One last try for Byrd's innocence

by Toby Fallsgraff
For the Post

The fate of convicted felon John W. Byrd, Jr. appeared to be sealed last week when the Ohio Supreme Court set a Sept. 12 date for his execution. But Byrd's situation could change if a Hamilton County Common Pleas Court accepts his defender's claim of actual innocence.

Although Byrd's appeals were officially exhausted when the U.S. Supreme Court denied reconsideration, Public Defender David Bodiker filed an eleventh-hour claim of actual innocence, which the Ohio Supreme Court remanded to a Hamilton County Common Pleas Court. A hearing is expected to take place sometime this spring.

Byrd was convicted in 1983 of the aggravated murder of Monte Tewksbury, a Cincinnati-area store clerk. Bodiker maintains the conviction was based wholly on testimony from Ronald Armstead, a fellow inmate of Byrd's.

"We have a half-dozen people saying Byrd never talked to (Armstead)," Bodiker said in a Feb. 15 Post article.

Byrd's actual innocence claim relies on accomplice John E. Brewer's 1989 affidavit, in which Brewer confesses to the slaying. However, a representative for Ohio Attorney General Betty Montgomery finds the 12-year delay in presenting this evidence questionable.

"If (the affidavit) was anywhere near credible, the Public Defender's office would have found a way to bring it to life," said Joe Case, Montgomery's spokesman.

Case said he believes the purpose of the claim is merely to stall.

The rarity of this legal maneuver sends Ohio courts into practically uncharted waters. In Byrd's case, common appeals have been unsuccessful in overturning his conviction on the grounds of procedural error.

"One of the difficulties has always been trying to fit the claim of actual innocence into one of the procedural cubby holes (of the appeals process)," Bodiker said.

Bodiker, who fought for a stay of execution until a resolution to the claim of "actual innocence" could be reached, argued the Ohio Supreme Court's decision was not a complete loss. According to a March 21 Columbus Dispatch article, the Ohio Supreme Court customarily sets execution dates 90 days in advance. In Byrd's case, the execution was scheduled almost six months in advance, allowing for his actual innocence claim to be heard.

"They set the date, but they gave us time to litigate," Bodiker said.

Byrd is the second death-row inmate scheduled to die within the next six months. Barring court intervention, Jay Scott will be executed on April 17, becoming Ohio's first involuntary execution in 36 years. Scott was convicted of shooting a delicatessen owner in Cleveland. Wilford Berry was executed in 1999 following the forfeiture of his appeals.