ProDeathPenalty.Com

The Oklahoma appellate court set a May 25 execution date for Charles Adrian Foster, 51, after the US Supreme Court denied his final appeal. Foster was convicted and sentenced to death for the April 1, 1983, killing of Claude Wiley, 74, owner of a grocery store in Muskogee. Wiley was delivering groceries to Foster's Muskogee home. He was beaten with a baseball bat, then taken to a remote area and stabbed.

Death Penalty Institute of Oklahoma

Charles Foster - Executed May 25, 2000 - "Was Guilt Beyond a Reasonable Doubt?"

Charles Foster, 51, was executed by lethal injection at Oklahoma State Penitentiary in McAlester on May 25, 2000. He was pronounced dead at 12:16am. Foster was sentenced to death for the April 1, 1983 murder of Claude Wiley, a 74-year-old black grocery store owner. Foster, who has been assessed as brain damaged and learning disabled, had consistently denied that he killed Wiley. Foster's clemency hearing before the state Pardon and Parole Board was held on April 26. The Board rejected his appeal for clemency.

The state’s key witness at the trial was Charles Foster’s wife, Eula Mae Foster. She testified that he had killed Wiley at the couple’s home after Wiley had delivered groceries there. At the trial’s guilt/innocence phase, her testimony was the only evidence linking Charles Foster to the crime. For his part, Foster denied knowing anything about the murder, and testified that at the time he had been at Weddles grocery store, where his wife had sent him. He said that he completed his purchases, waited outside the store, and was still there when Eula Mae arrived in Wiley’s truck, which she said she had borrowed in order to visit her mother in Texas. The couple were subsequently arrested in Texas; both were charged with the murder, but the charges against Eula Mae were reduced. She was sentenced to three concurrent five-year prison terms, and released after nine months.

Since the trial, Cecille Fuller, who was working as cashier at Weddles grocery store on April 1, 1983, has signed an affidavit that Charles Foster was in the store at the time he said he was. She also confirmed that he waited outside, and that he had been picked up in a truck similar to one identified as Wiley’s. Foster’s trial lawyer had never contacted Fuller, or others at the store, to investigate his client’s alibi.

In 1999, a judge on the Federal 10th Circuit Court of Appeals described the trial as "in essence a swearing match between Mr Foster and his wife", in which Cecille Fuller’s post-conviction alibi evidence, bolstering Charles Foster’s version of events and undermining Eula Mae’s, must be given weight. She noted that the prosecutor’s closing argument had described Charles and Eula Mae Foster as the two most important witnesses, and characterized the husband’s testimony as "totally unbelievable". The 10th Circuit judge said that, under the circumstances, the defense lawyer’s failure to interview potential alibi witnesses "can hardly be considered a tactical decision entitled to deference." She said that "there can be little doubt that counsel’s performance fell far short of the mark". However, the other two 10th Circuit judges voted to deny Foster’s appeal, ruling that he had not proved that the outcome had been prejudiced by his lawyer’s performance. Under US Supreme Court precedent, a capital defendant must not only prove that their lawyer was ineffective, but that the outcome would have been different if the lawyer’s performance had been better.

The lawyer had also failed to investigate Charles Foster’s background to present evidence in mitigation at the sentencing phase of the trial. Foster grew up in a household marked by poverty, alcohol abuse, parental absence and domestic violence. He was subjected to physical and sexual abuse as well as witnessing similar abuse of his siblings. Charles Foster remained in elementary school, where he was assessed as mentally retarded, until he was 15 years old. Although not intellectually capable of promotion to a higher level, the head of the elementary school requested that Foster be sent to junior high school simply because of his age and size.

In 1993, a psychologist stated that Foster’s mental impairment was the result of brain damage from childhood head injuries (for example, he was once knocked unconscious for four hours, and left untreated, when one of his stepfathers hit him across the head with a plank of wood). The psychologist noted that Foster’s "long-term alcohol abuse further complicates the picture with additional impairments in brain functions." Foster began using alcohol at the age of eight. He was born to an alcoholic mother and may suffer from Fetal Alcohol Syndrome, a condition linked to a mother’s heavy alcohol use during pregnancy that can lead to mental impairment.

