Miss. Supreme Court sets execution date for Berry

Published 4:09 pm Friday, October 12, 2007

The Mississippi Supreme Court on Thursday set an Oct. 30 execution date for Earl Wesley Berry.

Berry had argued to the court that it shouldn’t be setting execution dates for condemned inmates until a decision is reached on whether death by lethal injection is cruel punishment.

In an order signed by Presiding Justice Bill Waller Jr., the Mississippi court said nothing prevents the court from setting the execution date.

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Waller said any decision by the U.S. Supreme Court on the legality of lethal injections would effect future death sentence cases not existing ones such as Berry’s.

Berry was convicted and sentenced to death by a Chickasaw County jury for the 1987 killing of Mary Bounds. Bounds was beaten to death after leaving her weekly church choir practice, and her body was found just off a Chickasaw County road near Houston, Miss.

Berry admitted to the killing, and the confession was used against him at trial.

The U.S. Supreme Court case involves two Kentucky death row inmates’ claim that lethal injection as practiced in Kentucky violates the Constitution’s ban on cruel and unusual punishment.

Every state that uses lethal injections — including Mississippi — employs the same three drugs, but there are differences among the states in the way the drugs are administered, training of executioners who administer them and dosages, legal experts have said.

The U.S. Supreme Court is scheduled to hear the case early next year.

The attorney general’s office had said the Mississippi court had “upheld the use of lethal injection as a constitutional method of execution.”

Berry’s attorneys have said they will file a post-conviction petition to attack his execution by lethal injection with claims similar to those in the Kentucky case.

Berry, who has been on death row since 1988, lost an appeal last week when the U.S. Supreme Court declined to hear his case. The attorney general petitioned the Mississippi court to set an execution date.

The Mississippi court also rejected Berry’s claim that at his trial his attorney should have challenged lethal injections as unconstitutional.

Waller said the Mississippi court has determined that the state’s lethal injection procedure is not cruel and unusual punishment.

“There is no reason to believe that this court would have determined any differently had Berry’s counsel raised the issue at trial. Failure to raise the issue at Berry’s trial does not amount to deficient conduct by Berry’s trial counsel,” Waller wrote.

Berry can now ask the U.S. Supreme Court to stop the execution.

Only Presiding Justice Oliver Diaz Jr. voted against setting an execution date, while six other judges joined Waller in rejecting Berry’s claims. Justice James E. Graves Jr. did not participate in the decision.

Mississippi’s last execution was Oct. 18, 2006, when Bobby Glen Wilcher was put to death for the brutal killings of two women in Scott County in 1982.