Tuesday October 9, 2001:
CINCINNATI (AP) -- A federal appeals court Tuesday 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 Tuesday to order appointment of a fedral 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 whichof its judges were 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 unliklely 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.

       WASHINGTON (AP) - Ohio asked the Supreme Court Wednesday to throw out a
       ``baffling'' delay in the execution of a killer who has chosen the electric
       chair over lethal injection.

       Because the court was closed most of Tuesday, the state's appeal reached
       justices on the day John W. Byrd Jr. originally was to be put to death.

       ``John Byrd's case has lingered in the courts long enough,'' wrote lawyers
       for the state, led by Attorney General Betty Montgomery.

       Byrd, convicted in the 1983 stabbing death of a Cincinnati convenience store
       clerk, has chosen the electric chair over lethal injection to illustrate what
       he says is the brutality of capital punishment. Ohio gives its death row
       inmates that option.

       A three-judge panel of the 6th U.S. Circuit Court of Appeals denied Byrd's
       requests to re-examine his appeal on Monday. But the execution was postponed
       from 10 a.m. Wednesday until Oct. 8 because one judge asked for more time for
       the full court to study the case.

       ``What does the order granting him a stay tell Byrd - and the millions of
       citizens in Ohio - about the power, the fairness and the simple common sense
       of our federal courts?'' Montgomery asked the high court.

       Byrd would be the first inmate to die in Ohio's electric chair in 38 years.

       ``The complexity of the issues raised by (Byrd) are of such scope and
       magnitude as to demand a careful and exhaustive analysis,'' 6th Circuit Judge
       Nathaniel R. Jones wrote supporting the delay.

       Montgomery said, ``Though we respect the deeply held views of that one panel
       member, his suggestion that Byrd's claims must yet be given a `careful and
       exhaustive analysis' is baffling.''

       It was unclear when the appeal, which was addressed to Justice John Paul
       Stevens, might be considered.

       Byrd has maintained that an accomplice killed Monte Tewksbury.

       The state said that Byrd's ``claim of innocence - like his dozens of other
       claims raised over the past 18 years - has been rejected by every court to
       consider it.''

       ``To be sure, Byrd faces a terrible penalty for a terrible crime, but at some
       point, Ohio's long-delayed interest in enforcing a final judgment in its
       favor ought to be vindicated,'' state lawyers wrote.

18 years after John W. Byrd was sentenced to die for murdering a convenience store clerk in a robbery, his partner in the crime testified that he delivered the fatal stab wounds.

In an unusual proceeding ordered by an appeals court weighing whether to permit Mr. Byrd's execution, a federal magistrate began assembling a record of what happened the night Monte Tewksbury was killed in Colerain Township.

"The truth is the fact that I did stab Mr. Tewksbury," John Eastle Brewer told a packed courtroom that included Mr. Byrd, his mother, and Mr. Tewksbury's widow and daughter. "I'm sorry. I know that doesn't make anything any better or different."

Mr. Byrd, who was expected to testify for the 1st time ever in this case,  did not take the stand. Magistrate Michael R. Merz announced Mr. Byrd, 37, may not have to answer questions if he's called.

Attorneys focused most of the day on Mr. Brewer, who has signed  confessions saying he was the one who stabbed Mr. Tewksbury.

Ohio courts rejected the confessions as unbelievable, but a sharply divided U.S. Court of Appeals for the 6th Circuit ordered Magistrate Merz to hold these hearings to help determine whether Mr. Byrd's appeal should move forward.

Mr. Brewer told the court he leaped over the store counter and had Mr. Tewksbury by the arm when a bright light from outside dis tracted him. Mr. Brewer said Mr. Tewksbury started struggling with him and that he stabbed the store clerk in a fit of panic.

"I didn't think he was hurt that serious," Mr. Brewer said.

Under questioning by James Canepa, an assistant attorney general, Mr. Brewer admitted he lied to the officers who arrested him, lied when he denied killing Mr. Tewksbury during his own trial and twice lied to prison officials about his involvement in the crime. Mr. Brewer insisted that he is telling the truth now.

"I came here to come clean," he said.

Mr. Brewer also was asked why the confession he offered in January differed from one he gave the state public defender in 1989. The confession was not disclosed until this year, as Mr. Byrd's appeals were running out.

Mr. Brewer said the passage of time made that April night of 1983 more difficult to recall.

"I knew there would be discrepancies because I knew my memory ain't what it used to be," Mr. Brewer said.

Prosecutors have said Mr. Brewer is confessing to the actual stabbing as a favor to a friend. Because he was convicted of murder in the slaying and is serving more than 41 years in prison, Mr. Brewer cannot be tried again.

2 other witnesses, Bennie Fields, a former inmate, and Roger Hall, who is still in prison on charges of murder and bank robbery, said Mr. Brewer told them Mr. Byrd was on death row for a crime he did not commit.

"He said, "I'm the one who killed that man,'" Mr. Hall said. "He said, "My partner didn't do it.'"

As he did with Mr. Brewer, Mr. Canepa tried to discredit both witnesses by bringing up their criminal records. At one point, Mr. Canepa asked Mr. Hall about a letter he wrote that asked a fellow inmate to lie on the stand on Mr. Hall's behalf.

"It looks like my handwriting, all right, said Mr. Hall, who never admitted to writing the letter. "I wasn't a very good person, but I'm not the one on trial here, sir."

There was an exchange involving Mr. Byrd during a break in testimony.

As bailiffs were leading the shackled death-row inmate back to his defense team, Mr. Byrd cleared his throat and said something that appeared to alarm Mr. Canepa.

He told Magistrate Merz that Mr. Byrd had said, "You are pitiful."

Mr. Byrd's defense team sat silent as Mr. Canepa said he felt Mr. Byrd was trying to intimidate him.

"It worked," Mr. Canepa said to Mr. Byrd. "Are you happy?"

Monday's hearing was the 1st time Sharon Tewksbury, Mr. Tewksbury's widow, came face to face with her husband's convicted killer.

"It's very difficult," Mrs. Tewksbury said of the experience.

Testimony is scheduled through Friday.

(source: Cincinnati Enquirer)

Death row inmate John W. Byrd Jr. improperly delayed the introduction of
evidence that he says could clear him and should not receive a review of
his claim, the state said Friday.

The state asked the 6th U.S. Circuit Court of Appeals not to hold a
full-court hearing on motions filed by Mr. Byrd's lawyers.

"Had Byrd followed the rules, he could have obtained review of his
"actual innocence' claim years ago," Attorney General Betty Montgomery
said in a court filing. "Instead, he deliberately concealed the evidence
that he now claims 'proves' his "actual innocence.'"

On Sept. 12, the federal appeals court delayed Mr. Byrd's execution until
at least Oct. 8. Mr. Byrd, 37, says he is innocent but chose the electric
chair over injection to make his sentence as difficult as possible for
the state and as a protest against the death penalty.

The next day, the U.S. Supreme Court turned down Ohio's request to allow
the state to move ahead with the execution. It would be the 1st time
since 1963 Ohio has used its electric chair.

Mr. Byrd was convicted of fatally stabbing convenience store clerk Monte
Tewksbury of Cincinnati during a 1983 robbery. He claims an accomplice
stabbed Mr. Tewksbury.

(source: The Cincinnati Enquirer)

                            COLUMBUS — As the state of Ohio stands down from
                    executing John W. Byrd in the electric chair, the case has
                    turned into a twisting legal drama with no foreseeable outcome.

                            Mr. Byrd's final bid to avoid execution for the murder of a
                    Colerain Township convenience store clerk Monte Tewksbury
                    in 1983 rests with 11 deeply divided judges at the U.S. Court of
                    Appeals for the 6th Circuit in Cincinnati.

                            Though a majority of the court last week delayed his
                    execution to Oct. 8, the judges are bitterly divided over what to
                    do with issues raised by Mr. Byrd's lawyers, even accusing
                    one another of dirty play.

                            Hamilton County Prosecutor Mike Allen questioned the
                    public defender's tactics and some of the judges' agendas.

                            “An affidavit a day keeps the execution away,” Mr. Allen
                    said. “That's what this thing has degenerated to.”

                            Gregory Meyers, chief of the public defender's death
                    penalty division, said the tactics are legal and necessary to
                    hurdle laws that bar new evidence in these cases.

                            “It's a death sentence that stinks, and most of the judges
                    on the 6th Circuit know it,” Mr. Meyers said.
 
 

                                        The appeal
 
                                 At the center of Mr. Byrd's appeal are two
                    statements from John Eastle Brewer, an accomplice who says
                    he stabbed Mr. Tewksbury.

                            The public defender failed to sway state courts to
                    seriously consider those statements. Gov. Bob Taft also
                    dismissed Mr. Brewer as unbelievable when he denied
                    clemency.

            The 6th Circuit agreed — and then disagreed.

                            In a 2-1 decision, Judges Richard F. Suhrheinrich and
                    Alice M. Batchelder dismissed Mr. Byrd's appeal, calling the
                    strategy behind it “a fraud upon the court.”

                            But dissenting Judge Nathaniel Jones got the execution
                    delayed until Sept. 18 so he could try to change the other two
                    judges' opinions.

                            The next day, at least five other 6th Circuit judges voted
                    to extend the stay to Oct. 8 and consider moving the case to
                    the full court.

                    The dispute
                                   That second vote set off an unusual public display in
                    which judges filed written attacks on each other.

                            Judge Suhrheinrich accused his fellow judges of acting in
                    secret and suggested they did not read the 2-1 decision. Judge
                    Batchelder complained she was left in the dark about the vote.

                            “In short, there was no written record of the cabal that
                    resulted in this stay,” Judge Batchelder wrote.

                            Judge Danny J. Boggs disdainfully wrote that the court
                    majority would have stopped Mr. Byrd's execution if he filed “a
                    hot dog menu” instead of legal arguments.

                            In his own written opinion, Judge Jones defended the
                    vote. He also said Tuesday's terrorist attacks kept some
                    judges out of the loop.

                            “There was nothing secretive or mysterious about the
                    (voting) procedure,” he wrote.
 
 

                                        Continued life

                                   Arguing aside, Mr. Byrd will continue living while the
                    judges wrestle with the appeal for weeks, or even months. The
                    court majority can extend the Oct. 8 stay any time it wants.

                            It was the second defeat for the state and Hamilton
                    County prosecutors in 18 years of arguing the case. The U.S.
                    Supreme Court handed them their first loss when it refused to
                    support a 1994 execution attempt.

                            Like the dissenting judges, Mr. Allen accuses the 6th
                    Circuit of ignoring the law. He said some judges are letting
                    their personal opposition to the death penalty rule the day.

