Appeal to halt execution is denied

U.S. high court ruling on lethal injection may decide Berry's fate

By Natalie Chandler natalie.chandler@clarionledger.com

The 5th U.S. Circuit Court of Appeals on Friday rejected convicted killer Earl Wesley Berry's appeal to stop his Tuesday execution at Parchman, but the U.S. Supreme Court will make the final decision on his fate.

Berry's attorney, Jim Craig, will file an appeal with the nation's high court Monday. A separate appeal filed earlier this week is pending before the court on his behalf.

Berry has hoped that if the U.S. Supreme Court sides with two Kentucky inmates challenging lethal injection as cruel and unusual punishment, the decision will benefit his case. The high court has granted stays for inmates in about a dozen states pending its decision in the Kentucky case, which won't be heard until next year.

The 5th Circuit's ruling is the latest in a string of unfavorable decisions for Berry since the state Supreme Court set his execution date earlier this month.

Berry, 48, has been on death row since 1988 for kidnapping and beating to death Mary Bounds, 56, of Houston. She was murdered Nov. 19, 1987, after leaving choir practice. Her body was found in Chickasaw County. Berry confessed to killing her.

Berry's contention that the state's method of killing is unconstitutional failed to sway a lower court this week. He will make a similar argument to the U.S. Supreme Court, attorney Jim Craig said.

But that court "will be more interested in what courts all over the country have done and also what they have said historically about some of the procedural issues," he added.
The Mississippi Supreme Court and Gov. Haley Barbour also have said his execution should proceed.

In Friday's ruling, the appeals court in New Orleans said Berry waited too long to ask for a stay in his execution. They said Berry, a death-row inmate for 19 years, has never challenged lethal injection.

"Death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state's method of carrying it out," judges wrote.

Robert Ryan, head of the Mississippi Office of Capital Post Conviction Counsel, also has asked the U.S. Supreme Court to halt the execution.

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 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 other Mississippi inmates asking that their executions be halted are Alan Dale Walker, Paul Everett Woodward, Gerald James Holland and Dale Leo Bishop.