Nov. 10

TEXAS:

Widow drops death penalty lawsuit----Had sued judge after she blocked
husband Michael Richard's appeal

The lawsuit filed with great fanfare this week by an executed killer's
widow against a judge for blocking the inmate's last-minute appeal has
been dropped at least for now.

Civil rights lawyer Randall Kallinen said Friday that the dismissal is
part of his strategy and that Wednesday's news conference at the Houston
federal courthouse was not a publicity stunt.

"I really cannot divulge my strategy right now, but I'm sure it will
become evident in the near future," Kallinen said.

A day after filing, Marsha Richard withdrew the suit, which accused Texas
Court of Criminal Appeals Presiding Judge Sharon Keller of causing the
inmate's Sept. 25 lethal injection. The lawsuit said Keller violated
Michael Richard's due process rights when she ordered the court clerk's
office to close promptly at 5 p.m. on Sept. 25 before his lawyers could
file an appeal.

The notice of dismissal, filed Thursday by Kallinen, offers no
explanation. He declined to reveal whether he will file another case.

"I wish I could tell you, but the other side may use anything in the media
to their advantage," he said.

Legal experts said his strategy could range from second thoughts about his
legal theory to displeasure with the assigned judge.

"One reason might be that he realized that it was a frivolous suit and at
some point you'll be sanctioned if you persist in a frivolous suit. He
might have decided he got the publicity he wanted and why not dismiss it
now?" University of Houston law professor Peter Hoffman said.

It would have been less costly to amend the original claim than pay
another $350 civil filing fee, Hoffman added.

"It may be that he's going to reformulate his theory and he's going to try
again, but I think it will be difficult for him to come up with a viable
theory."

South Texas College of Law professor James Paulsen said Kallinen could be
judge shopping or perhaps the case contained an error.

"It may be that what he's doing is taking a free shot at another judge,"
Paulsen said, adding that it may backfire if the court gives him the same
jurist. The case was assigned to U.S. District Judge Melinda Harmon and
was scheduled for an initial conference in March before U.S. Magistrate
Judge Frances Stacy.

Another option involves making public statements about an active lawsuit,
instead of slinging accusations.

"Sometimes you are more protected when you are speaking about something
that is a matter of public record," Paulsen said.

Kallinen had the right to withdraw the case because the other side had not
responded, both experts said.

The lawsuit was filed a day after the state criminal appeals court said it
would accept emergency e-mail filings in death penalty cases to avoid a
repeat of Michael Richard's nationally controversial execution.

On the morning of Sept. 25, the U.S. Supreme Court agreed to hear a
challenge to the chemicals used for lethal injections in Kentucky. That
case alleges that the method of execution used in almost every
death-penalty state causes inmates to experience torture.

Throughout the day, Richard's attorneys worked to halt his execution on
the same basis.

The lawsuit claimed Keller's actions denied the condemned man his right to
file a proper request for a stay of execution with the U.S. Supreme Court
because the Court of Criminal Appeals had not had a chance to rule. Three
other state appeals court judges said they were available that evening and
could have handled Richard's appeal if they had known about it. The U.S.
Supreme Court denied the stay request.

Michael Richard, 49, was executed at 8:22 p.m. for the 1986 rape and
murder of a Harris County mother of seven.

Since then, all other executions in the nation have been halted pending
the outcome of the Kentucky case.

(source: Houston Chronicle)

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Saved from execution, convicted killer looks for another miracle

Kenneth Foster, who unexpectedly avoided certain death, believes other
miracles may be headed his way.

"I don't feel I've come this far to stop here," Foster said from the Texas
Department of Criminal Justice McConnell Unit, where he could be held for
the next 3 decades. "I think something more is going to happen... I don't
know where it's going to come from, but I do believe it's going to
happen."

Foster, 31, has reason for an optimistic outlook as the only condemned
Texas inmate to win a commutation from Gov. Rick Perry without the
prodding of a court.

The hours leading up to the news of his commutation were a jumble of fear
and terror, then a sudden turn to surprise, relief and joy.

He was in his cell on death row, expecting the parole board to answer his
plea for mercy two days before his Aug. 30 scheduled execution for being
present at a fatal shooting in San Antonio. Foster claimed he was in the
car when a robbery turned deadly and had no idea his companions intended
to kill anyone.

