Thursday, September 13, 2001
Court upholds stay for Byrd
Execution delay could be months
By Spencer Hunt
Enquirer Columbus Bureau
COLUMBUS A last-ditch effort to immediately execute death-row inmate John W. Byrd fell short Wednesday when the U.S. Supreme Court rejected a plea from Ohio Attorney General Betty Montgomery.
In a decision Ms. Montgomery called legally baffling, the high court upheld 6-3 a stay of execution ordered by a federal appeals court.
When Mr. Byrd's death warrant expired at midnight the state was left with no execution date or authority to carry one out.
Ohio prison officials had said they were ready to move Mr. Byrd, 37, from his Mansfield death row cell to the Lucasville prison electric chair if the high court lifted the stay with enough time left on Wednesday's warrant.
The high court decision means more days, weeks possibly even months of life for Mr. Byrd, who was sentenced to die in 1983 for stabbing Monte Tewksbury, who was working in Colerain Township as a convenience store clerk.
It also leaves the case in the uncertain grip of 11 judges on the U.S. Court of Appeals for the 6th Circuit in Cincinnati.
Judges are almost openly feuding with each other.
In a dissent filed Wednesday, appeals court Judge Danny J. Boggs said his fellow judges had no legal basis to stay Mr. Byrd's execution until Oct. 8.
The truth may be that for this prisoner, a majority of the active members of this court would grant a stay based on a hot dog menu, Judge Boggs wrote.
This, however, is not a correct statement of the law (nor is it of any sort of law at all).
The 6th Circuit originally denied Mr. Byrd's final appeal in a 2-1 decision Monday.
But the same panel also delayed the execution until Sept. 18 at the request of dissenting Judge Nathaniel Jones.
Then on Tuesday, a majority of the full court voted to extend the stay until Oct. 8.
That prompted Judge Boggs' dissent.
And Judge Alice M. Batchelder complained that not all judges were notified before the vote.
At the U.S. Supreme Court, the six justices offered no explanation for upholding the stay of execution. Justices William H. Rehnquist, Antonin Scalia and Clarence Thomas said there was no reason to stop the execution.
The only opinion (the 6th Circuit) has written convincingly concludes there is no basis for a stay, Justice Rehnquist wrote.
The Ohio Supreme Court cannot issue a new death warrant until after the 6th Circuit gives up control of Mr. Byrd's case.
Ohio Public Defender David Bodiker said he will file an appeal soon asking the 11 judges who can be involved in the case to reconsider Mr. Byrd's plea for life.
Mr. Byrd's appeal hinges on two confessions from John Eastle Brewer, an accomplice in the 1983 robbery and murder who claims he was the man who stabbed Mr. Tewksbury.
Two state courts have rejected those confessions, calling them unbelievable.
Gov. Bob Taft also dismissed them when he denied clemency for Mr. Byrd.
The question now is what the 6th Circuit will do and how long it will take.
Mr. Bodiker wants the court to order a U.S. district court in Columbus to hold a new hearing in Mr. Byrd's case.
Joe Case, spokesman for Ms. Montgomery, called the decision a further delay of justice for the Tewksbury family and the people of Ohio who support the death penalty.
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