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A convicted murderer’s fight to avoid execution has exposed an unusual amount of rancor among judges on the 6th U.S. Circuit Court of Appeals. Judges have accused each other of holding secret meetings and engaging in questionable tactics to spare death row inmate John Byrd Jr., who was convicted of killing an Ohio convenience store clerk in 1983. Although judges rarely criticize other judges in written opinions, the case has prompted unusually stinging remarks, often falling along political lines. Some of the most acrimonious remarks have involved Judge Nathaniel Jones, a former NAACP lawyer nominated to the bench by President Carter, and Judge Danny Boggs, a plain-talking hard-liner nominated by President Reagan. “This case has stirred a disturbing degree of acrimony within the court which reflects the politicization of the issues by some public officials with motives open to serious question,” Jones wrote at one point. Boggs responded: “The truth may be that for this prisoner, a majority of the active members of this court would grant a stay based on a hot dog menu.” Two men have died by injection since Ohio reinstated the death penalty 20 years ago, but Byrd would be the first inmate to die in the state’s electric chair in 38 years. Inmates in Ohio are given a choice between the two methods. Byrd chose the electric chair to demonstrate what he says is the brutality of capital punishment. Byrd, 37, has acknowledged that he took part in the robbery but claims he did not kill the clerk. An accomplice confessed to the slaying in a 1989 affidavit, which prosecutors say is false. The court has postponed Byrd’s execution and instructed a lower court to investigate his claim of innocence. A federal magistrate is to make a recommendation by Nov. 30. The case has exposed a deep rift in how the death penalty is applied in Ohio, Kentucky and Tennessee, which send federal appeals to the Cincinnati-based appeals court. The 6th Circuit has overturned numerous death sentences — usually because it agrees with arguments that a defendant had bad counsel — while leaving the murder convictions intact. Michael Allen, the prosecutor in Ohio’s Hamilton County, said federal courts, particularly the 6th Circuit, have undercut the death penalty as a crime deterrent by allowing cases to drag on. “There are some judges who seem to put their philosophical differences with the death penalty ahead of their sworn duty to uphold the law,” Allen said, refusing to criticize judges by name. A review of death penalty appeals before the 6th Circuit from the past several years suggests there is a 6-3 majority — six Democratic appointees vs. three Republican appointees — who consistently vote to block executions. Senior Judge Richard Suhrheinrich, a Republican appointee, touched on the sensitive issue, at one point writing: “It would be far more courageous, far more intellectually honest, if the … court would hold as a matter of policy that the Sixth Circuit will not uphold the death penalty.” Two years ago, Suhrheinrich and another GOP appointee, Alice Batchelder, were assigned with Jones to hear two appeal filings by Byrd. The panel rejected both appeals, with Jones dissenting. Last fall, two days before Byrd was to be executed, the same panel delayed the execution for six days. Jones lobbied for a full-court hearing, and a majority of the active judges voted to extend the stay and left the door open for a full-court hearing. Boggs, the Reagan appointee, complained that the court had granted the extension on its own — not in response to a request — and that some judges weren’t given prior notice. “This type of secret undocumented decision-making by exclusive in-groups is the way decisions are made in totalitarian countries, not usually in the United States,” Boggs wrote. Copyright 2001 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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