15 October 2014

Bob Fitrakis, The Fitrakis Files: Free Byrd and other cries for justice. Columbus: Columbus Alive Publishing, 2003. 252 pp.

"When, in countries that are called civilized, we see age going to the work-house, and youth to the gallows, something must be wrong in the system of government. . . . Civil government does not consist in executions. . . . Why is it that scarcely any are executed but the poor?"

These are the words of Thomas Paine, the greatest pamphleteer in the history of the English language.

Bob Fitrakis writes in the tradition of Paine. Free Byrd consists of articles originally published in Columbus Alive and the Columbus Free Press during the decade 1992-2002. The articles set forth specifics about several related subjects, including a number of capital cases, and the death in Franklin County jail of Michael Hiles. The two themes most thoroughly explored in these articles are, first, the unjust trial, sentencing, and execution of John Byrd; and second, the inadequacy of the Office of the Ohio Public Defender in representing Byrd and other capital defendants.

I

Since the many articles on Byrd in Free Byrd are presented sequentially, just as they were written, it may be helpful to the reader if I try to extract from them Fitrakis' understanding of exactly what happened on the night of April 17, 1983. (I am concentrating here not on the judicial process and the eloquent dissents of Judge Nathaniel Jones, with which readers are probably familiar, but on the facts of the crimes.) During the day of April 17, John Brewer, John Byrd, Robert Pottinger and William Woodall were drinking, smoking pot, and using Quaaludes. Another man now in an Ohio prison, John Fryman, states that he was with them. Fryman says that Byrd consumed a fifth of John Daniels before noon, and that Brewer was the one making plans and giving orders.

That night Monte Tewksbury, clerk at a Cincinnati area King Kwik convenience store, was stabbed in the side during a robbery. He called his wife and said he had been attacked by two masked men. He told customer Cecil Conley that the man who stabbed him was wearing a "plaid" shirt. Tewksbury later died in a local emergency room.

A short time after the King Kwik robbery, two masked men robbed a nearby U-Totem store. A customer, Dennis Nitz, told the police that one of the robbers had a knife and used it to attack a door behind which a store clerk was hiding. A crime lab report found that the knife used to attack the door was not the knife later attributed to Byrd.

Nitz and Jim Henneberry, an employee of U-Totem, also stated that the man wielding the knife was wearing tan pants and a long-sleeved shirt (or "red and black jacket"). Byrd was wearing blue pants and a shirt with cut-off sleeves (or a sweater with wide blue, yellow and black stripes). Brewer, when arrested, was wearing blue jeans and a thin T-shirt. Woodall was wearing a blue sweater and blue jeans. Pottinger, it was said, always wore plaid shirts.

At approximately 1 a.m. on the morning of April 18, police arrested John Brewer, John Byrd and William Woodall. The three were in a red work truck (construction van) which matched the desciption of a vehicle seen fleeing from the King Kwik store. A gasoline credit card belonging to Tewksbury's wife was found under the passenger seat where Brewer was sitting. Brewer had in his possession when arrested a $20 bill, two $10 bills, four $5 bills, 29 $1 bills and a large quantity of change. Detectives later found Brewer's shoeprint on the counter of the King Kwik store.

Byrd, when arrested, had $1.47 in his pocket.

Fresh blood was found on the driver's seat of the van, which was driven by Woodall. Brewer was in the passenger seat next to him. No knife with blood on it was ever found. There were two small drops of blood on Byrd's pants which he unsuccessfully sought to have tested for DNA (as Byrd also sought to have tested for DNA the hair found in the masks used in the robberies). Neither the blood in the vehicle nor the blood on Byrd's pants was shown to be Tewksbury's. In a 1993 affidavit, Woodall said that the blood on the seat resulted from Brewer wiping off a knife blade.

