Death Row Inmate Seeks Reprieve Over Drug Method By TIMOTHY WILLIAMS Published: April 4, 2011
A former Army recruiter convicted of killing a woman he met in a Fort Worth, Tex., bar nine years ago is scheduled to be executed Tuesday , though his lawyers are seeking a last-minute reprieve as part of a challenge to one of the drugs that is to be used to kill him.
The recruiter, Cleve Foster, 47, a Desert Storm veteran, was convicted in 2004 of killing Nyaneur “Mary” Pal, 28, a Sudanese immigrant. Mr. Foster’s roommate, who was also convicted of the murder, died in prison last year.
For Texas, perennially among the nation’s leaders in executions, Mr. Foster’s case has been complicated by the nationwide shortage of sodium thiopental, one of three drugs that, administered in a sequence, have typically been used to kill the state’s death row inmates.
The shortage, which has vexed prison authorities in states that permit the death penalty, has led Texas to decide to substitute pentobarbital for sodium thiopental. Pentobarbital is a sedative that is often used to euthanize animals, and is also used to treat seizures in humans.
Oklahoma and Ohio have also put inmates to death recently using pentobarbital after running short of sodium thiopental.
The only American manufacturer of sodium thiopental announced in January that it would no longer produce the drug. The manufacturer, Hospira Inc., had planned to resume production at a plant in Italy, but the Italian authorities said they would not permit export of the drug if it might be used for capital punishment. As recently as January, 34 of the 35 states that allow lethal injection used sodum thipental.
An average of 55 executions have taken place annually over the last 10 years, with 46 last year and 52 in 2009, virtually all by lethal injection.
Lethal injections commonly involve a sequence of three drugs that is set by state regulations: an anesthetic — sodium thiopental in every state but Oklahoma — intended to prevent pain, followed by a muscle relaxant and a drug that stops the heart.
As the shortage became acute last fall, California and Arizona obtained shipments of sodium thiopental from England, but the British government has since refused to allow exports of drugs for use in capital punishment, a policy that is under consideration by the entire European Union.
Maurie Levin, one of Mr. Foster’s lawyers, says that Texas 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 maintain that the state used an invalid federal permit to buy its supply of pentobarbital.
“Given the frequency of which we carry out this ultimate act, it should be done incompliance 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.”
The story of Mr. Foster, a former Army sergeant first class, has been full of twists since he was arrested in the 2002 murder of Ms. Pal.
In January, he was hours away from being executed —he had eaten his final meal — when the United States Supreme Court issued a stay of 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 the next morning. She had been shot once in the head.
Mr. Ward was convicted as the man who pulled the trigger.
Mr. Foster has said he had taken sleeping pills and was passed out at the time of Ms. Pal’s death.
Mr. Ward, who was 30 when he died of a brain tumor last year, had been one of the people Mr. Foster helped recruit to join the Army.
The two had met Ms. Pal at a bar called Fat Albert’s in Fort Worth. Witnesses said the three had chatted at the bar and that as Ms. Pal drove away, the two men followed closely behind in Mr. Foster’s truck.
Texas authorities also charged the men for the December 2001 fatal shooting of Rachel Urnosky, 22.
Ballistics experts said that Ms. Urnosky, a recent graduate of Texas Tech University, had been shot with the same .40-caliber gun that had killed Ms. Pal about two months later. The gun was found in a motel room shared by the two men.
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