                            Mr. Meyers said the court has to take extreme measures
                    to overcome laws that unfairly bar Mr. Brewer's purported
                    confessions from being heard.

                            “The (judges) are trying to find ways to get through the
                    labyrinth of legal hurdles erected by death penalty law so they
                    can look squarely at the case, go right to the heart of it and tell
                    Ohio, "Stop! you can't kill John Byrd,'” Mr. Meyers said.

                            The public defender took Mr. Brewer's first confession in
                    1989, but never used it until January. Judges Suhrheinrich and
                    Batchelder lambasted the decision to not unveil the evidence in
                    1994, when the state came within hours of executing Mr. Byrd.
 

                    Mr. Pottinger's affidavit
                                   There is yet another wrinkle.

                            Ohio Public Defender David Bodiker says his office will
                    try to use a statement from Robert Pottinger, who says Mr.
                    Byrd didn't commit a second robbery the night Mr. Tewksbury
                    died. It's not clear whether the affidavit from Mr. Pottinger can
                    be used in court.

                            Mr. Pottinger says he got in the van with Mr. Byrd, Mr.
                    Brewer and driver William Danny Woodall after Mr. Tewksbury
                    was stabbed at the convenience store.

                            When the van pulled up to the second convenience store,
                    Mr. Pottinger says, Mr. Byrd was passed out in the back and
                    did not go in.

                            That is important because the second store clerk and a
                    customer testified that Mr. Brewer, identified by his red hair,
                    was not carrying a knife.

                            Mr. Bodiker says prosecutors used that testimony to
                    suggest Mr. Byrd was the second masked robber who used a
                    knife to attack a storeroom door the clerk hid behind. Mr.
                    Pottinger's story is intended to challenge the argument that Mr.
                    Byrd was holding a knife that night.

                            It's not clear where or when a court can consider Mr.
                    Pottinger's story.

                            “We don't have a court. I don't know how we can use it
                    right now,” Mr. Bodiker said. “We can't do anything with Mr.
                    Pottinger unless we get another hearing.”
 
 

                    The state of Ohio responds
                                   Prosecutors and Ohio Attorney General's Office have
                    already launched an effort to discredit Mr. Pottinger.

                            Transcripts from Mr. Byrd's 1983 trial show that
                    prosecutors got the court to declare Mr. Pottinger a hostile
                    witness after he refused to repeat earlier testimony he gave to
                    a grand jury.

                            Mr. Pottinger told the grand jury he was ordered out of
                    the van because Mr. Byrd said “we might be facing a lot of
                    time.” At trial, he insisted Mr. Brewer said that.

                            Mr. Pottinger also was not in the van when police pulled it
                    over.

                            Joe Case, a spokesman for Attorney General Betty
                    Montgomery, which opposes any delay in executing Mr. Byrd,
                    made available several taped telephone conversations between
                    Mr. Pottinger and Kim Hamer, Mr. Byrd's sister.

                            Mr. Bodiker says Mr. Pottinger's story should be
                    believed.

                            “I was convinced there was a fourth guy, just by reading
                    the transcripts and everything else,” Mr. Bodiker said. “But for
                    believing him? Yeah. Absolutely.”

John W. Byrd Jr. was not the knife-wielding man in a robbery committed later the same night Monte
Tewksbury was murdered, according to a sworn statement signed last week by Robert E. Pottinger
Jr. Pottinger claims he was with Byrd and 2 others at the 2nd robbery the night of April 17, 1983.

The Ohio Supreme Court ruled that Byrds identification as the knife wielder in the U-Tote-M
convenience store robbery was highly probative evidence that he stabbed Tewksbury to death at a
King Kwik store, a crime for which Byrd is scheduled to be executed September 12.

But in an August 31 affidavit obtained by Columbus Alive, Pottinger who says he was picked up by
Byrd, John Brewer and William Woodall after Tewksburys murder states that Byrd was heavily
intoxicated that night, had passed out and did not participate in the U-Tote-M robbery.

The witnesses who identified Byrd as the masked man who stabbed at the door of the restroom in
which the stores clerk had hidden were wrong, Pottingers affidavit states. Byrd never left the van
during this robbery.

Pottingers affidavit conforms with 2 statements signed by Brewer in which Brewer says that he, not
Byrd, killed Tewksbury. In a 1989 affidavit, Brewer says that when he and Byrd entered the King
Kwik store,  Byrd staggered and was having a hard time standing up. In an affidavit signed this year,
Brewer says Byrd appeared to be highly intoxicated the night of the murder.

In 1993, Woodall also signed an affidavit swearing Brewer was the killer.  John Byrd Jr. appeared
highly intoxicated and was almost unable to walk, Woodall stated. When John E. Brewer exited the
King Kwik store and entered the vehicle in which we were riding, the knife he was carrying was
covered with blood Brewer attempted to wipe the knife blade on the right-hand side of the drivers
seat in the vehicle.

Both Byrds co-defendants, and now Pottinger, say Brewer stabbed Tewksbury. I talked to Danny
Woodall. I was in the same prison with him for awhile.   All the indications I got was it was Johnny
Brewer that killed him, Pottinger told Alive.

At both the King Kwik and U-Tote-M robberies, Brewers footprint was found on the store
counters.

Pottinger, whose possible involvement in one or both of the robberies was revealed in the August 30
issue of Columbus Alive, does not say in his  affidavit who entered the King Kwik with Brewer.

But Kim Hamer, Byrds sister, says Pottinger admitted to her in a telephone conversation on August
29 that he was the man who stabbed at the restroom door in an attempt to get at the U-Tote-M
store clerk who had hidden inside.

Jim Henneberry, a U-Tote-M employee, described the man with the knife as wearing tan pants and
a jacket that was red and black. A U-Tote-M customer, Dennis Nitz, also told police that the man
with the knife was wearing tan pants. The witnesses described both U-Tote-M robbers as wearing
masks.

When Byrd, Brewer and Woodall were arrested shortly after the second robbery, Byrd was
wearing blue slacks and a sweater with wide blue, yellow and black stripes. Brewer and Woodall
were wearing blue jeans.

Prosecutor Woody Breyer conceded to the jury that, despite the eyewitness identification of a knife
wielder in a black and red jacket and tan pants, that Byrd was wearing the same sweater he was
wearing when he left Northside, [the] striped sweater.

In order to explain away 2 eyewitness accounts of a robber with tan pants, prosecutor Breyer
offered the jury his own theory that Nitz must have been wearing the tan pants: You have seen them
all that they were all blue. I speculate that that tan he wore he [Nitz] had tan pants. I will tell you this,
Nitz wasnt concerned with what color pants he had on, and he is trying to help the police. He made
a mistake. Hes a kid, lucky to be alive today, given that one fault, that faulty recall.

The prosecutors forensic reports determined that a knife found in the red work van when Byrd,
Brewer and Woodall were arrested was not, in fact, the knife wielded at the U-Tote-M scene.
Pottinger was not in the van when the three were arrested.

Pottinger previously told Alive that, following the arrest of the three co-defendants, he was detained
in a juvenile facility on pending murder charges but ultimately was never charged with anything. A
major reason why, Pottinger says in his affidavit, is that Byrd, Brewer and Woodall later told me that
they had agreed to keep my name out of the case because I was only 17.

Pottinger was convicted in 1987 of receiving stolen property and was placed on parole. He was
convicted of robbery in 1989 and spent nearly 11 years in prison. He is now on parole in Tennessee.

With Pottingers affidavit discrediting the claim that Byrd was the man with the knife in both robberies
the night of April 17, 1983, the only remaining evidence that Byrd killed Tewksbury is the testimony
of Ronald Armstead, who claimed that Byrd confessed to the crime while both were in the Hamilton
County Jail.

Armstead had been arrested 22 times before his testimony at Byrds trial. He has been arrested at
least 4 times since, most recently in 1996.

A concerted effort by Columbus Alive to locate Armstead for comment has determined that he is
working on an Alaskan cruise ship. Members of Armsteads own family said they were unable to get
word to him that one of his sisters died on August 10.

Judging from the comments of a rental agent at the Las Vegas apartment complex at which
Armstead lived until recently, Armstead is apparently a good liar. The agent told Thomas W. Casler,
an investigator with the Office of the Nevada Federal Public Defender, that she decided not to sue
Armstead for the 5 weeks rent he owed when he left because he claimed he had just been diagnosed
with cancer. The rental agent said she later learned from a family member that this was not true.

(source:  Martin Yant and Bob Fitrakis, Columbus Alive)

A diverse religious coalition representing Catholics, Jews, Protestants and Buddhists came together
yesterday to urge Gov. Bob Taft to stop Wednesday's scheduled execution of John W. Byrd Jr.

"If we execute John Byrd," said the Rev. James E. Gebhart, a retired Methodist minister, "his blood
is on our hands."

The Interfaith Coalition to Stop Executions, representing 24 faiths and 50 central Ohio
congregations, is taking its case beyond Byrd, however, pressing state lawmakers and Taft to
abolish the death penalty.

Church leaders have had a "historic silence" about capital punishment and other "unspeakable
horrors," Gebhart said.

"We vowed never to be silent again. We are ending that silence today."

Byrd's execution is scheduled for 10 a.m. Wednesday, barring delays granted by the federal courts
or Taft, who is considering an executive-clemency request. Byrd, 37, was convicted for the April
17, 1983, murder of Monte B. Tewksbury during a robbery at a Cincinnati convenience store.

Byrd yesterday chose the electric chair for his execution. A 1993 state law gives condemned
prisoners the option of the electric chair or lethal injection.

Taft, who is expected to make his clemency decision Monday, will not be swayed solely by religious
considerations, spokesman Joe Andrews said.  Taft is a churchgoer, attending First Community
Church in Grandview Heights.

Taft will consider many factors, but must focus on the fact that in Ohio, capital punishment is the
ultimate penalty, Andrews said.

"It is the law, and the governor's going to follow the law. Clemency is an ongoing process."

The Ohio Parole Board recommended 10-1 against clemency, but Taft has the power to accept or
reject that recommendation.

Clergy members who gathered at Trinity Episcopal Church, 125 E. Broad St., expressed strong
theological opinions against executions.

"We believe there is no crime for which the taking of a human life by society is justified," said Rabbi
Harold Berman of Congregation Tifereth Israel.

Capital punishment is "very clearly a form of revenge," said Winifred Wirth, who quoted the Dalai
Lama: "Hatred never ceases with hatred."

Archbishop Daniel E. Pilarczyk of Cincinnati did not attend but sent a letter to Taft saying Byrd's
execution "will create another set of victims -- his family and friends."

