HUNTSVILLE, Texas (AP) — The U.S. Supreme Court blocked the first scheduled execution of a Texas death row inmate using a new drug cocktail on Tuesday, although the proposed lethal mix was not mentioned in the court's decision to reconsider the merits of the condemned man's appeal.
Cleve Foster was to have been executed hours later for the 2002 slaying of a Sudanese woman in Fort Worth — the first Texas execution since the state switched to pentobarbital in its three-drug mixture. The sedative has already been used for executions in Oklahoma and Ohio.
On Tuesday morning, the high court agreed to reconsider its January order denying Foster's appeal that raised claims of innocence and poor legal help during his trial and early stages of his appeals.
Foster's lawyers also have argued that Texas prison officials violated administrative procedures last month when they announced the switch to pentobarbital from sodium thiopental, which is in short supply nationwide. Foster's lawyers contend that the rules change in Texas required more time for public comment and review. Lower courts have rejected their appeals and attorneys had planned to take their case to the Texas Supreme Court.
At the same time, defense lawyers sought a rehearing before the U.S. Supreme Court on the high court's rejection of an appeal in January. At that time, it stopped Foster's execution at the last moment, then rejected his claims a week later, clearing the way for Tarrant County authorities to schedule the execution for Tuesday.
In its brief ruling, the court gave prosecutors 30 days to respond to the defense petition, after which the Supreme Court will decide if the appeal has merit.
Foster's defense team said they are encouraged by the ruling.
"It's not a common procedural posture," Maurie Levin, a University of Texas law professor and one of Foster's attorneys, said. "We're very happy for the stay and that the Supreme Court will be looking at important issues raised."
The execution drug issue was not before the U.S. Supreme Court and the court's order did not mention it.
The drug swap is the most significant change in the execution procedure in Texas since the state switched from the electric chair to lethal injection when it reinstated capital punishment in 1982. Pentobarbital is a sedative used in surgery and to euthanize animals.
Levin said the reprieve, while not related to the drug change, would allow for additional examination of the new execution procedure and "give Texas more time to do it right."
Beginning in December 1982, Texas executed 466 inmates using a series of three drugs including sodium thiopental, an anesthetic. Two people have been put to death this year. At least six are set to die in the coming months, including one in May.
Foster, 47, blames his conviction on lawyers he didn't trust, what he called false testimony from police and prosecutors he contends misled jurors.
"To me, they were pretty much pulling stuff out of their hats," he told The Associated Press previously from death row.
Foster has long insisted that his friend, Sheldon Ward, was responsible for fatally shooting Nyaneur Pal, 30, in February 2002.
Ward died of cancer last year while on death row. The two, described as inseparable buddies, were convicted separately.
The men also were charged but never tried in the shooting death of Rachel Urnosky, 22, at her Fort Worth apartment in December 2001.
Pal was seen talking with the pair at a Fort Worth bar on Valentine's Day 2002. Her body was found hours later in a ditch. 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 showed both men had sex with her. Foster said he was passed out from sleeping pills when Pal would have been killed. Ward said the sex was consensual and that Foster was unconscious when Pal had sex with him.
Foster acknowledged he and Ward had been at Urnosky's apartment but said they left when she refused to have sex with them. She was found shot to death in her bed.