COLUMBUS _ The Ohio attorney general says the legal battle surrounding the case of Wilford Berry Jr. is far from over.
The U.S. Supreme Court on Tuesday upheld a stay of execution order for Berry, known as "The Volunteer" because he has waived his appeals, less than two hours before the former Cleveland man was scheduled to receive a lethal injection for murdering his boss.
Attorney General Betty Montgomery appealed a federal judge's stay order to the high court on Tuesday morning, hoping it would block the order and allow Berry to be the first death-row inmate to be executed in Ohio in 35 years.
"We knew this was a long shot, but decided it was an important stand to take," Deputy Attorney General Mark R. Weaver said Tuesday night.
Weaver said his office will continue to fight for Berry's execution and planned to meet today to discuss asking the Ohio Supreme Court to set a new execution date. He said the attorney general's office will also speak to U.S. District Judge Algenon Marbley in Columbus about Berry's mental capacity to waive his appeals.
"We are confident that the federal court will find he is competent just as the Ohio Supreme Court found he is competent," Weaver said. "If he's competent he's able to waive his appeals and be executed. That's been state's position for 2 1/2 years."
Marbley ruled Friday that the state Supreme Court did not properly determine whether Berry was mentally competent to volunteer to die.
The state appealed Marbley's decision to the 6th U.S. Circuit Court of Appeals in Cincinnati, which allowed the stay of execution to stand until a competency hearing for Berry on March 24.
Montgomery appealed that to the U.S. Supreme Court, which announced its ruling in a simple statement Tuesday evening:
"The application to vacate the stay of execution of sentence of death entered by the United States District Court on February 27, 1998, presented to Justice (John Paul) Stevens and by him referred to the Court, is denied."
The Ohio public defender's office, which has appealed Berry's death sentence despite his objections, has argued that Berry's life should be spared, at least until the federal courts deal with the issue of his competency.
"Obviously, we're delighted with their (the Supreme Court's) decision," Public Defender David Bodiker said. "We fail to understand why there is some kind of urgency to execute Wilford. It seems to me that that potential is there any time _ if they don't do it tonight, they can do it a month from now or two months from now."
Gov. George Voinovich could grant clemency to Berry, but the governor had not decided whether to do so, Mike Dawson, the governor's spokesman, said Tuesday.
Weaver said the state was prepared to execute Berry if the high court blocked the stay.
Corrections officials began transporting Berry by van from the Corrections Medical Center in Columbus to the Southern Ohio Correctional Facility in Lucas, about 90 miles away, where the execution was to take place. Berry had been on the road for about 30 minutes before the Supreme Court announced its decision.
"They're just going to turn him around and take him back," prison spokesman Joe Andrews said after he and Lucasville Warden Stephen Huffman were advised of the high court's decision at 7:12 p.m.
Berry would be the first person in Ohio to be executed since Donald L. Reinbolt was electrocuted on March 15, 1963. Berry was convicted of murdering Charles Mitroff Jr. on Dec. 1, 1989, three days after the Cleveland baker had hired him.
Richard Bowler, Mitroff's brother-in-law, said the latest delay is another disappointments for the family.
"Well, we are hoping for closure. We were hoping it was all over. Evidently we still have to go through more judicial mumbo jumbo," Bowler said.