When the state takes a life, it is "the ultimate act of faithlessness," said Becky Robbins-Penniman,
associate pastor of All Saints Episcopal Church in New Albany.

But the coalition will take its crusade beyond the talking stage, Gebhart said.

"We are pastors, priests, executive leaders, counselors and spiritual directors. We speak as one, and
we will raise our voice to our constituency, to the public, to the legislature and to the governor."

The coalition will focus on individual legislators statewide, he said, working through their local
churches to persuade them to support abolishing the death penalty.

Some Republicans in the General Assembly, including Reps. James P. Trakas of Independence and
Tom Brinkman Jr. of Cincinnati, are teaming with Democrats to lobby for a death-penalty study.
Opponents think that could lead to the demise of capital punishment in Ohio.

(source: Columbus Dispatch)

Death row inmate John W. Byrd Jr. sent Gov. Bob Taft a letter this week, saying he is neither a
killer nor a monster and "there will be no justice in my execution.

The governor's office forwarded a copy of a typewritten, 3-page letter to the Enquirer Wednesday,
a day after it was apparently faxed from the Ohio Public Defender's Office. Mr. Byrd's attorneys
would not confirm they sent the letter.

"I did not take the life of Mr. Tewksbury!" Mr. Byrd wrote. In the letter, he asked Mr. Taft to meet
with him on death row.

"... I invite you to take the opportunity to come and speak with me and see for yourself that I am not
what others are trying so hard to make me out to be," Mr. Byrd wrote. Mr. Byrd was sentenced to
death in 1983 as the man who fatally stabbed Monte Tewksbury during a robbery at a convenience
store. John Eastle Brewer, an accomplice in the crime, has come forward claiming he did it. Barring
clemency or a court order, Mr. Byrd is scheduled to die Sept. 12.

On Wednesday morning, Mr. Byrd followed through on a vow to die in the electric chair, choosing
electrocution over lethal injection. In his letter, Mr. Byrd writes he is "not the monster that I am being
made out to be," referring indirectly to incidents in the 1980s in which he helped abduct 2 prison
guards and mailed out threats from death row.

"Things that went on in them days I would not be a part of today," he wrote.

Joe Andrews, a spokesman for Mr. Taft, said the governor won't visit Mr. Byrd but will look at the
letter to help make his clemency decision.

Mr. Taft may also look at an affidavit from Robert Pottinger that Mr. Byrd's sister, Kim Hamer,
hand-delivered to the governor's staff Tuesday.

Mr. Pottinger says he was in the van with Mr. Byrd, Mr. Brewer and getaway driver William Danny
Woodall during a robbery at the U-Tote-M convenience store, which took place an hour after Mr.
Tewksbury was stabbed at the King Kwik.

"(Mr.) Byrd, who was heavily intoxicated that night, had passed out and did not participate in the
U-Tote-M robbery," Mr. Pottinger said.

Prosecutors used eyewitness testimony from a U-Tote-M clerk and customer to argue that Mr.
Byrd held a knife during that robbery.

Mr. Pottinger was not in the van when police pulled it over. The public defender has never used Mr.
Pottinger's statements in court, and did not return calls seeking comment about them.

Joe Case, a spokesman for Attorney General Betty Montgomery, called the affidavit unbelievable.

"It's just another ingredient to throw into the pot to try to confuse the facts of the case," Mr. Case
said.

(source: Cincinnati Enquirer)

When Monte Tewksbury announced that he had taken a job at a convenience store to earn extra
money, he told his wife and daughter not to worry.  That didn't matter the night of April 17, 1983,
when 2 masked men entered the King Kwik.

The men grabbed $133.97 from the register. They took Mr. Tewksbury's money, credit cards,
wristwatch and wedding ring. Then one of the men plunged a 5-inch knife into Mr. Tewksbury's
side, puncturing his liver.

Minutes after he managed to call her, Sharon Tewksbury was kneeling beside her husband, holding
his hand as he slowly bled to death on the store floor. Struggling to breathe, he told her he gave the
robbers everything they asked for.

"He cried about how they'd taken his wedding ring," Mrs. Tewksbury said.

18 years later, prosecutors say, the wait for justice is almost over. Mr. Tewksbury's convicted killer,
John William Byrd Jr., faces execution Sept. 12 in the electric chair.

Mr. Byrd's attorneys, however, insist the wrong man is on death row. Mr. Byrd did rob the King
Kwik, but they say the other man, John Eastle Brewer, held the knife.

"I totally believe that John Brewer did it," says David Bodiker, the Ohio public defender. "I know
beyond any question of any doubt that Mr. Byrd's trial was a travesty."

2 confessions from Mr. Brewer that he stabbed Mr. Tewksbury may be Mr. Byrd's last chance for
life. 2 state courts have so far dismissed Mr. Brewer as unbelievable, and a divided Ohio Supreme
Court has refused to look at his confessions.

"This "wrong man' defense has been exposed for what it is, and that's a sham," said Hamilton County
Prosecutor Mike Allen. "The right man is on death row."

                                                        Divisive case

Questions of guilt or innocence are supposed to be settled years before an execution takes place.

No one said Jay D. Scott did not kill a Cleveland delicatessen owner in 1983. In the days leading up
to his June 14 lethal injection, Mr. Scott's lawyers argued it would be inhumane to execute a
diagnosed schizophrenic.

When the state executed Wilford Berry on Feb. 19, 1999, the issue was whether he could waive his
appeals and volunteer for death. Courts decided he could.

Howard Tolley Jr., a University of Cincinnati professor, lawyer and anti-death penalty activist, said
the Byrd case divides onlookers into 3 camps: Those who believe Mr. Byrd did it, those who say
Mr. Brewer did it, and others who can't decide between them.

"I don't think you can, to a real certainty, say it was (Mr.) Brewer or it was (Mr.) Byrd," Mr. Tolley
said.

What's clear is that a hard-working family man was senselessly murdered.

A full-time employee of Procter & Gamble, Mr. Tewksbury monitored clinical tests of new drugs.
He had a daughter, Kimberly, in college and 2 younger sons, David and Matthew.

Kimberly Tewksbury said her father was a man who "truly understood unconditional love."

He had a good life, but "he always felt he needed to do more," Sharon Tewksbury said.

That's why he took on extra jobs, including clerking at the convenience store.

Court records state that Mr. Byrd's childhood was marred by abusive men who married or dated his
mother, Mary Lou Ray. He'd never met his biological father, who divorced Mrs. Ray shortly after
John was born.

By age 17, he had appeared in Hamilton County Juvenile Court 6 times and been sent to the Ohio
Youth Commission twice. He spent his 18th year in a Kentucky prison after he was caught driving a
stolen truck across the state line.

                                                    April 17, 1983

On the day of the murder, Mr. Byrd and Mr. Brewer, friends for a few months, were drinking and
playing pool at a downtown bar. They were later joined by William Danny Woodall and his boss,
LeRoy Tunstall.

In the evening, Mr. Byrd, Mr. Brewer and Mr. Woodall drove off in Mr. Tunstall's red van.

Their 1st robbery was the King Kwik, but it was not their last.

As Mr. Tewksbury lay dying, they drove to the U-Tote-M convenience store on Colerain Avenue.

Chased by a man with a knife, U-Tote-M clerk Jim Henneberry fled to a storeroom. Customer
Dennis Nitz escaped the second robber, whom he noticed had red hair.

While 1 man attacked the blocked storeroom door with a knife, the other struggled with the cash
register. The 2 carted off the entire machine.

After that, 2 Forest Park police officers saw the van enter the parking lot of a closed K-Mart. The
driver parked briefly and drove away. The van passed by again a few minutes later, and the officers
decided to stop it.

2 stocking masks and a knife were found in the dashboard tray. Sharon Tewksbury's Shell credit
card was under the passenger seat.

There was fresh blood on the driver's seat. Police found blood on Mr. Byrd's pants and testified that
they took a Pulsar brand watch off his wrist.

                                                            The trial

Prosecutors had plenty of evidence linking the men to the robberies and the murder. But who killed
Mr. Tewksbury?

There were no fingerprints or blood on the knife. No video camera and no eyewitnesses.

As he was dying, Mr. Tewksbury said his attacker wore a checkered or plaid shirt. Mr. Byrd was
wearing a striped sweater. Mr. Brewer had on a sleeveless T-shirt.

Mr. Henneberry said his attacker was wearing tan pants. Mr. Byrd's pants were blue.

Prosecutors say the Pulsar watch Mr. Byrd wore was Mr. Tewksbury's - but it vanished. Police say
they mistakenly allowed Mr. Byrd's mother to claim it as part of her son's property. It never was
recovered.

Mr. Allen said other evidence points to Mr. Byrd as the killer.

Mr. Nitz testified the red-haired Mr. Brewer was not holding a knife in the U-Tote-M. The blood on
Mr. Byrd's pants was type O, the same as Mr. Tewksbury's.

Mr. Bodiker calls this evidence irrelevant. He said Mr. Woodall, who died of cancer in prison this
year, also had type O blood and said he'd been injured while working that day.

"The fact that a Byrd-like person held the knife in the U-Tote-M doesn't mean he held the knife in
the King Kwik," Mr. Bodiker said. "You can't make that conclusion."

                                                Ronald Armstead

Then there was the testimony of Ronald Armstead, a Hamilton County Workhouse inmate who
became an informant for the prosecution.

During the 1983 trial, Mr. Armstead said Mr. Byrd bragged about stabbing Mr. Tewksbury
"because he was in my (expletive) way."

Mr. Bodiker says Mr. Armstead made up the story in a deal with prosecutors to avoid going back
to prison on a parole violation.

The Parole Board approved parole, citing Mr. Armstead's cooperation.

Courts rebuffed all attempts to challenge Mr. Armstead's testimony.  Judges said the jury had a fair
chance to weigh Mr. Armstead's credibility and ruled there was no evidence to show he lied.

Mr. Bodiker said his office twice contacted Mr. Armstead in Las Vegas last year to see whether
he'd change his story.

"He wouldn't give us the time of day," Mr. Bodiker said.

Mr. Allen angrily denies Mr. Bodiker's accusations of a deal.

"No promises were made to Mr. Armstead," he said.

                                                    Confessions

Mr. Armstead aside, Mr. Bodiker insists Mr. Brewer's 2 confessions prove Mr. Byrd is not the
killer.

"I said to Danny Woodall, "Man, I stabbed a guy. Take off,'" Mr. Brewer says in one of the
confessions. He also describes a tussle with Mr. Tewksbury behind the counter.

One big problem is timing.

