Citations:

Berry v. State, 575 So.2d 1 (Miss. 1990) (Direct Appeal).
Berry v. State, 703 So.2d 269 (Miss. 1997) (Direct Appeal After Reversal).
Berry v. State, 802 So.2d 1033 (Miss. 2001) (After Remand).
Berry v. State, 882 So.2d 157 (Miss. 2004) (PCR).
Berry v. Epps, 506 F.3d 402 (5th Cir. 2007) (Habeas).

Convicted Killer Executed; Family Has Received Justice

By Kathleen Baydala - Jackson Clarion Ledger

May 21, 2008

Convicted killer Earl Wesley Berry uttered his last words — "no comment" — just minutes before he was pronounced dead at 6:15 p.m. today at Parchman. Berry, who wore red pants, a white T-shirt and socks, was strapped to a metal table. He received a lethal cocktail of drugs and died. His death comes more than 20 years since he was convicted of beating 56-year-old Mary Bounds to death in Houston, Miss. in 1987.

Following the execution, Bounds' husband, Charles Bounds, spoke to reporters. "I don't have much to say. I just think it took too long," he said. "I have had this on my mind for 20 years, and it really takes a lot out of me." Bounds then spoke harshly to Mississippi Department of Corrections Commission Chris Epps, though Epps was not the one who halted the execution. Tonight, they hugged. "Justice has just now been brought to bear against the man who admitted killing (Mary Bounds)," Epps said.

Bounds' daughter, Jena Watson, also spoke, saying her mother would have wanted people to forgive Berry. "Tonight, we feel that we have received justice for what was done," she said.

Just hours before his execution, Epps described Berry as somber and serious, realizing his death was imminent and giving up hope that the U.S. Supreme Court was going to grant either of his last-minute appeals. “I used to be his case manager. So, I’ve been knowing him for a while,” Epps said. “He’s pretty serious now. He’s not grinning like he was in October.” The U.S. Supreme Court denied both Berry's appeals of his execution earlier this afternoon.

Berry, 49, was convicted in 1988 of beating 56-year-old Mary Bounds to death and leaving her body in a wooded area of Chickasaw County in 1987. Epps said he stood in front Berry's cell this afternoon and said, "Inmate Berry do you have any remorse for what you did to Mrs. Bounds? "He said he had no remorse and felt that after 21 years he had paid for it," Epps continued. "He understood the question and that was the answer he gave."

Berry finished his last meal about 4:35 p.m. and was given a sedative. He elected not to take his last shower and has not made any phone calls today. However, his mother, brother, sister-in-law and two friends visited him earlier today.

In October, when Berry originally was scheduled to die by lethal injection, his execution was halted at the last minute. Berry said today "he is 99.9 percent sure he will be executed," Epps said.

Berry’s attorneys have argued that Berry should have been spared because he is mentally retarded and because Mississippi’s lethal injection process is cruel.

Earlier today, Daryl Neely, policy adviser for Gov. Haley Barbour, read Berry the governor's letter denying a stay of execution. "I find no justification to grant your clemency," a portion of the letter said. Berry "visibly shook" and was close to tears, Neely said.

Berry had said he did not want any of his family members to witness his execution, but he later changed his mind, Epps said. His brothers, William Wallace Berry and Daniel Ross Berry, were approved to view the death, though they declined to do so. "It appears there will not be anybody there from the inmate's family," Epps said. Roughly 40 members of Bounds' family also will be at Parchman, though only two were to witness the execution: Bounds' daughter and granddaughter.

Following Berry's execution, his body was to be released to Wise Funeral Home in Eupora.

Half a dozen anti-death penalty and one pro-death penalty activist were at Parchman today. Tom O’Flaherty, a former defense attorney from Iowa City, Iowa, said he came out to speak against state-ordered executions partly because he doubts the judicial system’s infallibility. “People are represented by lawyers, and they make mistakes. Judges and juries make mistakes,” he said. “None of us can know for sure if a person deserves that penalty.”

Several yards away, Ann Pace of Jackson stood alone with a sign bearing pictures of her daughter who was killed by a man named Derrick Todd Lee in 2002. Charlotte Murray Pace was 22. Her mother described her four years, so far, of waiting for Lee’s execution as “hideous.” While she said Lee’s death may not bring closure, she thinks it may bring peace. “I have this constant awareness of him breathing air, visiting with his family, doing all those things that he denied so many people, that he denied my daughter,” Pace said. “(Once he is dead), he will not be at my table. He will not be in my head. Then, it will be all about Murray and not about him.”

