Appeals court grants Byrd further stay of execution

CINCINNATI - A federal appeals court yesterday extended Ohio inmate John Byrd Jr.'s stay of execution for at least 45 days while a lower court investigates Byrd's claim that he is innocent of the slaying for which he was sentenced to die.

The 6th U.S. Circuit Court of Appeals earlier had halted Byrd's scheduled Sept. 12 execution and granted him a stay that lasted until this past Monday. He was sentenced to die for the 1983 slaying of a suburban Cincinnati store clerk.

A majority of the court's nine active judges voted yesterday to order appointment of a federal magistrate judge to investigate Byrd's claim of innocence. The magistrate will be appointed by U.S. District Judge Walter Rice of Dayton, the chief judge for the federal district of southern Ohio.

"The hearing should develop a record with regard to John Byrd's claim of innocence presented to the Ohio courts, but on which no testimony of witnesses or evidence was taken," the appeals court's order said.

The magistrate is to submit a report with findings of fact and recommendations to the nine appellate judges within 45 days of being appointed. The appeals court also retained jurisdiction of the case.

The court did not disclose which of its judges was in the majority authorizing the order.

Because Byrd's last execution date has passed, the Ohio Supreme Court must set a new date for Byrd to go to the electric chair. It's unlikely to do so while the appeals court has jurisdiction of the case.

Byrd, 37, was convicted of murder in the stabbing of store clerk Monte Tewksbury during a 1983 robbery. Byrd has acknowledged taking part in the robbery, but has denied stabbing Tewksbury.

Byrd says an accomplice in the robbery, John Brewer, was Tewksbury's killer. Prosecutors say Byrd's claim is a fraud that is intended to save him from execution.

Brewer signed an affidavit in 1989 saying that he killed Tewksbury. But Brewer also has denied the slaying, prosecutors have said.