Sunday, February 14, 1999

Execution nears for 'Volunteer'

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BY MICHAEL HAWTHORNE
Enquirer Columbus Bureau

A wooden chair and a gurney furnish the Ohio death chamber at Lucasville, where Wilford Lee Berry is scheduled to die Friday. (AP photo) | ZOOM |

        COLUMBUS — If nothing stops it, on Friday “The Volunteer” will get his wish to die.

        Wilford Lee Berry Jr. will be strapped to a gurney at the state prison in Lucasville and will be put to death with a combination of lethal drugs.

        His execution — for murdering his employer during a 1989 robbery — would be the first in Ohio since 1963.

        It would grant the murderer his wish to end a troubled life marked by schizophrenia, delusions and suicide attempts dating back to childhood.

        It also might grant some peace — or at least retribution — sought by the family of Charles Mitroff, the Cleveland baker who begged for his life as Mr. Berry laughed and shot him in the back of the head with a sawed-off .22 caliber rifle.

Wilford Lee Berry

        Beyond the lingering question of whether Mr. Berry is mentally competent to drop his appeals, his impending execution is reviving more than two decades of debate about renewing the death penalty in Ohio, which is on track to become the 29th state to carry out an execution since the U.S. Supreme Court reinstated capital punishment in 1976.

        “In many ways, this isn't about Berry,” said Richard Dieter, executive director of the Death Penalty Information Center. “It's about the larger issue of whether or not we should be executing people.”

        For leaders of the Ohio General Assembly and justices on the Ohio Supreme Court, that question was answered in 1981 when the state reinstated the death penalty.

        Supporters of capital punishment repeatedly complain of delays sought by defense attorneys, including those fighting, against Mr. Berry's wishes, to secure a stay of execution so the courts can review his mental competency again.

OHIO'S DEATH ROW

Where: Mansfield Correctional Institution Death chamber: Southern Ohio Correctional Facility at Lucasville Total inmates: 191 men, 0 women Racial breakdown: • 95 black men • 5 Hispanic men • 91 white men Counties sentencing the most: • Hamilton 45 • Cuyahoga 37 • Lucas 14 • Franklin 10 Other Southwest Ohio • Butler 6 • Clermont 3 • Warren 1 Most days on death row • David Steffen, Hamilton Co., 5,744 days • David Mapes, Cuyahoga Co., 5,724 days • Ernest Martin, Cuyahoga Co., 5,700 days Oldest inmate William Bradley, 72, Cuyahoga Co. Youngest inmate Sean Carter, 19, Trumbull Co.

        Since Ohio reopened death row, 497 murderers, rapists and other criminals have been executed in other states. Texas has executed 164 people, followed by Virginia (59) and Florida (43).

        “Unfortunately, because of the death penalty appeals process, Ohioans have lost faith that the death penalty will be implemented,” said Senate President Richard Finan, an Evendale Republican who sponsored the 1981 law.

        Ohio voters expressed their frustration five years ago by approving a constitutional amendment that moves death penalty cases directly from the trial court to the Ohio Supreme Court, effectively trimming two years of appeals.

        Even Mr. Berry, 36, has registered his complaints in expletive-riddled letters to judges.

        “Look here, (expletive),” he wrote in a 1995 letter to Chief Justice Thomas Moyer of the Ohio Supreme Court. “Here it is, another week pass (sic) and still you at the Ohio Supreme Court of appeals are still playing games. I know you are old, but damn!”

        Opponents say there are larger issues at stake than one man's wish to be executed, such as whether the death penalty deters crime, whether it is applied unfairly to minorities and the poor, or whether it is moral.

        Speaking last month in St. Louis, Pope John Paul II made a passionate plea to abolish capital punishment, proclaiming “the dignity of human life must never be taken away, even in the case of someone who has done great evil.”

