mr. Tolley said.

        What's clear is that a hard-working family man was senselessly murdered.

        A full-time employee of Procter & Gamble, Mr. Tewksbury monitored clinical tests of new drugs. He had a daughter, Kimberly, in college and two younger sons, David and Matthew.

        Kimberly Tewksbury said her father was a man who “truly understood unconditional love.”

        He had a good life, but “he always felt he needed to do more,” Sharon Tewksbury said.

        That's why he took on extra jobs, including clerking at the convenience store.

        Court records state that Mr. Byrd's childhood was marred by abusive men who married or dated his mother, Mary Lou Ray. He'd never met his biological father, who divorced Mrs. Ray shortly after John was born.

        By age 17, he had appeared in Hamilton County Juvenile Court six times and been sent to the Ohio Youth Commission twice. He spent his 18th year in a Kentucky prison after he was caught driving a stolen truck across the state line.

April 17, 1983

        On the day of the murder, Mr. Byrd and Mr. Brewer, friends for a few months, were drinking and playing pool at a downtown bar. They were later joined by William Danny Woodall and his boss, LeRoy Tunstall.

        In the evening, Mr. Byrd, Mr. Brewer and Mr. Woodall drove off in Mr. Tunstall's red van.

        Their first robbery was the King Kwik, but it was not their last.

        As Mr. Tewksbury lay dying, they drove to the U-Tote-M convenience store on Colerain Avenue.

        Chased by a man with a knife, U-Tote-M clerk Jim Henneberry fled to a storeroom. Customer Dennis Nitz escaped the second robber, whom he noticed had red hair.

        While one man attacked the blocked storeroom door with a knife, the other struggled with the cash register. The two carted off the entire machine.

        After that, two Forest Park police officers saw the van enter the parking lot of a closed K-Mart. The driver parked briefly and drove away. The van passed by again a few minutes later, and the officers decided to stop it.

        Two stocking masks and a knife were found in the dashboard tray. Sharon Tewksbury's Shell credit card was under the passenger seat.

        There was fresh blood on the driver's seat. Police found blood on Mr. Byrd's pants and testified that they took a Pulsar brand watch off his wrist.

The trial

        Prosecutors had plenty of evidence linking the men to the robberies and the murder. But who killed Mr. Tewksbury?

        There were no fingerprints or blood on the knife. No video camera and no eyewitnesses.

        As he was dying, Mr. Tewksbury said his attacker wore a checkered or plaid shirt. Mr. Byrd was wearing a striped sweater. Mr. Brewer had on a sleeveless T-shirt.

        Mr. Henneberry said his attacker was wearing tan pants. Mr. Byrd's pants were blue.

        Prosecutors say the Pulsar watch Mr. Byrd wore was Mr. Tewksbury's — but it vanished. Police say they mistakenly allowed Mr. Byrd's mother to claim it as part of her son's property. It never was recovered.

        Mr. Allen said other evidence points to Mr. Byrd as the killer.

        Mr. Nitz testified the red-haired Mr. Brewer was not holding a knife in the U-Tote-M. The blood on Mr. Byrd's pants was type O, the same as Mr. Tewksbury's.

        Mr. Bodiker calls this evidence irrelevant. He said Mr. Woodall, who died of cancer in prison this year, also had type O blood and said he'd been injured while working that day.

        “The fact that a Byrd-like person held the knife in the U-Tote-M doesn't mean he held the knife in the King Kwik,” Mr. Bodiker said. “You can't make that conclusion.”

Ronald Armstead

        Then there was the testimony of Ronald Armstead, a Hamilton County Workhouse inmate who became an informant for the prosecution.

        During the 1983 trial, Mr. Armstead said Mr. Byrd bragged about stabbing Mr. Tewksbury “because he was in my (expletive) way.”

        Mr. Bodiker says Mr. Armstead made up the story in a deal with prosecutors to avoid going back to prison on a parole violation.

        The Parole Board approved parole, citing Mr. Armstead's cooperation.

        Courts rebuffed all attempts to challenge Mr. Armstead's testimony. Judges said the jury had a fair chance to weigh Mr. Armstead's credibility and ruled there was no evidence to show he lied.

        Mr. Bodiker said his office twice contacted Mr. Armstead in Las Vegas last year to see whether he'd change his story.

        “He wouldn't give us the time of day,” Mr. Bodiker said.

        Mr. Allen angrily denies Mr. Bodiker's accusations of a deal.

        “No promises were made to Mr. Armstead,” he said.

Confessions

        Mr. Armstead aside, Mr. Bodiker insists Mr. Brewer's two confessions prove Mr. Byrd is not the killer.

        “I said to Danny Woodall, "Man, I stabbed a guy. Take off,'” Mr. Brewer says in one of the confessions. He also describes a tussle with Mr. Tewksbury behind the counter.

        One big problem is timing.

        Mr. Byrd's attorneys obtained Mr. Brewer's first confession in 1989. They never brought it forward until this year, when Mr. Byrd's regular appeals had run out.

        At the time, Mr. Bodiker said his office thought it could overturn the death sentence by attacking Mr. Armstead's testimony. Though they obtained a similar confession this year, he said holding on to the 1989 confession was a mistake.

        Mr. Allen says Mr. Brewer is lying to help a friend. With a 41-to-life sentence, he says, Mr. Brewer knows he's not likely to ever get out of prison and that he can't be tried again for the same crime.

State's third execution?

        Barring a court order or clemency, Mr. Byrd will become the first of 48 Hamilton County death row inmates to die and only the third Ohioan executed since 1963.

        Two state courts already have dismissed the confessions. On Wednesday, the Ohio Supreme Court narrowly dismissed Mr. Byrd's case 4-3.

        The Ohio Parole Board also has rejected the confessions in a 10-1 vote opposing clemency for Mr. Byrd.

        As Sept. 12 nears, Mr. Byrd awaits a final clemency decision from Gov. Bob Taft. A federal court is likely to start sifting through the confessions this week.

Two families

        In the meantime, Mr. Byrd's sister, Kim Hamer, continues to work to win a commuted life sentence for him.

        “My brother is innocent and they're going to execute an innocent man,” Ms. Hamer said.

        Kimberly and Sharon Tewksbury are just as emphatic that Mr. Byrd murdered Monte Tewksbury.

        Kimberly Tewksbury does not believe her father struggled with Mr. Brewer, as he claims.

        “The only struggle was him coming out of the store, bleeding to death and trying to find a quarter for the phone,” she said. “There was no "tussle.'”

        Sharon Tewksbury said she wants the execution to go forward because that's the sentence that was handed down 18 years ago.

        Kimberly Tewksbury said she wants to get out of an emotional prison she thinks Mr. Byrd and the court system created for her family.

        “I want our lives back. I want a vacation day that is not a court date,” she said. “I want him off the planet.”



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