COLUMBUS _ The fate of convicted killer Wilford Berry Jr. rests in the hands of two men: a federal judge and Gov. George Voinovich.
U.S. District Judge Algenon L. Marbley said he will rule today on whether Berry, who is scheduled to die by injection at 9 p.m. Tuesday, is competent to waive appeals that would delay his death.
In the meantime, Voinovich, who has the power to stop Berry's execution at any time, is reviewing the case. He spent several hours on Wednesday reviewing Berry's history with his chief legal adviser, spokesman Mike Dawson said.
"Once he's completed his review, he'll make a decision regarding clemency," Dawson said.
Voinovich had read some of the hundreds of letters _ including one on behalf of Pope John Paul II _ asking that Berry be spared, but Dawson said the governor will base his decision on the facts of the case.
Berry, 35, who was convicted of killing his boss, baker Charles J. Mitroff Jr., in Cleveland in 1989, would be the first prisoner executed in Ohio since 1963. The state reinstated the death penalty in 1981.
The Akron Beacon Journal reported today that Mitroff's family has decided to skip the execution. Relatives instead asked to be represented by the arresting officers _ Kenton County, Ky., police Patrolman Charles Voorhees and Detective Duane Rolfsen _ and William F. Florio of Brecksville, an investigator hired when Mitroff was reported missing.
Attorneys for the state, who have dubbed Berry "The Volunteer" because he has taken steps to speed up his execution, say he should get his wish. The Ohio public defender's office, which is seeking to block the execution despite Berry's wishes, argues that Berry is too mentally ill to make the decision.
Regardless of how Marbley rules, both sides are expected to continue filing appeals all the way to the U.S. Supreme Court.
Three 6th U.S. Circuit Court of Appeals judges in Cincinnati likely will consider the case during the weekend or on Monday, said Mark Weaver, deputy attorney general.
If their decision is appealed, the Supreme Court probably would decide Berry's fate Tuesday, possibly just before his scheduled execution.
Greg Meyers, chief of the public defender's death-penalty section, has declined to comment outside court, and did not return a telephone call seeking comment Thursday.
Prison officials will transfer Berry from the Correctional Medical Center in Columbus to the Southern Ohio Correctional Facility in Lucasville sometime before 9 p.m. Monday, said Joe Andrews, a spokesman for the Ohio Department of Rehabilitation and Correction.
At Lucasville, site of Ohio's death chamber, workers were installing about 50 phone lines inside the prison and 23 outside for reporters expected to cover the event. Technicians also have been checking the phone lines between Voinovich's office and the prison in case there is a last-minute clemency.
Meanwhile, the prison officials who will carry out the execution have been rehearsing their roles.