Dead Men Waiting 

While other states grow wary of the death penalty, Ohio rushes forward.

Ohio's coalition against the death penalty is still in its - infancy. - WALTER  NOVAK
  • Walter Novak
  • Ohio's coalition against the death penalty is still in its infancy.
Since 1963, dead men in Ohio have not walked. They've waited. The one exception, Wilford Berry, literally asked the state to kill him. But on Tuesday, Clevelander Jay D. Scott, convicted of shooting a delicatessen owner in 1983, may become the first person in 38 years to be put to death against his will.

Ohio is sounding the death march at a time when other states are studying or even stopping executions. Since 1973, 95 people have been freed from death rows across the country. In Illinois alone, 13 inmates have been exonerated since 1977, causing Governor George Ryan to suspend executions last year so the system's fairness could be studied. As of press time, a filibuster in Maryland's senate was the only thing stopping that state from adopting a moratorium as well. Meanwhile, Virginia, Nebraska, Arizona, Indiana, and even Texas are seriously considering reforms.

No such hesitancy has slowed the crusade of state Attorney General Betty Montgomery, who has worked doggedly to begin executing Ohio inmates. That's because she's "very confident" the 201 people on the state's Death Row are guilty, says spokesman Joe Case.

"We have a very fair system in place in the state. What does it say when we're working on 18 years after crimes have been committed, and we only have two inmates that have gone through all their guaranteed appeals?"

Before he left office in 1991, Governor Richard Celeste commuted the sentences of the eight Death Row inmates closest to being executed. And it's taken a decade for newer cases to wind through Ohio's exhaustive system. Once convicted, an inmate has a choice of 14 different appellate steps. The law allows one to petition the U.S. Supreme Court no less than five times. Moreover, capital cases are complicated; judges sometimes wait years to issue their decisions. That's why, in the 20 years since the Ohio legislature reintroduced the death penalty, only Wilford Berry has been executed.

Montgomery is none too pleased that the judiciary has been so slow to carry out the legislature's wishes. "When you have the death penalty on the books and the system is so bogged down that it's never carried out, the public loses faith in not only the capital justice system, but in the court system itself," Case says.

In her zeal to remove barriers, the attorney general has monitored cases, issued reports, and lambasted a plodding judiciary. Critics call her "Bloody Betty" and "Betty Kilowatt," but she's gotten results. Two decades after the law was enacted, a line is finally beginning to form outside the death chamber.

Former Governor George Voinovich is credited with reviving capital punishment with one sentence in his 1994 State of the State Address: "Justice delayed is justice denied."

The thunderous applause had barely stilled before legislators drafted a constitutional amendment that would eliminate an entire level of appeals. Voters approved the measure with the understanding that it would shave two years off the process. Another measure to hasten executions was approved in 1995. Montgomery, then a state representative, helped lead both charges.

When she became attorney general that year, she added a Capital Crimes Section to her office. The unit released a study that found "unreasonable delays" of months and even years in both the state and federal courts.

The study blamed judges with overloaded dockets. It also denounced defense attorneys who filed endless motions and prosecutors who failed to prod cases forward. Montgomery's persistence paid off. Her most recent report, released early this month, showed a quickening of step in both the state and federal systems. While the attorney general's "watch list" of slack cases has grown, the average time it takes for state review decreased from 2,483 days for inmates sentenced between 1993 and 1995 to 923 days for inmates sentenced in 1998.

This has death-penalty opponents fearing that Ohio will soon make up for lost time.

"Certainly, if [Governor] Bob Taft has a second term, it's going to look like Texas," says Jim Tobin, treasurer of Ohioans to Stop Executions. "We will have a rapid succession of executions. We will do two this year and four or more next year."

Case says the courts still move slowly, making such predictions unlikely. Though 120 cases are pending in federal court, only eight inmates are actually close to execution, according to the attorney general's report. "The fact remains, we've only had one execution since 1963, and that was a volunteer," he says. "There is no bloodlust in this office."

No doubt Montgomery has public opinion on her side. Though support for the death penalty has eroded nationwide, the same cannot be said of Ohio. A February Gallup Poll found that 67 percent of Americans support capital punishment, down from a high of 80 percent in 1994. In Ohio, about 80 percent still favor the death penalty, according to a 2000 study by Ohio State University.

Abe Bonowitz, director of Citizens United for Alternatives to the Death Penalty, says Ohio's support will wane once the executions begin. "Ohio hasn't killed enough yet. Because we've only had one execution, and that was Wilford Berry -- which was essentially state-assisted suicide -- and because we haven't had anyone go to the execution chamber protesting, it's not as prominent in people's minds."

State Representative Jim Trakas, Republican majority whip and a death-penalty opponent, agrees. "The general public continues to be pretty strongly supportive of the death penalty. But of those who actually have a stake in it, I think a lot of people are trying to take a look at it."

Two bills introduced in the legislature would allow condemned inmates to ask for DNA tests. Representative Shirley Smith, a Cleveland Democrat, requested a moratorium on the death penalty last year; the bill died after only two hearings. But she plans to introduce a new bill soon. As evidence of changing opinion, she says, this one will be bipartisan. "I think, because two executions are coming up, people are talking about it. It's been easier this session to get support for the bill. There was a great hesitancy and reluctance before."

Legislators may have been affected by the cases of Scott and John Byrd, who is sentenced to die September 12 for stabbing a convenience-store clerk in 1983. Because Byrd's case involves an actual innocence claim, it has attracted more attention than Scott's. Death-penalty opponents have held protests in Columbus and Cincinnati. And Byrd's lawyers recently revealed that co-defendant John Brewer admitted that he, not Byrd, fatally stabbed the clerk.

Case dismisses the confession, noting that Brewer has nothing to lose; he's serving a life sentence, and he cannot be retried.

Two weeks before Scott's execution date, his supporters gathered at the Justice Center, as they do every Thursday, to collect signatures they'll send to Taft. Attendance has been sparse, as has media coverage.

Last week, Scott's attorneys, John Pyle and Tim Sweeney, argued for clemency before the Ohio Parole Board, which recommended Friday that clemency be denied. Their last hope is with the governor, who is reviewing the case this week. Pyle says his client's sentence should be commuted, because jurors never got to hear about Scott's background before he was sentenced.

While he was growing up, Scott was a regular victim of his alcoholic father's violence; dad was known to fire gunshots at his child's feet to "get his attention." When Scott was 11 years old, he watched his father repeatedly stab his mother in the chest. And as 1 of 11 children, he sometimes had to steal food to eat. He's been incarcerated much of his life.

Scott's lawyers also argue that he is severely mentally ill, and that a prison doctor has diagnosed him as schizophrenic. His clemency request says Scott suffers from auditory hallucinations. He has set fire to his cell and has attempted to harm himself. Twice he's been placed on suicide watch.

But in trying to save his client's life, Pyle recognizes that he's fighting more than the attorney general's office.

"There's a substantial number of people who just want to see someone killed," he says. "They want to see the death penalty imposed. And it has nothing to do with Jay D."

More by Jacqueline Marino


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