CINCINNATI - A sharply divided federal appeals court yesterday gave convicted murderer John W. Byrd, Jr., a day in court to provide evidence he didn't stab a convenience store clerk to death 18 years ago.
In a 4-3 decision, the U.S. 6th Circuit Court of Appeals agreed to send the case to a federal magistrate to examine a confession by co-conspirator John E. Brewer that he stabbed Monte Tewksbury during the 1983 robbery while Byrd stood by.
Judge Nathaniel Jones, a 1979 Carter appointee, chastised lower court rulings from Hamilton County on up that repeatedly have refused to give Byrd a hearing on the grounds he'd waited too long to raise the issue.
Brewer's first affidavit dates to 1989, but Byrd and his lawyers gambled they could win a new trial on other grounds without presenting an affidavit squarely placing Byrd at the scene of the crime.
The gamble didn't pay off. Byrd was scheduled to be executed Sept. 12 before the appeals court stepped in.
“This does not prove Byrd's innocence. It only proves that Brewer is a liar,” wrote Judge Richard D. Suhrheinrich, a 1990 Bush appointee, referring to Brewer's conflicting stories.
The magistrate must submit his report to the entire appeals court within 45 days of his appointment.