DAYTON, Ohio – A federal magistrate exploded in anger Wednesday when he learned that a man who says he committed the crime for which another man sits on death row had given two more affidavits that were never disclosed.
The disclosure sent the hearing on the merits of John W. Byrd Jr.’s innocence claim in a new direction. The magistrate called Ohio Public Defender David Bodiker to the stand to explain what happened.
Byrd, 37, faces electrocution in the 1983 slaying of Cincinnati-area convenience store clerk Monte Tewksbury. A federal appeals court postponed Byrd’s execution in September to allow for an investigation of his claims of innocence by U.S. Magistrate Michael Merz.
John Brewer, who was with Byrd at the store, confessed to the slaying in affidavits in 1989 and in January. Byrd’s attorneys didn’t disclose the 1989 document until this year.
During Wednesday’s hearing, attorney Lawrence Greger, who is representing Bodiker, told Merz there are two more affidavits from Brewer that were never disclosed.
That prompted Merz to take aim at Bodiker.
Merz called it “reprehensible” for the public defender’s office “to sit on the fact that there are two more affidavits of John Brewer and let him testify from this witness stand that there are only two affidavits and then not correct that until he’s long gone.”
Bodiker turned over one of the affidavits, which was taken June 15, 2000, and said his office was still looking for the other one. He said the affidavit he turned over is identical to the one Brewer made in 1989 and that the other affidavit was simply a draft of the January one.
He was unaware of the other two affidavits until this week, Bodiker said.
Brewer has never changed his story that he was the killer, he added.
Prosecutors were disturbed at the revelation.
“What other documents are there that they are also not turning over?” asked James Canepa, representing the state.
Merz will recommend to 6th U.S. Circuit Court of Appeals whether Byrd’s claim is legitimate. If he rules for Byrd and the panel agrees, Byrd will be able to ask the judges to overturn his death sentence.
Byrd has said he has chosen to be electrocuted to illustrate the brutality of capital punishment. He would be the first inmate to die in Ohio’s electric chair in 38 years. Two men have died by lethal injection since Ohio reinstated the death penalty in 1981.
