A Hamilton County court won't block death-row inmate John W. Byrd Jr.'s course toward a Sept. 12 execution.

        On Friday, Common Pleas Judge Steven Martin rejected Mr. Byrd's claim that he was not the man who stabbed to death Colerain Township convenience store clerk Monte Tewksbury during a 1983 robbery.

        Sworn statements from an accomplice who says he did it are unbelievable, Judge Martin ruled. Because of that, he said Mr. Byrd cannot use those statements to reopen his case.

        The decision had Ohio Public Defender David Bodiker weighing an appeal to a higher court. He said it's no surprise a Hamilton County court would uphold one of its oldest death sentences.

NO WORD ON SCOTT

The U.S. 6th Circuit Court of Appeals recessed Friday without making a life or death decision on condemned killer Jay D. Scott.     Convicted for shooting a Cleveland delicatessen owner in 1983, Mr. Scott came within 10 minutes of execution Tuesday night. Judge Ransey Guy Cole Jr. requested a last-minute stay so the 11 judges on the court could reconsider an insanity appeal.     At least six judges must agree to reopen the case, or give the state its third try at executing Mr. Scott. Ohio came within an hour of executing Mr. Scott on April 17, before prison officials learned the Ohio Supreme Court had stopped it.

        “We anticipated we probably would not get a sympathetic decision there,” Mr. Bodiker said. “It's sort of what we get there most of the time.”

        Mr. Byrd is in line to become the first of Hamilton County's 46 death-sentenced inmates to die. He would be the third Ohioan executed since the death penalty was reinstated in 1981.

        Wilford Berry was executed in 1999 after he waived his appeals. Condemned killer Jay D. Scott narrowly escaped two recent execution attempts and is waiting for a federal court to decide if there will be a third.

        One of three men who robbed a Pippin Road convenience store on April 17, 1983, Mr. Byrd was condemned after a fellow jail inmate testified against him.

        Ronald Armstead told the jury he heard Mr. Byrd bragging about stabbing Mr. Tewksbury.

        Nearly 18 years later — his regular appeals exhausted — Mr. Byrd's attorneys gave the Ohio Supreme Court two written statements from an accomplice to the robbery. John Brewer claims he killed Mr. Tewksbury, and said as much to getaway driver William Danny Woodall that night.

        “When I got back in the van, I said to Danny Woodall, "Man, I stabbed a guy. Take off,'” Mr. Brewer stated.

        The Ohio Supreme Court ordered a new hearing to consider Mr. Brewer's claim. It also set a Sept. 12 execution date for Mr. Byrd.

        In a letter sent to the public defender and the Hamilton County prosecutor, Judge Martin refused to overturn a state death-penalty law that bars last-minute appeals unless attorneys discover new and important evidence.

        Mr. Brewer's words don't count as new evidence, he said, because the public defender's office took his first statement in 1989. Judge Martin said the public defender should have asked for a new trial then, not now.

        The public defender's office has never fully explained why it didn't use the statement years ago. Mr. Bodiker has called it a bad tactical decision.

        Judge Martin said the statements weren't used because Mr. Byrd's attorneys were arguing he was nowhere near the store that night. Mr. Bodiker said defense attorneys never said that.

        Even if the statements could be used now, Judge Martin said they are unbelievable. He mentioned inconsistencies between the 1989 statement and one taken this year. He also pointed at Mr. Brewer's own trial, in which he testified he did not do it.

        “I find no evidentiary hearing is required or is necessary,” Judge Martin wrote.

        Mr. Bodiker, however, believes a higher state court will reconsider the evidence or order Judge Martin to do so. He said he cannot file an appeal to either the Ohio Supreme Court or an appellate court until Judge Martin puts out his findings of fact in the case.

        Hamilton County Prosecutor Mike Allen praised Judge Martin's decision and said it would hold up under a higher court's scrutiny.

        Sharon Tewksbury, Monte Tewksbury's widow, said she does not believe Mr. Byrd will die as scheduled.

        “Sept. 12 is going to come and go, I'm certain,” Mrs. Tewksbury said. “We are not finished with the game-playing.”
       
       

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