International standards require that a person facing the death penalty be provided with "adequate assistance of counsel at every stage of the proceedings, above and beyond the protection afforded in non-capital cases". In 1989, the UN adopted standards opposing the death penalty "for persons suffering from mental retardation". In March 2000, South Dakota became the 13th of the 38 US death penalty states to ban the use of the death penalty against the mentally retarded. Vigils - Vigils were held around the state on the night of May 24. The cities that held vigils included Altus, Enid, McAlester, Muskogee, Oklahoma City (3), Tulsa (2). A protest was also held outside the Governor's Mansion in Oklahoma City.

(This document primarily consists of information from Amnesty International's publication AMR 51/61/00, dated April 18, 2000. It has been updated and corrected, where necessary, by Robert Peebles.)

National Catholic Reporter Online

"Witness to an Execution," by Claire Schaeffer-Duffy. (January 19, 2001)

Last summer, Fr. Bryan Brooks, Tulsa priest and coordinator for the Office of Prison Ministry with the Tulsa diocese, witnessed the execution of George K. Wallace. He did so at the request of Wallace’s appellate attorney. An inmate is allowed seven witnesses, and Wallace had no family members to attend. “It was,” said Brooks after a long silence, “a very difficult experience. There is nothing that I can compare it to. There was no question of his guilt, but the actual experience was very intense as well as disgusting.” Wallace had murdered two young men and was a prime suspect in three other homicides. “It was particularly difficult,” said Brooks, “because the men killed were the same age as my nephew.”

Brooks was required to be at the penitentiary an hour before the execution. He was taken to the H-unit and then to a witness chamber reserved for those observing on behalf of the inmate. “The victims’ families were in a separate room,” he said. After the blind was raised, a microphone was placed in front of the strapped-down Wallace, and he was asked if he had any statements to make. Wallace did not. It took him three minutes to die, Brooks said. “I felt very numb,” said Brooks who, as a priest, has seen people die before. But the circumstances were different. “In hospital emergency rooms, I have seen people die while others are trying to keep them alive.”

“Sterile” is the word Alyson Carson uses to describe executions at Oklahoma State Penitentiary in McAlester. As victim witness coordinator for the Attorney General’s Office, she has observed at least 11 executions. Her job is to guide family members of the victim through the appeals process right up to the execution. “If we have a family that didn’t know the execution date, we do everything possible to let them know what is going on.” For some families, Carson said, the time in the witness chamber is their first “reunion” since the murder, because family members often “stay away from one another” after a homicide. The execution brings “relief,” an assurance that they don’t have to hear the criminal’s name again, she said. “Every time they hear the person’s name it brings them back to the crime.”

Carson is impressed with the efficiency of the execution process at McAlester. “Once you’re there, everything is ready to go. The Corrections Department is very professional. They allow him or her to say a very few words and then go to sleep. That’s it.”

For appellate lawyer Janet Chesley, the execution of her client Charles Foster was “such a surreal thing.” “There is a long narrow room. There is a venetian blind in front of you. You kind of file in. The press comes in. It was so hard for me to believe this was happening.” Chesley doesn’t know if Foster was scared. “Charles had an IQ of 64 and a deep abiding faith,” she said. On the day he died, she spent the afternoon with him. He told her “to watch for that feeling” after his execution. “My soul is going to fly by and wave to you.”

ABOLISH Archives (Associated Press & Rick Halperin)

25 May, 2000 - OKLAHOMA EXECUTION: In Oklahoma early Thursday, Charles Adrian Foster, 51, was executed by injection for killing a 74-year-old man delivering groceries to his home in 1983. Claude Wiley was beaten with a baseball bat and stabbed during the robbery. Wiley operated a neighborhood grocery in Muskogee. His niece and only living relative, Donna Maria Loggins, said that 17 years after the murder, ``we're past due.''

Charles Foster's attorney contended that he was mentally retarded, something that wasn't considered by the jury that convicted him and served as the basis for his final appeal.

Foster becomes the 6th condemned inmate to be put to death this year in Oklahoma and the 25th overall since the state resumed executions in 1990. Foster also becomes the 37th condemned inmate to be put to death this year in the USA and the 635th overall since America resumed executions on Jan. 17, 1977.

ABOLISH Archives (Amnesty International)

05-14-00 - OKLAHOMA: Impending Execution: USA (Oklahoma) Charles Adrian Foster, black, aged 51.

