Thursday, Feb. 26, 1998

OHIO:

Wilford Berry's fate may hinge on a federal judge's decision on a

technicality concerning the Cleveland murderer's competency to decide to

die.

Judge Algenon L. Marbley of U.S. District Court, after hearing arguments

from both sides yesterday, will decide Friday if he will stop Berry's

execution.

Lawrence Komp, an attorney on the staff of Ohio Public Defender

David H. Bodiker, argued that Berry's lifelong mental illness acts as

a "gatekeeper" preventing him from making competent decisions to waive

his legal appeals and be executed.

"If it doesn't fit with how he sees the world, it's not coming in," Komp

said. "He shuts down."

Simon Karas, deputy chief counsel for Attorney General Betty Montgomery,

countered that Berry's competency was decided by the Ohio Supreme Court

on Dec. 3, based on the findings of three court-appointed psychiatrists,

and that his execution should take place as scheduled.

Karas said Berry has the same rights as 59 other "volunteers" across the

country who waived their appeals and decided to die.

Marbley's decision, in the end, may focus on a single word -- "may."

The public defender, in urging Marbley to block Berry's execution, argued

that the Ohio Supreme Court's ruling in Berry's case failed to properly

apply a U.S. Supreme Court precedent, known as the "Rees standard," in

determining Berry's competency.

The U.S. Supreme Court said the critical question that must be determined

by psychiatrists is whether a person's mental illness may substantially

affect their ability to make competent decisions.

However, the Ohio Supreme Court did not use the "may" in applying the

Rees standard in Berry's case, instead determining his mental disorder

did not prevent him from making competent life-and-death decisions.

Marbley's questions to attorneys for both sides during the 1-hour

hearing focused repeatedly on the application of the Rees standard.

"What troubles me is the Ohio Supreme Court said they applied Rees,

and they didn't apply it," Marbley said. "It seems to me that `may' means

'may.'" "We get down to a matter of semantics," Karas commented after

the hearing.

Berry and an accomplice killed Mitroff early on Dec. 1, 1989. Since

then, Berry has consistently pursued his death wish.

The appeal filed last week by the public defender relied on a "next

friend" legal strategy involving Berry's mother, Jennie Lenay Franklin

of Cleveland and sister, Elaine Quigley of Ashland, acting on his behalf.

The public defender won a victory yesterday when Marbley agreed to accept

evidence regarding Berry's history of mental illness, letters he has

written and medical records related to a Sept. 5, 1997, beating he

suffered during a death row riot at the Mansfield Correctional

Institution.

The attorney general's office opposed admitting the information as

evidence, arguing it was improper at the 11th hour of a death-penalty

case.

Greg Meyers, chief of the public defender's death-penalty section,

responded by accusing state attorneys of consistently blocking efforts

to get important medical and psychiatric records introduced into the

case.

State officials responded that the public defender attempted to

introduce the allegedly critical records just once -- during a

competency hearing overseen by a Cleveland common pleas court judge.

The public defender did not try to bring the detailed evidence into the

Ohio Supreme Court case, officials said.

(source: Columbus Dispatch)