BY BEN L. KAUFMAN and MICHAEL HAWTHORNE
The Cincinnati Enquirer
Wilford Lee Berry
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A federal appellate court opened Ohio's death chamber to murderer Wilford Lee Berry Jr. on Friday, saying he is sane enough to waive further appeals.
The unanimous three-judge decision lifted a stay of execution and freed Ohio to accommodate Mr. Berry's wish to die rather than spend his life in prison.
"The stay should not have been granted," the Cincinnati-based U.S. Court of Appeals for the 6th Circuit said.
The ruling was a victory for Mr. Berry, known as "The Volunteer" for his willingness to be executed, and Ohio Attorney General Betty Montgomery, who has worked hard to grant his wish.
Although the Ohio Supreme Court now can set a new execution date, Ms. Montgomery said Friday's decision probably would not end the appeals.
"We've got a long way to go," Ms. Montgomery said. "But from a professional standpoint, we're pleased the 6th Circuit recognized the law has been applied properly in this case."
Lawyers at the Ohio Public Defender's office promised to continue fighting to save Mr. Berry's life, over his objections. They indicated they would ask all 15 judges on the 6th Circuit to rehear the case. Working on behalf of a client who has tried repeatedly to fire court-appointed lawyers, the public defender's staff disputed psychiatrists' findings that Mr. Berry is mentally competent.
"We continue to believe that Wilford Berry is too mentally ill to make the decision to give up his basic legal rights without a careful review of his case," said Greg Meyers, chief of the public defender's Death Penalty Division.
Mr. Berry was sentenced to death for robbing and shooting his boss, Cleveland baker Charles Mitroff Jr., in 1989. Six years later, he ordered his court-appointed lawyers to drop all appeals.
Everyone agrees Mr. Berry is mentally ill. Even so, the Ohio Supreme Court had him examined and concluded that he was competent to waive his appeals.
The state's high court said Mr. Berry should be strapped to a gurney and die by lethal injection on March 3 in the death house at Lucasville.
Mr. Berry's mother and sister counterattacked. They said he was incompetent to make such a decision and public defenders petitioned U.S. District Judge Algenon L. Marbley in Columbus for a stay.
Judge Marbley agreed.
Seeking further tests by psychiatrists, he ruled that Ohio's Supreme Court applied the wrong mental competency standard.
Ms. Montgomery appealed.
Because Mr. Berry was competent, she said, his family has no right to get involved and Judge Marbley lacked authority to intervene.
Initially, the 6th Circuit left the stay in place to explore the issues without a deadline.
Hours before that scheduled execution, as Mr. Berry was being driven from a prison medical center in Columbus to Lucasville, the U.S. Supreme Court refused to intervene.
The execution was canceled and Mr. Berry remains in custody at the prison medical center. He was sent there after being knocked unconscious during a death row riot that left him with a broken jaw, several broken ribs and bruised organs.
In their decision Friday, 6th Circuit Judges Cornelia G. Kennedy, James L. Ryan and Eugene E. Siler Jr. said Judge Marbley was wrong on all counts. They said the Ohio Supreme Court correctly applied the federal standard for competency, the family had no standing to appeal in Mr. Berry's place, and no stay was justified.
Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, said it was unlikely that the U.S. Supreme Court would overturn Friday's decision.
"Short of the Supreme Court changing the entire standard of mental competency, they probably won't even consider an appeal," Mr. Dieter said. "And they aren't going to change that standard in the current legal and political climate."
Previous reports
State prepares to impose death Feb. 25, 1998
Prosecution could hinge on injuries, instructions Feb. 26, 1998
Lawyers: Berry not competent Feb. 27, 1998
Berry's execution delayed Feb. 28, 1998
Berry alters death row March 1, 1998
So murderer wants death? Make him live Cliff Radel column, March 2, 1998
Churches fight execution March 3, 1998
Judges give Berry 3 weeks March 3, 1998
Court refuses death request March 4, 1998
Killing killer makes us killers Laura Pulfer column, March 5, 1998
Appeals court holds Berry card March 5, 1998
