NEWS
Berry, 35, was in a prison van Tuesday night en route from Columbus to the Southern Ohio Correctional Facility in Lucasville when word came that the high court had refused to lift the stay of execution issued Monday by the U.S. 6th Circuit Court of Appeals.
The van turned around and headed back to Columbus and Berry's fate - and when Ohio will carry out its first execution since 1963 - remains up on the air.
The 6th Circuit on Monday asked for oral arguments to be held March 24, apparently on the proper legal standard to determine Berry's competency, and that seems to be the next step in the case.
David Bodiker of the Ohio public defender's office said he was delighted with the Supreme Court's decision, contained in a one-sentence denial, though he was unable to read anything into it.
``It's very short, very brief. You can't read any insight into it - what they were thinking, what they weren't thinking,'' Bodiker said.
Ohio Attorney General Betty Montgomery, who criticized the defense for waiting until 13 days before the execution to file an appeal, said she would continue to push in federal court for the execution.
Prison officials in Lucasville got word of the reprieve at 7:12 p.m., less than two hours before Berry's scheduled 9 p.m. execution by lethal injection.
Berry - dubbed "The Volunteer" because he waived his appeals and asked to die - had a last meal of lasagna, garlic bread, strawberry shortcake and coffee.
He was returned to the Correctional Medical Center near Columbus, where he has been held since he was badly beaten by other inmates in a September uprising at Death Row at Mansfield Correctional Institution. He had two visits Tuesday. One was from the public defenders office; the other from his mother, Jennie Lenay Franklin of Cleveland, and sister, Eleanor Quigley of Ashland.
The public defender, arguing that Berry is not competent to waive his appeals, has been fighting the execution on behalf of his mother and sister.
Berry had asked that his mother, sister, and one public defender, Cindy Yost, be his witnesses at the execution.
The family of Berry's victim, Cleveland baker Charles Mitroff Jr., had asked the three investigators involved in Berry's arrest to take their places as witnesses.
Richard Bowler, Mitroff's brother-in-law, said Berry was competent enough to plan and carry out a robbery and killing.
``We were hoping it was all over,'' Bowler said. ``Evidently we still have to go through more judicial mumbo jumbo. To me, it's ridiculous. There isn't any doubt of his guilt.''
Mark Weaver, Ohio deputy attorney general, said his office appealed to the U.S. Supreme Court early Tuesday because the argument that Berry's death penalty should be carried out Tuesday as planned was not addressed Monday by the 6th Circuit Court of Appeals.
The appeals court, with little comment, had continued the stay issued Friday by U.S. District Judge Algenon L. Marbley, and said it wanted to hear oral arguments in the case on March 24.
Marbley had said the Ohio Supreme Court did not use the proper judicial language in determining if Berry is mentally competent to waive his rights to appeal. Berry has a history of mental illness and suicide attempts beginning at age 9.
The state court order to execute Berry on March 3 expired at midnight. If the execution is eventually cleared, Weaver said the Attorney General's office will have to petition for a new date and go back to the Ohio Supreme Court. But Montgomery said the last 2 1/2 years have been devoted just to evaluating Berry and two courts have found him to be competent.
"The citizens of Ohio are losing faith in the judicial institutions ... due in part to their belief that sentences meted out by courts have little or no credibility," she said.
Some death penalty opponents argued that Montgomery is eager to enact the death penalty because this is an election year and a majority of Ohioans favor it - a charge Montgomery dismissed as "poppycock."
"We felt we had to try to preserve the integrity of the system," she said. "This is a sobering duty I have. (I'm) not thick-skinned when people say I take pleasure in it."
Ohio has not executed anyone since 1963, when Donald Reinbolt was put to death for killing a Columbus grocer.
Berry was convicted in the Dec. 1, 1989, murder of Mitroff, a Cleveland baker who had given Berry a job just a few days before Berry and an accomplice burglarized the store. Mitroff interrupted the burglary and Berry's accomplice shot him. A wounded Mitroff crawled across the floor begging for his life, but Berry shot him in the head.
Berry has maintained the right to die for his crime rather than spend his life in prison.
His case has been on a faster track because he waived appeals. There are 176 other men on Ohio's death row and state officials can't predict who will exhaust his appeals first and when, but they have said they don't expect any more executions this year.
There was a decade-long gap between executions in the U.S. as the U.S. Supreme Court pondered the constitutionality of the death penalty, then struck down old laws in 1972. Ohio's current law became effective in 1981, but no one convicted under it has exhausted his appeals yet. Former Gov. Richard Celeste pardoned some long-standing Death Row inmates in 1991.
* THIS STORY CONTAINS information from the Associated Press.
PHOTO CREDIT: WILLIAM P. CANNON COX NEWS SERVICE