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Berry challenges Miss. execution process

Death row inmate Earl Wesley Berry has told the U.S. Supreme Court that lethal injection procedures in Mississippi do not meet the standards of those in Kentucky.

Attorneys for Berry, whose death penalty petition is pending before the nation’s high court, filed the motion hours after the Supreme Court turned back a challenge to the Kentucky procedures that employ three drugs to sedate, paralyze and kill inmates. Similar methods are used in Mississippi and roughly three dozen other states.

Death penalty opponents said challenges to lethal injections would continue in states where problems with administering the drugs are well documented.

The case decided Wednesday was not about the constitutionality of the death penalty generally or even lethal injection. Instead, two Kentucky death row inmates contended that their executions could be carried out more humanely, with less risk of pain.

Chief Justice John Roberts also suggested that the court will not halt scheduled executions in the future unless “the condemned prisoner establishes that the state’s lethal injection protocol creates a demonstrated risk of severe pain.”

States can avoid this risk by using the three-drug procedure approved in the Kentucky case, Roberts said.

That was the crux of Berry’s new argument.

Berry contends that Mississippi’s method of lethal injection deviates from that of Kentucky’s.

Berry argues that Mississippi uses a smaller amount of sodium thiopental, an anesthetic that is supposed to leave the inmate unconscious and unable to feel pain, than Kentucky.

Berry said Mississippi provides no training or practice sessions for the IV team and does not have minimum qualifications for members of the IV team. Berry said Mississippi has no back-up plan if there is failed IV insertions or other errors in administration of the chemicals.

Attorney General Jim Hood said Wednesday that he expected Berry’s defense team to raise those arguments. He said he would expect the Supreme Court to reject those arguments.

Hood said now that the Kentucky case is settled the Supreme Court is expected to deny the appeals it has pending.

“I would expect that to happen Monday, then we would go to the Mississippi Supreme Court on Monday asking for an execution date to be set,” he said. “This case has about run its course. We intend to proceed with this execution.”

Defense attorney Jim Craig of Jackson said the Mississippi Department of Corrections has not shown any evidence that those safeguards are used in executions in Mississippi. He said because of that the Supreme Court should take time to consider Berry’s petition.

“The opinion said that Kentucky uses safeguards which reduce the risk that a prisoner will be consciously suffocated or internally burned by the chemicals used in lethal injection. These include the educational background required of the execution team, the training given those persons, and the way the drugs are administered,” Craig said in the statement.

The U.S. Supreme Court was scheduled to discuss Berry’s case in a Nov. 30, 2007 conference. The conference was delayed while the Kentucky case was under review.

Court officials said Wednesday the justices’ decision on whether they will hear Berry’s case could be announced shortly.

Berry, who remains on death row at the penitentiary at Parchman, was sentenced to die for beating and stomping Mary Bounds to death in 1987.

Berry was convicted of kidnapping and killing Bounds on Nov. 29, 1987, outside the First Baptist Church in the tiny north Mississippi town of Houston. Berry was sentenced to death by a Chickasaw County jury on Oct. 28, 1988. His confession was used against him during the trial.

In its Oct. 30, 2007, order, the Supreme Court did not delay Berry’s execution indefinitely, saying the stay would remain in effect until the justices take action on Berry’s petition for review of his case.

Berry was less than an hour from his scheduled execution time Oct. 29, 2007, when the Supreme Court granted a delay. Berry was the only prisoner in Mississippi with a pending execution date at the time the Supreme Court halted the procedures.