Sunday, December 12, 2010

The Disturbing Case of The Disturbing Cleve Foster

Cleve Foster is scheduled to be executed by Texas on January 11, 2011. [Now scheduled for September 20, 2011.] [Now scheduled for September 25, 2012.] I've been recently keeping my eye on upcoming executions to see if there are any cases I should be scoring. There are quite a few sites proclaiming that Cleve Foster is innocent of the crime for which he is scheduled to die. I decided to take a look.

Foster's supporters, and there seem to be more than a few, make an interesting prima facie case that he is innocent. There is no forensic evidence trying Foster to the crime; another person confessed to and was convicted of the crime; that other person claims that Foster was not involved; and two witnesses claim they saw only one person enter and leave the crime scene.

Nonetheless, I think it is highly likely that Cleve Foster is guilty.

On the 13th of February in 2002, Cleve Foster and his friend / roommate Sheldon Ward were in a Fort Worth bar known as Fat Albert's. There they met Nyanuer "Mary" Pal. According to the bartender, Pal interacted primarily with Ward while Foster played pool until the bar closed at 2 AM on the 14th. The three walked to the parking lot where they talked for a few minutes. Pal left in her car, and Foster and Ward followed close behind in Foster's pickup. According to the bartender, they were right on her bumper.

Approximately 8 hours later, Pal's nude body was discovered in a ditch far off a road in Tarrant County. She had been shot in the head. DNA testing absolutely identified Foster as a contributor of the semen in her vagina, and identified Ward as possibly a minor contributor. DNA testing also identified Ward as the contributor of semen in Pal's rectum.

Pal's car was found in the parking lot of the apartment complex where she lived. The car was unlocked. Her cell phone was sitting in the front seat.

Pal's blood and tissue was found on a gun recovered during a search of the motel room shared by Foster and Ward. Pal's blood was found on Ward's clothes in Ward's car.

In the back of Foster's truck, police found numerous and sundry items soaking in cleaning fluid. The items included: 3 pairs of shoes, bungee cords, black gloves, a bicycle pump, a hatchet, a sheathed knife, 2 slingshots, a trailer hitch, coat hangers, a strap, a bleach bottle, and a liquid detergent bottle.

There is no doubt that Ward was involved in the killing of Mary Pal.

Ward Story #1

Within hours of the police collecting his DNA samples, Ward decided to move from the motel room that he had been sharing with Foster. Ward called a friend, Duane Thomas, and asked if he could stay with him. Ward told Thomas during that phone call that he was in trouble because he had killed someone. Thomas drove to the motel to pick up Ward. As Ward and Thomas left, Ward told Thomas that he followed a girl home from a bar, forced her into Foster's truck at gunpoint, took her out to the country, raped her, and blew her brains out. Ward did not mention Foster.

This freaked Thomas out sufficiently that he stopped at a store and contacted the police. Ward was promptly arrested. Ward provided an audiotaped statement to the police that differed in considerable detail from what he had just told Thomas.

Ward Story #2

Ward told the police he been drinking heavily and using cocaine on the night of the murder. He and Pal made arrangements to meet after Fat Albert's closed. He and Foster went back to their motel room where Foster "pretty much passed out" on the bed. Ward drove to Pal's apartment in Foster's truck and picked Pal up. Ward and Pal had consensual vaginal and anal sex on the front seat of Foster's pickup, then drove to the motel room where they had vaginal sex.

Ward and Pal left the motel room and drove around "a little bit." Ward recalled standing over Pal's body lying on the ground with a gunshot wound to her head and the gun in his hand. He dumped Pal's clothes in a dumpster, but couldn't remember where. He put his bloody clothes in his car at the motel, called  Duane Thomas, told him he had sex with a girl and killed her and asked for a place to stay. Just before moving out of the motel, he left a note for Foster apologizing for involving him.

In that note, Ward told a slightly different story still, adding details that, if true, would completely exculpate Foster.

