Monday, September 17, 2001
Byrd case has judges at odds
By Spencer Hunt
Enquirer Columbus Bureau
COLUMBUS As the state of Ohio stands down from executing John W. Byrd in the electric chair, the case has turned into a twisting legal drama with no foreseeable outcome.
Mr. Byrd's final bid to avoid execution for the murder of a Colerain Township convenience store clerk Monte Tewksbury in 1983 rests with 11 deeply divided judges at the U.S. Court of Appeals for the 6th Circuit in Cincinnati.
Though a majority of the court last week delayed his execution to Oct. 8, the judges are bitterly divided over what to do with issues raised by Mr. Byrd's lawyers, even accusing one another of dirty play.
Hamilton County Prosecutor Mike Allen questioned the public defender's tactics and some of the judges' agendas.
An affidavit a day keeps the execution away, Mr. Allen said. That's what this thing has degenerated to.
Gregory Meyers, chief of the public defender's death penalty division, said the tactics are legal and necessary to hurdle laws that bar new evidence in these cases.
It's a death sentence that stinks, and most of the judges on the 6th Circuit know it, Mr. Meyers said.
At the center of Mr. Byrd's appeal are two statements from John Eastle Brewer, an accomplice who says he stabbed Mr. Tewksbury.
The public defender failed to sway state courts to seriously consider those statements. Gov. Bob Taft also dismissed Mr. Brewer as unbelievable when he denied clemency.
The 6th Circuit agreed and then disagreed.
In a 2-1 decision, Judges Richard F. Suhrheinrich and Alice M. Batchelder dismissed Mr. Byrd's appeal, calling the strategy behind it a fraud upon the court.
But dissenting Judge Nathaniel Jones got the execution delayed until Sept. 18 so he could try to change the other two judges' opinions.
The next day, at least five other 6th Circuit judges voted to extend the stay to Oct. 8 and consider moving the case to the full court.
That second vote set off an unusual public display in which judges filed written attacks on each other.
Judge Suhrheinrich accused his fellow judges of acting in secret and suggested they did not read the 2-1 decision. Judge Batchelder complained she was left in the dark about the vote.
In short, there was no written record of the cabal that resulted in this stay, Judge Batchelder wrote.
Judge Danny J. Boggs disdainfully wrote that the court majority would have stopped Mr. Byrd's execution if he filed a hot dog menu instead of legal arguments.
In his own written opinion, Judge Jones defended the vote. He also said Tuesday's terrorist attacks kept some judges out of the loop.
There was nothing secretive or mysterious about the (voting) procedure, he wrote.
Arguing aside, Mr. Byrd will continue living while the judges wrestle with the appeal for weeks, or even months. The court majority can extend the Oct. 8 stay any time it wants.
It was the second defeat for the state and Hamilton County prosecutors in 18 years of arguing the case. The U.S. Supreme Court handed them their first loss when it refused to support a 1994 execution attempt.
Like the dissenting judges, Mr. Allen accuses the 6th Circuit of ignoring the law. He said some judges are letting their personal opposition to the death penalty rule the day.
Mr. Meyers said the court has to take extreme measures to overcome laws that unfairly bar Mr. Brewer's purported confessions from being heard.
The (judges) are trying to find ways to get through the labyrinth of legal hurdles erected by death penalty law so they can look squarely at the case, go right to the heart of it and tell Ohio, "Stop! you can't kill John Byrd,' Mr. Meyers said.
The public defender took Mr. Brewer's first confession in 1989, but never used it until January. Judges Suhrheinrich and Batchelder lambasted the decision to not unveil the evidence in 1994, when the state came within hours of executing Mr. Byrd.
Mr. Pottinger's affidavit
There is yet another wrinkle.
Ohio Public Defender David Bodiker says his office will try to use a statement from Robert Pottinger, who says Mr. Byrd didn't commit a second robbery the night Mr. Tewksbury died. It's not clear whether the affidavit from Mr. Pottinger can be used in court.
Mr. Pottinger says he got in the van with Mr. Byrd, Mr. Brewer and driver William Danny Woodall after Mr. Tewksbury was stabbed at the convenience store.
When the van pulled up to the second convenience store, Mr. Pottinger says, Mr. Byrd was passed out in the back and did not go in.
That is important because the second store clerk and a customer testified that Mr. Brewer, identified by his red hair, was not carrying a knife.
Mr. Bodiker says prosecutors used that testimony to suggest Mr. Byrd was the second masked robber who used a knife to attack a storeroom door the clerk hid behind. Mr. Pottinger's story is intended to challenge the argument that Mr. Byrd was holding a knife that night.
It's not clear where or when a court can consider Mr. Pottinger's story.
We don't have a court. I don't know how we can use it right now, Mr. Bodiker said. We can't do anything with Mr. Pottinger unless we get another hearing.
The state of Ohio responds
Prosecutors and Ohio Attorney General's Office have already launched an effort to discredit Mr. Pottinger.
Transcripts from Mr. Byrd's 1983 trial show that prosecutors got the court to declare Mr. Pottinger a hostile witness after he refused to repeat earlier testimony he gave to a grand jury.
Mr. Pottinger told the grand jury he was ordered out of the van because Mr. Byrd said we might be facing a lot of time. At trial, he insisted Mr. Brewer said that.
Mr. Pottinger also was not in the van when police pulled it over.
Joe Case, a spokesman for Attorney General Betty Montgomery, which opposes any delay in executing Mr. Byrd, made available several taped telephone conversations between Mr. Pottinger and Kim Hamer, Mr. Byrd's sister.
Mr. Bodiker says Mr. Pottinger's story should be believed.
I was convinced there was a fourth guy, just by reading the transcripts and everything else, Mr. Bodiker said. But for believing him? Yeah. Absolutely.
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