Update: Berry was executed at 6:15 p.m. CDT, AP reports. That is 20 years and 6 months after he kidnapped Mary Bounds and beat her to death, far too long.
The Supreme Court has denied stays in the two petitions filed by Mississippi murderer Earl Wesley Berry. No dissents are indicated. As noted in yesterday's blog scan, Lyle Denniston has this post at SCOTUSblog on the filings in the case. The original post merely summarized the allegations of Berry's lawyers. If one knew neither the facts nor the law, one would think after reading the post that this case involves the state proceeding with the execution of a person who is clearly retarded and doing so via a procedure that is arbitrary. One would be wrong on both counts. Lyle writes,
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.
But in fact evidence of mental status was presented at Berry's penalty trials -- both of them.
The rule that the defendant can proffer anything he wants in mitigation was well established before Berry was first sentenced to death, and he did place his mental condition at issue. A forensic psychologist testified at the first trial that Berry had an IQ of 83. That's "dull normal," testified the expert, not retarded. "No sir, not even close." The Mississippi Supreme Court -- that redneck, right-wing, politicized court that never reverses a death sentence -- reversed the death sentence for other reasons. At the second trial, Berry's own expert testified that he had an IQ of 76. That's "borderline intellectual functioning," testified Berry's own expert, not retarded. The jury considered this as a mitigating circumstance and decided that it did not outweigh the horrific, brutal crime that Berry chose to commit.
On state habeas review, to make a claim of retardation despite the unrebutted contrary testimony of two experts at two trials, Berry's counsel submitted an affidavit from the notorious James Robert Flynn, inventor and proponent of the notorious "Flynn Effect," who claims that all past IQ scores should be adjusted downward to account for a general rise in performance on IQ tests. The claim is nonsense. Whether a person is "significantly subaverage" in intelligence (or anything else) depends on a comparison with the appropriate norm at the time of the test. Mental retardation, by definition, is manifested before the age of 18. A person who is "borderline intellectual functioning" in his youth does not become "retarded" later in life because today's youth do a tad better on tests than yesterday's.
In denying the claim, the state supreme court noted its rule that a pre-Atkins death-row inmate can get an Atkins evidentiary hearing by "produc[ing] evidence the affidavit of a qualified expert stating that the defendant or petitioner is mentally retarded," and that Berry had not done so. The emphasis, though, was on the strong evidence already in the record that Berry was slow but not retarded.
On federal habeas, the district court noted the Mississippi rule for an evidentiary hearing and the fact that Flynn is a political scientist and not a psychiatrist or psychologist. The federal procedural default rule has exceptions, though. One is for a combined showing of cause for default and resulting prejudice. The other is for a "miscarriage of justice," which includes a sentence of death for a person ineligible for that penalty. See Sawyer v. Whitley, 505 U.S. 333, 347 (1992) (pre-AEDPA successive petition case, at a time when the procedural default and successive petition rules had the same exceptions). Even if the claim had been defaulted in state court, then, a compelling case of retardation would have qualified for an exception to the procedural default rule.
Did Berry's attorneys believe they had a compelling case that he was retarded? No. When they sought to appeal the district court's denial of habeas relief to the court of appeals, they did not even include the retardation claim in the issues for appeal. Why not? Probably because the claim is exceedingly weak on the facts.
The petition now before the United States Supreme Court is a successive petition. Berry has already had one full run through the federal court system, in addition to his state appeals. Now he wants another. Congress cracked down hard on this practice in 1996. For petitions making new claims, Congress forbade them with a couple of narrow exceptions. For petitions like this one, attempting to relitigate a claim decided on the first petition, Congress was unmistakably clear. "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. 2244 (b)(1). No exceptions.
Berry's lawyers apparently thought they could get around this rule by claiming their petition is under § 2241 rather than § 2254. Congress would not have bothered to pass a law so easily evaded. Section 2254, on its face, applies to all federal habeas petitions "in behalf of a person in custody pursuant to the judgment of a State court...."
Finally, there is the argument that this petition is not really successive under the analysis of Panetti v. Quarterman. This is just ludicrous. Panetti dealt with a claim that the defendant was too crazy to be executed, a claim distinct from any claim that he had been wrongly sentenced to death in the first place. Because such a claim is necessarily unripe at the time of the first petition -- people can move from sanity to insanity and back -- it was held that as a practical matter it could not be barred by the successive petition rule. The Atkins retardation rule, by contrast, deals with moral culpability at the time of the crime and is necessarily ripe from the very beginning. Panetti and its rationale have no application here. The contention is frivolous.