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Published: Tuesday, 1/15/2002

Challenge to Byrd's 2nd chance rejected


WASHINGTON - Ohio prosecutors lost their claim yesterday at the Supreme Court that a death-row inmate was wrongly given a second chance to prove his innocence.

Despite the loss, plans are back on to execute John W. Byrd, Jr., in the 1983 stabbing death of a suburban Cincinnati convenience store clerk. A judge who reviewed another man's confession found no reason to reopen the case.

Ohio leaders were angry that an appeals court intervened one day before Byrd was to be put to death. The Supreme Court refused without comment to consider whether the intervention was improper.

Ohio Attorney General Betty Montgomery had told the court that other prisoners could expect last-minute hearings like the one granted Byrd. Ms. Montgomery also was upset that the 6th U.S. Circuit Court of Appeals chose a judge unfamiliar with Byrd's case to look at the evidence.

"The 6th Circuit's action in ordering the hearing was neither radical nor lawless," Byrd's attorney, Public Defender Gregory W. Meyers, told the court. He said the magistrate who was picked was in a better position to collect evidence and hear from witnesses than an appeals court judge.

Byrd is scheduled to be executed on Feb. 19. He had asked to die in the electric chair to illustrate what he called the brutality of capital punishment. The state previously let convicted killers choose between that and lethal in|jection. Late last year the state passed a law banning electrocution.

Byrd's case is a familiar one at the Supreme Court. Most recently, justices in September turned down Ohio's request to let the state immediately execute Byrd - over the objections of the appeals court.

At the heart of this case was the timeliness of Byrd's new claims that he is innocent and that accomplice John Brewer was the killer. Mr. Brewer, who is serving a life in prison sentence, has said that is true.

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