Mr. Byrd's attorneys obtained Mr. Brewer's 1st confession in 1989. They never brought it forward
until this year, when Mr. Byrd's regular appeals had run out.

At the time, Mr. Bodiker said his office thought it could overturn the death sentence by attacking Mr.
Armstead's testimony. Though they obtained a similar confession this year, he said holding on to the
1989 confession was a mistake.

Mr. Allen says Mr. Brewer is lying to help a friend. With a 41-to-life sentence, he says, Mr. Brewer
knows he's not likely to ever get out of prison and that he can't be tried again for the same crime.

                                            State's 3rd execution?

Barring a court order or clemency, Mr. Byrd will become the 1st of 48 Hamilton County death row
inmates to die and only the 3rd Ohioan executed since 1963.

2 state courts already have dismissed the confessions. On Wednesday, the Ohio Supreme Court
narrowly dismissed Mr. Byrd's case 4-3.

The Ohio Parole Board also has rejected the confessions in a 10-1 vote opposing clemency for Mr.
Byrd.

As Sept. 12 nears, Mr. Byrd awaits a final clemency decision from Gov. Bob Taft. A federal court is
likely to start sifting through the confessions this week.

                                                           2 families

In the meantime, Mr. Byrd's sister, Kim Hamer, continues to work to win a commuted life sentence
for him.

"My brother is innocent and they're going to execute an innocent man," Ms. Hamer said.

Kimberly and Sharon Tewksbury are just as emphatic that Mr. Byrd murdered Monte Tewksbury.

Kimberly Tewksbury does not believe her father struggled with Mr. Brewer, as he claims.

"The only struggle was him coming out of the store, bleeding to death and trying to find a quarter for
the phone," she said. "There was no "tussle.'"

Sharon Tewksbury said she wants the execution to go forward because that's the sentence that was
handed down 18 years ago.

Kimberly Tewksbury said she wants to get out of an emotional prison she thinks Mr. Byrd and the
court system created for her family.

"I want our lives back. I want a vacation day that is not a court date," she said. "I want him off the
planet."

(source: Cincinnati Enquirer)

Gov. Bob Taft on Monday denied clemency for John W. Byrd Jr., who is scheduled to be executed
in what would be Ohio's 1st electrocution in 38 years.

Byrd, who says he is innocent of the murder that led to his death sentence, still has an appeal
pending to overturn his conviction and stop his execution, scheduled for Wednesday.

The governor followed the recommendation of the Ohio Parole Board, which voted 10-1 Aug. 23
against clemency. The board said statements by an accomplice exonerating Byrd of the slaying
lacked "any credibility whatsoever."

Taft said he had reviewed the trial record and appeals, which so far have been denied, and took into
account Byrd's claim of innocence.

"I can find no reasonable or compelling reason to disagree with these very thorough evaluations of
Mr. Byrd's case," the governor said in a statement.

Hamilton County Prosecutor Michael Allen, whose office won Byrd's 1983 conviction, said he was
gratified by the governor's decision.

"I can't speak for the governor but I have to think he was not impressed by the flurry of affidavits
that the public defender concealed over the years," Allen said.

Ohio Public Defender David Bodiker, whose office represents Byrd, did not return a telephone
message seeking comment.

The execution of Byrd, 37, would be Ohio's 3rd execution since 1963. He has said he chose the
electric chair over lethal injection to illustrate the brutality of capital punishment.

Byrd says an accomplice in a Cincinnati convenience store robbery stabbed Monte Tewksbury, a
40-year-old Procter & Gamble Co. employee who was moonlighting as a clerk to pay for his
daughter's education.

Byrd's lawyers wanted Taft to commute the sentence to life in prison. The governor also denied
clemency to the last two men executed in Ohio, Wilford Berry in February 1999 and Jay D. Scott in
June.

Byrd's attorneys acknowledge their client took part in the robbery but say that under state law, he
cannot be executed because he wasn't the principal offender. The maximum sentence an accomplice
in the case could have received would have been life in prison.

Byrd's sister Kim Hamer and several religious and human-rights organizations appealed to Taft to
commute Byrd's sentence and to put a moratorium on the death penalty in Ohio.

In January, Byrd's lawyers introduced an 11-year-old document in which one of Byrd's
accomplices, John Brewer, said he and not Byrd stabbed Tewksbury. Byrd's lawyers also produced
an 8-year-old document in which the other accomplice implied that Byrd was innocent.

Prosecutors denounced both claims, and produced their own interviews with the 2nd accomplice,
William Woodall, conducted shortly before Woodall died in prison of cancer earlier this year.
Woodall said Byrd was the killer, according to the documents.

Taft said a review of Byrd's case and his alleged behavior in prison -- he has been charged with 20
major rules violations including assaults -- convinced him that Byrd should be denied clemency.

"Nothing in Mr. Byrd's prison record suggests any serious effort on his part to rehabilitate himself or
to atone for the crime he committed," Taft said.

On Aug. 21, the 1st Ohio District Court of Appeals in Cincinnati denied Byrd's request that it
overturn a trial court judge's dismissal of his innocence claim. Byrd appealed that decision to the
Ohio Supreme Court,  which refused to hear the case. The request is pending in the 6th U.S. Circuit
Court of Appeals in Cincinnati.

In July, Ohio prisons Director Reginald Wilkinson urged the state to retire the 104-year-old electric
chair, saying possible malfunctions could be too stressful for prison staff members.

The Legislature is due back from summer recess on Tuesday, but majority Republican leaders say
the issue likely won't be a priority this year.

(source: Associated Press)

Not under Ohio law.

But did Byrd kill Monte B. Tewksbury? Or was it another man, John E. Brewer, who twice has
confessed to the killing?

Could a 4th person, a juvenile at the time, have been with the robbers when they left Tewksbury
bleeding and dying on the floor of a Cincinnati convenience store April 17, 1983?

Those are moot points to Attorney General Betty D. Montgomery and Hamilton County Prosecutor
Michael K. Allen. Both are convinced the right man is scheduled to be executed at 10 a.m.
Wednesday at the Southern Ohio Correctional Facility near Lucasville.

"There is no question of guilt in this case," said Montgomery spokesman Joe Case. "Just because
somebody says there is a question doesn't mean it's true."

But nagging doubts haunt Ohio Public Defender David H. Bodiker and his staff as the clock ticks
toward Byrd's execution.

If Brewer was, in fact, the killer -- something Bodiker's office alleged for the 1st time in January --
did the public defender make a legal, and lethal, mistake by withholding Brewer's affidavit for 12 years?

"Probably we made a mistake," Bodiker said. "Was it fatal? No. You saw what the courts in
Cincinnati did with it. They said they didn't believe Brewer."

Bringing up an "actual innocence" claim as early as 1989, when it 1st surfaced, had "more potential
liabilities than benefits," Bodiker said.

Since January, two courts in Cincinnati and the Ohio Supreme Court have refused to look at the
innocence appeal.

The innocence claim actually is a misnomer.

Under Ohio law, all parties to Tewksbury's murder -- even the driver of the getaway car who did
not enter the convenience store that night -- were found guilty of aggravated murder. However, only
Byrd, singled out as the principal offender and Tewksbury's killer, was given the death penalty.

Byrd, 37, has 2 remaining chances for a reprieve.

The 6th U.S. Circuit Court of Appeals in Cincinnati is considering his request to be allowed to file a
new appeal in U.S. District Court in Columbus. A final appeal to the U.S. Supreme Court would be
the end of the line.

Meanwhile, Byrd is about to gain national attention, in part because of his choice of electrocution
instead of lethal injection. Death row interviews with Byrd have been taped and are expected to air
this week on NBC Nightly News and National Public Radio.

The latest development in the tangled case involves Robert E. Pottinger, a friend of Byrd's who
reportedly was the subject of an "honor-among- thieves" pact by the 3 men involved in the case.

Byrd, Brewer and William Dannie Woodall, the man who drove the van used in 2 robberies that
night 18 years ago, reportedly agreed to keep Pottinger's involvement a secret. Pottinger was not
arrested or charged in the crime; he did testify at the trial.

Pottinger, now 35 and living near Nashville, Tenn., said in a new affidavit, submitted to the
governor's office for his clemency review, that Byrd had passed out and did not participate in a
robbery at the U-Tote-M convenience store.

That was the second robbery of the night for Byrd, Brewer and Woodall, committed about an hour
after Tewksbury's murder at a King Kwik in  Colerain Township, near Cincinnati.

Byrd was identified as a knife- wielding robber at the 2nd robbery, a fact the Ohio Supreme Court
found conclusive in affirming his conviction as Tewksbury's killer.

Although the attorney general dismissed Pottinger as "not a credible witness," Montgomery's office
quickly dispatched two assistant attorneys general to Nashville late last week where they questioned
Pottinger about the Byrd case.

"We had obtained a copy of the Pottinger affidavit," Case said. "We felt we should get as much
information about that as we could.

"We talked to him because we wanted to be prepared for any and all circumstances if it's brought up."

The case has become cause celebre for death-penalty opponents.

Bianca Jagger has joined the chorus of voices asking Taft to grant Byrd clemency.

"To many, Johnny Byrd is just one more criminal who must pay with his life for a crime for which he
was convicted. However, this case presents disturbing facts that should not be disregarded," Jagger
wrote.

"We respectfully urge you to halt the execution of John Byrd, and ensure that the state of Ohio does
not kill the wrong man."

(source: Columbus Dispatch)

Just hours before John Byrd, Jr. is scheduled to be put to death in Ohio's electric chair, a man has
come forward with information that could save the convicted killer's life. Up until now, only three
men were arrested after the 1983 killing of Cincinnati convenience store clerk Monte Tewksbury.
But for the 1st time, another man named Bobby Pottinger admits in public that he was also there the
night of two robberies.

During the 1st robbery, Tewksbury was stabbed to death. John Byrd was convicted of the murder,
mostly on the testimony of witnesses who said they saw Byrd holding a knife at a 2nd robbery.
Pottinger says that was impossible. Byrd, he claims, never left the van for the second robbery
because he was too drunk.

"The truth is that John Byrd never went into the 2nd store," Pottinger said. "He was too messed up;
he couldn't even hold his head up.

"I just can't let them kill my friend without me sticking my chest out," he continued. "I have to be
honest."

Pottinger signed an affidavit stating his claims and gave it to Columbus Alive after it was notarized.
Pottinger says he is coming forward now to clear his conscience.

Another accomplice, John Brewer also says Byrd is innocent. In Brewer's affidavit, he claims he
himself was the one who killed Monte Tewksbury.

(source: Cincinnati Enquirer)

John Byrd Jr. is guilty - and cannot prove otherwise - and should be
executed as scheduled Sept. 12, prosecutors are arguing before the Ohio
Supreme Court.

