http://www.nytimes.com/2011/04/05/us/05lethal.html?_r=1&nl=todaysheadlines&emc=tha23

 

April 4, 2011

In Last-Minute Action, Texas Inmate Disputes Use of Execution Drug

By TIMOTHY WILLIAMS

A former Army recruiter convicted of killing a woman he met in a Fort Worth bar nine years ago is scheduled to be executed Tuesday, though his lawyers were seeking a last-minute reprieve on Monday as part of a challenge to one of the drugs that is to be used to kill him.

The recruiter, Cleve Foster, 47, a veteran of the Persian Gulf war, was convicted in 2004 of killing Nyanuer Pal, 28, a Sudanese immigrant who was known as Mary. Mr. Foster’s roommate, who was also convicted in the murder, died in prison last year.

For Texas, which executes more prisoners than any other state, Mr. Foster’s case has been complicated by a nationwide shortage of sodium thiopental, one of three drugs that have typically been used in executions.

The shortage, which has vexed prison authorities in states that permit the death penalty, led Texas to decide to substitute pentobarbital for sodium thiopental. Pentobarbital is a sedative that is often used to euthanize animals and to treat seizures in humans.

At least two states, Oklahoma and Ohio, have executed inmates since December using pentobarbital after running out of sodium thiopental.

Hospira Inc., which had been the only American manufacturer of sodium thiopental, announced in January that it would no longer produce the drug in the United States. The company had planned to resume production at a plant in Italy, but the Italian authorities said they would not permit the export of the drug if it might be used for capital punishment.

As recently as January, 34 of the 35 states that allow lethal injections for executions used sodium thiopental, usually administered as the first of three drugs that are intended to prevent pain, inhibit muscle movement and then stop the heart.

Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, said Monday that Mr. Foster’s execution was one of seven scheduled in Texas through August.

Ms. Lyons said that the state had plenty of sodium thiopental on hand, but that it reached its expiration date at the end of March.

Maurie Levin, one of Mr. Foster’s lawyers, said Monday that Texas had failed to adhere to its own administrative rules when it decided to switch to pentobarbital and that it had not properly notified the public of the change.

Mr. Foster’s lawyers also say the state used an invalid federal permit to buy pentobarbital.

“Given the frequency of which we carry out this ultimate act, it should be done in compliance with the law, with transparency and deliberateness and care,” said Ms. Levin, who also teaches at the University of Texas. “It is experimental, a drug that is brand new to lethal injections.”

On Monday, the Third Court of Appeals of Texas upheld a lower court ruling that rejected the defense’s argument, but Mr. Foster’s lawyers said they would take their challenge to the State Supreme Court.

The story of Mr. Foster, a former sergeant first class, has been full of twists since he was arrested in the 2002 murder of Ms. Pal.

In January, he was just hours from being executed — he had eaten his final meal — when the United States Supreme Court stayed the execution to examine an appeal by his lawyers.

The appeal claimed that Mr. Foster’s trial lawyers had erred by not calling a blood spatter expert to challenge a police detective’s testimony about Mr. Foster’s role in the killing. The appeal was ultimately rejected.

Mr. Foster and his roommate, Sheldon Ward, were convicted of murdering Ms. Pal on the night before Valentine’s Day in 2002. Her nude body was found in a creek bed in a wooded area the next morning. She had been shot once in the head.

The two had met Ms. Pal at Fat Albert’s bar in Fort Worth. Witnesses said the three had chatted there, and that as Ms. Pal drove away, the two men followed in Mr. Foster’s truck.

Mr. Ward, who was 30 when he died of a brain tumor last year, had been one of the people Mr. Foster helped recruit into the Army. Prosecutors say that Mr. Ward pulled the trigger, but that Mr. Foster assisted him, including helping him dump Ms. Pal’s body.

Mr. Foster has said he had taken sleeping pills and was passed out at the time of Ms. Pal’s death.

In a statement on a Facebook page created for him, Mr. Foster has written: “I was convicted February 2004, and am now on death row waiting to die for a crime another man has confessed to. I am not a rich man nor was my family able to hire the proper lawyers willing to fight and prove my innocence. I do enjoy writing people, so if you’d like to write please do. I would also like to ask those who pray, please add me to your prayer list.”

© 2011 The New York Times Company

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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs