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UPDATE: Mississippi execution allowed

 UPDATE: Wednesday 5:58 p.m.

The Supreme Court refused in late afternoon Wednesday to delay the execution in Mississippi — scheduled for 6 p.m. — of Earl Wesley Berry, and also denied review of his two new appeals.  The full Court acted, and there was no indication of any dissent.  The order leaving intact a Mississippi Supreme Court ruling is here.  The order leaving intact a Fifth Circuit Court ruling is here.  Both lower courts had found Berry’s latest challenges to be procedurally flawed. He was to be put to death by lethal injection for a murder committed in 1987.

Meanwhile, death-row inmates in Georgia and Virginia filed new appeals at the Court, along with new requests to delay their executions. Samuel David Crowe is scheduled to be executed in Georgia at 7 p.m. Thursday; his new petition in 07-11039 is here and his stay application (07A924) is here.  Kevin Green is due to be executed in Virginia at 9 p.m. on May 27;  his new petition in 07-10988 is here and his stay applicaton (07A913) is here.

UPDATE Wednesday 10:15 a.m.

Mississippi officials on Tuesday evening urged the Supreme Court to allow the execution to go forward Wednesday, and asked it to deny review of Earl Wesley Berry’s new challenge to his latest loss in the state Supreme Court. The state argued that, contrary to Berry’s claim, he has had a full chance to test his mental retardation claim in state as well as federal court, and failed. Click here for state’s brief in opposition, here the state’s opposition to the stay, and here for Berry’s reply. Click here for the state’s response to the original habeas petition and here for its response to the application for stay of execution. Berry’s reply in the original habeas case is here.


The death-row inmate next scheduled to be executed in the U.S. — Earl Wesley Berry of Mississippi — has two new appeals asking the Supreme Court to spare him temporarily and take up a capital punishment issue it has never decided. In separate petitions filed Monday and Tuesday, Berry’s lawyers argued that a procedural defect — due to a lawyer’s mistake — cannot clear the way for execution of an individual if there is evidence that he is mentally retarded. The Supreme Court had ruled in 2002 that it is unconstitutional to execute anyone who is mentally retarded.

Berry, sentenced to death for a murder more than 20 years ago of a woman he kidnapped after she left church choir practice, is scheduled to be put to death by lethal injection at 6 p.m. Wednesday. His attorneys have filed two stay-of-execution requests with the Supreme Court: one (07A914) joined to an appeal (07-10974) from the Mississippi Supreme Court, and the other ((07A918) joined to an original habeas petition (07-11019) challenging a decision by the Fifth Circuit Court.

Although his appeal in the state case also seeks to raise an issue about the validity of Mississippi’s specific protocol for execution by lethal injection, the Supreme Court on April 21 denied review of an earlier appeal by Berry in a federal civil rights case (07-7348) posing that same issue.

Potentially more significant, however, is the core issue he raises in both the new state case and the original habeas plea over the question of a death-row inmate’s right to a hearing — which Berry’s lawyers say he has never had in state court — on a claim of mental retardation. Because the Supreme Court has imposed a categorical bar on executing any mentally retarded inmate, the appeals argue, an inmate with credible evidence of that mental deficiency must have a chance to present it before being put to death.

Both the state Supreme Court and the Fifth Ciricuit have turned aside Berry’s most recent challenges because of “procedural defaults,” without examining his new evidence about retardation, and without exploring what caused those legal flaws.

In both situations, Berry’s attorneys have told the Supreme Court, the problem was traceable to defense lawyers who used a statement of a political scientist, rather than a mental health professional, to try to make a case for retardation.

In the state case, that filing failed to satisfy a state court rule that a mental health expert’s affidavit was necessary. Berry’s more recent attorneys have filed a mental health expert’s analysis supporting the retardation claim, but the state court refused on May 5 to consider it, saying he had forfeited the right to bring it into court now because his earlier challenge was defective.

In the federal case, a statement from the same political scientist proved deficient, and the denial of habeas relief in District Court was not followed up with a proper attempt to appeal on the retardation issue, his lawyers now claim. Last week, the Fifth Circuit ruled that, since Berry’s earlier counsel had made one attempt at bringing up the retardation claim, his new lawyers could not do so now in a “successive” habeas petition.

In Berry’s state case, the defective filing, his lawyers say, was made by a lawyer in the state-provided office of defense counsel for capital cases. That led to the state Supreme Court ruling that the lawyer had defaulted — a default that could not be cured by a later filing of the proper health professional affidavit.

Now, in a highly unusual filing in the new state case, that attorney submitted a sworn statement providing details of his “own deficient performance,” in the words of a dissenting state Supreme Court Justice, in numerous cases, including Berry’s.

The dissenting state jurist, Oliver E. Diaz, Jr., wrote in his dissent May 5: “Whatever the reasons for his prior counsel’s deficient performance, it is clear that Berry was not allowed a meaningful opportunity to present his mental retardation claim to this Court.”

In appeals in both cases, Berry’s counsel are protesting the use of procedural rules as barriers to new consideration, with new evidence, of a retardation claim.

In the appeal in the state case, his lawyers seek a ruling by the Supreme Court that the state must provide a meaningful review, on a full evidentiary record, of a credible claim of mental retardation, without regard to a prior procedural default.

In the appeal in the federal habeas case, his lawyers are asking the Court either to rule that Berry cannot be executed and thus must get a new sentencing hearing in state court, or to send his habeas plea back to a federal District Court in Mississippi to hold a hearing on the new retardation evidence.

The new evidence, his appeals say, shows that, as a young teenager, he had an IQ of only 72, that state prison officials classified him as retarded more than 20 years ago, and that a qualified psychologist has calculated Berry’s IQ as below 75, with low intellectual functioning.

Berry’s stay application in the state case is here. The petition in that case is here, and the latest state Supreme Court ruling, with dissent, is here.

The new stay application in the federal case is here, and the original petition for habeas is here. The Fifth Circuit Court’s opinion refusing to allow Berry’s counsel to file a new habeas challenge is here.  His lawyers filed an original petition for a habeas writ in the Supreme Court — that is, one that is not a specific appeal from a lower court decision — because they were barred, by federal law, from filing an appeal from the Circuit Court’s denial of the motion to file a “successive” habeas petition.