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September 20, 2011

SCOTUS stays yet another Texas execution pending cert consideration

As detailed in this CNN report, which is headlined "Texas death row inmate granted another Supreme Court reprieve," the Justices have blocked a planned Texas execution yet again.  Here are the details:

The Supreme Court for the third time this year has stopped the pending capital punishment of a Texas inmate, giving lawyers for the man more time to file their appeals.

The justices on Tuesday issued an order granting a stay of execution for Cleve Foster, about 2 1/2 hours before his scheduled lethal injection. The Gulf War veteran was convicted along with another man of the 2002 murder of Nyanuer "Mary" Pal, a Sudanese immigrant he met at a Fort Worth bar.  The court indicated it would need more time to rule on the inmate's claims of prior ineffective assistance of counsel, and related claims of innocence of the murder.

This is the third time Foster, 47, has been granted a high court reprieve. His previous scheduled execution was stopped in January and April, once after he had already been given his last meal....

Foster has blamed his co-conspirator for the murder. His lawyers in their Supreme Court appeal presented letters from three fellow inmates who said co-defendant Sheldon Ward told them he acted alone in Pal's murder.  The state countered Ward's statements to a psychologist implicating Foster as the mastermind behind the killing.  They also said DNA from both men were found in the victim.

Texas has a planned lethal injection Wednesday. Lawrence Brewer, 44, was one of two white men convicted in the 1998 dragging death of James Byrd Jr., an African-American. That widely reported crime led to national movement to step up prosecutions and penalties for hate crimes.   Brewer has no pending appeals. It would be the 11th execution this year in Texas, the most active death-penalty state.

September 20, 2011 at 09:27 PM | Permalink


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This is exasperating, how many times does SCOTUS need to look at this case before they take it up for formal review or allow it to go forward? And what value do Sheldon Ward's statement's have anyways? He was a liar who was looking to save Foster, his friend and co-conspirator, and knew he would be dead before he could be executed.

As for Foster: he lied and repeatedly changed his story, he was with the victim and Ward on the night of the murder and his DNA was found in the Mary Pal's body. His explanation: Pal raped him while he was unconscious. Yes, really.

Posted by: MikeinCT | Sep 20, 2011 11:33:04 PM

The Supreme Court is acting completely irresponsibly. This is what the Supreme Court unanimously says: "Both the State and the victims of crime have an important interest in the timely enforcement of a sentence."

And then the Supreme Court (a) grants a stay to Foster in response to a last-minute appeal filed months after cert. was denied on his habeas petition, (b) after lifting stay (a), the Supreme Court grants another stay in response to a last-minute petition for rehearing that was out of time, and (c) after lifting stay (b), the Supreme Court grants a stay for yet another last-minute petition for cert.

There is simply no way to square the Court's pronouncement in Hill v. McDonough and its inexplicable (and unexplained) stay in this case. With respect to this particular stay, a Texas court set the date months ago, so Foster's lawyers certainly had more time to get this thing moving. (And that was true, by the way, with respect to both previous stays.) The Court should afford Texas and the victim's family the decency of an explanation as to why it has seen fit to act in this manner.

Posted by: federalist | Sep 21, 2011 8:02:48 AM

If the Court continues down this path, it's inviting Congress to step in. Congress cannot constitutionally ordain the substantive outcome of a case, but it can regulate the timing of decisions. Congress will be tempted to, for example, ban any stay entered by a federal court fewer than 48 hours before a scheduled execution.

These last minute filings are done just to keep the clock running. There's nothing wrong, and plenty right, in reaching the correct outcome. But it doesn't take 15 or 20 years to do it, as we all know.

Criminal defendants, like all other litigants, should be required to advance their claims in a timely manner or forfeit them. As I say, this is becoming a circus that may well get some attention from Congress.

Posted by: Bill Otis | Sep 21, 2011 10:26:15 AM

SCOTUS is getting like the 9th Circuit. This reminds me of pre-AEDPA days but never has the Supreme Court done this. Now a third time. I think on the first or second one,Foster was a month or so late filing for rehearing and they delayed his execution for that, then denied cert. What is going on up there?

