In Memoriam:  John W. Byrd Jr.

LUCASVILLE, Ohio - John W. Byrd Jr. died by injection on February 19, 2002, the first inmate executed since Ohio reinstated the death penalty in 1981 to claim he was innocent.

Journalist, author and private investigator Martin Yant worked literally to the end of Byrd's life to save him.  Martin tells us, "Ohio in all probability just executed an innocent man. Equally important, Ohio just needlessly killed a good man. John W. Byrd Jr. may have been a troubled—and troublesome—young man. But he grew into a self-educated man of great strength, wisdom and insight.  We will continue to fight to prove his innocence even though he is now gone."

The following Affidavit outlines why Martin became convinced of John Byrd's innocence.  John Byrd is not the first innocent man executed by the government for a crime he did not commit.  Let us redouble our efforts to ensure he is the last.

STATE OF OHIO
COUNTY OF FRANKLIN, SS:

I, Martin D. Yant, depose and state under oath as follows:

1. I am an investigative journalist with 30 years of experience. I am also a licensed private investigator specializing in the investigation of possible wrongful convictions.

2. I am the author of four investigative books, three of which concern the American criminal-justice system. 

3. My first book, Presumed Guilty: When Innocent People Are Wrongly Convicted, was published in 1991. Presumed Guilty was the first overview of the problem of wrongful convictions to be published in 30 years. An August 2000 review of all books on the subject written in the 20th Century pronounced Presumed Guilty "the most readable, [which] in no way detracts from its wealth of information." 

4. I reviewed hundreds of documented wrongful convictions to determine how and why they occur before writing Presumed Guilty. I also consulted many leading criminologists, lawyers, investigators and journalists who had expertise in the subject. 

5.  I have devoted most of my time to investigating and writing about wrongful convictions in the 11 years since Presumed Guilty was published. In the process, I have discussed the subject on numerous national and local TV and radio talk shows; had two investigations featured on NBC-TV's Unsolved Mysteries and one on CBS Evening News; and aided in the release of several innocent inmates as a result of investigations I conducted from Rhode Island to California. I also was a consultant for Final Appeal, an NBC-TV series on wrongful convictions, in 1992. 

6. Most recently, the findings of my three-year investigation on the strong wrongful conviction claims of two Columbus men originally sentenced to death in 1978 were featured on the front page of The Columbus Dispatch on Sunday, 
February 10, 2002. I conducted the investigation for Centurion Ministries, and organization that has freed 26 wrongly convicted inmates—two of them from death row—since 1983.

7. Many of my investigations have been of death-penalty cases. One of those cases is that of John W. Byrd Jr. In the course of that investigation, I have thoroughly reviewed the record and traveled as far away as California to track down and interview witnesses. The results of my investigation were incorporated into a series of investigative articles I co-wrote with Robert J. Fitrakis for Columbus Alive.

8. Of the many revelations in our articles that raise doubt about Byrd's guilt, in my opinion four stand out:

A. A statement that Robert Fitrakis obtained from Robert E. Pottinger Jr. During that interview, Pottinger stated that he and John Brewer committed the robbery after the one in which Monte Tewksbury was killed. Pottinger said Byrd was passed out in the truck at the time. Pottinger's statement is important because the Ohio Supreme Court has ruled that Byrd's identification as the knife-wielder in the second robbery was "highly probative" evidence that he stabbed Tewksbury to death at a King Kwik store one hour earlier. If, as Pottinger claims, Byrd didn't participate in the second robbery, then he couldn't have been wielding the knife.
B. A statement came by Dennis Nitz, a witness at the second robbery. Nitz told me that he stands by his testimony that the robber wielding the knife at the second robbery wore tan pants and a red-and-black shirt or coat. Byrd, the alleged knife-wielder, was wearing blue pants and a blue-and-white sweater that night. In his closing argument, the Hamilton County prosecutor said Nitz was mistaken about the pants' color. Nitz disagrees.
C. A statement by John Lee Fryman, who said he was with Brewer, Byrd and a friend of his when they planned the robbery at the King Kwik store at which Monte Tewksbury worked. Fryman told me in an interview that it didn't surprise him that Pottinger said that Byrd was passed out because Byrd had already consumed a fifth of whiskey before noon that day. Fryman also said that Brewer had a large knife with him. Fryman said  he never saw Byrd with a knife. Finally, Fryman said that Brewer bragged to him when they were in prison together in Lucasville that he, not Byrd, killed Tewksbury. 
D. The affidavit of Larry Kidd, who says he was in the Hamilton County Jail with Byrd and that he never heard him discuss his case, let alone with a black inmate, because Byrd did not like or trust blacks. It was for this reason, Kidd says, that he has  always doubted the testimony of Ronald Armstead, who is black, that Byrd bragged to him about killing  Tewksbury. On the other hand, Kidd says he did hear Byrd's co-defendant, John Brewer bragging about the murder to Armstead. Kidd believes Armstead got many of the details of  Tewksbury's murder from Brewer during this conversation. Kidd also believes Brewer planted the idea with Armstead that Byrd killed Tewksbury so that Brewer himself would not be charged with being the principal offender. 


