Monday, February 18, 2002

Byrd case shows flaws in death penalty system

Neither side satisfied with lengthy process

By Dan Horn
The Cincinnati Enquirer

        If John W. Byrd Jr. is executed as scheduled Tuesday, the criminal justice system will have devoted 19 years, six courts, more than 40 judges and hundreds of thousands of dollars to his case.

        Despite that steep investment, almost everyone involved agrees the system failed.

        Many see Mr. Byrd's long legal journey as proof Ohio's death penalty cases are handled in a way that serves neither justice nor taxpayers.

        Prosecutors say the system is unwieldy, time-consuming and subject to the whims of judges who put personal bias ahead of the law.

        Public defenders say time and money is squandered on procedural matters that ignore more important issues, such as guilt and innocence.

        And all the while, the families of victims and defendants are left in limbo, waiting for the ordeal to end.

        “This is a case that explains why the system is screwed up,” said Ohio Public Defender David Bodiker, who handled Mr. Byrd's appeals.

        “It's a three-ring circus,” said Hamilton County Prosecutor Mike Allen, who fought the appeals.

        When Mr. Byrd was sentenced to death in 1983, the Northside man did not appear destined to become the poster boy for all that's wrong with capital punishment in Ohio.

        He was convicted of robbing and stabbing to death Monte Tewksbury, a Colerain Township man who moonlighted as a clerk at a King Kwik convenience store.

        Prosecutors had plenty of evidence linking Mr. Byrd and his co-defendants to the King Kwik robbery. They also had a blood stain on Mr. Byrd's pants and testimony from a jail informant who claimed Mr. Byrd admitted to the slaying.

        But as Mr. Byrd's appeals made their way through the legal system, the case became more confusing and complex. New allegations were made, a co-defendant claimed to be the real killer and judges began sniping at one another in terse memos.

        Every step of the way, say those close to the case, the legal system broke down.

        “It's badly, badly broken,” said Mr. Tewksbury's widow, Sharon. “You wait and you watch and you wonder. The toll it takes is incredible.”

Long delays
               Mr. Byrd's original execution date was Jan. 27, 1984, just three months after his conviction.

        But as in all death penalty cases, a series of automatic appeals repeatedly postponed the execution. And that's exactly how the system is designed to work.

        Even most prosecutors acknowledge that it's in the interest of both the defendant and the state to extensively review all death sentences.

        The multiple layers of judicial review typically cover at least six courts, three at the state level and three at the federal level. The goal of these reviews, sometimes called “super due process,” is to ensure that no serious mistakes are made.

        “Years and years can go by,” said David Elliot, spokesman for the National Coalition to Abolish the Death Penalty, a non-profit group in Washington, D.C. “With the death penalty, there are no do-overs.”

        But in Mr. Byrd's case — and in a growing number of others across the country — neither side is satisfied with the quality of the review process.

        Prosecutors say the biggest problem is unnecessary delays. A thorough review is one thing, they say, but years of inaction by appeals courts is quite another.

        The average time between conviction and execution in Ohio is nearly 10 years. Nationally, the average ranges from eight to 11 years.

        “I'm not saying these should be rushed through. It's the most serious thing the state does,” Mr. Allen said. “But enough is enough. The reviews are interminable.”

"A huge problem'
               Mr. Allen said some federal judges stall cases for years by simply ignoring them. They do it, he said, because they personally oppose the death penalty.

        Mr. Allen believes that's what happened late last year when the U.S. 6th Circuit Court of Appeals stopped Mr. Byrd's execution just days before he was to die.

        A divided court agreed to let a magistrate review claims that one of Mr. Byrd's co-defendants, John Eastle Brewer, may have been the one who stabbed Mr. Tewksbury.

        Mr. Brewer, who is serving a life sentence for his role in the crime, claimed he was the real killer. Prosecutors, however, said Mr. Brewer knew he could not be tried again for the crime and was lying to help his friend.

        The magistrate dismissed Mr. Brewer's claims as unbelievable, but the delay stirred frustrations among the appeals judges who had opposed it.

        One judge suggested his fellow jurists would have stopped Mr. Byrd's execution if he filed “a hot dog menu” instead of legal arguments.

        Prosecutors say judges across the country routinely delay cases for questionable reasons.

        “It's a huge problem,” said Ron Eisenberg, a Philadelphia prosecutor and a spokesman for the National District Attorneys Association. “In death penalty cases, it's awful hard to divorce yourself of personal beliefs.”

Wasted time
               Public defenders say much of the time devoted to death penalty cases is wasted on proceedings that fail to address the most important issues.

        The result, they say, is a system that appears to be thorough, but really isn't.

        “We had a judicial process a mile wide and an inch deep,” Mr. Bodiker said of the Byrd case. “We have a hearing in the Supreme Court, we do this, we do that, but nobody really looks at (the case).”

        He said the courts first resisted evidence of Mr. Byrd's innocence and then disregarded it.

        Mr. Elliot said the system of appealing death penalty convictions makes it difficult to introduce new evidence. Until recently, he said, some courts even resisted new DNA evidence.

        He said 99 death row inmates nationwide have been exonerated since the death penalty was reinstated in the late 1970s. That, he said, speaks volumes about the need for more thorough review.

        “You have to look at what is actually being heard on appeal,” Mr. Elliot said. “These are technical, procedural issues, not important issues of mitigation or innocence.”

        Mr. Byrd declined to speak to the Enquirer, but he has complained often over the years about the appeals process.

        In the past few years, state and federal lawmakers have responded to criticism of the system by limiting appeals.

        Prosecutors hailed those efforts, and public defenders criticized them. So far, though, not much has changed. The time between conviction and execution has not significantly shortened.

        Mr. Allen said the best way to fix the system is to “get judges who will uphold the law.”

        Death penalty opponents say the best fix is the abolition of capital punishment. They say other alternatives, such as life in prison, are more fair and less expensive.

        “There's an underlying concern that perhaps this system doesn't work,” Mr. Elliot said.

Fewer death sentences
               Frustration with the system is at least partly responsible for an 80 percent drop in death sentences in Ohio since 1998.

        Faced with the long and controversial appeals process, prosecutors and defense lawyers are increasingly willing to make plea deals that avoid the death penalty altogether.

        The deals are possible because of a 1996 law that made life without parole an option.

        Prosecutors and victims' families like the deals because they avoid years of appeals. Defendants like them because they avoid the risk of a death sentence.

        After 19 years of waiting, Mrs. Tewksbury understands why life without parole is a viable option.

        At the time of Mr. Byrd's trial, she would have seriously considered such a deal. But back then, a death sentence was the only way to ensure an inmate would never be paroled.

        So prosecutors sought the death penalty, and Mrs. Tewksbury began her long wait for Mr. Byrd's sentence to be carried out.

        She still remembers when an assistant prosecutor called about 10 years ago to tell her the case was going to the U.S. Supreme Court. She didn't realize how many reviews, including a second trip to the Supreme Court, were yet to come.

        “I thought, "Oh wow, we're almost done,'” Mrs. Tewksbury said. “I had no idea.”

        The Associated Press contributed to this report.


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