Brewer, Byrd and Woodall were all tried for the murder of Tewksbury and found guilty. Brewer and Woodall were sentenced to life in prison. Byrd was sentenced to death. Fitrakis conjectures that the State singled out Byrd rather than Brewer for the death penalty because Brewer's sister, Debbie Brewer, may have been a police informant.

But in no less than five affidavits, the first signed in May 1989 and the last in January 2001, John Brewer states under oath that it was he who killed Tewksbury. He said the same thing on November 5, 2001, at a hearing before Magistrate Merz. Woodall signed three affidavits that also said Brewer murdered Tewksbury. Brewer says in his affidavits that Byrd came into the King Kwik store with him but was so intoxicated that he could only lean against the wall. Byrd said he never left the van.

The explanation for this conflict between Brewer's narrative and Byrd's may be a concern to protect the fourth participant in the robberies, Robert Pottinger. Pottinger says in an affidavit that "Byrd, Brewer, and Woodall later told me that they had agreed to keep my name out of the case because I was only 17." He also says that, at least at the U-Totem store, Byrd was so drunk that he was unable to leave the van and was never in the store. On November 6, 2001, Pottinger testified at the Magistrate's hearing that Byrd had passed out in the van, and that it was he, not Byrd, who went into the U-Totem with Brewer.

To this recital of the evidence as I found it in Fitrakis' articles, I add the following. I have in my possession a letter written from John Byrd to prisoner Jason Robb on the day before Byrd's execution. It states in part:

This won't be much, brother. I'm on my final trip in this life. I'll see you in the next. You hang in there and stay strong. Never break. Only God judges, not men.

And I have been told that as he was strapped to the gurney, Byrd sent a message to prisoner George Skatzes: "Don't be afraid."

II

The second theme I find in Free Byrd, albeit more implicitly, is the need for an effective Office of the Ohio Public Defender. This is a difficult and delicate topic.

I am anxious not to be misunderstood as a casual critic of the PD. For one thing, I worked 18 years for the Youngstown-area office of the National Legal Services Corporation and I believe passionately in publicly-funded legal representation for the poor. The lawyers who do this work, whether civil or criminal, are paid dramatically less than opposing counsel. The statutes and regulations pursuant to which they work impose endless restrictions. As a Legal Services attorney, I could not represent groups who arguably needed help the most: persons in the military, persons alleged to be illegal aliens, and prisoners. Lawyers who work for the Ohio Public Defender face even more serious obstacles, many of them created by laws passed under President Clinton. In capital cases, potential jurors who oppose the death penalty under any circumstances will almost certainly be excluded, whereas persons who favor the death penalty with equal ardor but will tell the judge that they will follow his instructions are seated in a "death-qualified" jury. As the Byrd case demonstrates, especially in Cincinnati a capital defendant can be convicted and sentenced to death on the basis of testimony by a single jailhouse informant.

Moreover, public defenders must expect harassment by vindictive prosecutors and unfair treatment from unsympathetic judges. In my forthcoming book on the Lucasville prison uprising and its judicial aftermath (Temple University Press, August 2004), I describe how the State of Ohio got the Office of the Public Defender off the cases.

Getting the Public Defender off the Lucasville Cases

The agreement that ended the 11-day uprising was negotiated by Attorney Niki Schwartz of Cleveland. When he returned home after the settlement, Schwartz realized that the more than 400 prisoners who had just surrendered were likely to be questioned by the authorities and "wouldn't . . . necessarily know their rights" to remain silent or to insist upon having a lawyer present during interrogation. He made arrangements for lawyers acting on his behalf to go into the prison and briefly counsel each inmate as to what his rights were . . . until they could get individual representation that would permit each of them to make an independent decision about whether and to what extent to cooperate and make a deal.

