Only two witnesses were called to testify this morning during the appeal hearing of Kevin Foster, but Foster’s attorneys established that Foster’s mother Ruby had influence on the penalty phase of his trial.
Foster was convicted in 1998 of first-degree murder in the killing of Riverdale High School band teacher Mark Schwebes. He was sentenced to death the same year by a 9-3 vote.
At issue this week at the Lee County Justice Center is whether his trial attorneys did enough research into his life, family and mental capacity in trying to convince his jury to spare his life. After being convicted of first-degree murder, the attorneys argued to the jury whether to recommend life or death.
The hearing will continue at 1 p.m.
Retired Public Defender’s Office investigator Roberta Harsh testified that Foster’s attorneys focused extensively on Foster’s case once he was arrested.
Former paralegal James Wootten, who prior to being hired by the office was in prison and is now in prison for robbery, was the defense’s second witness.
He testified Ruby Foster was very involved in the case.
“Kevin, in her eyes, was framed by his friends,” he testified. “Kevin could not have done this; would not have done this. And there’s no way on this Earth that anyone was going to make her believe it was remotely possible. And we had to deal with that.”
The defense team decided to present a theory that Foster was a “good kid worth saving” after exploring school records and asking Ruby Foster and Kevin’s sister Kelly whether Kevin was abused or had mental illness.
“No was the answer to every one of those questions, especially when Kevin’s mother and sister were brought in,” he said. “Ruby would explode and say, ‘There is nothing wrong with my child. My child is normal.’”
On cross examination, Wootten testified that now-deceased former Public Defender Robert Jacobs was in charge of the defense and not Ruby Foster. He also testified that he never noticed Jacobs suffering from tremors, which is a point in the motion for a new penalty phase.
Wootten, who is housed at Union Correctional Institution with Foster, also testified they talk often and that he hasn’t noticed any mental illnesses or depression in Foster.
The defense’s next witness will be Marquin Rinard, who was busy this morning in court in Charlotte County, which caused the delay. The court broke around 10:30 a.m. and will continue at 1 p.m.
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