The last time Charles Bounds and his family came to Parchman, they left upset. Berry's execution, which had been scheduled for October 2007, was halted just 19 minutes before he was to die.

Mississippi Executes Convicted Murderer

By Matthew Bigg.

Reuters News

Wed May 21, 2008

ATLANTA (Reuters) - Mississippi put a convicted murderer to death by lethal injection on Wednesday in the second U.S. execution since the Supreme Court lifted an unofficial moratorium on the death penalty last month. Courts rejected final appeals by Earl Wesley Berry's lawyers who argued he was mentally retarded and that the cocktail of three drugs used in the lethal injection method represented cruelty banned under the Constitution.

Berry, 49, was convicted in 1988 of beating 56-year-old Mary Bounds to death. He kidnapped Bounds outside her Houston, Mississippi, church in November 1987, killed her and dumped her body in a wooded area. He later confessed to the crime. He was pronounced dead at 6:15 p.m. local time at Parchman prison, said Tara Booth, spokeswoman for the Mississippi Department of Corrections.

Berry had been scheduled to be executed last October but he received a last-minute stay because of the national moratorium on executions effectively in place after the U.S. Supreme Court said in September it would hear an appeal by two death row inmates in Kentucky against the use of the lethal drugs. The court on April 16 rejected a challenge to the three-drug cocktail used in most U.S. executions, which opponents claimed inflicted unnecessary pain. Georgia then conducted an execution on May 5. Last year, 42 people were executed, the lowest number since 1994 when 31 were put to death. The number would have been higher but for the Supreme Court case.

"Inmate Berry is observed to be in a talkative mood in the sense that he is reflecting on what has transpired since his stay of execution in October," said prison officials a few hours before his death. It was Mississippi's eighth execution since the Supreme Court restored the death penalty in 1976.

Mississippi Department of Corrections - Death Row

Inmate: Earl Berry
Offender Number: 34939
Date Of Birth: 05/05/1959
Height: Weight: 6'01" 255
FBI Number: 795357V3
Hair Color: BROWN
Complexion: MEDIUM
Race: White
Sex: Male
Eye Color: Blue
Build: Large
Entry Date: 04/22/88:
Commitments: Simple Assault 09/24/1980 Oktibbeha County 5 Years; Escape 05/20/1982 Webster County 2 Years, Homicide 10/27/1988 Chickasaw County Death.

NEWS RELEASE

Date: October 30, 2007
Contact: Tara Booth

Earl Wesley Berry Granted a Stay of Execution

Parchman, Ms. - The Mississippi Department of Corrections (MDOC) has received the official ruling at 5:41 p.m. today of the United States Supreme Court granting death row inmate Earl Wesley Berry a stay of execution.

Now that the United States Supreme Court has deemed the method of execution needs to be reviewed, the state will await the final order of the court. The agency will work within any newly established guidelines to ensure that executions are carried out in a constitutional manner.

“I commend the staff of the Mississippi State Penitentiary, MSP Superintendent Lawrence Kelly, and Deputy Commissioner of Institutions Emmitt Sparkman for the professionalism they have demonstrated as we prepared for the execution,” said MDOC Corrections Commissioner Chris Epps.

Missouri Department of Corrections - Media Kit

• State Death Row Inmate Earl Wesley Berry, MDOC #34939
• White Male • DOB – 05/05/1959

Factual Background of the Case

• Mary Bounds, age 56, was reported missing on November 29, 1987.

• A few days later, on December 1, her vehicle was located in Houston, Mississippi. Inspection of the vehicle revealed spattered blood around the driver’s side door.

• Mary Bounds’ body was found nearby; she had been severely beaten. It was later determined that she died of head injuries from repeated blows.

• Earl Wesley Berry’s confession provided the details of what transpired.

• On the evening of November 29, 1987, while driving through Houston in his grandmother’s vehicle, Berry saw Mary Bounds near a church. As she was preparing to enter her vehicle, he approached, and hit her and forced her into his vehicle. Berry then drove out of town. Berry took Mary Bounds into a wooded area and ordered her to lie down, intending to rape her. Berry did not do so; he took her back to the vehicle, telling her they would return to town.

• Instead, Berry drove to another wooded area where they exited the vehicle. Mary Bounds pleaded with Berry, but he beat her with his fists and forearm. Afterwards, he carried her further into the woods and left her.

