Oct. 30, 2007 (2 articles)

Mississippi

Eyes on Supreme Court in Execution Case Tuesday

By LINDA GREENHOUSE, New York Times

WASHINGTON - By 6 p.m. Tuesday, when a Mississippi inmate is scheduled to
die by lethal injection, the Supreme Court may give the clearest indication
so far of whether it intends to call a halt to all such executions while a
case from Kentucky that the justices accepted last month remains undecided.

The Mississippi inmate, Earl W. Berry, convicted of kidnapping and murder in
1988, has been turned down by the Mississippi Supreme Court and by the
United States Court of Appeals for the Fifth Circuit. Late on Monday, the
justices denied his appeal of the state court ruling, as well as the
application for a stay of execution that accompanied it.

Mr. Berry's application for a stay of the Fifth Circuit ruling, which his
lawyers filed on Monday afternoon, remained pending in the evening, having
come in very late in the afternoon.

In turning down the state-court appeal without any apparent dissent, the
Supreme Court's three-sentence order provided a brief explanation. The
Supreme Court had no jurisdiction, the unsigned order said, because "the
judgment of the Mississippi Supreme Court relies upon an adequate and
independent state ground."

The Mississippi Supreme Court ruled on Oct. 11 that Mr. Berry's challenge to
the lethal injection procedure was barred as a matter of state law because
he had not presented the claim in his earlier appeals. The United States
Supreme Court's own jurisdiction is limited to deciding independent
questions of federal law.

The Fifth Circuit, which sits in New Orleans, similarly dismissed Mr.
Berry's challenge to lethal injection as untimely, in a decision issued on
Friday. By contrast, that decision clearly presents an issue of federal
procedural law for the Supreme Court to address, whether a challenge to an
execution method on the eve of a scheduled execution must be dismissed as
untimely. As to whether all pending executions should now be delayed, the
appeals court all but challenged the justices to state plainly whether that
was the case.

Noting that Mr. Berry's new federal-court case challenging lethal injection
was not filed until Oct. 18, the appeals court said: "Well-established Fifth
Circuit precedent is clear: death-sentenced inmates may not wait until
execution is imminent before filing an action to enjoin a state's method of
carrying it out."

That precedent "remains binding until the Supreme Court provides contrary
guidance," the appeals court said.

In the five weeks since the Supreme Court agreed to examine how courts
should evaluate the constitutionality of lethal injection, in a case from
Kentucky, Baze v. Rees, No. 07-5439, the national picture has become
increasingly confused. The justices allowed one execution to proceed and
granted stays in two others.

Last week, a three-judge panel of the United States Court of Appeals for the
11th Circuit, in Atlanta, granted a stay for an Alabama inmate, Daniel L.
Siebert, indicating that the stay would last until the Supreme Court ruled
in the Baze case. But the full 11th Circuit then vacated that decision and
ordered reconsideration, meanwhile keeping the stay in place only until its
own further review.

While some death penalty opponents have asserted that a de facto moratorium
is now in place, others are less certain. Capital Defense Weekly, a blog
that tracks appellate death-penalty litigation, describing what it called "a
very fluid situation," said Monday that a Supreme Court stay in the
Mississippi case would "lend credence" to the conclusion that a moratorium
is in place, while the result of a denial would likely be "a new rush of
execution dates."

Separately, the American Bar Association on Monday issued the results of a
three-year study of the death penalty in eight states. The group said
widespread flaws, including racial disparities and incompetent legal
defense, supported the argument for a nationwide moratorium on all
executions.