His death sentence had been the cause of protests and ultimately the
state's decision to spare him because he was condemned under the state's
law of parties, where anyone involved in a crime is held equally
responsible regardless of their role.

With less than 24 hours to live, prison officials and a squad of guards
showed up outside his death row cell one evening.

"They asked me to come out," he recalled. "I didn't know what was going
on. As I was coming out, it was like a frenzy out there.

"I laid down on the ground. I told them I'm not going anywhere until you
tell me where we're going. I was supposed to have my last visits the next
day."

Concerned about protests, prison officials altered their usual schedule
and planned to take him early to the death chamber in Huntsville, 45 miles
away. He'd get his final visits with relatives there, they told him.

"I was pretty upset," Foster said. "I couldn't say I trusted their word. I
was calling them terrorists. They were terrorizing me."

He was driven to the Huntsville Unit in a 4-vehicle caravan.

"It's real dark," he said of the holding cell just outside the death
chamber. "It's like a catacomb. It's like a dungeon, almost medieval
like."

The morning of his scheduled execution, he was permitted a visit with his
Dutch wife and an attorney.

His father unexpectedly walked in just before noon.

"He goes: '6-1'. He was ecstatic, crying," Foster said. That was the
parole board vote for commutation.

It "might be your lucky day," a prison official said.

Then the warden walked up, a cell phone in his ear, and told Foster his
sentence was being commuted.

"I said: 'Right now?' He said: 'Right now.'

"I dropped and said a prayer," Foster said. "I was thinking about giving
thanks."

He was whisked back to death row, where a few people he knew offered
congratulations.

"They got me out of there quick," he said. "And I was happy to go, too."

Less than 2 weeks later, he was transferred to the McConnell Unit, his new
home about 100 miles south of San Antonio.

"When I was on death row, I surrounded myself with individuals who thought
more like me. Here, you got a bunch of these young guys. I'm around a lot
more inmates now."

On death row, inmates are in near total isolation, even spending their
daily hour of recreation by themselves. Meals are served in the cells.

Now he gets some meals in a prison day room.

"Even the food is better," he said, reveling over the butter on his
breakfast tray. "I hadn't seen butter for years."

Despite all the publicity over his case, he said there were only a few
inmates and officers here who were aware of his past.

"I'm not so talkative," he said. "It's a positive thing because I like to
stay out of the mix of things."

But when asked about his history, he'll volunteer: "I just got off death
row."

"That's kind of a conversation starter," he laughed.

His new sentence, along with the time he's already been imprisoned, means
he doesn't become eligible for parole until 2036.

"I've been through hell. I know what the worst is like. And I survived
it," he said.

"I'm going to keep fighting, I'm going to keep appealing. I'm looking to
find an appeal if I can. It's going to be kind of hard. I've been through
so many of my appeal processes already."

He said he thinks about Nelson Mandela, who spent 27 years in prison in
South Africa "in conditions that we probably couldn't imagine." And of
friends he left behind who have spent decades on death row.

"If I have to do it, I can do it," he said of the years waiting for parole
eligibility while acknowledging a parole is not guaranteed. "I don't want
to. I'm hoping I don't have to."

Foster and a companion, Mauriceo Brown, were tried for the Aug. 15, 1996,
shooting of Michael LaHood on the driveway of LaHood's home in San
Antonio. Foster insisted he was 80 feet away in a car, had no idea Brown
was going to kill LaHood and didn't participate in the shooting.

A Bexar County jury convicted Foster and Brown of capital murder and
sentenced both to death. Brown was executed last year.

Perry, a staunch capital punishment supporter said it was the "right and
just decision" in this case, noting he was troubled that the men were
tried together.

More than 17,000 messages of support for Foster had poured into the
governor and the parole board.

"How can 17,285 people be stupid?" Foster asked. "How could all those
people be wrong?"

12 messages called for his execution, and LaHood's relatives accused Perry
of bowing to political pressure.

"I appreciate it," Foster said of Perry's decision. "He did a good thing."

He said he planned to write Perry and the parole board thank you letters
but his typewriter broke.

"I'm going to do my best to not let these people down," Foster said. "Part
of my campaign was showing not everybody on death row is a monster killer.

"This has a lot to do with pride for me."

(source: Associated Press)

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I need coffee