Lack of ruling confounds lower courts

By Leesha Faulkner The Selma Times-Journal

Sunday, October 28, 2007 1:14 AM CDT

Mississippi may execute its next man on death row before Alabama.
Serial killer Daniel Lee Siebert was scheduled to die in Alabama, but received a reprieve last week after a three-judge panel of 11th Circuit Court of Appeals in Atlanta put his execution on hold until the U.S. Supreme Court decides a Kentucky case.

Not so in Mississippi, where Earl Wesley Berry faces death by lethal injection on Tuesday. The Fifth Circuit Court refused Friday to stay Berry's execution, dismissing a challenge to the three-chemical protocol used by the Mississippi Department of Corrections and 35 other states.

All this, said Lyle Denniston, an observer who writes about the U.S. Supreme Court, “added to the continuing uncertainty in lower courts about whether the Supreme Court intends to block all executions by lethal drugs until it rules on their validity.”Berry's case is pending before Justice Antonin Scalia. As of late Saturday, it was uncertain if Scalia had referred the case to the full court.In Alabama, the Supreme Court hasn't had to make a decision in Siebert's case because the appeals court acted first.

Siebert, 53, has been on death row for 20 years. He was convicted of five Alabama murders and has confessed to many others in other states.Siebert was diagnosed with pancreatic cancer in June. When he appealed for the stay of execution, Siebert said his cancer medication would counteract with the death cocktail and inflict unnecessary pain. The state's attorneys said there was no scientific proof offered by Siebert's attorneys to support the claim.

Alabama made a change in its execution protocol prior to the hearing last week in Atlanta, hoping to avoid more legal delays. But the three-judge panel held the hearing.“The panel did not give a full explanation of its reasons, simply noting that the Supreme Court was ‘presently considering the constitutionality of the challenge lethal injection protocol,” so, “accordingly,' it issued a stay of Siebert's execution. It said the stay would remain in effect until the Supreme Court decided the issue in the Kentucky case of Baze v. Rees (07-5439),” Denniston said.