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Inmates in two states have dates with executioner

  • Story Highlights
  • If last-minute appeals fail, Earl Wesley Berry could be executed Monday
  • He could die by injection on his 49th birthday
  • Berry's would be first execution since Supreme Court upheld lethal injection
  • Georgia also plans an execution next week
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By Bill Mears
CNN Supreme Court Producer
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WASHINGTON (CNN) -- Earl Wesley Berry came within 21 minutes of dying at the hands of the state of Mississippi in October, before the Supreme Court issued a last-minute stay.

Mississippi officials are pushing to execute Earl Wesley Berry on Monday.

It is seven months later, but Berry's time on death row may soon come to an end, with state officials pushing for an execution Monday, his 49th birthday.

"It's time for this defendant to pay for the crimes he committed in 1987," Mississippi Attorney General Jim Hood said.

Mississippi and Georgia plan executions next week, moving quickly after the Supreme Court ruled April 16 that Kentucky's lethal injection procedures were constitutional. Watch how Berry stomped a woman to death Video

The decision prompted about a dozen states to announce that they would resume capital punishment in the next several months, to clear a backlog stretching back to September.

"There will surely be future legal challenges brought by the method of execution," said Solicitor General Ted Cruz of Texas, where the most executions by far have taken place in the past 32 years. But he said the recent high court decision "makes clear that the method of execution that virtually every state uses is consistent with the U.S. Constitution."

Not so fast, said Berry's lawyer, James Craig. "There's a very strong political push to execute as many prisoners as possible," he said of Mississippi officials. "It's no surprise they're seizing this moment and moving forward with the execution even though there are serious problems with Mississippi's procedures and even though their own records show Mr. Berry is mentally retarded."

His legal team is filing last-minute legal appeals and a request for clemency from Gov. Haley Barbour.

If Mississippi's high court opts to delay Monday's execution, Georgia could have the dubious distinction of conducting the first execution since September, when the Supreme Court issued a de facto moratorium while it considered the larger constitutional questions over lethal injection.

In Georgia, William Earl Lynd was convicted of the murder of his girlfriend, Virginia "Ginger" Moore, in Berrien County two decades ago. Prosecutors told jurors that Lynd shot her twice in the head and then shot her a third time, this time fatally, after he heard her continuing to move in the trunk of the car where he had put her.

Death penalty opponents plan vigils across Georgia on Tuesday, when the execution is set to take place.

"It's a shame, and it's very sad Georgia is leading the way in the new resumption of executions in the United States," said Laura Moye, chairwoman of Georgians for Alternatives to the Death Penalty. "They're trying to send a message they're tough on crime, but they're acting irresponsibly."

Although both Berry and Lynd are white, Moye said that far too often, other factors unfairly play a part in who is prosecuted for capital crimes.

"Factors like race, class and the county where the crime occurred have much more to do with who goes to death row than the actual heinousness of the crime."

Human rights groups also raise the possibility that an innocent person could be put to death. They point to Friday's release in North Carolina of Levan "Bo" Jones, an African-American man who spent 14 years on death row before a judge said the evidence was faulty and overturned his murder conviction. The charges have been dropped.

Local prosecutors see things differently. "There's been no evidence in this state -- and I'm not aware of any in the country -- that any demonstrably innocent person has been put to death," said Tommy Floyd, chairman of the Prosecuting Attorneys' Council of Georgia. "As well as the human system we have devised, the death penalty is carried out fairly and appropriately" in his state.

As district attorney in Henry County, just south of Atlanta, his office has prosecuted 10 capital defendants over the years. "No prosecutor I know wants to execute an innocent person," he said.

But critics point out that it is virtually impossible to get a legal ruling on a person's guilt or innocence after he has been put to death, for reasons including that no one else has legal standing to bring such a case and that it would waste valuable court time to review the cases of people who are beyond help.

Virginia has set a May 27 execution date for death row inmate Kevin Green, and the state is proceeding on schedule, said David Clementson of the Virginia attorney general's office.

Florida, Alabama, Arkansas, Illinois and Oklahoma have indicated that they will resume capital punishment as soon as possible. Officials in Texas have four executions scheduled in June and July. Antionette Frank of Louisiana would be the first woman put to death in three years if her July death warrant is carried out.

Even South Dakota, which has sent only one inmate to death in three decades, has scheduled lethal injection for Briley Piper in October.

All but one of the 36 states with capital punishment use a three-drug mixture: an anesthetic, a muscle paralyzer and a heart-stopping substance. Berry's lawyer and death penalty opponents had argued that if an inmate is not given enough anesthetic, he could be conscious enough to suffer excruciating pain without being able to express that fact because of the paralyzer.

Nebraska is the only state that does not use lethal injection, but its use of the electric chair was ruled unconstitutional in February.

The last execution in the United States was September 25, of Michael Wayne Richard in Texas. The execution took place hours after the high court agreed to decide on the constitutionality of lethal injection.

Mississippi uses only two grams of sodium thiopental, the anesthetic used to render condemned inmates unconscious. Kentucky and other states use three grams, a standard the Supreme Court judged to be constitutional. Georgia officials say they use three grams.

But Mississippi has no plans to change. "There have been no signs, no proof, nothing whatsoever that would support the confusion that three grams would put someone under deeper than would two," Hood said. "So we're going to stay with our same policies and protocols."

But Berry's attorneys have made the drug mixture a major part of their last-minute appeals of his death sentence for the 1987 murder of a Houston, Mississippi, woman who was kidnapped and beaten to death.

"If they get it wrong, [Berry] will not be anesthetized; he will not be unconscious; he will suffocate to death," said Craig. "That is not the kind of execution the American public will stand for."

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For the family of his victim, Mary Bounds, the waiting is the hard part, 21 years after the crime.

"Suddenly everything is brought back as though it were yesterday," said Gena Watson, who was 27 when her mother was murdered. "We're dealing with the grief of her death all over again, and it's hard." E-mail to a friend E-mail to a friend

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