High court should delay execution: SPIRKO

When the judge suggests that prosecutors "join in a request directly to the Supreme Court of Ohio to lift its execution order, thereby giving me the time I need before the scheduled date of execution," they should take action.

That means bending over backwards to accommodate the court ? even if Attorney General Jim Petro is convinced of the defendant's guilt and of the justness of the punishment.

Because the death penalty is different.

Prosecutors' first duty, even before winning a case, is to make sure every reasonable procedure to remove doubt and ensure fairness has been followed.

Attorney General Petro has taken a different tack in the case of John Spirko, who was convicted of the 1982 abduction and brutal murder of Betty Jane Mottinger of Elgin.

Mr. Spirko's execution is set for Sept. 20.

U.S. District Judge James Carr of Toledo has been asked to reopen the federal case that reviewed the Spirko conviction. In 2000, Judge Carr ruled in favor of prosecutors, and his decision was upheld on appeal. Now he's weighing a request to set aside his earlier ruling on the grounds that the state purposely had withheld evidence that helps prove the defendant's innocence ? a serious charge.

The judge said the request is not "a bad faith or frivolous contention" or a "last moment effort to keep the hand off the switch." He said he needs time to consider the evidence, but believes he doesn't have the power ? at least at this stage of the case ? to delay the execution. Thus, the judge suggested that the state join a request to the Ohio Supreme Court, which sets execution dates, that it delay the execution until he can complete his review.

Mr. Petro's office told the Supreme Court this week that it objects to any delay. That shouldn't deter the Ohio

The Ohio court has almost unlimited discretion to decide when an execution goes forward. Nothing in law requires that Mr. Spirko be put to death on Sept. 20, or prevents the execution from being delayed for 6 to 8 weeks.

Judge Carr's statements alone provide the court with abundant reasons to order a postponement ? the fundamentally fair and decent thing to do. justices from extending a basic courtesy to a sitting judge who wants to make sure every reasonable defense is explored before a man is put to death.