Eyes on Supreme Court in Execution Case Tuesday

By LINDA GREENHOUSE
Published: October 30, 2007

WASHINGTON, Oct. 29 — 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.