Tuesday, September 11, 2001

Court gives Byrd six more days, little hope

By Spencer Hunt and Dan Horn
The Cincinnati Enquirer

        A federal appeals court on Monday gave death row inmate John W. Byrd at least six more days of life, ordering his execution delayed until Sept. 18.

        In an unusual 2-1 decision, the U.S. Court of Appeals for the 6th Circuit in Cincinnati offered a blistering denial to what may be Mr. Byrd's final plea for life.

        But it nonetheless delayed his scheduled Wednesday execution after one of the judges requested “additional time to consider the matter.”

        The delay will give the dissenting judge, Nathaniel Jones, until Sept. 18 to try to persuade the other two judges to change their opinion that there is no legal basis for halting Mr. Byrd's execution in the electric chair.

        “(Mr.) Byrd should not be put to death before this court is able to give full consideration to the issues raised in his case,” Judge Jones wrote in his dissent.

        Judge Jones might have his work cut out for him, considering what Judges Richard Suhrheinrich and Alice Batchelder said about Mr. Byrd's case.

        Convicted of the 1983 stabbing death of Colerain Township convenience store clerk Monte Tewksbury, Mr. Byrd's final appeal hinges on two sworn confessions of accomplice John Eastle Brewer, who says he is the man who stabbed Mr. Tewksbury.

        Writing for the majority, Judge Suhrheinrich criticized Mr. Byrd, 37, for waiting 12 years to unveil the confession.

        “He has sat on this evidence, like a chicken waiting for an egg to hatch, for 12 years, despite repeated contact with both the state and federal courts,” Judge Suhrheinrich wrote. “There is simply no legal excuse for this conduct.”

        Two state courts and the Ohio Parole Board have dismissed Mr. Brewer's confessions as unbelievable. Gov. Bob Taft reached a similar conclusion Monday when he denied Mr. Byrd clemency.

        Judges Suhrheinrich and Batchelder likewise said Mr. Brewer's confessions were unbelievable.

        “This is certainly not the kind of "clear and convincing

        evidence' that would prevent any reasonable juror from finding (Mr.) Byrd eligible for the death penalty,” Judge Suhrheinrich wrote, noting Mr. Brewer's confession contradicts his own 1983 testimony that he did not stab Mr. Tewksbury.

        Judge Suhrheinrich also criticized Mr. Byrd's attorneys for not bringing Mr. Brewer's confession forward in 1994. Mr. Byrd came within hours of being executed that year when a federal district judge refused to consider a guaranteed appeal.

        The appeals court ordered the execution halted and put a new district judge in charge of the case.

        “(Mr.) Byrd sat on this evidence despite the explicit opportunity and express instruction to raise "any newly discovered claims,'” Judge Suhrheinrich wrote. “(Mr.) Byrd's deliberate silence then, and brazen attempt now to assert the claim, is nothing short of fraud on this court.”

        The state public defender recorded Mr. Brewer's first confession in 1989, but never used it until this year. Ohio Public Defender David Bodiker said his office mistakenly thought it could win a new trial by challenging the testimony of a jailhouse informant who helped convict Mr. Byrd.

        Mr. Bodiker did not return calls seeking comment. Joe Case, a spokesman for Attorney General Betty Montgomery, would say only that the state would review the ruling and make a decision on what to do next today.

        The stay effectively gives Mr. Byrd a week or more of life. The Ohio Supreme Court cannot issue another death warrant for Mr. Byrd until after the appeals court relinquishes jurisdiction of the case.

        It's possible that an appeals judge who was not involved in the 2-1 decision could call for a vote of the entire court to dismiss the temporary reprieve. If that happens, it remains possible the execution could take place Wednesday.


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