The Fifth Circuit Court, saying it was bound by its own precedent and not by a Supreme Court order granting review of the constitutionality of the lethal injection method of execution, refused on Friday to block the execution of Earl Wesley Berry.  In a five-page order, found here, the three-judge panel dismissed a civil rights challenge to the three-chemical death protocol that is in use in Mississippi and 35 other states.

The Circuit Court’s action thus 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 is scheduled to be executed next Tuesday,  but the Supreme Court still has pending before it a request to delay that execution.  That is in a separate case, reaching the Justices through state courts, not the federal judiciary.  The Supreme Court took no action on that plea Friday. It was pending before Justice Antonin Scalia as Circuit Justice; it is unknown whether he has referred it to the full Court. (The case is Berry v. Mississippi, stay application 07A334, cert petition 07-7275.)

The Fifth Circuit acted in the case of Berry v. Epps (Circuit docket 07-70042).  It noted that Circuit precedent, bearing directly on the lethal injection method of execution, makes clear that “death-sentenced inmates may not wait until execution is imminent before filiing an action to enjoin a state’s method of carrying it out.” That precedent was set in 2004, in Harris. v. Johnson.

It noted that Berry’s lawyers, in a plea filed on Oct. 18, had relied upon the Supreme Court’s grant of review in Baze v. Rees, a Kentucky case challenging the lethal injection protocol under the Eighth Amendment. The Circuit Court noted that, in response, a District Court judge had ruled on Oct. 24 that the grant of review in Baze “has no impact on established law” and dismissed the new complaint.

Berry’s lawyers renewed that claim before the Fifth Circuit on Wednesday. ”Regardless” of the Supreme Court’s action so far in Baze, and recent stays of execution by the Supreme Court and other courts in other lethal injection cases, the Circuit panel said Friday that it was bound by its own precedent.

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