Ward Story #3

In his note, Ward apologized to Foster for involving him in the crime, explained that he had drugged Foster with sleeping pills, and had Pal "ride" Foster while he slept. Ward then left with Pal in Foster's truck. Those details would explain Foster's semen in Pal's vagina, and would make Foster unaware of Ward's murder of Pal.

Foster Story #1 

The variety of Ward's stories was exceeded by Foster. In version #1, Foster claimed that Pal had never been in his truck.

Foster Story #2

In version #2, Foster conceded that Pal may have leaned inside his truck.

Foster Story #3

In version #3, Foster explained that Pal rode around in his truck with him and Ward, that they dropped her off at her car at the bar where they met.

Foster Story #4

In version #4, Foster explained that he and Ward followed Pal to her apartment. Pal voluntarily went with them to their motel room in Foster's truck. After taking sleeping pills and drinking beer, he fell asleep while Ward and Pal kissed. He awoke to find Pal performing oral sex on him. Ward told Foster he was going to take Pal home.

Foster Story #5

In version #5, Foster adopted Ward Story #3, the one that finally explained how his semen came to be inside Mary Pal, the one that explained how he could have been totally unaware of Ward's murder of Mary Pal.

Police Theory of the Case

In an effort to prove that Foster must have participated in the murder of Mary Pal, they argued that Pal was killed elsewhere and transported to the spot she was found, far from the road. They argued further that Ward could not have done this by himself, that Ward was only 5' 6" tall and weighed only 140 pounds. Mary Pal, by comparison was 5' 7" tall and weighed 130 pounds. Foster on the other hand was 6' 0" tall and weighed 225 pounds.

They claim also that there was no blood splatter consistent with a gunshot wound to the back of Pal's head, that there was no pool of blood consistent with a such a head wound. (They did not apparently claim that there was no blood, only that the blood was not spattered and pooled as expected of a head wound.)

They noted as well that the soles of Pal's feet showed no evidence of walking to the location, and that her arms were raised as if she had been carried by her arms and legs.

Foster's Rebuttal

Foster and his supporters attempt to convince others of Foster's innocence by accepting Ward's story, the one told by the note he left behind. The evidence that Foster helped carry Pal to the location where she was found is not particularly overwhelming.

To buttress Ward's story (#3), Foster's supporters argue that the crime scene photos show the area to be exceptionally bloody, inconsistent with Pal being killed elsewhere and carried to the scene. One writer claimed to have a copy of the crime scene photos and claimed further they disproved the police theory. I emailed that person, asked for a copy, and promised to properly account for what the photos showed when I wrote of the case. I still await a response to that request.

To further buttress Ward's story (#3), Foster's supporters argue that two witnesses say they saw one person chase Pal into the woods, and the same person emerge from the woods. That story turns out to irrelevant at best and bogus at worst. I believe it does harm to Foster's case to continually promote it. Here's the skinny on those eyewitnesses, including the details Foster's supporters keep from their readers.

Jalissa Polk and her nine-year-old daughter informed police that, on either February 12 or 13, at about 8:30 PM, they were arriving home when Polk saw a black, 4-door mini-blazer-type car parked near the driveway entrance to her apartment complex. The driver's door and the rear passenger door were open. There appeared to be hand prints smeared on the front windshield. Polk saw no one inside the car.

Once Polk was inside her apartment, she heard a gunshot. Her daughter, Candice, ran inside and told her a man was chasing a screaming woman. Candice told the police she saw a black man and a black woman yelling at each other near the car. The woman was nude and the man had gun in  his hand. The man chased the woman across the street into the woods. She heard a gunshot, and then saw the man run back to car.

There are numerous problems with the alleged eyewitness testimony. The car described by Jalissa Polk and her daughter looked nothing like Pal's car, Ward's car, or Foster's truck. The two witnesses described a black assailant, though Ward is white. Most significantly, perhaps, they describe Pal as being murdered around 8:30 PM on February 12 or 13, but the bartender saw Pal alive at 2 AM on February 14. Whatever Jalissa Polk and her daughter may have seen, it was not Ward chasing Pal.

