Friday, November 09, 2001

Byrd defense suffers setback

Testimony: He admitted slaying

By James Hannah
The Associated Press

        DAYTON — Defense attorneys trying to overturn the death sentence for John W. Byrd Jr. suffered a setback Thursday when a prosecutor testified that attorneys who represented Mr. Byrd in his 1983 murder trial told him that Mr. Byrd had admitted stabbing the victim.

        In addition, another previously undisclosed affidavit surfaced from a prison inmate who says he — not Mr. Byrd — killed the victim.

        It is the fifth affidavit, or sworn statement, from the same inmate, and the third that had not been previously disclosed. That infuriated U.S. Magistrate Michael Merz, who demanded an explanation from Ohio Public Defender David Bodiker and then abruptly recessed the fourth day of hearings.

        Mr. Byrd, 37, has been sentenced to die for the slaying of Monte Tewksbury, a Cincinnati-area convenience-store clerk. Years after Mr. Byrd's conviction, John Brewer, who was with Mr. Byrd at the store, confessed to the slaying.

        A federal appeals court postponed Mr. Byrd's execution in September to allow for an investigation of his claims of innocence.

        On Thursday, assistant Clermont County Prosecutor Daniel Breyer said he had asked attorney Peter Rosenwald and another lawyer who represented Mr. Byrd why they didn't put Mr. Byrd on the stand during his murder trial so he could proclaim his innocence.

        Mr. Breyer said the men told him they couldn't do that “because Mr. Byrd wasn't going to lie and say he didn't do it.”

        Mr. Rosenwald told Magistrate Merz he remembered no such conversation with Mr. Breyer.

        James Canepa, of the Ohio attorney general's office, told Magistrate Merz that defense attorneys have not been disclosing all of their documents to the court. Mr. Canepa presented a 1988 affidavit from Mr. Brewer that Mr. Canepa said had just been sent to the governor's office by someone from the public defender's office.

        Although Mr. Brewer maintains as he did in his other affidavits that he stabbed Mr. Tewksbury, it predates his 1989 affidavit, which was believed to have been his first one. It also raised questions about whether there were additional affidavits and what they might contain.

        Mr. Bodiker told Magistrate Merz he had never seen the affidavit and did not know how it got to the governor's office.

        “I want an explanation from somebody under your control. You are the Ohio public defender. You are responsible for what's in this file,” a furious Magistrate Merz told Mr. Bodiker. “Find out how many more affidavits there are of John Brewer in your file that your subordinates are sending all over or hiding.”

        Richard Vickers, an attorney with the state public defender's office, testified he began representing Mr. Byrd in 1987 and two years later took the first of four affidavits from Mr. Brewer in which he admitted killing the clerk. “He was consistently saying the same thing, that he had stabbed Mr. Tewksbury,” Mr. Vickers told Magistrate Merz.


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