The Advocate, Vol. 21, No. 2 (March 1999)


Kevin McNally

Foster Sentenced to Life

"On January 11, 1999, Fay Foster waived parole and was sentenced by Judge Rebecca Overstreet to life in prison without the possibility of release for five intentional murders. This plea quietly ended 13 years of litigation over whether she was to live or die. Knowledgeable onlookers were slack-jawed due to this unlikely exception to the two decade "no plea" policy by the Commonwealth in capital cases in Lexington, Kentucky. When Judge Overstreet asked Fay to state, in her own words, what the plea agreement meant, she simply stated: "It means Iíll die in prison." On December 19, 1991, her 1987 sentence of death for five counts of murder was reversed by the Kentucky Supreme Court for failure to separate her case from the co-defendant, Tina Powell. Foster v. Commonwealth, 827 S.W.2d 827 (Ky. 1992).

Commenting on the plea, her attorneys, Kevin McNally and Russ Baldani, observed that "the new sentencing option of life without hope of release is sufficiently draconian to make the death penalty almost besides the point. The fact that two hard-nosed, famously aggressive prosecutors, Ray Larson and Mike Malone, would be satisfied with this result suggests that properly informed capital jurors can also be persuaded, even in highly aggravated cases."

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