Hamilton County Prosecutor Mike Allen and the office of Ohio Attorney
General Betty Montgomery on Monday asked the Ohio Supreme Court to reject
Byrd's request for a hearing on his claim of "actual innocence."

Byrd, 37, of Northside, scheduled to die for the 1983 murder of Monte
Tewksbury, then 40, contends he deserves a hearing based on the
confession of a co-defendant, John Brewer, who said he - not Byrd - is
the killer.

Meanwhile, Byrd offered his condolences to Sharon Tewksbury, but no
confession, in a letter he sent to her.

"Mrs. Tewksbury I'm truly sorry for your loss, we have all suffered, and
through all our suffering there has been hate. ... I did not kill your
husband," Byrd wrote. "I pray every night that god touches your heart and
gives you peace."

In the letter, Byrd admitted for the 1st time he had previously sent
threatening mail to the Tewksbury family.

"I'm also sorry for the hateful things I've written to you," Byrd wrote.
"I was filled with hate back then. I'm sorry for all your suffering, but
I did not harm your husband."

He concludes the letter to Tewksbury's widow: 'God bless, John.'

Byrd is appealing rulings from Hamilton County Common Pleas Court and the
First District Ohio Court of Appeals in Cincinnati that he is not
entitled to an evidentiary hearing. He also wants the high court to stay
his execution, which would be the third in Ohio since early 1999.

However, prosecutors contend questions over Byrd's guilt or innocence
have long since been asked and answered, with 6 courts and nearly 70
judges upholding his conviction and death sentence.

They say Brewer's 1989 affidavit, which he renewed this year, is a ploy
to spare Byrd from the electric chair.

"No one would ever want to see a truly innocent man face the death
penalty, but Byrd has not offered any credible evidence supporting his
claim on that issue ...," prosecutors wrote the Ohio Supreme Court.

Brewer's affidavits, which courts have concluded lack any credibility, do
not meet the U.S. Supreme Court standard of being "truly persuasive," the
Hamilton County prosecutor and attorney general argue.

Public defenders contend Common Pleas Court Judge Steven Martin failed to
fulfill the Ohio Supreme Court's instructions to conduct a hearing on
Byrd's claims.

Tewksbury, 40, was stabbed to death during a 1983 robbery while
moonlighting as a clerk at a King Kwik convenience store near Mount
Healthy. 

Ohio offered him the needle but he demanded the chair. Stephen Romei reports on a new twist to the death penalty debate. Witnesses routinely report that, when the switch is thrown, the condemned prisoner cringes, leaps and fights the straps with amazing strength. The hands turn red, then white, and the cords of the neck stand out like steel bands. The force of the electrical current is so powerful
that the prisoner's eyeballs sometimes pop out and rest on [his] cheeks. The prisoner often defecates, urinates and vomits blood and drool. Sometimes the prisoner catches on fire ... witnesses hear a loud and sustained sound `like bacon frying' and the `sickly  sweet smell of burning flesh' permeates
the chamber. In the meantime, the prisoner almost literally boils.
So, wrote Supreme Court justice William Brennan Jr, in a 1985 dissenting opinion agreeing with a Louisiana death row inmate that the electric chair was cruel and unusual punishment and therefore in violation of the  US constitution. Brennan, who opposed capital punishment in any form, said
execution by electrocution was ``nothing less than the contemporary technological equivalent of burning people at the stake ... [The] evidence suggests  that death by electrical current is extremely violent and inflicts pain and indignities far beyond the mere extinguishment of life.''This is precisely how John Byrd wants to die.  The Ohio death row inmate has opened a new front in the US's death penalty debate by
insisting he be executed by electrocution rather than lethal injection. Byrd, convicted of stabbing a shop assistant to death during a 1983 robbery, says he is innocent. He wants to die in the electric chair to draw attention to the cruelty of capital punishment, particularly in his case.  ``John feels this
should not be like taking the family pet to the vet to be put quietly to sleep,'' says lawyer Jane Perry of the Ohio Public Defender Commission. ``He wants taxpayers to understand they play a role in  executions and the killing can't be sanitised.''
If Byrd, 37, has his way, he will be strapped into Ohio's 104-year-old electric chair late next week.

Prison officials have rejected his request to not wear a face mask, declaring ``there'll be no grandstanding''. He will   be the first person executed by electrocution in Ohio in 38 years. Since the state reintroduced the death penalty in 1981, it has offered inmates the choice of electrocution or
lethal injection. Ohio has put to death only two people in that time, both of whom chose injection. However,  the state now has 202 inmates on death row, raising the uncomfortable possibility, for local officials, of others choosing the chair.  ``We would do electrocution as professionally as possible, but we know the chances of something going wrong are much greater with the electric chair,'' Ohio corrections director Reginald Wilkinson says. For this reason, law-makers are considering legislation to make lethal
injection the sole method of execution. However, as the state assembly does not reconvene from the summer break until after the scheduled execution, any such change may come too late to thwart Byrd's gruesome death wish. This timing dilemma has led to suggestions that Ohio Governor Bob Taft, a
Republican who supports capital punishment but opposes the electric chair, may grant Byrd a stay until the new law is in place, ensuring he dies by lethal injection.
Byrd's bizarre bid has refocused attention on one of the least defensible aspects of the US's death penalty system: the fact that some states still kill inmates using methods widely considered inhumane. The last time the issue was in the news was July 1999, when Florida executed a 160kg murderer,  Allen "Tiny'' Davis. Worried that the state's ancient electric chair, dubbed ``Old Sparky'', would not be up to the task, officials had a new, larger one built.
The result was a bloody mess. As the current jolted Allen's huge frame, blood poured from behind his face mask, drenching his shirt. Florida Supreme Court Justice Leander Shaw later wrote that the ``colour photos of Davis depict a man who -- for all appearances -- was brutally tortured to death by the citizens of Florida''. Those photos can be found on the internet. Two years earlier, in the arms of Old Sparky, Pedro Medina met an equally barbarous death. Witnesses reported a crown of 30cm flames from his head, with thick smoke filling the execution chamber.  At that time, Shaw said Florida's electric chair was a ``dinosaur more befitting the laboratory of Baron  Frankenstein than the death chamber of a state prison''. Shaw was in the minority on Florida's highest court, which ruled use of the electric chair did not violate constitutional protection against cruel and unusual punishment. As another death row inmate prepared to take the case to the US Supreme Court, Florida Governor Jeb Bush, brother of then presidential candidate George W. Bush, introduced legislation in early 2000 to allow inmates a choice
of electrocution or lethal injection.  It seems incredible today, but the electric chair was developed -- with the help of Thomas Edison -- as a humane alternative to hanging. Electrocution was first authorised by the New York state legislature in 1888.  Less than a year later, William Kemmler took an axe to his lover Matilda Ziegler in Buffalo, New York. He was sentenced to death -- and to be the first victim of the US's new electric chair. He appealed on the same grounds being cited today: that electrocution is cruel and unusual punishment. His appeal reportedly was partially funded by Westinghouse and other electricity companies, unhappy with the  bad publicity their product was getting. In rejecting Kemmler's appeal, the US Supreme Court approvingly noted that ``it is within the reach of science ... to generate and apply to the person of the convict a current of electricity of sufficient force as to produce  instantaneous, and therefore painless, death''.
Like Florida and Ohio, South Carolina and Virginia allow death row inmates to choose between electrocution and injection. Only two states -- Alabama and Nebraska -- have electrocution as the sole method of execution.  In 2000, five of the 85 executions carried out across the US were by electrocution, four in Alabama and one in  Virginia, where mass murderer Michael Clagett asked for the electric chair.  In Washington, inmates are executed by lethal injection unless they ask to be hanged, as did child killer  Westley Dodd in 1993. Murderer Billy Bailey was hanged three years later in Delaware, which allows that method of execution for crimes committed before 1986.
California, with the largest death row in the US, uses injection unless the inmate requests the gas chamber,  which no one has since 1993. Utah retains the option of a firing squad, which was
chosen by one inmate as recently as 1996. Nineteen years  earlier, Gary Gilmore met the same fate, the first person executed in the US following the Supreme Court's 1976 decision to reinstate the death penalty.  Some states have covered their bases to circumvent judicial interference in the machinery of death. Oklahoma, which leads the US in executions so far this year, authorises electrocution in the event lethal injection is ever found to be unconstitutional and firing squad if both lethal injection and
electrocution are ever held unconstitutional.

