Sunday, 12-21-97--

OHIO:

The public defenders who represented Cleveland murderer Wilford Berry want to postpone his scheduled March 3 execution.
But Ohio Attorney General Betty Montgomery said the public defender is out of line since the Ohio Supreme Court, in a Dec. 3 decision, dismissed the agency from the case.
Berry, who was born in 1963, the same year Ohio had its last execution, was found competent to waive his appeals and be executed for the 1989 slaying of Cleveland baker Charles J. Mitroff, Jr.
But Ohio Public Defender David Bodiker this week asked the Supreme Court for a stay to block the execution; Bodiker contended his office
"maintains a good faith belief that the issue of Berry's competence has not been decided."
Monntgomery's office fired back a scathing reply calling the public defender's motion "entirely unauthorized."
The Supreme Court ruling, Montgomery argued, made it clear Berry is "free from the public defender's continuing attempt to interlope in litigation on his behalf against his expressed wishes."
Berry, called the "volunteer" by the attorney general's staff, has steadfastly maintained that he would rather be executed than spend years in prison enduring a protracted court battle.
In its competency ruling on Berry, the Supreme Court slammed the public defender's argument that death appeals are mandatory under state law and Bodiker's office is "ethically obligated" to pursue the case, even against Berry's wishes.
That legal argument, the court concluded, "reflects a radical paternalism outside the mainstream of American law and inconsistent with the human dignity of a competent adult."
The following editorial appeared in the Columbus (Ohio) Dispatch: Ohio's "volunteer deserves the electric chair Wilford L. Berry Jr., the Cleveland murderer who has volunteered to be the first Ohioan executed in 34 years, insists he would rather die than spend years imprisoned on Death Row awaiting eventual execution.
The Ohio SUpreme Court recently concluded that Berry is mentally competent to waive appeals on his conviction and death sentence. The justices unanimously ruled he has the capacity to make such a choice.
Attorneys for the Ohio public defender's office maintain they are "ethically obligated" to pursue further federal appeals, even against Berry's wishes, because society has a stake in ensuring "the reliability and integrity of any death sentence."
Society surely does have such a stake. No one wants to see an innocent person executed, and there are legitimate concerns over whether the death penalty is carried out without discriminating against some ehtnic and racial groups. But how far can a society's commitment to equaljustice be stretched before it no longer resembles a commitment to justice, but to one or another's ideological agenda?

People of good conscience disagree on capital punishment. But after a death-penalty law that represents the will of the majority is enacted and is upheld as constitutional, it is not in society's interest to allow a never-ending appeal process.
Ohio voters have called for the appeals system to be streamlined. In November 1994, voters approved an amendment to the Ohio Constitution providing for the direct appeal of capital cases from trial court to the state Supreme Court. Nevertheless, those who oppose the death penalty will go to any length to extend appeals indefinitely.
The Supreme Court correctly rejected Ohio Public Defender David H. Bodiker's argument that death-penalty appeals are mandatory, even when the convicted killer objects.
That legal interpretation "reflects a radical paternalism outside the mainstream of American law and inconsistent with the human dignity of a competent adult," the court said.
Bodiker has said: Wilford Berry is too sick to die. WIlford tried to commit suicide for the first time at the age of 9. He is now trying to give up his case to get the state of Ohio to carry out his suicide wish."
But the Supreme Court found, based on the testimonoy of three experts, that "Berry has a disoroder, but not a psychosis; that he would prefer freedom to death; that he is logical and moderately intelligent."
There are numerous precedents nationwide where Death Row prisoners have found it logical to volunteer for capital punishment. These cases actually have sped the appeals process in those states. 49 of the last 376 people executed in the United States have waived their appeals. The most famous of these is Gary Gilmore, who in 1977 broke a 10-year judicial ban on capital punishment in America by waiving his federal- appeal rights. He was executed by the state of Utah.
Berry, 35, is on Death Row for killing Cleveland baker Charles J. Mitroff Jr. during a robbery in 1989. Two days after Mitroff had hired Berry to wash dishes and floors, Berry and an accomplice brought two weapons to the bakery. While Mitroff was begging for his life, Berry shot him in the head with a sawed-off, .22-caliber rifle.
Berry's guilt never has been an issue; he openly acknowledges it. There are protections in this nation, for good reason, for rights to counsel, but there also is a right to reject counsel. If an admitted coldblooded murderer seeks to exercise that right, he should be allowed to.
Other so-called volunteers for the death penalty have won, in state and federal courts, permission to die. Death Row inmates, such as Gilmore; Ronald Simmons, executed in Arkansas in 1990; and James B. Clark, executed in Delaware in 1995; covered some of the same territory.
Berry is scheduled to be executed on March 3, but that is unlikely to happen. The public defender's office is expected to take the same claim of incompetency to the federal courts. It may rely on a "next friend" legal strategy that would require Berry's family or a third party to
appeal on his behalf. The federal courts should see the wastefulness of relitigating the same issues resolved by the Ohio Supreme Court. Berry should be granted his death wish. The fact that fellow inmates, apparently fearing Berry's legal battle might lead to other executions, beat Berry savagely in a September Death Row riot at the Mansfield Correctional Institution does nothing to weaken these arguments.
Berry knows what he deserves. In that area, he's more logical than those who refuse to let him die on his own terms.