Charles Foster is scheduled to be executed in Oklahoma on 25 May 2000. He was sentenced to death for the murder of Claude Wiley, a 74-year-old black grocery store owner, on 1 April 1983. Foster, who has been assessed as brain damaged and learning disabled, has consistently denied that he killed Wiley. His clemency hearing before the state Pardon and Parole Board is set for 26 April, when the Board will make its recommendation to the Governor.

The states key witness at the trial was Charles Fosters wife, Eula Mae Foster. She testified that he had killed Wiley at the couples home after Wiley had delivered groceries there. At the trials guilt/innocence phase, her testimony was the only evidence linking Charles Foster to the crime. For his part, Foster denied knowing anything about the murder, and testified that at the time he had been at Wileys grocery store, where his wife had sent him. He said that he completed his purchases, waited outside the store, and was still there when Eula Mae arrived in Wileys truck, which she said she had borrowed in order to visit her mother in Texas. The couple were subsequently arrested in Texas; both were charged with the murder, but the charges against Eula Mae were reduced. She was sentenced to three concurrent five-year prison terms, and released after nine months.

Since the trial, Cecille Fuller, who was working as cashier at the grocery store on 1 April 1983, has signed an affidavit that Charles Foster was in the store at the time he said he was. She also confirmed that he waited outside, and that he had been picked up in a truck similar to one identified as Wileys. Fosters trial lawyer had never contacted Fuller, or others at the store, to investigate his client's alibi.

In 1999, a judge on the federal 10th Circuit Court of Appeals described the trial as in essence a swearing match between Mr Foster and his wife, in which Cecille Fullers post-conviction alibi evidence, bolstering Charles Fosters version of events and undermining Eula Maes, must be given weight. She noted that the prosecutors closing argument had described Charles and Eula Mae Foster as the two most important witnesses, and characterized the husbands testimony as totally unbelievable. The 10th Circuit judge said that, under the circumstances, the defence lawyers failure to interview potential alibi witnesses can hardly be considered a tactical decision entitled to deference. She said that there can be little doubt that counsels performance fell far short of the mark. However, the other two 10th Circuit judges voted to deny Fosters appeal, ruling that he had not proved that the outcome had been prejudiced by his lawyers performance. Under US Supreme Court precedent, a capital defendant must not only prove that their lawyer was ineffective, but that the outcome would have been different if the lawyers performance had been better.

The lawyer had also failed to investigate Charles Foster's background to present evidence in mitigation at the sentencing phase of the trial. Foster grew up in a household marked by poverty, alcohol abuse, parental absence and domestic violence. He was subjected to physical and sexual abuse as well as witnessing similar abuse of his siblings. Charles Foster remained in elementary school, where he was assessed as mentally retarded, until he was 15 years old. Although not intellectually capable of promotion to a higher level, the head of the elementary school requested that Foster be sent to junior high school simply because of his age and size. In 1993, a psychologist stated that Fosters mental impairment was the result of brain damage from childhood head injuries (for example, he was once knocked unconscious for four hours, and left untreated, when one of his stepfathers hit him across the head with a plank of wood). The psychologist noted that Fosters long-term alcohol abuse further complicates the picture with additional impairments in brain functions. Foster began using alcohol at the age of eight. He was born to an alcoholic mother and may suffer from Fetal Alcohol Syndrome, a condition linked to a mothers heavy alcohol use during pregnancy that can lead to mental impairment.

International standards require that a person facing the death penalty be provided with adequate assistance of counsel at every stage of the proceedings, above and beyond the protection afforded in non-capital cases. In 1989, the UN adopted standards opposing the death penalty for persons suffering from mental retardation. In March 2000, South Dakota became the 13th of the 38 US death penalty states to ban the use of the death penalty against the mentally retarded.

RECOMMENDED ACTION: Please send faxes/express/airmail letters in English or your own language, in your own words:

- expressing concern that Charles Foster is scheduled for execution despite evidence that he is learning disabled, and despite doubts about his guilt;

- noting that South Dakota recently became the 13th of the 38 death penalty states to ban the use of the death penalty against the mentally retarded;

- noting that international standards oppose the use of the death penalty against the mentally retarded and require adequate defence representation at all stages of proceedings;

- expressing concern that Charles Fosters trial lawyers performance was very poor, as noted by the strong 10th Circuit dissenting opinion in 1999;

- noting Cecille Fullers affidavit, bolstering Fosters version of the crime and undermining his wifes (the key prosecution witness);

- calling for clemency for Charles Foster. APPEALS TO: Oklahoma Pardon and Parole Board; The Honourable Frank Keating, Governor of Oklahoma.

