DAYTON - An unusual hearing examining the possibility that convicted murderer John W. Byrd, Jr., may be innocent of stabbing a convenience-store clerk in 1983 ended abruptly yesterday when Byrd's attorneys attempted to withdraw from the case.
That prompted the Ohio Attorney General's office to suddenly wrap up its side of the case. Byrd never took the stand in what may have been his last shot at avoiding execution for the murder of Monte Tewksbury in a King Kwik store outside Cincinnati.
“This case has become focused not on John Byrd's actual innocence but on the conduct of his lawyers,” said Ohio Public Defender David Bodiker. “By our actions, we've dug a hole and pulled John Byrd down into it.”
U.S. District Magistrate Judge Michael R. Merz allowed only Mr. Bodiker to withdraw, keeping the rest of his team on the case.
Judge Merz must make a recommendation by Nov. 30 to the U.S. 6th Circuit Court of Appeals as to whether confessions to the murder from Byrd's co-conspirator, John Brewer, are credible enough to warrant the extraordinary move of opening another path of appeal. Byrd had exhausted every state and federal appeal available to him and was headed for the execution chamber on Sept. 12 when the appeals court stepped in.
Byrd never has testified under oath about what happened the night of April 17, 1983.
“John has no recollection of the night in question,” Mr. Bodiker said. “He passed out and woke up in the drunk tank. He thought they'd arrested him for intoxication. That clearly would not have reverberated through the courtroom. But everything that John has done bad would come out. On balance, it would serve no purpose.”
But while Byrd has not taken the stand, his lawyers have spent plenty of time there, answering questions as to why they did not reveal the existence of affidavits signed by Brewer beyond the initial two signed in 1989 and 2001 that are largely credited with getting Byrd this hearing.
The fifth affidavit was revealed Wednesday by Gov. Bob Taft's staff, which found it among clemency papers given to the office by the public defender. This affidavit is most significant because it predates the 1989 affidavit by a year.
When Judge Merz attempted to question Richard Vickers from the public defender's staff about his failure to produce this evidence, he invoked the Fifth Amendment to avoid incriminating himself for obstruction of justice. Later, the judge said it was the first time an attorney had taken the Fifth in his courtroom.
Although Brewer consistently places the knife in his own hand, not Byrd's, in the King Kwik store in all five versions of the affidavits, he is inconsistent on the details of the events and of Byrd's role in the robbery.
“Brewer intended to help his friend, Byrd, with no risk to himself,” Assistant Attorney General James Canepa said. “The ship is leaking everywhere.”
The Byrd and Tewksbury families attended each day of the week-long hearing. Mr. Tewksbury's widow, Sharon, said she wants to see the 18-year-old sentence carried out.