US Supreme Court [official website] Justice Antonin Scalia on Tuesday ordered a stay of execution [text, PDF] for Cleve Foster [TDCJ profile; case materials], a former Army recruiter and convicted murderer. The execution, which had been scheduled for Tuesday evening, was stayed for the third time [AP report] and will remain so until the court decides whether to grant certiorari in the case. Foster was convicted of the murder and subsequent attempt to dispose of the body of a young woman in Texas in 2002, but he maintains that he is innocent and argues ineffective counsel resulted in his conviction. Prior to Tuesday's order, his execution was most recently stayed [JURIST report] in January 2011.
This is the second time this month the Supreme Court has blocked a Texas execution, pending a decision on certiorari. Last week, the court ordered a stay of execution [JURIST report] for Duane Buck. Buck's appeal is not arguing his innocence, but rather improper practices during his sentencing hearing. A clinical psychiatrist testified that Buck, a black man, was more likely to commit another crime due to his race, and thus should be given the death penalty. The same psychiatrist had testified similarly in six other sentencing hearings that resulted in the death penalty, all of which have been overturned. The appeal alleges a violation of equal protection created when the prosecution asked leading questions to elicit racially-charged responses and when then-attorney general John Cornyn [official website] guaranteed sentencing rehearings in the seven cases. Under Cornyn's administration, six of the rehearings took place, but his successor, Greg Abbott [official website], has not conducted one for Buck, whose legal team has lost appeals in all courts lower than the Supreme Court as well as an appeal of clemency to the Texas Board of Pardons and Paroles. It is unknown when the court will accept or deny certiorari.