• Berry drove to his grandmother’s house, disposing of a pair of mismatched tennis shoes along the way. At his grandmother’s house, he burned his bloodied clothes and wiped the vehicle he had used of any blood stains with a towel, which he threw into a nearby pond.

• Berry’s brother, who was at the house, witnessed some of this suspicious behavior. On December 5, 1987, he called investigators and told them what he had observed.

• The next day, Berry was arrested at his grandmother’s home and soon confessed to the crime. Police found the mismatched tennis shoes Berry had discarded; in the above-referenced pond, they found a bloodied towel.

• Berry was indicted for the murder and kidnapping of Mary Bounds, and as a habitual criminal, on March 1, 1988. In a bifurcated (guilt/innocence and punishment phases) jury trial (first trial), he was convicted of capital murder.

Execution by Lethal Injection

In 1998, the Mississippi Legislature amended Section 99-19-51, Mississippi Code of 1972, as follows: 99-19-51. ***The manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical paralytic agent until death is pronounced by the county coroner where the execution takes place or by a licensed physician according to accepted standards of medical practice.

Contents of Syringes for Lethal Injection

•Anesthetic - Sodium Pentothal – 2.0 Gm.
•Normal Saline – 10-15 cc.
•Pavulon – 50 mgm per 50 cc.
•Potassium chloride – 50 milequiv. per 50 cc.

Lethal Injection History

Lethal injection is the world’s newest method of execution. While the concept of lethal injection was first proposed in 1888, it was not until 1977 that Oklahoma became the first state to adopt lethal-injection legislation. Five years later in 1982, Texas performed the first execution by lethal injection. Lethal injection has quickly become the most common method of execution in the United States. Thirty-five of thirty-six states that have a death penalty use lethal injection as the primary form of execution. The U.S. federal government and U.S. military also use lethal injection. According to data from the U.S. Department of Justice, 41 of 42 people executed in the United States in 2007 died by lethal injection.

While lethal injection initially gained popularity as a more humane form of execution, in recent years there has been increasing opposition to lethal injection with opponents arguing that instead of being humane it results in an extremely painful death for the inmate. In September 2007 the United States Supreme Court agreed to hear the case of Baze v. Rees to determine whether or not Kentucky’s three drug-protocol for lethal injections amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United State Constitution.

As a result of the Supreme Court’s decision to hear this case, executions in the United States came to a brief halt in late September 2007. On October 30, 2007, the Court granted Mississippi death row inmate Earl Wesley Berry a last minute reprieve, staying his execution until the Baze case was decided.

On April 16, 2008, the Supreme Court ruled in Baze holding that Kentucky’s three-drug protocol for administering lethal injections does not violate the Eighth Amendment. The result of this ruling was to lift the de facto moratorium on executions in the United States. The State of Georgia became the first state to carry out an execution since the Court’s Baze decision when William Earl Lynd was executed by lethal injection on May 6, 2008.

Chronological Sequence of Events of Execution

48 Hours Prior to Execution The condemned inmate shall be transferred to a holding cell adjacent to the execution room.
24 Hours Prior to Execution Institution is placed in emergency/lockdown status.
1200 Hours Day of Execution Designated media center at institution opens.
1500 Hours Day of Execution Inmate’s attorney of record and chaplain allowed to visit.
1600 Hours Day of Execution Inmate is served last meal and allowed to shower.
1630 Hours Day of Execution MDOC clergy allowed to visit upon request of inmate.
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to execution room.
Witnesses are escorted into observation room.
1900 Hours Day of Execution A post execution briefing is conducted with media witnesses.
2030 Hours Day of Execution Designated media center at institution is closed.

Death Row Executions

Since Mississippi joined the Union in 1817, several forms of execution have been used. Hanging was the first form of execution used in Mississippi. The state continued to execute prisoners sentenced to die by hanging until October 11, 1940, when Hilton Fortenberry, convicted of capital murder in Jefferson Davis County, became the first prisoner to be executed in the electric chair. Between 1940 and February 5, 1952, the old oak electric chair was moved from county to county to conduct executions.

During the 12-year span, 75 prisoners were executed for offenses punishable by death. In 1954, the gas chamber was installed at the Mississippi State Penitentiary, in Parchman, Miss. It replaced the electric chair, which today is on display at the Mississippi Law Enforcement Training Academy. Gearald A. Gallego became the first prisoner to be executed by lethal gas on March 3, 1955. During the course of the next 34 years, 35 death row inmates were executed in the gas chamber. Leo Edwards became the last person to be executed in the gas chamber at the Mississippi State Penitentiary on June 21, 1989.

