DaytonDailyNews.com

By any reasonable standard, Rhett DePew is among the worst of the worst.

On Nov. 23, 1984, he kicked in the deadbolted door of Teresa Jones' home near Oxford and fatally stabbed Jones, her 7-year-old daughter and 12-year-old sister, then set the house afire. DePew's only glimmer of decency: He set Jones' 1-year-old baby in a neighbor's flower garden, swaddled in blankets.

"Of course, the case of Rhett DePew killing my children was one of the most horrific crimes that ever happened in Butler County or even the state of Ohio," said Madge Burton, mother and grandmother of the victims.

"If there's any man in the state of Ohio who deserves the death penalty, Rhett DePew deserves it."

Twelve jurors agreed. After a 1985 trial, they recommended a death sentence and the judge complied.

But for DePew, like dozens of other convicted murderers in Ohio, a death sentence didn't really mean death. DePew walked off of death row in 2005 after U.S. District Judge Walter H. Rice of Dayton ruled that the late Butler County Prosecutor John Holcomb tainted the trial jury with inappropriate comments. DePew, 55, will certainly die in prison — his first parole hearing isn't until January 2075 — but not from a state-sanctioned mix of lethal drugs.

"It was a travesty of justice that his death penalty was overturned, not only to me and my family, but to the people of the state," Burton said. "It just boggles my mind that we have a system of justice that allows that."

DePew is hardly an anomaly. Since the state adopted its current death penalty law in 1981, 119 inmates have left death row, but only 28 were by execution. Of the remaining 91, 14 died naturally, four committed suicide, two overdosed — and 71 either received clemency or had their death sentences thrown out.

Of the 176 inmates now on death row, 18 have won in court appeals but remain on the row pending final court action, according to the Ohio public defender's office.

Gov. Ted Strickland on Feb. 12 granted clemency to Jeffrey Hill, 44, formerly of Cincinnati. Hill had been scheduled to die March 3 for the 1991 stabbing death of his mother, but Strickland agreed with the Ohio Parole Board's recommendation that Hill be spared because his sentence was disproportionate when compared to similar cases. He will now be eligible for parole consideration in seven years.

Ohio Public Defender Timothy Young, whose office represented Hill on appeal, said his clemency case was a "watershed" because the governor granted mercy to a condemned killer who is unquestionably guilty. Hill's "genuine remorse" was one of the reasons given for the clemency recommendation.

The reasons for death row removals are almost as varied as the inmates themselves. For example:

• Dale Johnston left prison after more than five years on death row when the Ohio Supreme Court overturned the former Xenia man's conviction for the 1982 murders of his teen stepdaughter and her fiance. In September, two men unconnected to Johnston were charged with the slayings. One pleaded guilty in December; the other faces trial later this year.

• Scottish-born Kenny Richey's death sentence for the 1986 arson murder of a 2-year-old Putnam County girl became something of an international incident. After supporters shot holes in the state's evidence, prosecutors offered a plea deal allowing Richey to go free in January 2008. In Scotland, he faces charges accusing him of assaulting a man with a metal object during a July robbery.

• In 1992, Darryl Gumm and Michael Bies lured 10-year-old Aaron Raines to an abandoned building in Cincinnati. When the boy refused to perform oral sex, the men beat him to death with a wooden board, a metal pipe and a concrete block. Gumm left death row in 2006 under a U.S. Supreme Court ruling making mentally retarded convicts ineligible for capital punishment. The court last month agreed to consider whether Bies also is ineligible.

Some executions haven't been without incident.

In January 2004, four guards had to forcibly lift Lewis Williams Jr. from his knees and pry his hand off a table's edge to get him into the death chamber. "I'm not guilty. I'm not guilty. God, please help me," he said as he was strapped down. His last words: "God, please help me. God, please hear my cry."

In May 2006, Joseph Lewis Clark, strapped to the gurney in the execution chamber, shook his head and declared that the drugs weren't working. "It don't work. It don't work. They're not working," he said. His execution took 86 minutes.

A year later, it took prison workers so long to find a good vein on Christopher Newton that he had to be unstrapped from the gurney to use the restroom. Newton's last words were: "Yes, boy, I could sure go for some beef stew and a chicken bone. That's it."