The Daily Ardmoreite

"Foster Executed for 1983 Muskogee Murder," by Kelly Kurt. (Associated Press)

McALESTER -- Charles Adrian Foster died while mouthing words of scripture as his death sentence was carried out early Thursday, 17 years after he murdered a Muskogee grocer. Foster, 51, had no last statement. He died four minutes after receiving a lethal mix of drugs at the Oklahoma State Penitentiary.

Donna Loggins said her family had been waiting ''17 years, one month and 24 days'' for Foster's execution for the murder of her uncle, 74-year-old Claude Wiley. ''Now that Foster will be executed, the Wiley-Ware family can now have some closure,'' she said in a statement released before the execution.

Foster, who told a clemency board last month ''I am innocent,'' nodded to his lawyer, friends and spiritual advisers who came to witness the execution on his behalf. Asked if he had a final statement, Foster said, ''No sir, I don't.'' He mouthed the words as a chaplain began reading Psalm 23. During another scripture that asked, ''Do you believe in God?'' Foster replied, ''Yes.'' He took three deep, gasping breaths as the drugs were administered, then fell still. He was pronounced dead at 12:16 a.m. Foster became the sixth inmate executed in Oklahoma this year. Four more executions are scheduled through July.

Attorney General Drew Edmondson, who tried Foster as Muskogee County district attorney, said robbery motivated the murder. Wiley had owned his neighborhood grocery store for decades and often delivered to the poor and infirm. He was making a delivery to the Foster home April 1, 1983, at the request of Foster's wife. Foster was waiting with a Louisville Slugger. He accused Wiley of ''trying to mess with my wife'' before repeatedly smashing him with the bat. Investigators found blood on the walls and ceiling and parts of Wiley's teeth throughout the home. Still breathing after the beating, Wiley later was stabbed three times in the chest. His body was discovered several days later in a wooded area about a mile from the Foster home.

Foster had sought to have the execution stayed, but the U.S. Supreme Court rejected his final appeals Wednesday morning. ''There's not a shadow of a doubt in my mind of his guilt,'' Edmondson said.

Foster's wife, Eula Mae Collins, testified that her husband asked her to call Wiley for a delivery and then waited behind a door with the bat. She pleaded guilty to a charge of accessory to the fact and served a short time in prison before her release in 1984. Collins was arrested in Fort Worth, Texas, 12 days after the murder. Foster fled when police approached the couple. He was arrested three months later in Cuero, Texas. A jury dismissed arguments that Collins, the only eyewitness to the crime, was the actual murderer, Edmondson said. ''She did not ask for a plea agreement. She did not ask for leniency,'' Edmondson said. ''All she ever asked for was to protect her from Charles.''

Foster v. State, 714 P.2d 1031 (Okl.Cr. 1986) (Direct Appeal)

Charles A. Foster was convicted in Muskogee County District Court of Burglary in the Second Degree, Larceny of an Automobile, Grand Larceny, each After Former Conviction of Two Felonies, and Murder in the First Degree. He received sentences, as recommended by the jury, of ninety years' imprisonment on the first three convictions and the death penalty for the murder conviction.

The victim, seventy-four-year-old Claude Wiley, owned a grocery store in Muskogee and made local deliveries. The night he was killed, he had made a delivery to appellant's home. While waiting for appellant's wife, Eula Mae Foster, to return with the payment for the groceries, according to Mrs. Foster's testimony, appellant suddenly started accusing the victim of having "something to do" with his wife, pushing him and then striking him with a baseball bat. Appellant had stood behind the front door with the baseball bat when Wiley first entered their home. The medical examiner testified that the victim received three stab wounds to the chest. He had blunt force lacerations to the ear, orbit of the right eye, and on top of the head. The skull was extensively fractured and there was massive hemorrhaging.

Mrs. Foster also testified that appellant wrapped the victim, who was still breathing, in a blanket and left in Mr. Wiley's El Camino. He returned shortly and then left for a period of one and one-half hours. The couple then fled Oklahoma in the El Camino. Appellant had in his possession a number of the victim's household items. Mrs. Foster said they got rid of the victim's vehicle and then bought a Cadillac in Texas with cash taken from the deceased. Appellant testified that he was away from home during the time of the crimes. He said he knew nothing of the incident until his wife picked him up in the victim's El Camino at the grocery store where he was shopping.

