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)