Wednesday, November 07, 2001

Testimony aims cast doubt on Byrd's role in killing

By Spencer Hunt
Enquirer Columbus Bureau

        DAYTON, Ohio — Robert Pottinger Jr. didn't want to tell his story about the part he played April 17, 1983, the night Monte Tewksbury was stabbed and killed.

        A key witness in the effort to overturn John W. Byrd's death sentence for that crime, Mr. Pottinger tried to claim Fifth Amendment protections four times Tuesday.

        Finally, he reluctantly told a federal court in Dayton that it was he, and not Mr. Byrd, who helped rob a U-Tote-M convenience store after Mr. Tewksbury was stabbed in a Colerain Township King Kwik.

        A Hamilton County jury sentenced Mr. Byrd to die thinking he was the man who stabbed Mr. Tewksbury. Prosecutors tried to help them reach that conclusion by rely
ing on witnesses of the U-Tote-M robbery to suggest Mr. Byrd was one of two masked men who entered that store and brandished a knife there.

        During teleconferenced testimony, Mr. Pottinger said Mr. Byrd was passed out in the back of the get-away van and could not have taken part. But he stuttered when asked about details of the U-Tote-M robbery that might implicate him in that crime. He has never been charged in connection with the robberies that night.

        When asked, he at first said accomplice John Eastle Brewer “brandished” the knife at the U-Tote-M. He later said he could not remember.

        “My testimony now is I never saw a knife that evening,” Mr. Pottinger said.

        Mr. Byrd came within two days of dying in Ohio's electric chair before the U.S. Court of Appeals for the 6th Circuit in Cincinnati stepped in and ordered his case reopened.

        While Judge Merz's court will spend most of its time examining Mr. Brewer's claim that he was the one who stabbed Mr. Tewksbury, Mr. Pottinger's tale has quickly emerged as one of the more unusual elements of this case.

        Mr. Pottinger was silent for 18 years until Kim Hamer, Mr. Byrd's sister, persuaded him to give her a sworn statement. She later gave that statement and a tape of several telephone conversations she had with Mr. Pottinger to Gov. Bob Taft's office.

        Mr. Taft later denied clemency for Mr. Byrd. Now Mr. Pottinger is answering several tough questions about comments he made on the tape and his involvement with Ms. Hamer.

        During testimony Monday, Mr. Pottinger admitted he went out drinking and had sex with Ms. Hamer and a female friend after signing the statement. Mr. Pottinger said the sex was not a condition of his signing the affidavit.

        “I didn't know I was going to have sex with both of them,” Mr. Pottinger said. “Oh, this is coldblooded, man.”

        Assistant Attorney General James Canepa also played back the entire tape of Ms. Hamer's conversations with Mr. Pottinger, in which she pleads with him to sign an affidavit. Mr. Canepa asked Mr. Pottinger about several points in which he seemed to imply that the affidavit would not be honest.

        “You don't agree with her that Mr. Byrd was passed out,” Mr. Canepa said at one point.

        Mr. Pottinger said he was simply trying to avoid answering questions over the phone, fearing that he might be taped.

        “I didn't disagree with her, either,” Mr. Pottinger responded. “If it wasn't going to save him and it was going to get me in trouble, I wasn't going to do it.”

        Mr. Pottinger at first tried to refuse answering any question that would place him the King Kwik or otherwise implicate him in that crime.

        “I've never said I participated in any robbery,” Mr. Pottinger said. “How would you want me to incriminate myself like that?”

        Judge Merz explained that he'd waived his Fifth Amendment rights when he signed the affidavit.

        “You can't give up part of the Fifth and keep the rest of it,” he told Mr. Pottinger.

        Mr. Pottinger, who was testifying from a Tennessee courtroom, successfully refused to say where he was when interviewed by Cincinnati's Channel 19. He said it would be a violation of his parole to say he was in Cincinnati for that interview.

        Judge Merz angrily turned to a clerk and told her to subpoena Channel 19.

        More testimony, including an appearance tomorrow by Ms. Hamer, will be heard throughout the week. Though Mr. Byrd was originally scheduled to testify, it's not clear now if he will take the stand.

        In related news, the U.S. Supreme Court and the U.S. 6th Circuit both turned down requests the state made to stop the hearings.


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