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Execution of Berry stayed for three weeks

From staff and wire reports Published: March 3, 1998 12:00 AM

CINCINNATI _ Ohio's latest attempt to execute a prisoner has stalled before a federal appeals court, which delayed today's scheduled execution of Wilford Berry Jr. at least three weeks because of questions about his mental competency.

The 6th U.S. Circuit Court of Appeals said Monday it would hear lawyers' arguments on March 24 and that a lower court's stay of execution for Berry would remain in place until then.

"We're in a hold mode, for sure," Joe Andrews, a spokesman for the Ohio Department of Rehabilitation and Correction, said when asked if preparations for Berry's scheduled execution were continuing. Berry, 35, was to die by lethal injection at 9 p.m. today at the Southern Ohio Correctional Facility near Lucasville.

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Ohio Attorney General Betty Montgomery, who made a stop in Ravenna Township's McElrath neighborhood Monday afternoon to distribute 4-H camp funds, conferred with senior aides shortly after the delay, but no decision was announced.

"We believe we have very solid legal ground that this court acted inappropriately in overruling the unanimous decision of the Ohio Supreme Court," Montgomery said of the decision made Friday by a U.S. district court judge and upheld Monday by the federal appeals panel to stay Berry's execution.

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"This is new ground for all of us _ it's been 35 years," she said.

Berry, a one-time handyman from Cleveland, would be the first Ohio prisoner put to death since 1963. He has said he wants to drop his death penalty appeals and die, rather than spend years living on death row. He said he would kill again if freed from prison, where he was sent after his conviction for the 1989 murder of Cleveland baker Charles Mitroff Jr., who had hired him.

Mitroff's brother-in-law Richard Bowler, 67, of Cleveland, said he cannot understand why the appeals court would question whether Berry was mentally competent to waive his death penalty appeals.

"He was competent when he committed the crime. He was competent when he told the jury he might go out and kill again. He's been competent all along," Bowler said. "All of a sudden they decide he isn't competent. I can't see why doubt in his competence comes in. We're just looking for it to be over."

Public defenders representing Berry's family had asked the appeals court Monday to uphold a Columbus judge's decision to postpone the execution while the federal courts consider whether Berry is competent to drop his appeals.

While in Portage County, Montgomery criticized the public defender's office, saying it has a history of waiting to the last minute to file appeals.

"These cases have languished for years what the public defender has done is wait to the very last minute and bump us up against a deadline," she said.

U.S. District Judge Algenon Marbley's stay of execution will remain in place, by order of appellate Judges Cornelia Kennedy, James Ryan and Eugene Siler Jr.

Death penalty opponents said they hope that a court hearing will help persuade Gov. George Voinovich to commute Berry's sentence to life in prison.

"This will provide the governor with the type of information needed to commute Berry's sentence to life in prison. There's a serious question with his mental health," said Jim Tobin, spokesman for Ohioans to Stop Executions.

Montgomery said she has made a conscious effort not to talk to the governor about the case.

"He's got some tough decisions to make, and I do not want to influence him one way or another," she said.

Voinovich spokesman Mike Dawson said the governor will not decide about granting clemency in Berry's case until the latest court battle is over.

"He will let the legal process work," Dawson told The Columbus Dispatch for a story today.

Marbley said Friday that the Ohio Supreme Court used an improper standard to determine Berry's competence when it ruled in December that he could end his appeals.

The state says Berry is competent to make such a life-or-death decision; the Ohio public defender's office says he is not.

Either side can appeal whatever the appellate court decides to the U.S. Supreme Court, for a final say.

Ohio has not executed any prisoner since Donald L. Reinbolt died in the electric chair March 15, 1963, in Columbus. There are 176 men and no women on death row.

The state has come close twice in recent years to executing someone.

John Byrd Jr. was 45 minutes from death in March 1994 when a federal appeals court stayed his execution, and the U.S. Supreme Court in January 1996 turned down the state's request to overturn a stay for child-killer Robert Buell. Both of those inmates had fought execution.

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