Berry asks Miss. court to delay his execution

Published 12:50 am Wednesday, October 17, 2007

JACKSON (AP) — Earl Wesley Berry has asked the Mississippi Supreme Court to delay his scheduled Oct. 30 execution.

In an order signed this past week, Presiding Justice Bill Waller Jr. said nothing prevents the court from setting the execution date.

However, in motions filed Monday, Berry said the Mississippi court should reconsider because it ignored his challenge to the legality of lethal injections, an issue now pending before the U.S. Supreme Court. Berry contends that if the case is decided in a Kentucky inmate’s favor, it would affect his own death sentence appeal.

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Also, Berry said the Mississippi court had ignored stays of execution that it granted when the U.S. Supreme Court barred the execution of the mentally retarded and juveniles.

Waller had said any decision by the U.S. Supreme Court on the legality of lethal injections would effect future death sentence cases, not existing ones such as Berry’s.

Berry was convicted and sentenced to death by a Chickasaw County jury for the 1987 killing of Mary Bounds. Bounds was beaten to death after leaving her weekly church choir practice, and her body was found just off a Chickasaw County road near Houston, Miss.

Berry admitted to the killing, and the confession was used against him at trial.

The U.S. Supreme Court case involves two Kentucky death row inmates’ claim that lethal injection as practiced in Kentucky violates the Constitution’s ban on cruel and unusual punishment.

Every state that uses lethal injections — including Mississippi — employs the same three drugs, but there are differences among the states in the way the drugs are administered, training of executioners who administer them and dosages, legal experts have said.

The U.S. Supreme Court is scheduled to hear the case early next year.

Robert M. Ryan, an attorney with the Mississippi Office of Capital Post-Conviction Counsel and who represents Berry, said the Mississippi court has delayed executions in past cases after issues have been accepted by the U.S. Supreme Court.

‘‘Berry is asking this court for the same consideration,’’ Ryan wrote in the motion. ‘‘Absent a stay of execution, Berry’s legitimate claim will not be resolved prior to the unconstitutional administration of his lethal injection.’’

Berry also asked the Mississippi court to remove the attorney general’s office from the appeal and appoint a special prosecutor.

Berry contended that comments made by Attorney General Jim Hood to the news media about Berry show his office cannot be fair and unbiased.

Hood, in interviews on the Berry case, said the victim had been in his mother’s Sunday school class in Chickasaw County and that his office was ‘‘going to do everything we can do to move forward’’ against Berry.

‘‘Politics has no place in a fair and unbiased court system,’’ Ryan wrote. ‘‘Likewise personal associations have no place in the administration of justice especially when violations of constitutional rights are at stake.’’

The attorney general’s office has not yet filed a response to Berry’s motions.