       John W. Byrd has been condemned to death for murdering a Cincinnati store
       owner, even though his accomplice, John Brewer, has admitted stabbing the man
       and the physical evidence at the scene seems to corroborate his confessions.
       With the execution looming, The Dispatch takes a hard look at the facts.
       Without a steady job to report to, John William Byrd Jr. spent the afternoon
       of April 17, 1983, drinking beer, smoking pot and doing quaaludes with a
       friend.The 19-year-old cruised the Northside area of Cincinnati on foot for
       several hours, looking for John "Red'' Brewer, another friend who, like Byrd,
       was 19 and worked only sporadically.After 18 years, the details of that day
       are spotty. Some can be gleaned from court records, interviews and
       information from prosecution and defense attorneys. But there are gaps
       concerning what Byrd -- the Death Row inmate next in line for execution in
       Ohio -- did that day.What is known is that by 5:30 or 6 p.m., Byrd met Brewer
       at Frank and Irene's, a downtown bar. About that time, William Dannie
       Woodall, 34, showed up with Leroy Tunstall, a co-worker at Harry's Corner
       rehabilitation center.After drinking, shooting pool and chasing girls, Byrd,
       Brewer and Woodall left the bar and piled into the red van in which Woodall
       and Tunstall had arrived.The van, owned by the rehabilitation center, was
       more of a truck -- beat-up, dirty and rusty, with no back seat. It was loaded
       with sacks of insulation for a construction job; beer cans, cigarette butts
       and other trash littered the cab.On the clear, cool night, the three men made
       a quick run across the Ohio River to Newport, Ky., apparently for more beer
       and liquor. They later returned to Cincinnati.At some point before leaving
       Frank and Irene's, they made a fateful decision."We're going to rip somebody
       off,'' Woodall told Tunstall.At the King KwikIn middle-class Colerain
       Township, Monte B. Tewksbury was working alone at King Kwik when two men in
       stocking masks entered the convenience store about 11 p.m.One carried a knife
       that Tewksbury, 40, would describe as "the biggest goddamn knife I've ever
       seen.''The paths of Tewksbury, known as a good father to his three children,
       and Byrd, who as a boy often searched for the father he never knew, were
       about to cross.What happened during the next few minutes remains in dispute
       but very little incriminating evidence ever surfaced -- no identifiable
       fingerprints, no blood in the store, no DNA results and no verified murder
       weapon.Evidence did show that Brewer jumped onto the store counter, leaving a
       footprint matching his Converse All Star basketball shoe.Behind the counter,
       Brewer scooped $133.79 out of the cash register. Authorities would find $89
       on him, including 29 dollar bills.Police and Hamilton County prosecutors
       acknowledged that Brewer stole the money but concluded that Byrd was the one
       who jammed a knife into Tewksbury's right ribs, 6 inches below his
       shoulder.Although the wound produced very little blood immediately, it had
       pierced Tewksbury's diaphragm and liver, causing internal bleeding that would
       kill him within about two hours.After jerking the store phone out of the
       wall, Byrd and Brewer ran outside to the van, where Woodall waited.Pressing
       paper towels against his wound as a compress, Tewksbury stumbled outside to a
       pay phone, managed to find a quarter and called his wife at home."Sharon,
       don't panic,'' he told her. "I've been robbed, and I've been hurt. Get the
       police and an ambulance and get here as fast as you can.''A shocked Mrs.
       Tewksbury hurriedly changed clothes, called the police, told her two sons --
       David, 15, and Mathew, 12 -- only that she was leaving and quickly drove the
       two blocks to the store.Battling a cold and unable to sleep, Colerain
       resident Cecil Conley wandered to the King Kwik to buy cigarettes. He found
       Tewskbury leaning against the wall talking on the phone."Help me. I'm hurt,''
       Tewksbury told Conley. "I'm going to die.After Conley helped him back inside
       the store, Tewksbury said, "I wasn't trying to be a hero.''He said the
       robbers had taken his gold Pulsar watch, a birthday gift from his wife; a
       wallet containing his wife's Shell credit card and registration for their
       Ford Pinto; and car keys.Repeatedly, he mentioned that they'd also taken his
       wedding ring."It was just a plain white-gold wedding band,'' his wife would
       say in court later. "It wasn't worth anything except to him.''When Mrs.
       Tewksbury arrived at the King Kwik, her husband of nearly 20 years was lying
       in excruciating pain on the floor, gasping for breath. A creeping red stain
       was visible on his right side.She kissed him, and he began to cry."I knew how
       bad it was,'' she noted in court.Tewksbury told police that his attackers
       were white -- he could tell, he said, by their hands -- and that one of them
       wore a plaid shirt.Mrs. Tewskbury rode in the ambulance with her husband to
       nearby Providence Hospital. On the way, he wondered aloud about his fate."I
       don't know why they stabbed me,'' he told emergency-squad worker Joe Hempel.
       "I gave the bastards everything they wanted.''Tewksbury died in the emergency
       room at 1:16 a.m. April 18, 1983.At the U-Tote-MAfter leaving the King Kwik,
       Byrd, Brewer and Woodall drove the few miles back to Northside, where they
       hooked up with Bobby Pottinger, 17, the friend with whom Byrd had partied
       during the afternoon.He wanted to join them, but they refused."They wasn't
       done with taking care of business,'' Pottinger said they told him.That
       "business'' involved robbing another convenience store, the U-Tote-M in
       Colerain.Around midnight, Byrd and Brewer entered the store, both in stocking
       masks.Clerk Jim Henneberry was working, and a customer, Dennis Nitz, was
       playing a video game. When Henneberry saw the men enter he fled to the back
       of the store, locking himself in the women's restroom.One of the robbers --
       identified by Nitz as a man of the same height and hair color as Byrd --
       pursued Henneberry, stabbing the closed wooden door repeatedly.Eventually,
       the assailant gave up. Brewer took the cash register drawer and the $24 that
       was in it, and fled.The fingering of Byrd as the knife-wielder in the U-
       Tote-M robbery proved vital to prosecutors in the conviction for Tewksbury's
       slaying.Eventually, the Ohio Supreme Court agreed, saying Byrd's
       identification as the man with the knife "was highly probative on the issue
       of identity of Byrd as the principal offender'' in the King Kwik
       robbery.About 1 a.m. April 18, two Forest Park police officers noticed a red
       vehicle move slowly through a Kmart parking lot, then enter a closed
       convenience store. When they stopped the van, they saw a knife on the
       console, coins on the floor and a Shell credit card beneath the passenger
       seat.Byrd, Brewer and Woodall were found guilty in Hamilton County Common
       Pleas Court of one count of aggravated murder and three counts of aggravated
       robbery. Singled out as the principal offender in Tewksbury's murder, Byrd
       was sentenced to death. Brewer and Woodall received life sentences. Woodall
       died of cancer earlier this year.The issuesHe says he can't remember the
       night of Tewskbury's death, but Byrd insists that he did not kill him.In
       Ohio, the capital-punishment case is the first in recent history to involve a
       claim of innocence.Since 1973, 96 people have been released from Death Row in
       22 states after evidence proved them innocent. Ohio Public Defender David
       Bodiker would like to make Byrd No. 97.Yet Hamilton County Prosecutor Michael
       K. Allen and Ohio Attorney General Betty D. Montgomery are confident that the
       right man is scheduled to die Sept. 12.Here are some of the issues:* Six
       years after the murder -- and again 12 years later -- Brewer said he, not
       Byrd, killed Tewksbury. He signed sworn affidavits on May 16, 1989, and Jan.
       24, 2001."I grabbed the clerk by the arm and he grabbed me by my arm and we
       tussled behind the counter ,'' Brewer said. "While we were tussling, I became
       distracted by lights outside the store and lost control of Tewksbury's arm.
       Tewksbury slung me to the side. I freed my left arm and got my knife from my
       waist and stabbed him in the side. I did not think he was seriously hurt
       because I did not see any blood.''But the Hamilton County Common Pleas and
       appeals courts and the Ohio Parole Board, during separate clemency
       proceedings, determined that Brewer's confessions lacked credibility.*
       Tewksbury, as he was dying, said one of the robbers wore a plaid shirt.When
       arrested, Byrd had on a sweater with blue, black, and yellow horizontal
       stripes and blue pants. Brewer had on a sleeveless black mesh T-shirt, no
       outer garment and blue jeans. He was so cold that night that he asked to get
       into the police cruiser to warm up.Byrd's attorneys argue that Brewer might
       have thrown out a bloody shirt between robberies. Prosecutors have dismissed
       the discrepancy, saying witnesses sometimes make mistakes in recalling
       details.* Byrd, who has Type A blood, had two drops of Type O blood on his
       pants. More blood, also Type O, was found on the side of the driver's seat
       near where Byrd was crouching when stopped by police.Tewksbury had Type O
       blood, as does Brewer. Woodall, too, had Type 0, and he had blood on his
       shirt that night, allegedly from a work-related head injury.Police did not
       use DNA testing or other more sophisticated scientific tests. They were
       unable to determine that the blood on Byrd and the van seat was Tewksbury's.*
       Brewer's footprint was found on the King Kwik counter and the money in his
       pocket. Byrd had $4.76 on him when arrested.* Nitz, the witness in the
       U-Tote-M, said the robber with the knife wore tan pants; Byrd wore blue pants
       and Brewer had on jeans. Henneberry, the clerk in the other robbery, said
       during a preliminary hearing that his attacker had the knife in his left
       hand; at trial, he said it was in his right hand. Byrd is right-handed;
       Brewer is left-handed.* Byrd was allegedly wearing Tewksbury's gold Pulsar
       watch when he was arrested. Police mistakenly thought it was Byrd's watch and
       later gave it to his mother. A police property-room card listing the Pulsar
       watch was lost; a photo copy showed up the day before Byrd's trial began.*
       The knife found by police was never proved to be the murder weapon. Hamilton
       County Coroner Leonard Parrott said the knife with the 6-inch blade was
       consistent with Tewksbury's wounds, but he could not say for sure that it was
       the murder weapon. Tests showed it was not the knife used to stab the door at
      the U-Tote-M. A single spot of blood on the knife was determined to be human
       but it could not be typed.* Ronald Armstead, an inmate who testified at trial
       that Byrd bragged to him in jail that he killed Tewksbury, was an informant
       with a long criminal record, almost none of which was allowed to be
       introduced at trial.Within days after his testimony, the Hamilton County
       prosecutor's office abruptly reversed what had been strenuous opposition to
       Armstead's parole. He was paroled two months later.The prosecutor and
       attorney general say Armstead's testimony has stood the test of time, having
       been upheld by myriad judges in various courts.Tewksbury's storyMonte
       Tewksbury was not supposed to work that Sunday night in April 18 years ago.He
       had switched hours with a co-worker so he could be off the previous night to
       accompany his 19-year-old daughter, Kimberly, to the taping of a singing
       recital for PM Magazine, a local TV show.Barry Mulvihill, 20 at the time,
       originally was scheduled to work the Sunday shift. Now living in Columbus and
       working as a computer-support specialist for Franklin County, the 39-year-old
       Mulvihill remembers how he felt when he heard about Tewksbury's murder."At
       first, it made me feel guilty,'' he said. "As irrational as it sounds, I
       thought somehow it was my fault."He was one of the nicest men I ever knew,''
       Mulvihill said. "He was one of those people who always had a smile on his
       face.''Tewksbury's wife said her husband was a consummate caregiver and a
       doting father."He was a strict disciplinarian, but he tempered that with a
       great deal of love,'' she said. "He was the one who took the kids to their
       baseball games and music lessons.''Tewksbury, who had a biology degree from
       Wilmington College, worked full time during the day as a clinical monitor for
       drug tests at Procter & Gamble. But he frequently moonlighted.Always
       concerned that his wife and children needed more, Tewksbury one day saw a
       sign in the window of the King Kwik store two blocks from the family home.He
       was tired, Tewksbury told his family, and for once wanted a "no-brainer''
       second job.His wife and daughter feared for his safety and begged him not to
       take the job. But he began working there for minimum wage in January
       1983.They had a premonition, Mrs. Tewksbury said, that wasn't good.Byrd's
       storyGrowing up, Byrd never knew his father, John Byrd Sr., the first of his
       mother's four husbands.His parents divorced when he was small, after his
       mother was beaten repeatedly by his father. As a youngster, Byrd apparently
       searched often for him."He would go out looking for him and tell me he found
       his dad,'' his mother, Mary Ray, said in court. "I'd say, 'Honey, are you
       sure?' And he says, 'Yes, Mama, I finally found my real father.'"I knew deep
       in my heart he hadn't because he father was locked up. He used to go through
       telephone books calling all the Byrds looking for his real father.''Byrd's
       stepfathers, too, were abusive -- to both wife and child.At 13, he was
       finding trouble regularly, becoming rebellious, using drugs and alcohol,
       attending school less and less often. He dropped out after the ninth grade.He
       was committed to the Ohio Youth Commission for a while. After his release, he
       began working off and on as a painter, construction worker and roofer.Just
       after turning 18, Byrd stole a truck in Kentucky and was sentenced to a year
       in the Kentucky State Reformatory.While in prison, he was caught with a
       homemade shank and placed on two years' probation.He needed the knife, Byrd
       told his mother, to avoid being raped in prison.The status of the caseThe
       clock is ticking for Byrd, whose execution in the electric chair is scheduled
       in 2 1/2 weeks at the Southern Ohio Correctional Facility, near Lucasville in
       Scioto County.To date, his case has been litigated in six courts and involved
       70 judges. He has lost at every stage.Earlier this year, the Ohio public
       defender -- after waiting 12 years for strategic reasons, a tactic he now
       acknowledges as a mistake -- introduced Brewer's confession as part of an
       actual-innocence appeal.That confession, though, was dismissed by two courts
       -- Hamilton County Common Pleas and the 1st District Court of Appeals -- as
       lacking "any credibility whatsoever.''Byrd's clemency appeal is now in the
       hands of Gov. Bob Taft, who has the ultimate power in the matter under state
       law. The governor's options include rejecting the appeal, granting a
       temporary reprieve or removing Byrd permanently from Death Row.Meanwhile,
       Byrd has several legal appeals remaining.His case is pending before the Ohio
       Supreme Court. Thereafter, his attorneys can take the fight to the U.S.
       District Court in Columbus, the 6th Circuit Court of Appeals in Cincinnati
       and, finally, to the U.S. Supreme Court.