The State was allowed to introduce at trial, over appellant's objection, a baseball bat which according to Mrs. Foster's testimony was similar to the one used by appellant to strike the victim. Appellant contends that the bat had no connection to the crimes and, therefore, his right to a fair trial was prejudiced by its admission. The bat displayed was one Mrs. Foster selected at a sporting goods store and was new. The one allegedly used by appellant to beat the victim was older, had a broken handle, and would have been stained by the victim's blood. The new bat was marked to show where the original one was broken. Appellant had discarded in Texas the actual bat used. The judge admonished the jury to consider the bat only for its demonstrative value.

Foster v. Ward, 182 F.3d 1177 (10th Cir. 1999) (Habeas).

Mr. Charles Foster was tried in Oklahoma state court on an information alleging first degree murder as well as burglary and larceny. After a two-day trial, a jury convicted Mr. Foster for the murder of Claude Wiley, a seventy- four-year-old grocery store owner who disappeared on April 1, 1983, while making deliveries. Mr. Wiley's last delivery was to the home of Charles and Eula May Foster. His body was discovered near an abandoned house in Muskogee ten days later. Mr. Wiley suffered multiple stab wounds to the chest, blunt force lacerations to the head and face, and an extensive skull fracture.

The State originally charged both Mr. and Mrs. Foster with Mr. Wiley's murder. However, prosecutors later reduced the charge against Mrs. Foster to "accessory after the fact." Mrs. Foster was the State's key witness. She testified at trial Mr. Foster was hiding behind the front door with a baseball bat when Mr. Wiley first entered their house. After accusing Mr. Wiley of having "something to do" with Mrs. Foster, Mr. Foster pushed Mr. Wiley, repeatedly struck him with the bat, and then wrapped him in a blanket and left in Mr. Wiley's El Camino. Mrs. Foster further testified that Mr. Foster returned home after about forty-five minutes, and then left again fifteen minutes later for approximately one and a half hours. When Mr. Foster returned the second time, he had in his possession a number of items from Mr. Wiley's home. Soon after Mr. Foster's return, the couple fled to Texas in Mr. Wiley's El Camino. Mrs. Foster denied knowing that Mr. Foster intended to attack and kill Mr. Wiley when he delivered the groceries to their house. She further denied ever striking or stabbing Mr. Wiley.

In rebuttal, Mr. Foster testified his wife had sent him to the grocery store around 6:20 p.m. on April 1, 1983. He picked up the groceries she requested and then waited outside the store for awhile because it was raining. He testified that at about 7:50 p.m. his wife came to the grocery store in Mr. Wiley's El Camino. She told him she had borrowed the El Camino and they were going to visit her mother in Texas. Mr. Foster consistently denied any knowledge of Mr. Wiley's murder, but admitted pawning some of Mr. Wiley's possessions at his wife's request.

One of Mr. Foster's former cell-mates, Mr. Jody Lynch, testified during the sentencing stage that Mr. Foster had admitted killing Mr. Wiley and wrapping him in a blanket, and had threatened to kill Mrs. Foster and her family. Mrs. Foster also testified during the sentencing stage. She told the jury of the physical abuse she had suffered at Mr. Foster's hands, and explained that upon her arrest, she asked the police to protect her from Mr. Foster. Detective Grayson corroborated Mrs. Foster's testimony concerning her fear of Mr. Foster.

During the sentencing stage, Mr. Foster told the jury about his family and educational background, his work history, and his prior run-ins with law enforcement. He maintained he did not kill Mr. Wiley and denied admitting the murder to Mr. Lynch. He further denied threatening to kill Mrs. Foster and her family or ever abusing Mrs. Foster. Rather, he claimed Mrs. Foster once stabbed him in the shoulder. Mr. Foster stipulated on the record he had previously been convicted of two felonies involving the use or threat of violence.

After hearing this evidence and considering it together with the evidence presented during the guilt stage of trial, the jury found three aggravating circumstances in support of the death penalty: (1) Mr. Wiley's murder was especially heinous, *1183 atrocious or cruel; (2) Mr. Foster posed a continuing threat to society; and (3) Mr. Foster previously had been convicted of a felony involving the use or threat of violence. Accordingly, on November 28, 1983, the trial court sentenced Mr. Foster to death.