The New York Times
A Horror at Every Turn
April 7, 2011
Cleve Foster, a former Army recruiter convicted of murder, was scheduled to be executed earlier this week in Huntsville, Tex., when the Supreme Court rightly granted a stay pending a review of his case.
There are so many reasons why the death penalty should be repealed everywhere. It is barbaric, and a terrifyingly high number of innocent defendants have been placed on death row or executed. Mr. Foster’s petition makes a strong case that, but for his ineffective state-appointed trial lawyer, he would not have been sentenced to death and that the evidence against him leaves conspicuous room for doubt about his guilt. It also makes a strong case that, but for the weakness of a second state-appointed lawyer who filed a writ of habeas corpus, he would have been granted a new trial.
The Supreme Court must decide whether Texas violated Mr. Foster’s rights by providing an ineffective habeas lawyer. The answer must be, “Of course.” Otherwise, the state will be allowed to pretend to satisfy his right to be heard while callously denying it. “This is my Life,” Mr. Foster wrote the lawyer when he fired him. “I feel you treated me Like a Dog.”
The means for Mr. Foster’s planned execution are also tainted. Last month, the Texas Department of Criminal Justice said it would use pentobarbital as the sedative in place of sodium thiopental in the state’s three-drug lethal injection protocol. (Spookily, in apparent violation of federal law, it was sent using a federal license number registered to the Huntsville Unit Hospital, which was shut down in 1983 because of its abysmal treatment of prisoners.)
Rick Thaler, director of the Correctional Institutions Division, made the switch to the new, unproven protocol without consulting any doctors or other medical professionals. Also in apparent violation of federal law, the prison system is not following prescribed steps to safeguard the drug to ensure there is no tampering.
The suffering of any inmate during execution is inexcusable. The execution of an innocent person is an even greater horror. The Supreme Court should give Mr. Foster the chance to prove his innocence.