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Criminal justice -- Anything to save a killer
Peter Bronson - Editorial

In a sudden-death playoff against the people of Ohio, John Byrd got a mulligan. Just hours before his execution, federal judges bent the rules to give him one more chance.

It was a fiasco. The overtime appeal turned into a circus of lying convicts, unethical lawyers, hidden evidence and a lurid deal to swap sex for false testimony. On Thursday, U.S. Magistrate Michael Merz ruled that Mr. Byrd is still guilty.

That's not exactly news. A jury said it 18 years ago. So did 70 appeals judges, Gov. Bob Taft and the Ohio Supreme Court: In 1983, John Byrd stabbed and murdered Monte Tewksbury, a Procter & Gamble employee who was moonlighting in a Cincinnati Kwik King store pay for his daughter's education.

Mr. Byrd's final appeal was denied 2-1 by the U.S. Sixth Circuit Court of Appeals. But on Sept. 11, that was overruled by a 2nd vote of all judges - igniting a bitter feud.

Judge Danny Boggs called the delay "procedurally virtually criminal," and said the pretext was "simply a lie." The majority went outside the law, he wrote: ". . . this court would grant a stay based on a hot dog menu."

Judge Nathaniel Jones, who was outvoted in the 1st decision and organized the 2nd vote, said there were still "serious gaps" after 18 years of appeals because testimony withheld for years by Mr. Byrd's own lawyers could prove he was innocent. He said the Sixth Circuit did nothing wrong or unusual.

But "unusual" doesn't begin to describe the hearings on Mr. Byrd's claim of "actual innocence." It was Jerry Springer on Court TV.

First, the case was detoured to a well-known opponent of capital punishment, U.S. District Judge Walter Rice. He assigned it to his magistrate, Judge Merz.

From the 1st gavel, Mr. Byrd's star witness was a flop. John Brewer, sentenced to life for his role in the Tewksbury murder, claimed he was the killer. But Mr. Brewer had repeatedly lied about the crime, prosecutors said, and had nothing to lose by lying again.

Then Judge Merz caught Ohio Public Defender David Bodiker hiding more affidavits by Mr. Brewer that told conflicting stories. "Reprehensible," the judge thundered.

Another surprise witness, Bobby Pottinger, claimed Mr. Byrd was too stoned and drunk to kill anyone. But then Mr. Pottinger, on parole for robbery, was forced to admit he signed that affidavit the same night he had sex with Mr. Byrd's sister and her girlfriend, after they brought him a carload of beer.

In taped phone calls, Mr. Byrd's sister begs Mr. Pottinger to testify that John Byrd is innocent.

"You know the truth," Mr. Pottinger says.

"Yeah, but Johnny's gonna die," the sister replies.

She gave Mr. Pottinger instructions contained in a letter from Mr. Byrd, then flushed the letter down a toilet.

His defense in a shambles, Mr. Bodiker quit the case. A lawyer on his staff took the Fifth Amendment to avoid incriminating himself.

"They were gaming and they got caught 3 times by the judge withholding evidence," said Joe Case of the Ohio Attorney General's office. "Their attitude is, "We're against the death penalty, and we will do anything to prevent an execution.'"

Attorney General Betty Montgomery said Mr. Bodiker should resign as Ohio Public Defender and his office should be investigated for similar misconduct in other cases.

But the Public Defender Commission - chaired by Mr. Bodiker's former law partner - blew off the request in a closed meeting and punted the complaint about Mr. Bodiker to the Ohio Supreme Court.

Hiding evidence is unethical or incompetent. Everyone in Ohio, on both sides of the death penalty, should be outraged that Mr. Bodiker is being paid by the state to sabotage justice.

The federal judges who twisted the rules to block the execution should be embarrassed.

This is what happens when ideology trumps the law. It's also Exhibit A to prove U.S. courts are incompetent to try, convict and execute terrorists.

The Byrd defense was a fraud. The ace up his sleeve was a joker. But he has the last laugh, while the widow of the man he killed must wonder if justice is a cruel prank.

"This is how the system works," Sharon Tewksbury told the Toledo Blade. "Survivors and victims begin feeling insignificant in a case like this. We're inconsequential. It's all about winning and losing."

Published 12/3/01