The Office of the Ohio Public Defender supplied most of the attorneys who, at the request of Attorney Schwartz, conducted the initial interviews with potential defendants to make sure that they knew their rights. Dale Baich recalls that the lawyers left Columbus at 6 a.m. on April 23. One element in the surrender agreement was that prisoners who feared mistreatment by officers at the Southern Ohio Correctional Facility in Lucasville would immediately be transferred to Mansfield. Accordingly, about eight public defenders went to Mansfield, the remainder to Lucasville. Each attorney interviewed twenty prisoners. The attorneys spoke to the prisoners through the cell doors. They made it clear that they did not want to talk about the events of the riot, only to make sure that every one knew his rights. After returning to Columbus, the attorneys called prisoners' families to report on these visits.

Meantime, organizations calling for the death penalty formed in Scioto County. They circulated petitions and form letters, "request[ing] and demand[ing]" that "the Death Penalty in the State of Ohio be applied as the passers intended it to be" and calling on State officials to "USE the Death Penalty!"

The Public Defender wished to ask potential members of the grand jury whether they had signed these petitions and form letters. In December 1993, the Public Defender filed a motion in the Court of Common Pleas for Scioto County seeking notice of the date and time the grand jury would convene so as to examine the array for possible bias. Subsequently, after the prosecutor attached the names of the potential grand jurors to a pleading, the Public Defender filed a motion to dismiss the grand jury for bias. The Public Defender named four persons who appeared to have signed the petitions, and four others whose last names suggested that they might be relatives of signers. The Public Defender also moved that grand jury proceedings be recorded. The Public Defender's pleadings were signed by Assistant Public Defenders, describing themselves as "counsel for grand jury targets": that is, for prisoners involved in the uprising who might be indicted by the grand jury.

In response to the Public Defender's motion for notice, the prosecutor asserted that "before law enforcement could begin the interview process" the Public Defender "got into the prisons, solicited all 407 inmates involved as clients, and advised them not to speak to the police." The prosecution asked the Court not only to deny the motion, but also to find that the Public Defender had "gratuitously intervened in a criminal investigation and . . . made a nuisance of himself."

In later pleadings, the prosecution contended that the Public Defender was "attempting to keep its hands involved in as many cases as possible." The State's implicit theory was that the Lucasville prisoners could only be represented one by one and that any attempt to act on their behalf as a class was impermissible. No prisoner had yet been arrested, charged or indicted, the prosecution argued. The Public Defender's clients included potential defendants, potential victims, and potential witnesses, "whose interests clearly conflict with each other.

. . . The same firm cannot represent both sides in a lawsuit." The Public Defender "should be removed from all representation of inmates involved in the S.O.C.F. riot."

The Office of the Public Defender, according to Attorney Baich, recognized that it could not represent individual defendants after they were indicted. But like Attorney Schwartz, the attorneys for the Public Defender believed that all potential Lucasville defendants had certain common interests prior to indictment: to know their rights, to obtain effective counsel for their individual cases, and not to be indicted by biased grand jurors.

The prosecutor's memorandum in opposition to the Public Defender's motion for notice was filed on December 13, 1993, and mailed to the Public Defender that same day. Four days later, on December 17, 1993, without giving the Public Defender the customary opportunity to respond, the Scioto County court denied the motion for notice and found a violation of Rule 11 of the Ohio Rules of Civil Procedure (prohibiting frivolous law suits). The executive director of the Office of the Ohio Public Defender was replaced soon after. Since then, the Office of the Public Defender has only occasionally represented individual Lucasville defendants, and only in their appeals. Publicly-funded prosecutors would seek to convict Lucasville defendants while the publicly-funded entity dedicated to advocacy for indigent defendants was sidelined. The State would proceed against such Lucasville defendants as it chose to indict, utilizing a single computerized data bank created by the Ohio State Highway Patrol and the prosecutors, and unavailable to defendants. The prisoners would no longer be represented collectively or be able to draw on the pooled legal resources of any network or organization.

Problems

Lawyers who persevere in the face of such obstacles to offer some semblance of representation to indigent defendants are truly heroes.

Nevertheless, the Office of the Public Defender has experienced during the last 20 years several alarming breakdowns in its work for poor people caught up in the legal system.