Public officials from county prosecutors to the state attorney general and the governor support Ohio's death penalty. Republicans and Democrats say they see no need for the kind of intensive study that led to a moratorium since 2000 in Illinois.

"In a sense, we review every time a case comes before us," Strickland said. "So I don't know that a particular study is necessary."

Others disagree. In 2007, the American Bar Association issued a 495-page report calling Ohio's death penalty systemically flawed and unfair. The study criticized the practice of executing the mentally ill, blamed the Ohio Supreme Court for allowing disparate sentences and noted geographic disparities in who ends up on death row. Capital murder defendants in Hamilton County are 2.7 times more likely than defendants statewide to get a death sentence.

Prosecutors in some small counties won't seek the death penalty because capital trials are so costly, said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

Hard numbers are elusive, but studies have shown it's much more expensive to pursue an execution than to house a convict for life. California's Commission on the Fair Administration of Justice last year reported it costs $90,000 more per inmate to confine an inmate on death row than in a regular maximum-security cellblock for life without parole.

Ohio's 88 county prosecutors vary widely in deciding when to go for the death penalty. Some seek capital indictments routinely, sometimes using them as bargaining chips to get guilty pleas, while others don't go for them at all. Montgomery County Prosecutor Mathias H. Heck Jr. seeks the penalty sparingly: His only pending case involves Charlie W. Myers, accused of killing a Harrison Twp. woman and kidnapping her 4-year-old son on Jan. 2.

"I seek the death penalty on every single case that meets the statutory requirements," said Cuyahoga County Prosecutor Bill Mason. "For prosecutors, it's the toughest decision we have to make. (But) it is what it is. It's the law."

Young said the numbers prove the death penalty is overused. Ohio prosecutors have obtained 724 capital indictments since 2000, but only 50 death sentences. That, Young said, is a 93 percent failure rate.

Jurors may be less willing to impose the death penalty after reading headlines about the 232 inmates across the country exonerated by DNA evidence, including 17 facing death sentences. Also, more states have added life without parole sentences as an option for jurors. Ohio did so in July 1996.

A death sentence is only the beginning of an appeals process that can drag through state and federal courts for a quarter-century. Some Ohio inmates have been on death row since 1983.

The lengthy appeals process can be hard on families.

On March 21, 1985, David Brewer of Franklin kidnapped Sherry Byrne, drove her around in his trunk, then strangled and stabbed her and slashed her throat near Beavercreek. She was the wife of one of Brewer's college fraternity brothers, Joe Byrne.

Byrne advocated for Brewer's execution throughout his 18 years on death row, and witnessed his 2003 lethal injection. But today, Byrne says he's "conflicted" about the experience.

"I still feel very strongly that he got the proper punishment, I really do," Byrne said. But all the years of reliving the murder during Brewer's court hearings "did damage to my family. If I had it to do over again, I wouldn't do it. If they're not going to change the process (to speed up executions), it's not worth it."

Whether a death sentence is overturned on appeal largely depends on which judges are assigned to the case, Young said.

A study of decisions by the Sixth U.S. Circuit Court of Appeals found that death sentences were reversed 75 percent of the time when two of the three judges hearing the appeal were Democratic appointees, while the opposite was true of Republican appointees.

"How do we expect juries (and) local judges to get this right when those who are considered the pre-eminent authorities on the law disagree so often based upon what appear to be nothing more than ideological grounds?" Young said.

Young opposes the death penalty in any and all cases, no matter how heinous the crime. The justice system, he says, makes mistakes, and in capital cases those mistakes can be irreversible.

"There are innocent men in prison," he said. "There are innocent men on death row. Without a doubt."

The Rev. Neil Kookoothe, a Catholic priest from North Olmsted who has protested at most of the 28 Ohio executions over the past 10 years, said state-ordered killing is just plain wrong.

"I think it's an abomination and it needs to be abolished," he said.

Contact Laura A. Bischoff at (614) 224-1624 or lbischoff

@DaytonDailyNews.com.

Contact Tom Beyerlein at (937) 225-2264 or tbeyerlein@DaytonDailyNews.com.