Controversy surrounds death-row case

by Toby Fallsgraff
For The Post

At about 11:00 p.m. on April 17, 1983, a red van sped away from a Cincinnati-area King Kwik. Inside the store, Monte Tewksbury, the lone night clerk, was fatally stabbed during a robbery. The three men in the van, who had been drinking beer and taking drugs throughout the day, took $133.97, Tewksbury's watch, his wedding ring and his wallet.

Meanwhile, the clerk struggled to an outside telephone and called his wife, told her of the robbery and that he had been injured. Before authorities arrived at the scene, Tewksbury told Cecil Conley, a customer who arrived after the stabbing, that he was having trouble. Within a few minutes, the police and Mrs. Tewksbury arrived at the scene. Shortly after being transported to Providence hospital, Tewksbury died from internal bleeding.

Almost 18 years later, John W. Byrd, Jr. waits on death row, convicted of aggravated murder and aggravated robbery. Byrd is one of two men who are next in line on Ohio's Death Row, said Todd Boyer, communications director of the Ohio Attorney General's office. With his appeals exhausted, the odds are likely that the Ohio Supreme Court will set his execution date for early summer.

But in what has been described as a "long-shot, 11th-hour effort" to save his client's life, Public Defender David Bodiker asked the Ohio Supreme Court on Jan. 26 to stay Byrd's execution so the defendant could file a rare claim of "actual innocence" in Hamilton County Common Pleas Court.

The claim revolves around an affidavit signed by Byrd's accomplice, John E. Brewer, in which Brewer confesses to having stabbed Tewksbury. The affidavit quotes Brewer as he hopped into the van saying to driver William Woodall, "Man, I just stabbed a guy, take off." Because the affidavit indicates Byrd was not the "principal offender," Bodiker said he should not be put to death.

The affidavit, originally signed in 1989, had been at the disposal of the Public Defender's office for 12 years. Until this filing, it had not been used - not even in 1994, when Byrd was just one hour away from execution because of Judge Carl Rubin's refusal to issue a stay. The Sixth Circuit Court of Appeals stepped in and stayed his execution to allow his appeals to move forward, removing Rubin from the case, according to the ruling.

This 12-year delay has raised serious questions in Ohio Attorney General Betty Montgomery's office. Montgomery issued a response to the claim, saying, "(The public defender's motion) is either another outrageous attempt to game the system or it represents a complete failure on the part of the public defender to serve their client."

Bodiker, who was not the original public defender assigned to the case, acknowledges that, in retrospect, it might not have been wiser to present the affidavit, but he said, "Hamilton County does not consider 'actual innocence' to be a relevant claim in post-conviction procedure."

Hamilton County Prosecutor Michael K. Allen called the motion "outrageous" in a Jan. 28 Columbus Dispatch article. Allen announced he plans to file a complaint against the public defender with the Disciplinary Counsel of the Ohio Supreme Court.

"The sun is setting, the execution is starting, and they mysteriously find this individual who comes forward and says he did it ... (Brewer's) lies have no weight whatsoever. They're garbage," he said in the article.

Byrd initially was charged with two death penalty specifications because of testimony from Ronald Armstead, a fellow inmate of Byrd's. In the 1983 testimony, Armstead, who was not involved in the robbery, identified Byrd as Tewksbury's murderer. It was not long after his testimony in Byrd's case that Armstead came before the Ohio Parole Board and was released.

Simultaneously, Armstead came forward in the case of Billy Joe Sewell, claiming Sewell had confessed to his crime as well. Armstead never testified in this trial.

Assistant Hamilton County Prosecutor Daniel J. Breyer, who had handled Byrd's case, wrote an unofficial recommendation to the parole board in which he commended Armstead's cooperation, saying that without Armstead's help, Byrd's case "would have concluded with a much less favorable result." Prior to the testimony, however, previous recommendations had been "stinging," to the effect of "never let this guy out," Bodiker said.

"We have a half-dozen people saying Byrd never talked to (Armstead)," he said.

C. Ronald Huff, dean of social ecology at the University of California-Irvine and an expert on errors in felony trials, said these so-called "jailhouse snitches" are "notoriously unreliable" because of the incentives they stand to receive from helping the often politically motivated prosecutor get a conviction.

Vince Popp, a defense attorney who has worked in capital cases, said he has witnessed such questionable conduct.

"I think there are cases where prosecutors want to appear tough on crime," Popp said. "And if they seek the death penalty, they want to make sure they get it."

And if Brewer's affidavit, which was reconfirmed in January, proves to be true, it could stand in the way of Brewer's possible parole in 2015. But two recent affidavits from the assistant prosecutor's office state that Woodall, Byrd's other accomplice, has taken back former statements in which he implicated Brewer. According to the affidavits, Woodall said he lied to protect his friend at the request of Brewer. In Woodall's original affidavit in 1989, he implicated Brewer, stating that during the getaway, Brewer remarked, "The guy gave me some trouble, so I had to stick him."

Bodiker said the validity of these new affidavits is questionable. Woodall, who is dying from lung cancer and is on a morphine pump and respirator at the Ohio State University Hospital Intensive Care Unit, would have been unable to make such statements, he said. Describing Woodall as "totally incoherent," Bodiker said that the warden has said that he is in no condition to talk to anybody.

But Allen said the Prosecutor's office denies these assertions and stands behind the affidavits.