By LINDA GREENHOUSE
WASHINGTON, Oct. 30 — Moments before a Mississippi prisoner was scheduled to die by lethal injection Tuesday evening, the Supreme Court granted him a stay of execution and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring.The vote was not immediately announced but there were two dissenters, Justices Antonin Scalia and Samuel A. Alito Jr.. Neither the majority nor the dissenters gave reasons for their positions.
The stay will remain in effect until the full court reviews an appeal filed on Monday by lawyers for the inmate, Earl W. Berry, who is on death row for having killed a woman 20 years ago.While there is no schedule for that review, it almost surely will not take place until the court decides the Kentucky case, Baze v. Rees, which will be argued in January.The issue in that case is not the constitutionality of lethal injection as such, but rather a more procedural question: how judges should evaluate claims that the particular combination of drugs used to bring about death causes suffering that amounts to cruel and unusual punishment, in violation of the Eighth Amendment.
Even without a written opinion, the Supreme Court’s action Tuesday night clarified a situation that had become increasingly confusing as state courts and the lower federal courts, without further guidance from the justices, wrestled with claims from a growing number of death-row inmates that their imminent executions should be put on hold.Of these inmates, Mr. Berry had perhaps the weakest case. He had run through many appeals in the 19 years since he was sentenced to death, but had not challenged the method of execution until recent days. His federal court lawsuit on which the justices acted was not filed until Oct. 18. The Federal District Court in Jackson, Miss., dismissed it as untimely on Oct. 24 in a ruling that the United States Court of Appeals for the Fifth Circuit affirmed last Friday.
The appeals court said that, under its own precedent, a late-filed challenge to a method of execution warranted automatic dismissal. The pending Supreme Court case was irrelevant to its determination, the appeals court said, adding that if the justices had a different view of the matter, they should say so.
David P. Voisin, one of Mr. Berry’s lawyers, said he had not yet read the order but felt that the court’s decision to issue a stay made would “put everyone on the same page” on the issue of lethal injections. “I think it’s a positive sign that as long as this issue is under consideration the court is going to hold executions,” Mr. Voisin said.
Mr. Berry was condemned for abducting and killing Mary Bounds, 56, as she was leaving her church in Houston, Miss., on Nov. 29, 1987. Mr. Berry, who had been drinking heavily, drove the victim to the edge of a remote field intending to rape her, prosecutors said.Then he decided not to rape he, but beat her with his fists.
Afterward, Mr. Berry, who is 6 feet 1 inch tall and weighs more than 250 pounds, carried his victim into a patch of woods, where she was found dead of head injuries a few days later. The trail soon led to Mr. Berry, who was convicted in Chickasaw County Circuit Court in March 1988.
Mr. Berry was a troubled young man who twice tried to kill himself by swallowing razor blades, according to evidence introduced in his case over the years. He has been treated for mental illness, and doctors have rated his intelligence as well below average.He spent time in prison for assault, larceny, burglary and other relatively minor crimes before the murder. Since then, he has had a good record in prison, state authorities say.
Brenda Goodman contributed reporting from Atlanta and David Stout from Washington