The mood they are in, watch out Georgia tonite for surprises.

Posted by: DaveP | Sep 21, 2011 3:22:10 PM

DaveP, I heartily agree. But this is entirely consistent with the wrongheaded stays granted during the Baze petition . . . . the Court had no business granting those stays either.

Posted by: federalist | Sep 21, 2011 3:47:44 PM

Let's just forget the fact that there have been many who have spent decades on death row and later determined to be innocent. Let's quit giving them all these appeals. Just execute them right after the jury convicts. Don't waste any time. No appeals. After all, everyone convicted is always guilty, right? An innocent person is never convicted, right? No one on death row has ever been exonerated after multiple appeals were denied, right? Although, if in the past, we had just executed people with no appeal, we know that we would have executed many innocent people. But, its only a person's life we're talking about, so there is clearly no need to take our time and get it right, is there?

I used to think there were valid reasons for imposing the death penalty. Thank you guys for showing me it is purely about revenge. I guess that's okay but we need to stop blabbering about deterence and all that other crap and be honest and admit that its all about vengeance, nothing else.

I can understand someone thinking the death penalty is a necessary evil, that is the way I felt about it in the past. But, it disturbs me to see people so rabidly, fanatically, pro-death. You people sneer at the fanatics that oppose the death penalty but you are just the fanatics on the other end of the spectrum. You have a different opinion but, other than that, you are no different from them. You are rabid, fanatics with little reason or logic to support your assertions. You are so blinded by your bias you cannot see that there could be some merit to the other sides concerns. You are too bigoted to see that the other side may have a point or two. I hesitate to say this, but based on your comments, you appear to be hate filled, bitter individuals. I know its difficult to tell much about someone just by comments on a website so I sincerely hope that is not the case. I just don't understand why people would be so eager and gleeful to see someone die, even if that person deserves it.

Posted by: mls | Sep 21, 2011 4:21:15 PM

mls, there's no credible case that Cleve Foster is innocent, so why don't we stop with that? I'm cool with taking time out for legitimate SODDI (some other dude did it) cases. I'm not cool with SCOTUS saying one thing about stays in its cases and doing another.

Posted by: federalist | Sep 21, 2011 4:31:26 PM


at least the court was considering a case that would determine the future of lethal injections. We all knew Kentucky would win. It would have been 9-0 except for Souter and Ginsburg objected to a lack of consciousness check.

Back to the Texas stays in the last week or so. I certainly don't understand the procedure the courts are following recently. A federal district judge explained AEDPA to me personally many years ago and it doesn't seem like it is being followed.

I am for a thorough appeals process. But these stays for Buck and Foster are ridiculous. Buck's appeal to SCOTUS from the 5th Circuit was denied in 4/'10. I don't know why it took so long to set an execution date. Both inmates had more than enough time to file appeals correctly and SCOTUS rewards them with more delays and as you would opine, anguish on the families. SCOTUS has scheduled a conference on Buck for 9/26. Maybe they will vacate the stay.

Posted by: DaveP | Sep 21, 2011 5:09:02 PM

The Baze stays simply did not comport with the Supreme Court's own opinions about when stays should be granted. In that sense, they were lawless. LI claims had been percolating for years before Baze, and SCOTUS bailed out lawyers who strategically waited to file them. In other words, the Baze stays really aren't any different for these ridiculous stays.

Posted by: federalist | Sep 21, 2011 5:46:43 PM


Are you aware that the Texas Attorney General specifically admitted that Buck's sentencing hearing was unconstitutional and committed to not oppose his request for a new sentencing hearing -- but then later did oppose that request, and succeeded in winning in the Fifth Circuit by failing to disclose several material facts to the Court?

It is true that Buck's appointed habeas counsel somehow managed to miss pointing those facts out as well, which created a procedural mess, but regardless, I don't think it is "ridiculous" to take another look before allowing an execution to go forward in a case where the state AG has previously confessed prejudicial constitutional error.

Posted by: Anon | Sep 25, 2011 4:34:48 AM

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