On July 1, 1984, the Mississippi Legislature partially amended lethal gas as the state’s form of execution in § 99-19-51 of the Mississippi Code. The new amendment provided that individuals who committed capital punishment crimes after the effective date of the new law and who were subsequently sentenced to death thereafter would be executed by lethal injection. On March 18, 1998, the Mississippi Legislature amended the manner of execution by removing the provision lethal gas as a form of execution.

INMATES EXECUTED IN THE MISSISSIPPI GAS CHAMBER

Name Race-Sex Offense Date Executed

Gerald A. Gallego White Male Murder 03-03-55
Allen Donaldson Black Male Armed Robbery 03-04-55
August Lafontaine White Male Murder 04-28-55
John E. Wiggins White Male Murder 06-20-55
Mack C. Lewis Black Male Murder 06-23-55
Walter Johnson Black Male Rape 08-19-55
Murray G. Gilmore White Male Murder 12-09-55
Mose Robinson Black Male Rape 12-16-55
Robert Buchanan Black Male Rape 01-03-56
Edgar Keeler Black Male Murder 01-27-56
O.C. McNair Black Male Murder 02-17-56
James Russell Black Male Murder 04-05-56
Dewey Towsel Black Male Murder 06-22-56
Willie Jones Black Male Murder 07-13-56
Mack Drake Black Male Rape 11-07-56
Henry Jackson Black Male Murder 11-08-56
Minor Sorber White Male Murder 02-08-57
Joe L. Thompson Black Male Murder 11-14-57
William A. Wetzell White Male Murder 01-17-58
J.C. Cameron Black Male Rape 05-28-58
Allen Dean, Jr. Black Male Murder 12-19-58
Nathaniel Young Black Male Rape 11-10-60
William Stokes Black Male Murder 04-21-61
Robert L. Goldsby Black Male Murder 05-31-61
J.W. Simmons Black Male Murder 07-14-61
Howard Cook Black Male Rape 12-19-61
Ellic Lee Black Male Rape 12-20-61
Willie Wilson Black Male Rape 05-11-62
Kenneth Slyter White Male Murder 03-29-63
Willie J. Anderson Black Male Murder 06-14-63
Tim Jackson Black Male Murder 05-01-64
Jimmy Lee Gray White Male Murder 09-02-83
Edward E. Johnson Black Male Murder 05-20-87
Connie Ray Evans Black Male Murder 07-08-87
Leo Edwards Black Male Murder 06-21-89

PRISONERS EXECUTED BY LETHAL INJECTION

Name Race-Sex Offense Date Executed

Tracy A. Hanson White Male Murder 07-17-02
Jessie D. Williams White Male Murder 12-11-02
Bobby G. Wilcher White Male Murder 10-18-06

MISSISSIPPI STATE PENETENTIARY

• The Mississippi State Penitentiary (MSP) is Mississippi’s oldest of the state’s three institutions and is located on approximately 18,000 acres in Parchman, Miss., in Sunflower County.
• In 1900, the Mississippi Legislature appropriated $80,000 for the purchase of 3,789 acres known as the Parchman Plantation.
• The Superintendent of the Mississippi State Penitentiary is Lawrence Kelly.
• There are approximately 1,239 employees at MSP.

Current Death Row Facts: 65 Inmates on Death Row, 3 Female, 62 Male, 32 White, 32 Black, 1 Asian,
Youngest on Death Row: Terry Pitchford, MDOC #117778, age 22
Oldest On Death Row: Gerald Holland, MDOC #46631, age 70
Longest serving Death Row inmate: Richard Jordan, MDOC #30990 (March 2, 1977: Thirty-One Years)

Source: Mississippi Department of Corrections, Mississippi State Penitentiary, May 2008

Berry Executed for Murder

By Errol Castens

Mary Bounds was reported missing on November 29, 1987. A few days later, on December 1, her vehicle was located in Houston, Mississippi. Inspection of the vehicle revealed spattered blood around the driver’s side door. Mary Bounds’ body was found nearby; she had been severely beaten. It was later determined that she died of head injuries from repeated blows. Berry’s confession provided the details of what transpired.

