BY BEN L. KAUFMAN
The Cincinnati Enquirer
Public defenders trying to stop Ohio from executing killer Wilford Lee Berry Jr. have asked the U.S. Supreme Court to intervene.
Monday, they also asked the U.S. Court of Appeals for the 6th Circuit to withhold its refusal to intervene in his execution. Mr. Berry is known as "The Volunteer" because he has said he would rather die than spend his life in prison for killing his employer in Cleveland.
No one questions whether Mr. Berry is mentally ill.
Rather, the issue is whether Mr. Berry is mentally competent to choose to die.
The Ohio Supreme Court says he is.
Mr. Berry's mother and sister say he isn't.
They are pursuing appeals with the help of Ohio public defenders and against Mr. Berry's wishes.
It could be weeks before the U.S. Supreme Court says whether it will hear the public defender's arguments.
Meanwhile, the family's immediate goal is a technical but vital step: stop the 6th Circuit from issuing the mandate that makes last week's ruling official.
In it, a majority of the 15-judge court refused to intervene in a three-judge panel's rejection of the public defender's arguments.
That ruling isn't official until the mandate goes out Wednesday; when it does, it will end any stay of execution and free the Ohio Supreme Court to set a new date.
A lawyer familiar with the court said that while not automatic, the motion to stay the 6th Circuit's mandate is more likely than not to be granted because no one has suggested the public defender's arguments are frivolous.
