Texas DR Inmate Cleve Foster Disputes Use of Execution Drug

Cleve Foster

A former Army recruiter convicted of killing a woman he met in a Fort Worth bar nine years ago is scheduled to be executed Tuesday, though his lawyers were seeking a last-minute reprieve on Monday as part of a challenge to one of the drugs that is to be used to kill him.

The recruiter, Cleve Foster, 47, a veteran of the Persian Gulf war, was convicted in 2004 of killing Nyanuer Pal, 28, a Sudanese immigrant who was known as Mary. Mr. Foster’s roommate, who was also convicted in the murder, died in prison last year.

For Texas, which executes more prisoners than any other state, Mr. Foster’s case has been complicated by a nationwide shortage of sodium thiopental, one of three drugs that have typically been used in executions.

The shortage, which has vexed prison authorities in states that permit the death penalty, led Texas to decide to substitute pentobarbital for sodium thiopental. Pentobarbital is a sedative that is often used to euthanize animals and to treat seizures in humans.

At least two states, Oklahoma and Ohio, have executed inmates since December using pentobarbital after running out of sodium thiopental.

Hospira Inc., which had been the only American manufacturer of sodium thiopental, announced in January that it would no longer produce the drug in the United States. The company had planned to resume production at a plant in Italy, but the Italian authorities said they would not permit the export of the drug if it might be used for capital punishment.

As recently as January, 34 of the 35 states that allow lethal injections for executions used sodium thiopental, usually administered as the first of three drugs that are intended to prevent pain, inhibit muscle movement and then stop the heart.

Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, said Monday that Mr. Foster’s execution was one of seven scheduled in Texas through August.

Ms. Lyons said that the state had plenty of sodium thiopental on hand, but that it reached its expiration date at the end of March.

Maurie Levin, one of Mr. Foster’s lawyers, said Monday that Texas had 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 say the state used an invalid federal permit to buy pentobarbital.

“Given the frequency of which we carry out this ultimate act, it should be done in compliance 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.”

On Monday, the Third Court of Appeals of Texas upheld a lower court ruling that rejected the defense’s argument, but Mr. Foster’s lawyers said they would take their challenge to the State Supreme Court.

The story of Mr. Foster, a former sergeant first class, has been full of twists since he was arrested in the 2002 murder of Ms. Pal.

In January, he was just hours from being executed — he had eaten his final meal — when the United States Supreme Court stayed the 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 in a wooded area the next morning. She had been shot once in the head.

The two had met Ms. Pal at Fat Albert’s bar in Fort Worth. Witnesses said the three had chatted there, and that as Ms. Pal drove away, the two men followed in Mr. Foster’s truck.

Mr. Ward, who was 30 when he died of a brain tumor last year, had been one of the people Mr. Foster helped recruit into the Army. Prosecutors say that Mr. Ward pulled the trigger, but that Mr. Foster assisted him, including helping him dump Ms. Pal’s body.

Mr. Foster has said he had taken sleeping pills and was passed out at the time of Ms. Pal’s death.

In a statement on a Facebook page created for him, Mr. Foster has written: “I was convicted February 2004, and am now on death row waiting to die for a crime another man has confessed to. I am not a rich man nor was my family able to hire the proper lawyers willing to fight and prove my innocence. I do enjoy writing people, so if you’d like to write please do. I would also like to ask those who pray, please add me to your prayer list.”

Source: The New York Times, April 5, 2011

REGULATING DEATH IN THE LONE STAR STATE: Texas Law Protects Lizards From Needless Suffering, But Not Human Beings

As Texas prepares to execute Cleve Foster on April 5, 2011, disturbing new facts have emerged in relation to Texas’ lethal injection protocol. The Texas Department of Criminal Justice (TDCJ) has recently announced its intention to begin using a new drug in the lethal injection process, without allowing for any expert analysis or public scrutiny of the suitability of the new drug—pentobarbital. In fact, there is no evidence that Texas has ever engaged in a meaningful assessment of whether the drug can or should be used in combination with the other two drugs administered in lethal injections, pancuronium bromide and potassium chloride. This lack of assessment and transparency is even more troubling given the concerns of prominent anesthesiologists about the efficacy of pentobarbital in the execution of human beings and the risk that the three drugs used in combination could lead to an excruciatingly painful death.

Texas’ lax attitude regarding the taking of human life contrasts sharply with its enactment of detailed regulations to ensure that animals suffer no pain when they are euthanized. Animal euthanasia laws provide strict certification requirements for euthanasia technicians and regulate acceptable methods of intravenous euthanasia down to the correct dosage per kilogram of an animal’s body weight.

Although pentobarbital is often used in the euthanasia of cats and dogs, the AVMA Guidelines on Euthanasia explicitly state that “a combination of pentobarbital with a neuromuscular blocking agent is not an acceptable euthanasia agent.” As a result, veterinarians in Texas are prohibited from using the combination of drugs that the Texas Department of Criminal Justice has deemed suitable for the execution of human beings.

Professor Alper writes,

The crucial difference between the three-drug procedure used in lethal injections in humans and the anesthetic-only procedure used in animal euthanasia is the absence of the second and third drugs in the latter procedure. These are the two drugs that cause the pain and suffering if the first drug does not take. On the contrary, if the injection of the anesthetic fails to achieve its desired effect during an animal euthanasia, the animal feels no pain; the solution is to simply administer a second dose of the anesthetic.

The implementing regulations issued by the Texas Department of Health also regulate the dosage of euthanasia drugs. The Administrative Code provides that, for euthanasia by sodium pentobarbital, “A dose of sodium pentobarbital appropriate for the animal’s weight shall be administered to that animal.” According to the regulations, even fish, amphibians and reptiles executed with pentobarbital must receive 60 to 100 milligrams of the substance per kilogram of body weight. A dosage per weight requirement is used in animals to ensure that the euthanizing agent is effective. However, no similar dosage-to-body-weight requirement is required or used for lethal injection. In fact, no calculations are made whatsoever to account for body weight, heightened adrenaline and metabolism of the inmate, previous drug use, or other factors that can affect the efficacy of the anesthesia. Researchers have suggested that this may be a factor in the high number of lethal injections where they found indicia of consciousness at the time of death.

Click here to read the full report (Pdf).

Source: ACLU, Regulating Death in the Lone Star State, March 31, 2011
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