LIVINGSTON, Texas — Cleve Foster says he's not afraid to die — but he doesn't want to be a guinea pig.
Foster would be the first Texas inmate executed with a new drug in the nation's busiest death penalty state if his lethal injection scheduled for Tuesday evening is carried out in Huntsville. It's the most significant change in the execution procedure in Texas since the state switched from the electric chair when it resumed carrying out capital punishment in 1982.
The Texas Department of Criminal Justice, like other corrections agencies around the nation, has been unable to find a supplier of sodium thiopental, one of the three drugs it has been using in a lethal chemical mixture. The department announced last month it would begin using pentobarbital as a substitute. The sedative used in surgery and to euthanize animals is already used in executions in Ohio and Oklahoma.
In an interview from death row, Foster, 47, said he thinks Texas' decision to switch is wrong.
"How can Texas use something said to not be fit to kill a dog?" Foster asked, embracing criticisms of the drug that have failed to convince courts to block its use in the other states.
Foster's lawyers have challenged the switch and execution procedures in an attempt to stop his death. They questioned whether Texas prison officials properly followed state administrative procedures when they announced the drug switch and argued the state illegally purchased the drugs to be used with an invalid federal permit.
Foster, a former Army recruiter, and an his roommate Sheldon Ward were sentenced to death for the murder of Nyaneur Pal, a 30-year-old Sudanese refugee they met in a bar. Her body was found in a ditch on Valentine's Day 2002. The men also were charged but never tried for the shooting death of Rachel Urnosky, 22, at her Fort Worth apartment in December 2001.
Foster came close to death in January. He was sitting in a small holding cell in the Texas death house at the Huntsville Unit prison when the U.S. Supreme Court stopped his execution to look at a late appeal from his lawyers.
"I looked at that gray door . . . the world's busiest death chamber," he said. "I thought: Man, there's no good there."
A week later, the high court rejected the appeal, allowing Foster's execution to be reset for Tuesday.
"I'm not scared," he said. "It's hard to explain."
He said he appreciated the dozens of letters he has received, many from religious groups, as his January date approached. "One thing bothered me," he said. "They took for granted I actually killed somebody."
Foster has insisted Ward was responsible for fatally shooting Pal. Prosecutors, however, are equally adamant that evidence showed Foster actively participated in the woman's death, that he offered no credible explanations and lied and gave contradictory stories about his sexual activities with Pal.
Ward, one of Foster's recruits, died of cancer last year while on death row. The two had been convicted separately. Pal, who was known by the first name Mary, worked at a country club and was seen talking with the pair at a Fort Worth bar. Her body was found hours later in a ditch off a Tarrant County road. She'd been shot once in the head.
A gun recovered from the motel room where Foster and Ward lived was identified as the murder weapon — and as the gun used to kill Urnosky.
Pal's blood and tissue was found on the weapon, and DNA evidence showed both men had sex with her. Foster said he was passed out from sleeping pills when Pal would have been murdered. Ward said the sex was consensual, and Foster was unconscious when Pal had sex with him.
A detective testified Pal was not killed where pipeline workers found her body and that Ward had to have help moving her. Witnesses said Ward and Foster were inseparable.
Foster acknowledged he and Ward were at Urnosky's apartment but said they left when she refused to have sex with them. She was a recent honors graduate from Texas Tech, an officer with the Baptist Student Mission at the Lubbock university and had spent her spring breaks on mission trips.
Evidence showed Foster, who grew up in Henderson, Ky., spent nearly two decades in the Army, reached the rank of sergeant first class, was deployed to the Middle East during Desert Storm and eventually became a recruiter. Records show court martial proceedings were started against him after he was accused of giving alcohol to underage students and having sex with an underage potential recruit. He was denied re-enlistment in the Army and had been out only a short time when Urnosky and Pal were killed. On death row, he has been known as "Sarge."
Foster blamed his conviction on lawyers he didn't trust, false testimony from police and prosecutors who misled jurors. "I would love to have a new trial," he said. "I know a lot more now about the law."
Since Texas began using lethal injection in 1982, 466 prisoners have been put to death using the three-drug cocktail of sodium thiopental, pancuronium bromide and potassium chloride. Foster would be the third Texas inmate executed this year. At least six others have execution dates in the coming months.
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