       Gov. Bob Taft won't meet with the sister of a convicted killer scheduled to
       be executed next month, but staff members will invite her to meet with them,
       a spokesman said yesterday.Kim Hamer, 33, of Cincinnati had asked to meet
       with the governor as he considers whether to commute her brother's sentence
       to life in prison without parole.John W. Byrd Jr., 37, is scheduled to die
       Sept. 12 for the 1983 stabbing death of Monte Tewksbury during a robbery at a
       Cincinnati convenience store.Taft "has to draw the line someplace with who he
       meets with and who he doesn't. That's why he has the staff out there,''
       spokesman Joe Andrews said. "The staff will certainly convey any message she
       has to the governor.''The governor's office, most likely members of his legal
       staff, also will invite members of Tewksbury's family to discuss Taft's
       decision. The legal staff regularly interviews people making clemency
       requests, Andrews said.The Ohio Parole Board recommended Thursday that Taft
       reject Byrd's clemency request.Byrd says a robbery accomplice stabbed
       Tewksbury, a 40-year-old Procter & Gamble employee who was moonlighting to
       pay for his daughter's education. 

       Now it's up to Gov. Bob Taft.Armed with a 10-1 Ohio Parole Board
       recommendation against clemency for John W. Byrd Jr., Taft must exercise his
       authority as Ohio's 67th governor -- the power of life and death.Taft
       rejected clemency for Wilford Berry and Jay D. Scott, the only men executed
       in Ohio since 1963.The parole-board report released yesterday called Byrd's
       murder of Cincinnati convenience-store clerk Monte Tewksbury on April 17,
       1983, "a totally senseless, callous act, committed without any
       provocation.''The board rejected Byrd's innocence claim, finding that John
       Brewer's post-trial confession that he, and not Byrd, was Tewksbury's killer
       "lacks any credibility whatsoever.''The mitigating factors -- including a
       plea for mercy from Mary Ray, Byrd's mother, and an argument by his own
       attorneys that the state should "keep him in a cage until he dies'' -- did
       not outweigh the seriousness of the crime, the board concluded.Sandra A. Mack
       was the lone board member who voted to spare Byrd's life. She also supported
       clemency for Scott."Where there is even a slight possibility of putting
       someone to death where a factual or legal error might have been committed or
       ignored, it is unconscionable that we as a civilized society would take such
       a risk,'' Mack wrote.Byrd still has legal appeals remaining in addition to
       the clemency. His case is now in the Ohio Supreme Court, and can be appealed
       through the federal courts to the U.S. Supreme Court.Taft spokesman Joe
       Andrews said the governor will not make a clemency decision for at least a
       week."It's one of the most thoughtful considerations he gives any decision he
       makes. We're talking about a person's life.''Andrews said Taft may ask for
       more information. He has not ruled out the possibility of talking to Kim
       Hamer, Byrd's sister. Hamer on Wednesday asked to meet with Taft.Hamer said
       yesterday she was working at her job as a drywall hanger in Dayton when she
       got the clemency news."I was in shock. It made me feel numb.''Hamer repeated
       her request for Taft to give her "a few moments of his time to raise a few
       questions. Any human being deserves a right to live if there's a shadow of a
       doubt. And there is here.''Executing her brother, Hamer said, would be
       "premeditated murder.''Sharon Tewksbury, the victim's widow, said the parole
       board gave the clemency request "fair consideration. They were prepared . . .
       They knew facts of the case, and they asked intelligent questions.''Tewksbury
       said the four-hour clemency hearing held Monday was "unbelievably emotional.
       It felt like 1983. The pain, everything was there just like 18 years
       ago.''Ohio Public Defender David Bodiker called the ruling "not palatable,''
       but not surprising.He said he remains hopeful that Taft will grant clemency
       because unlike the other two clemency cases, Byrd's case involves issues of
       guilt or innocence and whether he received a fair trial.Joe Case, spokesman
       for Attorney General Betty D. Montgomery, said the decision against clemency
       was "yet again another body looking at all the facts in the case and saying
       that undeniably John Byrd did murder Monte Tewksbury.''"The courts have time
       and time again upheld this sentence and now the parole board has looked at
       even more facts than the jury got and reached the same decision.''Ohioans to
       Stop Executions spokesman Jim Tobin said he is hopeful Taft will take a
       careful look at the facts before deciding."I'm going to remain optimistic,''
       Tobin said."He has indicated that he's going to take each case on its own
       merit. ( Caption: John W. Byrd Jr., who is scheduled to die on Sept. 12, denies
       killing a clerk in 1983. )

       Either John Byrd, Jr., is a cold-blooded killer who deserves to die for the
       1983 murder of Cincinnati convenience store clerk Monte Tewksbury.

       Or Byrd is innocent and his trial was a travesty, with appellate reviews
       disregarding central facts in the case.

       Those were the arguments put forward yesterday, at times sharply, by the
       Hamilton County prosecutor and the Ohio public defender during a taping of
       The Editors television program. Without gubernatorial clemency or some other
       reprieve, Byrd will die Sept. 12 in Ohio's electric chair.

       "This case has been reviewed at six different levels, six different courts,
       over 70 different judges," Mike Allen, Hamilton County prosecutor, said. "At
       every point, the conviction has been upheld, and it's been 18 years for the
       Tewksbury family to get justice."

       The crime was horrible and shouldn't have happened, David Bodiker, Ohio
       public defender, said, adding: "That is irrelevant to whether or not John
       Byrd should be executed. ... John is innocent of the crime. ... He had a
       horrible trial - a travesty."

       He said the issues on appeal "are legal technicalities," not whether the jury
       that convicted Byrd heard the truth. Mr. Bodiker said that "the only evidence
       that [the prosecution] had that John Byrd did anything" is the testimony of a
       fellow inmate, a known snitch who said Byrd had confessed to him.

       Mr. Allen answered: "There's plenty of other evidence, and David knows it."

       The prosecutor and the public defender were quizzed by Thomas Walton, vice
       president-editor of The Blade, and Marilou Johanek of The Blade editorial
       board.

       The Editors will be broadcast at 9 tonight on WGTE-TV, Channel 30, and at
       12:30 p.m. Sunday on WBGU-TV, Channel 27.

       Byrd has chosen to die in the electric chair, rather than by lethal
       injection, as a protest, Mr. Bodiker said.

       "John Byrd does not want to go quietly into the night," Mr. Bodiker said. "He
       wants to assert his defiance to this system, which is illegally killing him."

       Mr. Allen said: "This is the same man who in 1986 sent a threatening letter
       to Monte Tewksbury's widow and family. He conveniently apologizes when he is
       at death's door. He's a despicable man. He's an unrepentant killer, and
       he should die in the electric chair."

       Mr. Bodiker replied, quickly: "Wait a minute. If we gotta kill despicable
       men, we're going to have a very small population." 

       A sister of a convicted killer whose execution is scheduled in three weeks
       delivered a handwritten letter to Gov. Bob Taft's office yesterday asking to
       meet with the governor before he decides whether to grant clemency."It's the
       least he can do, and it's the least I can do to ask,'' Kim Hamer said.Also
       yesterday, the attorneys for her brother, John W. Byrd Jr., asked the Ohio
       Supreme Court to delay the execution.Byrd's attorneys want the Supreme Court
       to thoroughly consider whether the trial court complied with a March order
       that a hearing be held on Byrd's claim that he didn't kill a Cincinnati
       convenience-store clerk.Byrd says a robbery accomplice stabbed Monte
       Tewksbury, a 40-year-old Procter & Gamble employee who was moonlighting to
       pay for his daughter's education.The accomplice, John Brewer, has admitted to
       the crime in two sworn affidavits. However, prosecutors counter that he first
       said he wasn't involved and changed his story to save Byrd's life. Brewer was
       convicted as an accomplice and can not legally be tried again. He was
       sentenced to life in prison.The 1st Ohio District Court of Appeals in
       Cincinnati ruled Tuesday that a Hamilton County Common Pleas Court judge had
       a right to dismiss Byrd's argument without hearing from witnesses.Byrd, 37,
       is to be executed Sept. 12 in what could be Ohio's first electrocution in 38
       years. The state's two executions since 1963 have been by injection.The Ohio
       Parole Authority is expected to recommend to Taft on Friday whether Byrd
       should be granted clemency. Taft probably will make a decision soon after
       hearing from the parole board, said Joe Andrews, a spokesman for Taft.The
       governor will decide what other information he needs -- and from whom -- to
       make a decision, Andrews said.Taft did not meet with relatives of Jay D.
       Scott or Wilford Berry, the only two inmates put to death in Ohio since 1963,
       while weighing whether to grant them clemency, Andrews said. None of their
       family members requested such a meeting.Hamer and several religious and
       human-rights organizations appealed to Taft to commute Byrd's sentence to
       life in prison and to put a moratorium on the death penalty in Ohio."Once
       Johnny is executed, there's no bringing him back,'' Hamer said, her voice
       cracking and her eyes brimming with tears.As Byrd's execution nears, Hamer
       said she can't help but be reminded of her relationship with her brother.She
       recalled climbing trees him during their childhood, as well as her only
       meeting with him -- a two-hour visit last week -- in the more than 18 years
       he has been in prison."I finally got to hug him,'' she said. "Even in prison,
       he is still teaching me faith, forgiveness and strength never to give
       up.''Byrd came within hours of execution in 1994 before the U.S. Supreme
       Court stepped in to allow his appeals to proceed. He had chosen electrocution
       at the time and will do so again to illustrate the brutality of capital
       punishment, his attorneys say.Taft did not meet with relatives of Jay D.
       Scott or Wilford Berry, the only two inmates put to death in Ohio since 1963,
       while weighing whether to grant them clemency.

