A Kentucky Death Row inmate won't get money to hire experts to bolster his bid for clemency after a federal judge found that the petition failed to raise new issues in the case.
U.S. District Judge Danny C. Reeves on Wednesday turned away 56-year-old Robert Foley's request for funds to obtain a mental exam, finding that the governor "will have a complete picture of Foley's mental health" in deciding clemency without an expert review.
"His request for a neuropsychologist seems to be based upon the mere hope of suspicion that an expert may find something of use, and is not based on any showing of actual reasonable necessity," Reeves wrote.
Foley is preparing to ask Gov. Steve Beshear to spare him from execution for the 1991 slayings of Rodney and Lynn Vaughn after a dispute in Laurel County. Foley, a former FBI informant, is also on death row for four other slayings.
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The anticipated clemency bid comes as Kentucky seeks to restart executions for the first time since 2008. Earlier this year, Kentucky switched from using three drugs to carry out a lethal injection to a method that uses 3 grams of sodium thiopental or 5 grams of pentobarbital — similar to the method used in Ohio. If those drugs are not available within seven days of an execution date, the state may use a two-drug method involving continued injections of 60 milligrams of a combination of Midazolam and hydromorphone.
Franklin Circuit Judge Phillip Shepherd halted lethal injections in 2010 as the state prepared to execute Gregory L. Wilson, 56, for the 1987 rape, kidnapping and murder of 36-year-old Debbie Pooley in Kenton County.
A hearing on the state's request to lift an order halting executions is set for Monday in Frankfort.
Beshear has requests to set execution dates for Foley and 57-year-old Ralph S. Baze, convicted of killing a sheriff and deputy in Powell County in 1992. But he has given no indication if or when he will act on those requests should the injunction be lifted.
Foley sought funds for a neuropsychologist, saying he has an extensive history of head trauma, but he lacks a formal diagnosis of a neuropsychological disorder or condition. Specifically, Foley's attorneys cite a 1991 car wreck in which Foley's car flipped over and threw him from the front seat to the back seat and an incident later that year in which Foley's legs went numb while he tried to push a car. The attorneys also cite a history of head injuries dating back to childhood.
Foley contends that such an expert could determine if that trauma has affected his behavior — a finding that could affect whether the governor grants him clemency, Reeves wrote.
However, Foley's legal and mental history show no signs of any adverse impact from head injuries or mental shortcomings, Reeves wrote.
Foley also sought money for a crime scene reconstructionist and a ballistics expert. Foley said the experts could bolster his claim of self-defense in the deaths of the Vaughn brothers. Reeves rejected those requests as well.
One other inmate has received funds for a mental-health expert to aide in the clemency process. U.S. District Judge Jennifer Coffman granted $7,500 to 67-year-old Parramore Lee Sanborn in 2011 to pursue a possible claim of brain damage or abnormalities as he seeks to stave off execution for the 1983 kidnapping, rape and murder of Barbara Heilman in Henry County.
Kentucky governors have granted clemency only twice in the more than 30 years since the death penalty was reinstated.
Kentucky has executed three inmates since the reinstatement of the death penalty in 1976, with the last execution being carried out in 2008. At least two and as many as seven inmates are at or near the end of their appeals.