Saturday, January 30, 1999
Judge turns down delay of execution
Request for tests on Berry denied
BY MICHAEL HAWTHORNE
Enquirer Columbus Bureau
Wilford Lee Berry
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COLUMBUS — A federal judge won't keep Wilford Lee Berry from fulfilling a wish to be executed.
U.S. District Judge Algenon L. Marbley denied a plea from Mr. Berry's mother and sister to order another round of tests to gauge the convicted killer's mental competency, making it more likely he will die Feb. 19 by lethal injection.
Working against Mr. Berry's wishes, the Ohio Public Defender's Office and his family contend that a prison beating last year impaired his ability to decide his fate.
“Simply put, this court has never had authority to consider any evidence — new or old — of Berry's actual competence,” Judge Marbley wrote in an eight-page ruling.
Public defenders plan to appeal, but it appears they may be running out of options.
Indeed, Judge Marbley's decision is significant because he previously had delayed the execution and ordered more mental tests, declaring that the Ohio Supreme Court used the wrong legal standard when it ruled that Mr. Berry was competent to waive his appeals.
Ohio Attorney General Betty Montgomery appealed and won.
In May, the U.S. Court of Appeals for the 6th Circuit in Cincinnati said the state's high court acted correctly. The ruling effectively denied Judge Marbley any jurisdiction or power to stay the execution.
Moreover, because Mr. Berry is considered mentally competent, it is more difficult for his family to intervene. The U.S. Supreme Court refused to consider an appeal from his mother and sister, a decision that allowed his most recent execution date to be set.
Mr. Berry, nicknamed “The Volunteer” because he would rather die than spend his life in prison, has threatened to slit his mother's throat if she continues her fight to spare his life, according to court documents.
He was sentenced to die for shooting his boss, Cleveland baker Charles Mitroff, in 1989.
Seeking to stop the execution, the public defender's office presented photos of a badly beaten Mr. Berry and a report from the Ohio State Highway Patrol about a September 1997 death row uprising at the Mansfield Correctional Institution.
Mr. Berry needed surgical implants to repair broken bones in his face and may have suffered brain injuries, defense attorneys argued.
“We will continue to press the claim that Wilford is too sick to decide to die,” said Greg Meyers, chief of the public defender's death-penalty section. “It is now clear that the injuries Wilford suffered in the riot caused the onset of a whole new mental disorder that further undermines Wilford's competence.”
Judge Marbley also threw out a claim by defense attorneys that Ms. Montgomery's office withheld information about the prison beating until it was too late to use it in court.
Even if the attorney general's office had acted in “bad faith,” Judge Marbley wrote, it wouldn't have affected his decision allowing the execution go forward.
This is the second execution date set for Mr. Berry. Last March 3, he was being transported to the execution chamber at the Southern Ohio Correctional Facility in Lucasville when the U.S. Supreme Court temporarily stopped the procedure.
If Mr. Berry is granted his wish, Ohio would be the 10th state in whichthe first person executed since 1976 was a volunteer, according to the American Civil Liberties Union's Capital Punishment Project in Washington, D.C.
Other volunteers include Gary Gilmore in Utah (1977) and Steven Judy in Indiana (1981).
Still pending is an application for clemency that Ohio's Catholic bishops have filed with Gov. Bob Taft. Mr. Taft, a death penalty supporter, said this week that he has started to review the request but has not made a decision.
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