On the evening of November 29, 1987, while driving through Houston in his grandmother’s vehicle, Berry saw Mary Bounds near a church. As she was preparing to enter her vehicle, he approached, and hit, her and forced her into his vehicle. Berry then drove out of town. Berry took Mary Bounds into a wooded area and ordered her to lie down, intending to rape her. Berry did not do so; he took her back to the vehicle, telling her they would return to town.

Instead, Berry drove to another wooded area where they exited the vehicle. Mary Bounds pleaded with Berry, but he beat her with his fists and forearm. Afterwards, he carried her further into the woods and left her. Berry drove to his grandmother’s house, disposing of a pair of mismatched tennis shoes along the way. At his grandmother’s house, he burned his bloodied clothes and wiped the vehicle he had used of any blood stains with a towel, which he threw into a nearby pond. Berry’s brother, who was at the house, witnessed some of this suspicious behavior.

On December 5, 1987, he called investigators and told them what he had observed. The next day, Berry was arrested at his grandmother’s home and soon confessed to the crime. Police found the mismatched tennis shoes Berry had discarded; in the above-referenced pond, they found a bloodied towel.

The following is an excerpt from the Clarion-Ledger (Jackson, Mississippi):

Berry was convicted of murder and first sentenced to die in 1988. He originally had been scheduled to die in October, but his execution was halted just 19 minutes before he was to have received the lethal dose. The U.S. Supreme Court had decided to review challenges to Kentucky's lethal injection method. Last month, when the nation's highest court upheld lethal injection, Berry's execution was rescheduled. Wednesday he became the second person in the U.S. to be executed following the court's decision. He also became the fifth death-row inmate in Mississippi to die by lethal injection.

Berry's execution went smoothly and by the book, Mississippi Department of Corrections Commissioner Chris Epps said. The U.S. Supreme Court late Wednesday denied Berry's appeals. Berry's attorneys had argued that Berry should have been spared because he was mentally retarded and because Mississippi's lethal injection process is unconstitutionally cruel. Epps said Berry was somber and serious in the hours leading to his execution. "I used to be his case manager. So, I've been knowing him for a while," Epps said before the execution. "He's pretty serious now. He's not grinning like he was in October."

Though Berry had requested that two of his brothers witness his execution, no one from his family did. His mother, another brother and sister-in-law visited him earlier in the day. No one from Berry's family spoke to the media. Several dozen members of Bounds' family, however, were at Parchman. Chickasaw County Sheriff Jimmy Simmons was a deputy investigating Bound's death. "He knew exactly what he was doing," said Simmons, who witnessed the execution. The sheriff is still haunted by the killing. "Anybody who seen that lady up there with a shoeprint still in the side of her face ... ," he later said. "I can still see it like it was yesterday."

Gov. Haley Barbour, who denied Berry clemency, said after Berry died, "Justice has finally been rendered for this horrible crime." Berry uttered his last words - "no comment" - just minutes before he was pronounced dead at 6:15 p.m. Though Berry had confessed, Epps said he never expressed any remorse for the crime. Epps said he stood in front of Berry's cell Wednesday afternoon and asked, "Inmate Berry, do you have any remorse for what you did to Mrs. Bounds? "He said he had no remorse and felt that after 21 years, he had paid for it," Epps continued. "He understood the question, and that was the answer he gave." Following the execution, Bounds' widower, Charles Bounds, spoke to reporters. "I don't have much to say. I just think it took too long," he said. "I have had this on my mind for 20 years, and it really takes a lot out of me."

AmnestyUSA.org

13 May 2008
USA (Mississippi) Earl Wesley Berry (m), white, aged 49

Earl Berry is scheduled to be executed in Mississippi at 6pm local time on 21 May 2008. He was sentenced to death for the murder of Mary Bounds in 1987. His lawyers have provided the courts with evidence that he has mental retardation which, if the case, would render his execution unconstitutional. However because his former lawyers had failed to file the requisite expert evidence in timely fashion, he has not had an evidentiary hearing on this claim and has been held to be barred on procedural grounds from such judicial review.

Mary Bounds was reported missing on 29 November 1987. Her car was found on 1 December near the First Baptist Church she attended in Houston, Mississippi. Her body was found the next day in nearby woods. She had died of head injuries as a result of blows to the head. On 6 December, 28-year-old Earl Berry was arrested at his grandmother’s house, and confessed to the crime. He rejected an offer from the prosecution of a life sentence in return for a guilty plea. After a jury trial, he was sentenced to death on 28 October 1988.