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Source : New York Times

http://www.nytimes.com/2007/10/30/wa...1&hp&oref=slog
in

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Oct. 30, 2007

Mississippi

Killer down to final appeal

Justices have one last chance to halt execution

By Natalie Chandler, Clarion Ledger

EXECUTIONS IN MISSISSIPPI

Jimmy Lee Gray, Sept. 2,1983

Edward Earl Johnson, May 20, 1987

Connie Ray Evans, July 8, 1987

Leo Edwards, June 21, 1989

Tracy Alan Hansen, July 17, 2002

Jesse Derrell Williams, Dec. 11, 2002

John Nixon Sr., Dec. 14, 2005

Bobby Wilcher, Oct. 18, 2006

Convicted killer Earl Wesley Berry's final request to halt his execution
remained unanswered by the nation's high court Monday as Mississippi
continued preparations to put him to death tonight.

Attorneys for Berry and the state expected a ruling on his appeal before his
6 p.m. execution at the Mississippi State Penitentiary at Parchman.

The U.S. Supreme Court on Monday denied a separate appeal filed on his
behalf by the Mississippi Office of Capital Post Convictions Counsel. That
appeal challenged the state Supreme Court's ruling against Berry. But the
higher court said it was restricted by state legal procedures that it can't
change.

The ruling came hours after Berry's attorneys filed another appeal seeking
to overturn a lower federal court's decision.

Berry, 48, confessed to killing Mary Bounds of Houston almost 20 years ago.
The 56-year-old was reported missing on Nov. 29, 1987. She was beaten to
death after leaving her weekly church choir practice, and her body was found
in Chickasaw County.

Berry remains hopeful he will be granted a stay, state corrections
Commissioner Chris Epps said.

"There was no sense that he was ready to die," Epps said after speaking to
him Monday.

Officials moved Berry on Sunday into a single cell adjacent to the execution
chamber. For his last meal, he has requested barbecued pork chops, sausage,
toast with butter, salad, mashed potatoes and gravy, pecan pie and "any type
of juice," Epps said.

Berry's attorneys want his execution to be halted while the Supreme Court
reviews whether lethal injection amounts to cruel and unusual punishment.
But lawyers for the state argue that Berry has never challenged lethal
injection during the 19 years he's been on death row.

Lower courts have rejected his appeals. Judges said Berry waited too late to
ask for a stay of execution.

"We've won in every court thus far, so we're comfortable in the position we
are," Attorney General Jim Hood said Monday.

But Berry's attorneys hope the Supreme Court's decision to hear two Kentucky
inmates' challenge to lethal injection will benefit his case. The court has
granted stays for death row inmates in Virginia and Texas since then. And a
federal appeals court last week stayed the execution of an Alabama inmate.

It is unclear how similar those cases are to Berry's.

Like Berry, some of the inmates challenged lethal injection after their
executions were scheduled, said his attorney, Jim Craig. But Hood said some
of them filed appeals much earlier than Berry.

Carl Tobias, a law professor at the University of Richmond in Virginia, said
he expects the court will grant a stay for Berry as well.

"But it's not certain because it's not clear that all the justices want to
suspend these," he said. "I think they're taking them case by case."

In another case in Texas, the Supreme Court denied a stay of execution.
About a dozen states have stopped executions since the court decided last
month to review lethal injection.

Hood said the Berry case "will be the case to send a signal to attorneys
general who are left in limbo. It will send a message one way or another."

In Florida, an execution is scheduled next month. Supreme Court justices are
not expected to rule on the Kentucky challenge until early next year.

At issue is whether the three-drug mixture renders inmates unconscious
before they die from drug-induced cardiac arrest.

Attorneys for Berry and four other Mississippi death-row inmates said the
procedure causes unnecessary pain. Their lawsuit also alleges that the state
does not properly train employees who administer lethal injections.

"The public interest is not well-served, either, by permitting lethal
injections ... to continue while this Court considers the weighty issues of
whether the risk of torture inherent in those protocols conforms with the
8th amendment's proscription against cruel and unusual punishment,"
attorneys for Berry wrote in their appeal to the Supreme Court.

The other Mississippi inmates asking that their executions be halted are
Alan Dale Walker, Paul Everett Woodward, Gerald James Holland and Dale Leo
Bishop. Their execution dates are pending while their appeals wind through
the legal system.

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Source : Clarion Ledger

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