The Kicker

I'm not sure how I would have voted had I been a juror at Foster's trial. It would depend, of course, on all the information provided at trial, not just the summary I have been able to compile here. I would be suspicious of Foster's ever-changing, self-serving stories. On the other hand, I would find wanting the police evidence that Foster must have carried Pal to the murder scene. There was less evidence still that Foster had participated in the killing. I believe they would have convinced me that Foster more than likely was involved in the murder, but I'm not sure they would have proven it to me beyond a reasonable doubt. I would have been angry and frustrated as I struggled with my vote.

As a researcher, I learned something I would not have learned as a juror, at least during the guilt / innocence phase of the trial. I learned something about Foster's past behavior that had a more powerful impact on me than any other instance of a defendant's past behavior. I learned that Ward and Foster killed another woman under similar circumstances just two months prior to the Pal murder.

In a statement Foster gave to the police (which was admitted into evidence only during the punishment phase of Foster's trial) Foster spoke about a previous murder allegedly committed only by Ward. He claimed that in December 2001, he and Ward had consensual sex with Rachel Urnosky, a young woman they both had just met in the parking lot of Foster's former apartment complex. Foster and Ward left Rachel's apartment and returned to Foster's truck. Ward then returned to Rachel's apartment for a short while. Days later, Ward showed Foster a newspaper clipping about the murder of Rachel Urnosky.

It's extremely likely Foster was lying about Urnosky participating willfully in three-way sex with imperfect strangers. Urnosky was a recent college graduate. She had moved from Lubbock to Fort Worth to work as a manager in a store at a nearby mall. She had just that month become engaged to a young man she met while in college. That young man lived in the same apartment complex as she did. She had in fact just stopped by her fiance's apartment that evening, and asked his roommate if he needed any laundry done. She was murdered on her way to do the laundry.


I've taken a quick look at all prisoners in the United States with a scheduled execution date. The only one I found that that seemed to have a case of actual innocence was Cleve Foster. The first stories I read seemed to make a decent case that Foster had been wrongfully convicted and was in danger of being wrongfully executed. As I worked on the case, particularly as I read through the appellate rulings, Foster's case crumbled and the State's case strengthened. I was still, however, on the fence (leaning towards guilt) when I came across the information about the murder of Rachel Urnosky two months earlier.

That discovery disturbed me no end, and still does. It told me I was probably looking at the the type of case I most dread. I most dread being a juror on a case in which I believe the defendant to be guilty, and believe he may commit horrific crimes again in the future, yet believe that the State has not met its burden of proof beyond a reasonable doubt.

I present my Actual Innocence Scorecard to the right. I scored him at 9 out of 100. In cases where I believe there is a reasonable chance of the person's actual innocence, I oppose the death penalty. In cases where I believe there is no reasonable chance of actual innocence, I neither oppose nor support the death penalty. In this disturbing case, I stand mute on the issue.

Initially I identified the earlier victim as Rachel Omosky. A reader who claims to have known Rachel informs me that her last name was Urnosky, not Omosky. I had no trouble confirming that the reader was correct and I was wrong, as was the United States District Court in their opinion for Foster v. Quarterman. I appreciate the feedback. I have corrected my post accordingly. I offer my condolances to the reader for the loss of her or his friend.

ADDENDUM (23 Sep 2012)
Clearly I do not accept Cleve Foster's claims of innocence. With respect to the impending execution of Preston Hughes III of Texas, however, I believe him to be absolutely innocent though in grave danger of being executed. After a 6 month investigation, 60 posts, and 90,000 words, none of the evidence of his guilt withstands scrutiny.

For a 3 minute 30 second video summary of his case, please click here.
For a text summary of his case, please click here.

It is not too late to save an innocent man from the needle.  Cleve Foster is not that man. Preston Hughes is.

ADDENDUM (25 Sep 2012)
Cleve Foster has been executed by the people of Texas.