January 11, 2002 at 8:36 PM EST - Updated July 12 at 3:11 AM
By JOHN McCARTHY, Associated Press Writer
COLUMBUS, Ohio (AP) - The Ohio Supreme Court on Friday set Feb. 19 as the new execution date for a man convicted of killing a convenience store clerk during a robbery 19 years ago.
The court, without comment, responded to the request by Attorney General Betty Montgomery to proceed with John W. Byrd Jr.'s execution after a federal appeals court on Monday ruled there was no reason to stop it.
Ohio Public Defender David Bodiker, whose office represents Byrd, said a decision will be made next week where to appeal next. One option, he said, could be the U.S. Supreme Court.
"Time is obviously of the essence. We intend to pursue every available means we might have," Bodiker said.
Lawyers for Byrd, 38, on Thursday asked the Ohio Supreme Court to deny the state's request for a new execution date and impose a life sentence instead.
Should the execution be carried out on Feb. 19, it would come three years to the day after Wilford Berry became the first inmate to be executed in Ohio since 1963.
Byrd was convicted of murder in the stabbing death of Monte Tewksbury, 40, during a robbery in suburban Cincinnati in 1983.
Montgomery's request came a day after the 6th U.S. Circuit Court of Appeals rejected Byrd's claim of "actual innocence." Byrd's lawyers claimed another man convicted in the robbery and slaying stabbed Tewksbury.
The Supreme Court in August refused to hear Byrd's claim.
Bodiker wrote in his request Thursday that evidence has shown John Brewer, and not Byrd, stabbed Tewksbury during the robbery of the convenience store where Tewksbury was a clerk.
Bodiker also said the knife prosecutors introduced was never proven to be the murder weapon and that the testimony of Ronald Armstead, "the jailhouse snitch who put him (Byrd) on death row, was false."
Prosecutors say that Brewer's confession to stabbing Tewksbury should be discounted because Brewer already is serving a life sentence for the crime and cannot be tried again.
The Supreme Court sentenced Byrd to die Sept. 12, but the 6th Circuit postponed the execution so a magistrate could hear evidence in the case. U.S. Magistrate Michael Merz held a weeklong hearing in November, then ruled Byrd had failed to prove his claim of innocence. Merz recommended the appeals court reject the claim, which it did Monday.
Byrd had chosen to be electrocuted to demonstrate what he called the brutality of the death penalty. However, state lawmakers in November passed legislation that removed electrocution as an option; all executions in Ohio will be performed by injection.
(Copyright 2002 by The Associated Press. All Rights Reserved.)