U.S. Supreme Court justices are scheduled Friday to take up the last-ditch appeal of Cleve Foster, a former Army recruiter whose execution was halted by the court late Tuesday afternoon while Foster finished what was intended to be his last meal.
Foster, 47, was sentenced to a lethal injection for the 2002 rape-slaying of Sudanese immigrant Nyanuer “Mary” Pal, whose body was found near Lake Worth. Foster has long maintained his innocence, blaming Pal’s death on co-defendant Sheldon Ward, one of Foster’s Army recruits.
In an appeal filed with the Supreme Court on Monday, Foster’s lawyers argued that the condemned man didn’t have effective legal counsel in parts of the appellate process. The court cited that writ in delaying the execution.
Justices will confer Friday, and a decision is expected by Tuesday. The court could lift the stay and allow the execution to proceed or order additional legal proceedings. If the stay is lifted, a trial judge in Tarrant County would be free to set a new execution date, no sooner than 30 days later.
The body of Pal, who had been raped and shot once in the head, was discovered by workmen on Feb. 14, 2002. She had spent several hours the previous night at a Fort Worth bar and pool hall with Foster and Ward. The two men were seen following Pal as she drove away.
A gun later recovered from the hotel room where Foster and Ward lived was determined to be the murder weapon. DNA evidence showed that both men had had sex with Pal. Prosecutors also argued that Foster and Ward together carried Pal’s body from the place where she was killed to the place where her body was found. Ward alone would not have been able to do it, prosecutors said.
In another late appeal to the Supreme Court, Foster’s lawyers submitted an affidavit from an independent blood-spatter expert. Gary A. Rini, based in Ohio, said blood evidence from the scene showed that Pal was killed in the same place her body was found. Defense lawyers contend that Rini’s opinion undermines a key prosecution theory of the crime.
But Rini’s opinion “doesn’t exonerate [Foster] in any way,” said Steve Conder, chief of post-conviction writs in the Tarrant County district attorney’s office. “It doesn’t get past the fact that Ward and Foster followed the victim. That his DNA was found on her. That he lied to the police about it.
“Whether she was killed a little ways away and brought there or killed where she was found, it doesn’t change the fact that Ward and Foster, working together, killed her.”
Ward, who was also sentenced to death, died in prison last year from a brain tumor. He and Foster were also charged with the 2001 slaying of Rachel Urnosky, a 22-year-old Texas Tech graduate who had recently moved to Fort Worth to work in retail.
The body of Urnosky, who had been sexually assaulted and shot in the head with Ward’s gun, was found in her Fort Worth apartment two months before Pal’s slaying.