       John W. Byrd Jr. got a double dose of bad news yesterday: An appeals court
       rejected his innocence claim and the state moved up his execution by 11
       hours.Byrd is scheduled to die at 10 a.m. Sept. 12, rather than 9 p.m. The
       Department of Rehabilitation and Correction decided to change the time for
       all future executions to save overtime costs by "carrying out the execution
       during normal business hours.''The new execution procedures call for
       condemned killers to get their last meal and a contact visit with their
       family the night before the execution. A brief, noncontact family visit would
       be allowed from 6:30 to 8 a.m. the day of the execution.Having the execution
       during the day "allows for better communication with and availability of
       various stakeholders'' and less disruption to prison operations, a statement
       from the prison agency said.Andrea Dean, department spokeswoman, said the
       execution of Jay D. Scott on June 14 -- plus two aborted attempts -- cost
       taxpayers $14,330 in overtime.Byrd's attorneys -- having seen their appeal
       knocked down yesterday by the 1st District Court of Appeals in Cincinnati --
       will appeal today to the Ohio Supreme Court.Greg W. Meyers of the Ohio Public
       Defender's office said his office will ask the Supreme Court to order a full
       evidentiary hearing on the claim that Byrd did not kill Monte Tewksbury, a
       clerk at a Cincinnati convenience store. John Brewer, one of Byrd's
       accomplices, has confessed that he killed the clerk during a robbery on April
       17, 1983.The appellate court agreed with a previous Hamilton County Common
       Pleas Court ruling that Brewer's 1989 and 2001 confession affidavits "lacked
       any credibility whatsoever.''The appeals court also rejected Byrd's legal
       attack on Ronald Armstead, a jailhouse informant, who testified at Byrd's
       1983 trial that Byrd told him he killed Tewksbury. The court said the
       arguments against Armstead had been raised and rejected many times in the
       past.Hamilton County Prosecutor Michael K. Allen said the unanimous decision
       against Byrd was "no surprise to us.''Allen said he is optimistic Byrd's
       execution will happen on Sept. 12."I've given up trying to figure out what
       the other side is going to do. Enough is enough.''Byrd still has a pending
       request for executive clemency based on his innocence argument. The Ohio
       Parole Board will make a recommendation Friday to Gov. Bob Taft, who has
       final clemency authority in capital punishment cases.Meyers criticized the
       decision to change the time of the execution, but acknowledged there are no
       legal grounds to challenge it. He said the state can execute prisoners at any
       time on the designated day.But for Byrd, the change means the state "lopped
       11 hours of life away from him,'' Meyers said."They're marching to the
       mundane. No overtime, no fuss, no muss."

       WBNS-TV (Channel 10) will air more from its interview with John W. Byrd Jr.
       on Eyewitness News at 6 p.m. today.
       John W. Byrd Jr. says he doesn't remember anything about the night Monte
       Tewksbury was killed in a convenience-store robbery. "I've always used the
       phrase, 'I woke up to a nightmare,' '' he told WBNS-TV (Channel 10) during an
       interview.He has no memory of the night of April 17, 1983, but JohnW. Byrd
       Jr. is adamant about one thing: He didn't kill Monte Tewksbury."I wasn't
       raised that way,'' Byrd said. "I never killed anyone in my life.''But Byrd,
       37, will pay the ultimate price -- his life -- for that crime at 10 a.m.
       Sept. 12 unless the courts or Gov. Bob Taft intervene.Byrd was convicted of
       stabbing Tewksbury, 40, during a robbery at a Cincinnati-area convenience
       store. He has opted to die in the electric chair rather than by lethal
       injection."It's not going to be an execution,'' Byrd said. "It's going to be
       a premeditated murder that started back in 1983.''In a wide-ranging interview
       with WBNS-TV (Channel 10), Byrd talked about his trial, his innocence claim,
       threatening letters he wrote to the victim's widow, his choice to die in the
       electric chair, and how he grew up in prison. The interview was taped last
       week at the Mansfield Correctional Institution.In some ways, being executed
       would be "a relief,'' Byrd said. "Then it's over for me. But it would never
       be over for the people that are left behind. That's the only sad thing.''Byrd
       raised a new allegation: that Hamilton County prosecutors offered him a deal
       in 1983 -- a sentence of 15 years to life with a recommendation for parole
       after 9 1/2 years -- if he would testify against the other two men who
       participated in the King Kwik robbery.Byrd said he declined."How can I have
       cooperated with them when I didn't even know what happened? They told me they
       know I didn't commit the crime, but three people were arrested and three
       people had to get convicted."After that, I told my family I was in trouble,''
       he said."As usual, John Byrd lies,'' responded Michael K. Allen, Hamilton
       County prosecutor. "No such deal was ever made."What John Byrd thinks or his
       opinion is of no concern to me. He's a brutal, unrepentant thug.''Joe Case,
       spokesman for Attorney General Betty D. Montgomery, also denied Byrd was
       offered a deal."You've got a man here who's facing execution in the next
       month, and he'll say anything to buy more time. He's been a manipulator from
       the start, in and out of prison.''In his interview, Byrd said he doesn't
       remember anything about the night of the murder."Earlier in that day, I know
       I went out and started drinking . . . and taking pills and smoking marijuana.
       The actual events of that night, I have no recollection whatsoever."I've
       always used the phrase, 'I woke up to a nightmare.' ''What he knows of the
       events of that night -- how two men entered the store and stole money from
       the cash register -- he said he learned from his accomplices, John Brewer and
       Danny Woodall, and from police and court records.Brewer has since confessed
       twice -- in 1989 and again this year -- that he, not Byrd, killed Tewksbury.
       The courts have rejected the claim, most recently yesterday.Byrd told WBNS-TV
       that Hamilton County officials used "smoke and mirrors,'' coupled with the
       emotional appeal of Sharon Tewksbury, the victim's wife, to deflect attention
       from the facts."They're just going to say, 'He's a bad person. We have to
       kill him because he's a bad man.'"I want the same thing that other people are
       screaming that they want. I want justice.''Several years ago, Byrd wrote
       letters to Mrs. Tewksbury, including one in which he said, "When you go to
       bed at night, tell Monte I said good night. Ha! Ha! Ha!''Now Byrd calls those
       letters "shameful. I would never write anything like that today."I seen her
       as the enemy,'' he said. "She was attacking me. She was attacking my family.
       And she didn't care about what the truth was."Just because I was young and
       had a lot of hostility in me . . . that doesn't make me guilty. That doesn't
       mean I killed this man."That was just because I was upset and no one would
       help me.''Since her husband's murder, Mrs. Tewksbury has crusaded for
       justice.In an interview with The Dispatch, Mrs. Tewksbury said her husband's
       murder and the aftermath have been with her every day for 18 years."In the
       beginning, it's with you 24 hours a day. Now it's more in my heart than in my
       head.''Mrs. Tewksbury said she and her husband were not strong supporters of
       the death penalty. Even now, she said, "I would be fine with prison for life
       without parole. But I can't feel confident he would be in prison for life."
       John Byrd can never walk the street. I couldn't stand that.''

       An attorney pleaded yesterday for the life of a man who wants to make his
       execution as difficult as possible for the state.
       John Byrd Jr. is scheduled to be executed Sept. 12 for stabbing a clerk to
       death during a robbery at a suburban Cincinnati convenience store in 1983.
       Byrd, who claims an accomplice committed the slaying, says he will choose
       electrocution if he is executed next month.
       Ohio prisons Director Reginald Wilkinson last month urged the state to retire
       the electric chair because malfunctions could be too stressful for prison
       staff.
       Public defenders say Byrd wants his execution to be difficult for
       authorities. "He's not going to go quietly into the night," David Bodiker,
       Ohio public defender, said yesterday.
       Though Wilkinson says lethal injections offer less potential for problems, he
       added that the chair has been rewired and is expected to operate properly.
       Byrd's electrocution would be the state's first in 38 years.
       Byrd's attorneys acknowledge that he was an accomplice in the robbery, but
       they say Byrd denies killing the clerk, Monte Tewksbury.
       Yesterday, they asked the Ohio Parole Board to recommend that Gov. Bob Taft
       change Byrd's sentence to life in prison. Last week, they asked a state
       appeals court to order a court hearing on Byrd's claim that one of two
       accomplices killed Tewksbury.
       Richard Vickers, an assistant state public defender, told the Parole Board
       that he took a statement in 1989 in which the accomplice, John Brewer,
       admitted the stabbing.
       Vickers said he made a mistake in not releasing the statement years ago. He
       said he intended the document to be used during the clemency process, not for
       the ongoing appeals. It was a legal strategy he now regrets.
       "I made a mistake, but it was not because I didn't think Brewer was
       credible," Vickers said. "It was a decision I made. It was wrong, but blame
       me, don't blame John Byrd."
       Hamilton County Prosecutor Michael Allen called Brewer's testimony
       "absolutely and patently absurd."
       Prosecutors have said Brewer changed his initial story of not being involved
       to save Byrd from execution.
       Brewer was convicted as an accomplice and could not legally be tried again,
       prosecutors say. He was sentenced to life in prison.
       Byrd's mother, Mary Ray, 53, and his sister, Kim Hamer, 33, asked the board
       to spare his life.
       "I plead, I beg - my body, my mind, my soul - please don't let them execute
       my baby, please," Ray said.
       Tewksbury's widow, Sharon Tewksbury, 57, called Byrd a coward and asked the
       board to allow the execution to proceed. Her husband, who was 40 when he
       died, had been moonlighting at the convenience store from his regular job at
       the Procter & Gamble Co. to earn extra money for his daughter's education.
       When Byrd murdered her husband, she said, "He invaded our world, our peaceful
       existence and began for us a nightmare that has not ended."
       Tewksbury's daughter Kimberly, 37, said allowing the execution will give the
       family justice.
 
 

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