Attorney General Jim Hood said Tuesday that a legal blunder by the state shouldn’t affect an execution date set next week for convicted killer Earl Wesley Berry.
Because Mississippi has ignored a similar lethal injection challenge filed last year by four other death row inmates, Berry’s challenge also should be heard, his attorneys say.
A federal court found the state in default on May 5 for failing to defend itself against a lawsuit filed on behalf of Alan Dale Walker, Paul Everett Woodward, Gerald James Holland and Dale Leo Bishop. Execution dates have not been set for them.
Judge Allen Pepper dismissed Berry from that lawsuit last year.
An “error in communication” in Hood’s office caused the mistake, according to court papers filed by Hood earlier this month.
In an interview, he said a staff attorney for the Mississippi Department of Corrections was supposed to handle the other inmates’ case.
MDOC Commissioner Chris Epps said he was not aware of that, though. “We never handle any execution matters,” Epps said while conducting rehearsals for Berry’s execution.
Judges are more inclined to consider last-minute filings “to say, ‘Let’s wait to see if this (argument) has any merit,’ ” Hood said.
“We’re comfortable this case will be on track and won’t affect the Berry case,” he added.
Berry’s attorney, James Craig, said he would agree to Hood’s request to set aside the default motion, but only if Berry’s lethal injection challenge is included with the other inmates’. They allege the procedures cause unnecessary pain and question the training of those who administer the drugs.
Craig said Hood “apparently does not understand the hypocrisy of his position.”
Berry’s former attorney did not follow the state court’s procedure for proving mental retardation, he reiterated.
“When a mentally retarded prisoner’s prior lawyer makes a mistake, (Hood) tells the courts that they should refuse to hear the facts of the case and kill him. But when his office makes a mistake, they want a second chance. So the papers we filed yesterday say, if the federal court is going to let (Attorney) General Hood off the hook, it should also bring Mr. Berry back into the lethal injection lawsuit and stay the execution.”