Proceedings end for day in Lords of Chaos ringleader Foster’s appeal hearing

The News-Press and provided dispatches from the courtroom today as Lords of Chaos ringleader Kevin Foster appeared before a Lee Circuit Judge to determine whether Foster deserves a review of his death sentence. The hearing will continue at 8:30 a.m. (Wednesday 4/27/2011)

For the second time today, the defense doesn’t have witnesses available to testify.
So, Foster’s evidentiary hearing will be cut short for the day.

Foster trial attorney Marquin Rinard testified that Ruby Foster didn’t want to admit that her son had mental problems as part of his defense. But, he said the attorneys used the information that had to try to help her son.

“We went with what we had,” he testified.

Lee Circuit Judge Edward Volz Jr. told attorneys the hearing will not go into next week, but if attorneys don’t finish by Friday, he will continue Saturday, if necessary.

From this morning on

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 ofRiverdaleHigh Schoolband teacher Mark Schwebes. He was sentenced to death the same year by a 9-3 vote.

At issue this week at theLeeCountyJusticeCenteris 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 Wootton, 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, Wootton 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.

Wootton, 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 inCharlotteCounty, which caused the delay. The court broke around 10:30 a.m. and will continue at 1 p.m.

12:56 p.m. update

Kevin Foster’s older sister, Kelly Foster, is the defense’s next witness.

She took the stand around 12:55 p.m.

Kevin Foster flashed a brief smile at his sister as he was led into the courtroom by deputies.

1:15 p.m. update

Kelly Foster is testifying about the childhood she and Foster had.

She is testifying about Ruby Foster’s four husbands and their effect on their lives.

Foster testified that Foster’s husbands each had psychological issues, some that were manifested in anger in rage. Brian Burns, who isn’t the biological father to either, is considered their father, Kelly Foster said.

Others, including Ron Newberry — Kelly’s biological father — and Jack Bates — Kevin’s biological father — provided little support.

Burns, whom Ruby Foster met inDallasin the 1970s, once broke Ruby Foster’s nose and damaged their rental house while the kids were home.

“It was traumatic,” she said.

Kevin Foster’s father Jack Bates was not in the picture and Foster’s fourth husband, John Foster, legally adopted Kevin Foster, she testified.

2:15 p.m.

Kelly Foster is testifying about the childhood she and her brother, murderer Kevin Foster, had.

She testified that as her mother and John Foster began breaking up, it became violent. She said Kevin Foster had to rip him off his mother several times. And John Foster was having affairs and flaunting them in front of the teenagers.

As the situation at home became worse, Kelly Foster testified, Kevin Foster began rebelling and spending more time with friends. It was at that time Foster shot himself in the stomach and jumped off a bridge into theCaloosahatcheeRiverwhen a close friend died, giving him a bad Staph Infection.

Not long after, Foster was arrested in connection with Mark Schwebes’ murder.

Kelly Foster characterized Robert Jacobs’ thoughts of she and her mother as an “inconvenience.”

“We were an annoyance to him,” she said. “He thought my mom was an emotional wreck.”

She said Ruby Foster was unemployed for two years after Kevin Foster’s arrest and focused solely on her son’s case, reviewing documents and trying to aid the defense team.

Kelly Foster was studying criminal justice in college and used that training to try to help. She testified that Marquin Rinard was more helpful than Jacobs.
“Out of the two attorneys, Mr. Rinard seemed to have more patience and an open ear,” she said.

3:01 p.m.

Foster trial attorney Marquin Rinard testified he spent most of his time preparing for the guilt phase of the trial.

“We didn’t give up — we weren’t giving up and playing dead,” he testified. “There was a hope we’d be successful.”

He characterized the penalty phase preparation as being mostly to “humanize” Foster to his jury after they found him guilty of first-degree murder.

Rinard said Robert Jacobs took the lead on both the guilt and penalty phases of Foster’s trial and he estimated he focused 85 percent of his time on the guilt phase.

“We knew we needed to do the best we could to humanize Mr. Foster,” Rinard testified. “That was one of my main memories as to what it was we were going to try to do.”

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