Updated: Supreme Court Denies Stay; Foster to Be Executed

Update, Sept. 25, 2012, 4:45 p.m.:

The U.S. Supreme Court on Tuesday denied death row inmate Cleve Foster's fourth request for a stay of execution. He is set to be executed at 6 p.m. Tuesday. 

Original story: 

Death row inmate Cleve Foster, a former military recruiter, is hoping the courts will for the fourth time in a year stay his execution, which is scheduled for Tuesday evening.

After the U.S. 5th Circuit Court of Appeals denied his appeal, Foster’s lawyer, Maurie Levin, filed an appeal with the U.S. Supreme Court. She said on Monday that the justices had called for the record in a similar case, a step they don’t always take.

“They’re taking it seriously,” said Levin, who is also an adjunct professor and co-director of the Capital Punishment Clinic at the University of Texas at Austin.

Foster and his roommate, Sheldon Ward, were convicted of the 2002 murder in Fort Worth of Nyanuer “Mary” Pal. Police found the body of Pal, who had been shot, in the woods. DNA evidence in Pal’s body later connected Foster and Ward to the crime. Both men were sentenced to death.

Ward died in prison in May 2010. While he was on death row, Foster’s lawyers said, Ward wrote a note and also told others that Foster was not involved in the murder and that he had acted alone.

In his pleas, Foster argues that Ward’s statements prove his innocence. He also argues that he received ineffective legal assistance since his lawyers did not present key evidence to the jury, including a note Ward wrote at the time of the crime taking sole blame for the murder. The lawyers were also ineffective, he argues, because they did not use a blood-spatter expert to dispute the state’s theory that Foster and Ward murdered the victim in one location and carried her body to another.

The state, in a response filed Monday with the U.S. Supreme Court by Texas Attorney General Greg Abbott, said, “Foster advances no compelling reason in this case, and none exists.”

Ward’s confessions, the state contends, were “inconsistent and incompatible” with one another, containing differing details. And, the state argues, the jury’s decision to convict Foster would not have changed with additional testimony about where the victim died.

Foster’s first execution date, Jan. 11, 2011, was stayed just 10 minutes before he was scheduled to undergo lethal injection. Before his second execution date — April 5, 2011 — Foster and fellow death row inmate Humberto Leal filed a civil lawsuit challenging Texas’ decision to change its lethal injection protocol from three drugs to one. The Texas Supreme Court eventually dismissed that lawsuit, but the U.S. Supreme Court stayed Foster’s execution again. Foster’s execution was scheduled a third time for Sept. 20, 2011, but the high court stayed that as well. 

Levin said she is hopeful for a fourth stay because the U.S. Supreme Court last month stayed the execution of John Balentine, who has made similar claims of inadequate legal help.

In its response to the U.S. Supreme Court, the state argued that Foster is simply trying to stall his inevitable, and just, ending.

“Foster’s assertions reveal his claim to be nothing more than a meritless attempt to postpone his already-delayed execution,” state lawyers wrote.

Editor's note: This story has been corrected to note that the U.S. Supreme Court justices called for the record in a similar case, not Foster's case.