ON DEATH ROW

Thirty-nine states and the federal government have the death penalty. The bulk of the 3,549 condemned inmates are in a handful of states, including Ohio. As of Jan. 1, the states with the most inmates on death row, and the number of inmates, are: • 1. California, 519 • 2. Texas, 441 • 3. Florida, 390 • 4. Pennsylvania, 226 • 5. North Carolina, 208 • 6. Ohio, 191 • 7. Alabama, 173 • 8. Illinois, 162 • 9. Oklahoma, 151 • 10. Georgia, 123 • 18. Indiana, 46 • 21. Kentucky, 39 Source: NAACP Legal Defense and Educational Fund

        The pope's visit persuaded Missouri Gov. Mel Carnahan to commute the death sentence of a triple-murderer. A few weeks later, Arkansas Gov. Mike Huckabee spared the life of a death row inmate set to die Feb. 16 after a juror who voted for execution pleaded for mercy.

        Former Ohio Gov. Richard Celeste, a Democrat who opposes the death penalty, delayed Ohio's first post-1976 execution by commuting the death sentences of eight inmates before leaving office in 1991. The inmates had exhausted most of their appeals and were closest to being executed.

        Citing Mr. Berry's history of mental illness, religious leaders, advocates for the mentally ill, and ahandful of politicians are pleading for mercy in this case as well.

        “I cannot sanction the penalty of death for a person who appears to be mentally ill,” wrote former Ohio Supreme Court Justice J. Craig Wright, the lone dissenter in the opinion that upheld Mr. Berry's sentence.

        Clemency still is an option for Mr. Berry. Ohio's Catholic bishops and other religious leaders have asked Gov. Bob Taft to commute his sentence to life in prison. But Mr. Taft won't make a decision until all court appeals in the Berry case have been exhausted.

No question of guilt
        What makes Mr. Berry's case so unusual is that there has never been a question about whether he is guilty of killing Mr. Mitroff. Instead, the legal wrangling about his fate has centered on whether he is mentally competent to waive his appeals and be executed.

        “Wilford has made it clear from the day he was arrested that he didn't want to fight the death penalty,” said Greg Meyers, chief of the Ohio Public Defender's capital punishment division. “I see that as another attempt at suicide.”

        Unlike others on death row, such as Karla Faye Tucker in Texas or Girvies Davis in Illinois, Mr. Berry hasn't courted a throng of supporters seeking mercy because the condemned has found religion or has been declared mentally retarded.

        Mr. Berry has spit in the face of defense attorneys and threatened to slit his mother's throat if she is successful in winning a reprieve for him. Fellow death row inmates nearly beat him to death during a September 1997 riot at the Mansfield Correctional Institution, where he suffered injuries that defense attorneys contend rendered him incompetent to be executed.

        Others on death row told investigators that Mr. Berry was targeted during the riot because they feared his execution would speed up their own.

        “Nobody takes pleasure in carrying out this execution,” said Attorney General Betty Montgomery, an ardent advocate of the death penalty. “There are no winners in this, but it's our duty under the law.”

Crime and capture
        Wilford Lee Berry Jr.'s long march to the death chamber began less than a week after he was hired to wash dishes and floors at Charles Mitroff's Cleveland bakery.

Kenton Co. officer Duane Rolfsen , left, and retired officer Stan Vorhees at the site where Rolfsen captured Berry. Vorhees got him to confess. (Glenn Hartong photo) | ZOOM |

        Just before midnight on Nov. 30, 1989, Mr. Berry and an accomplice, Anthony Lozar, ambushed Mr. Mitroff at the bakery as he returned from a delivery run. Mr. Lozar shot him once in the torso with a Chinese-made semiautomatic assault rifle. As the baker struggled to reach a telephone to call for help, Mr. Berry shot him again at point-blank range in the back of the head.

        Mr. Berry and Mr. Lozar cleaned up the blood and drove Mr. Mitroff's van near a bridge at East 49th Street and Chard Avenue in Cleveland, where they dumped his body in a shallow grave.

        When the normally punctual Mr. Mitroff broke his routine by failing to come home, his family suspected something was wrong. They asked a family friend, Brecksville private detective William Florio, to investigate.

        “The last person who saw him alive was his new employee, a guy who went by the name of Ed Thompson,” Mr. Florio said. “I called him up, posing as a guy who helps Charlie out, and asked him to come in early the next day.”

