The high court agreed to reconsider its January order denying the 47-year-old’s appeal, which raised claims of innocence and poor legal help during his trial and early stages of his appeals. David Dow is with the University of Houston Law Center.
“The more likely reason that the Supreme Court was interested in the case were from some obscure legal reasons that don’t really have anything to do with the execution protocol. They had originally granted a stay in this case several months ago for reasons having to do with those same legal concerns.”
Dow expects eventual litigation specific to the execution protocol.
“What happened, of course, in the Foster case is that all of that litigation was compressed into a very short time period because his execution had already been scheduled when the state decided to change the protocol. I think that we’re likely to see a more deliberate litigation of those protocol questions in cases where the execution is a little bit farther down the road.”
Foster’s lawyers also argued that Texas prison officials violated administrative procedures when they announced the switch to pentobarbital from sodium thiopental. There is a national shortage of sodium thiopental, which has been used already in executions in Oklahoma and Ohio.