9. During my review of the Byrd case, I also isolated the following factors that are common causes of wrongful convictions:

A. The dubious testimony of jailhouse snitch Ronald Armstead that Byrd confessed to him. According to the Innocence Project at the Benjamin N. Cardozo School of Law, which has exonerated 102 innocent inmates with DNA in little more than a decade, testimony by snitches or informants was a factor in 16 of the first 70 exonerations the organization achieved. This should make all testimony by such witnesses highly suspicious. That is why the bipartisan Constitution Project's blue-ribbon death-penalty panel unanimously concluded that the death penalty should be "off limits where the guilt of the defendant or the likelihood of receiving a capital sentence" depends upon uncorroborated testimony from co-defendants and jailhouse informants.
B. Ineffective assistance of counsel by Byrd's trial attorneys. The Innocence Project says that bad lawyering was a factor in 23 of its first 70 DNA exonerations. The mistakes made by Byrd's attorneys are well-documented. What has not been documented is the indifference of Hollis Moore, who failed to inform Byrd that he previously had represented Armstead when, purportedly at his request, he was appointed to represent him. Moore was extremely reluctant to discuss Byrd's case when I called him on February 16, 2002, and he refused to fully answer important questions. Even more telling, Moore didn't inquire about the new evidence I told him that had surfaced or even how his former client was doing only days before his scheduled execution.
C. Prosecutorial and police misconduct. The lengths that the prosecutors and investigators have gone to achieve Byrd's scheduled execution are among the worst I have seen in my study of hundreds of documented wrongful convictions. The steps they have taken to camouflage an obvious deal made with Armstead in return for his testimony is an affront to justice. Prosecutorial misconduct played a role in 34 of the Innocence Project's first 70 exonerations. Police misconduct was a factor in 38 of the 70 cases.
10. Based my review of the record and investigation, it is my professional opinion that John W. Byrd Jr. did not kill Monte Tewksbury. What's more, because of an off-the-record statement by one of the individuals interviewed 
during our investigation, I do not believe Byrd participated in either robbery that night. According to this individual, who asked that this part of his statement be kept off the record because he feared that he otherwise might be charged with murder, Byrd was unconscious during both robberies. 

11. I also have concluded that if Mr. Byrd is executed for this crime—with medicines the U.S. Food and Drug Administration has approved only for the use of saving lives, not taking them —his death would constitute cruel 
and unusual punishment and would be an affront to the standards of justice of the people of Ohio.

12. As part of my work, I go to great lengths to network with the few other people who specialize in studying or investigating wrongful convictions. There have been several pertinent developments in just the past few weeks that demonstrate a clear movement in the courts, academia, the media and the population at large against the death penalty. Among those examples were:

A. In a case remarkably similar to Byrd's, the Maryland Court of Appeals ordered a new trial for Clarence Conyers Jr., who was sentenced to die for the murder of his girlfriend's mother. The court said the state failed to disclose to the defense important information about the testimony of Charles Johnson, a cellmate who testified that Conyers admitted killing the woman. The majority opinion said the prosecution "was an active participant in the 'smoke and mirrors' effort to mislead [Conyers] and the jury as to the full circumstances preceding and precipitating Johnson's plea agreement."  The opinion said the state did not tell Conyers' lawyers or the jury that Johnson was awaiting trial on a 19-count armed robbery indictment and that he was allowed to plead guilty to one misdemeanor charge of conspiracy to commit robbery.
B. In her nationally syndicated column, Ann Landers stated that she was "strictly opposed to the death penalty, no matter how heinous the crime."  Landers, who was responding to a letter from the Constitution Project, noted her support for the Project's proposed legislative reforms of the death penalty, calling them "compassionate and sensible."
C. A report released by Columbia University concluded that the high rate of mistakes in death penalty cases is related to aggressive overuse of the punishment.  "What our study shows is that aggressive death sentencing is a magnet for serious error," said Professor James Liebman, the leading researcher for the study. (Hamilton County, where Byrd was convicted, is the most frequent user of the death penalty in Ohio.) The report was a follow-up to a June 2000 study, "A Broken System, Error Rates in Capital Cases 1973-1995," which revealed that 68 percent of all capital judgments were reversed by the courts due to serious error.
D. The Miami Herald reported that nearly a decade after two teenagers were convicted of murdering a Broward County sheriff's deputy, a 32-year-old man has admitted committing the crime. If the statement holds up, it would be the third time in the past two years that a Broward Sheriff's Office murder conviction has collapsed because of a false confession. One man went to death row, where he died of cancer before DNA tests exonerated him. Another served 22 years before being freed.
E. Rob Warden, head of the Northwestern University Center on Wrongful Convictions, said he believes public opinion is turning against the death penalty. Warden noted that a Gallup poll last May showed support for the death penalty at 65 percent, a 20-year low. When the alternative of life without parole was offered, support for the death penalty dropped to 52 percent, Warden said. Warden noted that 288 people in Illinois have been sentenced to death.  Thirteen of those were later found innocent, several of them thanks to Warden's investigations. That is an error rate of 4.51 percent.
13. I believe it is time for the state of Ohio to join those taking a more critical view of capital punishment. John W. Byrd's questionable conviction is a good place to start.

Further I sayeth naught.

Martin D. Yant
Author, Journalist & Private Investigator




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