Call Texas Governor Perry to register your opposition to Tuesday’s scheduled execution in Texas of Cleve Foster, who is the first person scheduled to be killed by Texas using a new drug after the state was unable to legally acquire the drug used in past executions.

Perry’s phone number is  512 463 2000. Email Perry through his website here. Urge Perry to use his power to stop this execution by issuing a 30 day stay of execution.

People will gather in Austin outside the gates of the Texas Capitol at 11th Street and Congress Avenue at 5:30 PM on Tuesday April 5 to protest the scheduled execution of Cleve Foster.

Read a statement by Foster’s attorney about the state’s plans to use a new execution drug in his scheduled execution, which says in part:

“Texas is rushing to carry out an execution using an entirely new protocol, but they refuse to fully disclose basic information, such as whether any medical authorities were consulted regarding the incorporation of a new drug; the source of the pentobarbitol; and the training of personnel who will implement the new procedure for the first time. 

“Prison officials are not medical professionals. They cannot be trusted to change a medical procedure in the dark of night without public scrutiny, especially when there is such a minimal track record on the use of pentobarbital in lethal injections. To ensure that the new protocol comports with Texas’ constitution, we need — and Texas law requires — a deliberative process with appropriate authoritative input and public comment.  We expect our state officials to not conduct its business in secret – particularly when it concerns the ultimate act that Texas can take against one of its citizens.  The rush to execute should not trump the need to ensure that appropriate safeguards have been taken, or the far reaching implications of circumventing a deliberate process, especially when it is TDCJ that has waited until the last minute to decide on or announce the change in how it plans to carry out executions.”

Foster maintains he was not responsible for the murder of the victim. His co-defendant, who died in prison awaiting execution, also said that Foster did not kill the victim. Read more about the case in legal documents supplied to the Dallas Morning News by Foster’s sisters.

From the Houston Chronicle:

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.

The Texas House Criminal Jurisprudence Committee has voted in favor of a bill to create an Innocence Commission. It is HB 115 by Ruth McClendon and Pete Gallego. The vote was 7 for, 1 against, and 1 absent. It now goes to the Calendars Committee, which will vote on whether it gets scheduled for a floor vote.

This was one of the issues we advocated for on the “Day of Innocence” and Statewide Lobby Day Against the Death Penalty on March 16.

HB 115

Texas House panel considers death penalty bills

By SOMMER INGRAM Associated Press
March 29, 2011

AUSTIN, Texas — A Texas lawmaker wants to suspend executions in the nation’s most active death penalty state and create a commission to study whether the process needs to be fixed.

A state House committee heard testimony Tuesday on a bill by Rep. Harold Dutton, D-Houston, that would create the Texas Capital Punishment Commission and establish a two-year moratorium on executions while the commission completes its study.

The nine-member commission would propose legislation to fix any inequities in state capital punishment procedures based on the study’s findings.

Advocates of the bill say that Texas has long needed to thoroughly vet its use of the penalty. At least 12 Texans have been exonerated from death row, and supporters say the state must carefully scrutinize the statute to erase any doubt about whether death row inmates are actually guilty.

“That’s a flaw in our system that I think deserves some attention from this Legislature,” Dutton said. “And we ought to stop the system from executing people while we fix it.”

Scott Cobb, president of Texas Moratorium Network, likened the penalty to a plane that has crashed and needs examination.

“After a plane crash, we look to see what the problem was,” he said. “The death penalty is a flawed system, but one we haven’t looked at in a comprehensive way to see if we can improve the system to protect people who are innocent.”

Dutton’s bill was just one of several bills the committee left pending to change the state death penalty and alter procedures in capital felony cases.

Dutton and Rep. Borris Miles, D-Houston, are working to amend a state law that has prompted nationwide criticism.

A Texas statute known as the law of parties allows a person to be held liable for a murder as a co-conspirator and possibly face the death penalty even if they didn’t physically commit the crime.

The bills would allow co-defendants to have separate trials in death penalty cases. Dutton’s bill would prohibit death sentences in such cases.

Family members and friends of Texans convicted under the law testified before the committee, pleading with lawmakers to fundamentally change the statute that unfairly sent their loved ones to death row.

The statute caught lawmakers’ attention in 2007 when the case of Kenneth Foster spurred national outrage and a massive grassroots effort to prove his innocence.

Foster was the driver of getaway car in a 1996 robbery-turned-shooting. Foster was tried with the murderer, and the jury invoked the law of parties to determine that Foster should have anticipated that the robberies could end in murder.

“Everything that applied to one, applied to the other,” Foster’s father, Kenneth Foster, Sr., said of the trial. “It was unfair for each one because the negative weight took a toll on both throughout the entire trial.”

After spending 10 years on death row, Foster was hours away from being executed as an accomplice to murder when Gov. Rick Perry spared his life.