The first such episode, described in a number of articles in the Free Byrd collection, involved investigators with whom the PD contracted who falsified records and failed to investigate cases of Death Row inmates. Many prisoners said that they had never met the investigator who allegedly spoke to them. The prisoners shortchanged in this way were primarily blacks but also included John Byrd. One of those whom investigators failed to assist was William Wickline, executed on March 30, 2004.

This misconduct occurred between 1983 and 1988 during the tenure of an investigator named Richard Smith. The man who blew the whistle on Smith and his associates, an African American investigator named Chester Craig, was himself terminated in 1991. After Craig filed a complaint and inquiry was made, Public Defender Randall Dana resigned in 1992.

The second episode of Public Defender misconduct narrated by Fitrakis concerns the Byrd case. For reasons still unclear, the PD withheld for more than ten years the series of affidavits by John Brewer in which he confessed to the murder for which Byrd was convicted. Worse, when the Sixth Circuit Court of Appeals ordered a Magistrate's hearing in the fall of 2001, public defenders initially failed to produce all the Brewer affidavits. A hearing that began with confessions under oath by Brewer and Pottinger to actions attributed by the State to Byrd turned into a hearing as to why the Office of the Public Defender was concealing evidence. Attorney Richard Vickers took the Fifth Amendment, and Public Defender David Bodiker, who replaced him, apparently did not know the case well enough to shift the focus back to the total absence of direct evidence against Byrd.

To these troubling episodes a third series of incidents, which became manifest only after the publication of Free Byrd, must now be added. As reported in the Cleveland Plain Dealer, the Office of the Public Defender has been accused of "attempts to deceive federal judges in high-stakes capital-murder cases."

One of the accusers is Joseph Bodine, previously the attorney at the PD responsible for obtaining habeas representation for capital defendants. But Bodine himself apparently missed a critical deadline in one of the cases for which he was responsible. According to the Plain Dealer, Bodine "attributed the oversight . . . to overwork and the failure of a supervisor to heed his requests for help." His supervisor, Greg Meyers, filed an affidavit "that said Bodine's timesheets showed that he averaged roughly 40-hour workweeks during the period in question." After being fired by Bodiker, Bodine went to work for the Ohio Attorney General.

I do not have the authenticated information required to discuss specific cases. (Besides the Byrd case, they are the Lott case before Judge O'Malley in Cleveland and the Mills case before another federal judge in Cincinnati.) Former Ohio Supreme Court Justice Herbert Brown has been hired by the Ohio Public Defender Commission to investigate.

What is to be done?

Surely, those within the Office of the Public Defender must be given the first opportunity to come forward with solutions. But stiff upper lip, kneejerk defensiveness, and bureaucratic reshuffling are not enough.

My personal belief is that we urgently require a federal institutional network to defend indigent criminal defendants. The National Legal Services Corporation for indigent parties in civil cases grew out of the storefront legal offices of the Office of Economic Opportunity (OEO) and was one of the few impulses of the 1960s to survive in institutionalized form (another being Headstart). In National Legal Services, federal tax moneys are allocated to local offices in proportion to the number of persons in each congressional district below the federally-determined "poverty line." Local offices are managed by attorneys and client representatives in designated numbers. Each local office is monitored, usually by experienced Legal Services personnel from other geographic areas, to make sure that national statutes and regulations are being followed. National Legal Services, despite serious restrictions such as those mentioned earlier, works.

Since criminal defendants are entitled to federal constitutional guarantees, why not a federal defense system to make sure that these rights are equally protected in all parts of the country?

III

Running throughout Free Byrd is frustration that the State of Ohio seems impervious to the reconsideration of the death penalty underway elsewhere in the nation and in the Supreme Court of the United States. It is as if Ohio existed in a bubble. To what is said in this eloquent little book, one must now add the horror of the recent execution of Lewis Williams.