The death sentence was overturned by the state Supreme Court which found fault with the instructions given to the jury, and a resentencing was held in June 1992. At this hearing, the defense presented mitigating evidence, including testimony from a neuropsychologist about Earl Berry’s low intellectual functioning and possible brain damage. A psychologist also testified that, in his opinion, Berry suffered from paranoid schizophrenia.

For his part, the prosecutor resorted to potentially inflammatory comments in seeking a death sentence. For example, he made what amounted to little more than a call for vengeance in a speech based around the notion of “justice.” He asked “where is the justice and mitigation and mercy of being a faithful member of the First Baptist Church, a member of the choir, taught Sunday school, there when the doors are open?…This woman was there every time the doors were open, at night, Sunday night. She missed choir practice that night. No doubt about that… [T]here is only one verdict in my opinion. That is this man receive the death penalty, the same penalty Mary Bounds got without hearing by jury or a trial. That man acted as judge, jury, and executioner all in a matter of minutes. She didn’t have any of the benefits of any justice or mitigation or mercy; and there is none due here in my humble opinion.”

The prosecutor also injected Biblical references into the proceedings when urging the jury to vote for the death penalty, arguing for example, that “it’s authorized by Mississippi, and it’s been authorized by scriptural law for a long time.” Earl Berry’s lawyers have challenged his death sentence with the claim that he has mental retardation.

The US Supreme Court banned the execution of people with mental retardation in Atkins v. Virginia in 2002. In Chase v. State in 2004, the Mississippi Supreme Court announced the criteria for determining which inmates sentenced to death in Mississippi before the Atkins decision should receive an evidentiary hearing on a claim of mental retardation.

Under this test, the condemned prisoner must provide on appeal an affidavit from a qualified expert to the effect that the inmate has an IQ of 75 or below, and in the opinion of the expert “there is a reasonable basis to believe that, upon further testing, the defendant will be found to be mentally retarded.” For reasons that are unclear, but possibly due to lack of funding for, and the sheer workload on, the understaffed public defender office representing Earl Berry at that time – Berry’s claim of retardation was not supplemented by the requisite expert affidavit after the Chase ruling.

In August 2004, the state Supreme Court ruled that Berry had failed to comply with the Chase criteria and denied him an evidentiary hearing. On 24 April 2008, a psychologist with expertise in mental retardation signed an affidavit stating that his review of the materials relating to Earl Berry had led him to the conclusion that Berry had an IQ of 75 or lower and/or “significantly sub-average intellectual functioning,” and “to a reasonable degree of psychological certainty that further testing will demonstrate that Mr. Berry meets the criteria established by the American Psychiatric Association and the American Association on Mental Retardation to be classified as mentally retarded.”

Among other things, he noted that during Berry’s school years his IQ was assessed as low as 72, and when the 25-year-old Berry was discharged from a Mississippi Department of Corrections prison hospital on 24 April 1985 following an apparent suicide attempt, the final diagnosis was “suicidal gestures / mentally retarded.”

Other affidavits – from Earl Berry’s mother, other relatives, and people who knew Berry – describe Berry’s slow development as a child, childhood head injuries he sustained as a boy, and the fact that even as an adult he never lived independently. His mother said that he attempted suicide six or seven times.

On 5 May 2008, despite this new Chase-compliant expert affidavit, the Mississippi Supreme Court ruled that Earl Berry’s claim of retardation was procedurally barred. The Presiding Justice of the Court dissented: “As an indigent defendant sentenced to the ultimate and final punishment, Berry is entitled to appointed competent and conscientious counsel to assist him with his pursuit of post-conviction relief. He has now presented this Court with substantial evidence that but for his post-conviction attorney’s deficient performance, he would have been granted an opportunity to pursue his claim that he is mentally incompetent pursuant to Atkins… 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…

When appointed counsel fails to provide the Court with the relevant facts, the system designed to ensure due process as well as a timely end to the appellate process, ceases to function. In the end, justice fails for all of those involved.”

Since the USA resumed executions in 1977, 1,100 prisoners have been put to death, eight of them in Mississippi. Discrimination, arbitrariness and error have been hallmarks of US capital justice. Amnesty International opposes the death penalty in all cases, unconditionally. There is no such thing as a humane, fair, reliable or useful death penalty system (see ‘The pointless and needless extinction of life.’ USA should now look beyond lethal injection issue to wider death penalty).