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Green Light on Foster

Near the end of today's Supreme Court orders list, as usual, are several cases in which the Court denied rehearing.  The Court almost never grants rehearing, so these are usually routine.  For example, California murderer Scott Pinholster wants the Court to reconsider the case it just decided April 4, and the Court said no.  (Dog bites man => not news.)

But one of these orders is actually different. On April 5, the Court took the unusual step of staying an execution, that of Texas murderer Cleve Foster, while it consider his petition to reconsider the denial of review of his case about three months earlier.  The order further provided, "Should the petition for rehearing be denied, this stay shall terminate automatically."  So today's denial is, in effect, a go-ahead for the execution.  Melody McDonald has this story in the Fort-Worth Star-Telegram.

The petition for rehearing claimed that Foster's case was like the Maples case, in which the Court granted certiorari and set the case for full briefing and argument next term.  He claimed that the state was responsible for his default of his claims and that his attorney was so grossly deficient as to not be acting as his agent.  What does the go-ahead in Foster portend for Maples?  The Court would have to know that it is not going to make a rule so sweeping that it would give relief to Foster, as he will very like be executed months before the Court decides Maples.

Oh, and have you heard the people who obsess over "race of victim disparity" cheering the fact that Texas is about to execute a white murderer for killing a black victim?

[sound of crickets]


This stay never should have been granted, particularly on an out-of-time motion for rehearing. The Supreme Court, in unanimous opinions, has counseled against abusive stays. Moreover, Foster had had the full panoply of his appeals/post-conviction/habeas review. One would think the state's interest in carrying out its criminal judgment would be at its zenith, yet the Court, unexplained, decided to do what it did.

With respect to the W/B execution--those who obsess will likely note that an uncharged white victim of this killer was what pushed the death sentence.

Maples should lose 9-0. He won't, but he should.

I don't have access to the petitions for rehearing but I wonder if they are not being used as a stalling mechanism.

I know Linda Carty also filed a pet. for rehearing which was denied almost a year ago. However, she has yet to be given an execution date.

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