        “Ed Thompson” never showed up.

        Shortly after the call, Mr. Berry (a k a Ed Thompson), and Mr. Lozar sloppily repainted Mr. Mitroff's blue, late-model Chevrolet van with black spray paint and fled south.

        Charles Voorhees, then a Kenton County patrolman, spotted the van being driven erratically three days later outside Walton, Ky. Although he didn't know it belonged to a murder victim, a radio check of the license plate showed it didn't belong to the vehicle, so he decided to pull the driver over.

        It was dark, but Mr. Voorhees thought it was odd that somebody had painted over the chrome on a van that still had the new-car sticker in the window. He grew more suspicious after noticing the butt of a rifle between the front seats, and ordered the two men to lie face down outside the van.

        “The vehicle identification number came back to Charlie Mitroff, so I called up to Cleveland,” Mr. Voorhees said. “The dispatcher asked me if Mr. Mitroff was there because they were looking for him.”

        It didn't take too long for Mr. Voorhees and Duane Rolfsen, then a Kenton County detective, to pin the murder on the two men they had in custody.

        Mr. Lozar, who later was sentenced to life in prison for his role, told the officers that Mr. Berry wanted him to shoot Mr. Voorhees after the traffic stop. Then he let loose with the story of how Mr. Berry had planned the robbery, obtained the guns and enlisted him to help kill Mr. Mitroff. He also told police where they could find the baker's body.

        When Mr. Berry confessed a week later, he still was wearing shoes soaked with Mr. Mitroff's blood.

        “I've interviewed all types of criminals in my career — child molesters, rapists and the like — but Berry has never left my mind,” Mr. Rolfsen said. “There was just something about his look, cold and vacant.”

        Mr. Rolfsen and Mr. Voorhees became close to the Mitroff family during Mr. Berry's trial and have kept in touch through regular visits to Cleveland and to a cabin the Mitroffs own in Kentucky.

        Along with Mr. Florio, the private detective, the two patrolmen will be the family's witnesses at Mr. Berry's execution, whether it is carried out Friday or some other date.

Competence questions
        But before Mr. Berry is put to death, the courts this week must again resolve the issue of his competence to waive his appeals.

        Is he, as his now-fired attorneys contend, too mentally ill to elect death; or is he, as the state attorney general argues, making a reasoned choice to die rather than live on death row?

        On six previous occasions, state and federal courts in Ohio have rejected arguments that Mr. Berry is incompetent, despite his documented history of mental illness and his attempted suicide while serving time in a Texas prison for car theft.

        “It's a very high standard to find somebody incompetent to be executed,” said Mr. Dieter, whose group opposes capital punishment. “But there are issues of mental illness that might merit clemency or at least deserve a hearing.”

        Indeed, defense attorneys are fighting for another evaluation based on evidence from the death row riot, during which Mr. Berry sustained a skull fracture and other serious injuries.

        The case is pending before the U.S. Court of Appeals for the 6th Circuit in Cincinnati. The same three-judge panel temporarily delayed Mr. Berry's execution last year — hours before his scheduled execution — but later rejected arguments similar to those being made today.

        “We are as defense lawyers obligated to zealously represent every client who has a nonfrivolous legal issue and an available legal remedy,” Mr. Meyers said. “Does it make sense to let a condemned man be the tail that wags the dog, to toss in the towel and accelerate his own death without all the standard rounds of review?”

        As far as Ms. Montgomery and the Mitroff family are concerned, the latest legal maneuver is merely another attempt to thwart the use of the death penalty in Ohio.

        Scholars, religious leaders and politicians can continue their passionate debate about capital punishment, they say, but that shouldn't stop Friday's execution from going forward as planned.

        “I want to be there to see if he finally shows some remorse for what he did,” Mr. Rolfsen said. “Maybe it will bring some peace and closure for everyone involved, but I doubt it. Nobody involved with this will ever be the same.”

Rules set out death procedure, down to last detail
Pressure grows for Taft to halt Berry execution
Berry case timeline

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