Following the Texas Board of Pardons and Paroles recommendation that Perry grant Foster a death row reprieve, the governor expressed concern about defendants being tried at the same time and urged lawmakers to re-examine the practice.

“Foster’s story is a perfect example of why this needs to be changed,” Miles said. “To sentence a man to death who has not committed murder himself is inhumane, cruel and fundamentally unjust.”

Those advocating for reform say the law is based in unrealistic expectations akin to mind-reading.

“This law cries out for change,” said attorney Mary Phelps. “It’s so broadly written that it actually could involve people who had no connection to the eventual crime.”

Bill calls for two-year moratorium on executions in Texas

Fort Worth Star-Telegram
March 29, 2011
AUSTIN — Clarence Brandley spent 10 years on Death Row for the slaying of a 16-year-old girl, a crime he didn’t commit. Now, more than two decades after being cleared, the former custodian hopes to convince Texas lawmakers that it’s time to abolish the death penalty in Texas — or least impose a moratorium on executions.

“To me, it’s just a tool that prosecutors use to enhance their political careers,” he said.

Maura Irby of Houston embodies the opposite side of the debate. Her husband, Houston motorcycle officer James B. Irby, was killed in June 1990 while making a routine traffic stop. A passenger, a paroled convict, shot him.

If the death penalty is abolished or suspended, Maura Irby said Tuesday, “what kind of message does that send to our law enforcement if we’re not making it safe for them to do their jobs?”

The opposing perspectives of one of society’s most contentious issues were on display Tuesday as the House Criminal Jurisprudence Committee heard testimony in the first extensive death penalty hearing of the 82nd Legislature.

Texas has executed more inmates than any other state — 446 since the death penalty was reinstated in 1976. Five have executions scheduled through midsummer, including two from Tarrant County.

One is Cleve Foster, who is scheduled to be executed Tuesday for the 2002 rape-slaying of Mary Pal, a Sudanese immigrant. The other is Cary Kerr, whose execution date is May 3 for raping, beating and strangling Pamela Horton in 2001. Foster would be the first Texas inmate executed with a new three-drug mixture.

Moratorium proposed

Among the bills considered Tuesday was HB1641 by Rep. Harold Dutton, D-Houston, which would impose a two-year moratorium on executions while a select commission investigates how capital punishment is carried out in Texas. Dutton and Rep. Jessica Farrar, D-Houston, are also sponsoring separate bills to abolish the death penalty.

Dutton said his proposal is designed to “make sure that the people who are factually innocent don’t wind up being legally guilty.”

Former Gov. Mark White, who oversaw 19 executions while he was in office from 1983 to 1987, endorsed the moratorium in a letter to the committee. White, a Democrat who has previously raised questions about the death penalty, said he believes that the review is needed to deflect “the possibility of our justice system executing an innocent individual.”

Charles Terrell, former chairman of the Texas Criminal Justice Department, also supports the moratorium and investigative commission, calling Dutton’s bill a “matter of common sense.”

“Texas does not need to be executing innocent people, and what harm does a moratorium do?” he said. He noted that Death Row inmates “would not be released from prison while the study is done.”

More than 40 exonerations in Texas — including several of Death Row inmates — have fueled efforts to abolish or suspend the death penalty.

Opponents also cite the high-profile case of Cameron Todd Willingham, who was executed in 2004 after a Corsicana jury convicted him of killing his three daughters in a house fire.

Several fire experts have said that the arson investigation was based on outmoded science, raising the possibility that the fire may have been accidental. The Texas Forensic Science Commission is reported to be nearly finished with an inquiry into the case.

“Texas has a problem with its death penalty system and we need to take a two-year pause on executions,” said Scott Cobb of the Texas Moratorium Network, a leading supporter of Dutton’s bill.

But Charley Wilkison, director of public affairs for the Combined Law Enforcement Associations of Texas, said his organization strongly opposes Dutton’s bill, saying that lifting or suspending capital punishment would endanger officers.

FOX 7 in Austin reported on the hearing on death penalty bills March 29, 2011 in the House Criminal Jurisprudence Committee, including Rep Harold Dutton’s bills for a moratorium on executions and abolishing the death penalty.

Click here to watch the video of the FOX 7 news report, including clips of Clarence Brandley, who spent ten years on death row as an innocent person, Rep Dutton and Texas Moratorium Network president Scott Cobb.

Click here to watch a video from MyFox Austin about the hearing in the House Committee on Criminal Jurisprudence on a bill to establish a two year moratorium on executions and to create a commission to study the death penalty, and another bill to abolish the death penalty, both filed by State Rep Harold Dutton. Clarence Brandley, an innocent person who spent ten years on death row in Texas for a crime he did not commit, testified to the committee. He is shown being interviewed by MyFoxAustin.