Fort Worth killer's execution is blocked for third time

By Michael Graczyk

The Associated Press

For the third time this year, the U.S. Supreme Court has granted a stay of execution to former Army recruiter Cleve Foster, who was scheduled to die Tuesday for the rape-slaying of a woman in Fort Worth nearly 10 years ago.

The court's latest ruling Tuesday afternoon came as Foster met with one of his lawyers in a holding cell. A Texas Department of Criminal Justice spokesman delivered the news.

"He thanked God and pointed to his attorney, saying this woman helped save his life," prison spokesman Jason Clark said.

He also said Foster repeated his insistence that he was innocent.

"I did not do this crime," Foster told him. "I know there are those out there who have hard feelings against me, but I did not do this."

Unlike his previous trips to the death house in Huntsville, the reprieve came before Foster was served his requested final meal, which included two fried chickens and a 5-gallon bucket of peaches.

"You're always hoping for the best and fearing the worse," said Maurie Levin, the attorney who was with Foster. "I'm thrilled. It's extremely unusual to get three stays from the Supreme Court in nine or 10 months."

Foster immediately was returned to Death Row at a prison about 45 miles away in Livingston.

Foster and co-defendant Sheldon Ward were convicted of fatally shooting Nyanuer "Mary" Pal, 30, whose body was found in a ditch by workers in west Fort Worth in February 2002. Ward died last year of brain cancer.

The Supreme Court's brief order said the reprieve would remain in effect pending the outcome of Foster's request for a review, known as a petition for a writ of certiorari. If the writ is denied, the reprieve is lifted, clearing the way for a fourth execution date to be set.

In January, Foster won a last-minute reprieve so the justices could further review an appeal in his case. The court later denied a hearing, the reprieve was lifted, and a new date was set. Then in April, the high court again halted his execution when lawyers sought a rehearing on arguments that he was innocent and had poor legal help at his trial and in early stages of his appeal.

His lawyers returned to the high court with similar arguments that he is innocent and had previous deficient legal help, specifically asking the court to decide whether prisoners like Foster had a constitutional guarantee for a competent lawyer when he first raised claims in a state appeals court.

State lawyers said that the issues had been resolved by the courts, that the Supreme Court has ruled there's no constitutional right to a competent state-provided lawyer for appeals, and that the last-day appeal was just another attempt to delay Foster's punishment.

On May 31, justices declined without comment to hear Foster's motion for a rehearing, and on June 16, for the third time, state District Judge Sharen Wilson, who presided over Foster's original 2004 trial, set an execution date.

The Supreme Court has accepted a non-death-penalty case out of Arizona that deals with appellate legal representation, and Levin speculated that could be related to the court's actions in Foster's case this time.

"After that, it's tea leaves," she said.

The Texas attorney general's office, which contested Foster's appeals, said it had no comment Tuesday beyond its arguments to the courts. Lucy Nashed, a spokeswoman for Texas Gov. Rick Perry, who is also a Republican presidential candidate, said the reprieve was "a matter for the courts" and declined further comment.

Second Texas reprieve

Foster's reprieve was the second in Texas in less than a week. On Thursday, the Supreme Court halted the execution of Duane Buck, a black man convicted of a double murder in Texas 16 years ago. Buck's lawyers contended that his sentence was unfair because a psychologist testified during his trial that black people were more likely to commit violence.

Foster would have been the 11th Texas prisoner executed this year.

Today, Lawrence Russell Brewer, 44, is set to die for participating in the notorious dragging death of James Byrd Jr. in Jasper.

In Foster's case, a gun identified as the murder weapon was found in a motel room where Foster and Ward were living. Authorities determined that the same gun was used two months earlier to kill another woman, 22-year-old Rachel Urnosky, at her Fort Worth apartment. She also had been raped.

Foster and Ward were implicated but never tried in her slaying.

An aunt and uncle of Pal and the parents of Urnosky were to witness the execution. They had not arrived at the Huntsville prison when the court's order was received.

The Urnoskys had not returned a phone message seeking comment by Tuesday evening.

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