Viewpoint: Stop Kenneth Foster's execution
When they said the truth would set you free, that didn't mean these doors would pop open and you'd walk out. You better start to recognize this thing called the soul. Although to me this is just a small part of this reality. Believe me; I've got more. Start to look through the fabrications and distorted truths. Truth is like light; you must be accustomed to it gradually. Otherwise, it dazzles you. There are no new truths in what I speak, only truths that have not yet been recognized.
- Kenneth Foster
On Monday, Georgia's Board of Pardons and Paroles granted an execution reprieve for 38-year-old Troy Davis about 24 hours before the state was set to kill him. Davis, who's been on death row in Georgia for 17 years, was convicted of shooting and killing an off-duty police officer in 1989, but has maintained his innocence throughout the appeals process. Davis pointed to the fact that seven of the prosecution's nine witnesses recanted their testimony after the trial, even saying they were pressured by police to testify against him. No physical evidence linked Davis to the crime, and the murder weapon was never found.
Since the nighttime murder happened so quickly, and the eyewitness testimony was so untrustworthy, the real story of Officer Mark MacPhail's death may never come to light.
But in the case of Austin-born Kenneth Foster, a death row inmate much closer to home, the state of Texas did not need to find a murder weapon, or a motive, to sentence him to death. All it needed was the Law of Parties.
On August 15, 1996, Foster, then a 19-year-old starting his own record label, spent an afternoon driving three friends around a San Antonio neighborhood. One of them, Mauriceo Brown, had a gun, and he and another passenger exited the car and robbed two people at gunpoint, despite Foster's misgivings. That night, thinking Foster had been following her, a woman flagged his car down. The men talked to her, and then she walked toward her boyfriend, Michael LaHood Jr. Brown exited the car and got into an argument with LaHood. He then shot and killed LaHood in self-defense, he said.
Eighty feet away, Foster heard the gunshot and began to drive away, but his other friends convinced him to wait for Brown, according to testimonies. Brown then re-entered Foster's car, and they left the scene, only to be apprehended later that night.
Foster was tried alongside Brown for the murder of LaHood, thanks to the Law of Parties. He was sentenced to death in 1997, and his execution date is set for Aug. 30, a mere six weeks away.
The Law of Parties
Texas adopted the Law of Parties in 1974, which states, in part, that:
"A person is criminally responsible for an offense committed by the conduct of another if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators; [then] all conspirators are guilty of the felony actually committed, though having no intent to commit it, [or] if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy."
Prosecutors argued that Foster, because of his complicity in the previous robberies, conspired to rob LaHood and was thus responsible for his murder. However, according to the testimonies of all four men, Foster had no idea that the shooter, Brown, grabbed the gun from beside the front passenger seat when he exited the car. Moreover, none of the men agreed to rob LaHood at all. The Law of Parties was thus misapplied to Foster. Because Brown and Foster were tried together, the jury was only instructed to determine if Foster was associated with Brown and if he should have anticipated Brown's actions.
In 2005, U.S. District Judge Royal Fergeson announced that the misapplication of the Law of Parties violated Foster's Eighth and 14th Amendment rights and overturned his death sentence. However, a federal circuit court overruled that decision, so aside from his final writ of habeas corpus, Foster's appeals have run out. Unless his execution is halted yet again, Kenneth Foster will die because he "should have anticipated" that Mauriceo Brown would surreptitiously grab a gun, argue with a stranger, shoot that person and re-enter the vehicle.
The Antiterrorism and Effective Death Penalty Act of 1996
Following the Oklahoma City bombing, the Antiterrorism and Effective Death Penalty Act was signed into law by a president running for re-election, and it severely cut down on the ability of death row inmates to appeal their sentences to federal courts. The act reduced the statute of limitations for convicts to file federal writs of habeas corpus to six months after their state appeals ran out, effectively sealing off the possibility of extensive investigation or inquiry into misconduct by lawyers and law enforcement. The AEDPA also weakens the ability for federal courts to hear state cases: For instance, a district court must issue a "certificate of appealability" for a federal judge to hear the case. In essence, the state judges have to assert their colleagues' ineptitude to assure a federal appeal for a prisoner.
Additionally, the law defers to state courts in determining the factual bases of appeals and prohibits the defense from introducing new evidence that wasn't presented in the original trial, unless it wasn't reasonably discoverable earlier or was somehow suppressed. Foster's court-appointed lawyer never told the jury that Foster attempted to drive away after hearing the gunshot, but it could not be inserted into Foster's subsequent appeals.
The AEDPA was envisioned as a way to eliminate "groundless," "meritless" and "hopeless" appeals to federal courts. The coarse, context-lacking language in the law notwithstanding, the act has amplified the courts' ability to tie their own hands, cover their eyes and streamline the denial of justice to many who have legitimate grievances against the criminal justice system. Because the AEDPA leaves more decisions up to states, results for prisoners are uneven and haphazard, depending on the judicial temperament of their home state, district or presiding judge.
A system problem
Most importantly, the difficulty of presenting new evidence in appeals highlights the economic disparity in death penalty defense. Court-appointed defense lawyers are often overworked and underpaid - and a number of them are under-qualified and overmatched in the courtroom, especially against district attorneys armed with the full force of the state behind them. Almost all death penalty defendants cannot afford their own representation, and this is no accident: Prosecutors will recommend the death penalty for defendants whose attorneys are ill-equipped to fight it. For working people like Foster, the deck is stacked against them even before the bailiff proclaims, "All rise."
Appeals lawyers are often no better - Texas only gives public defenders $25,000 to investigate and write habeas corpus writs. At $100 an hour, a low pay rate for most lawyers, this amounts to about six weeks of full-time work on each case. A 2005 Austin American-Statesman investigation reported that many appeals lawyers provide "incomplete, incomprehensible or improperly argued" work, and only after this investigation did the Texas Court of Criminal Appeals agree to set minimum standards of professionalism for negligent habeas corpus lawyers.
This does not discount the hard work of many court-appointed defenders, however. Many who care deeply about upholding justice for all work beyond the $25,000 stipend, hire investigators out of their own pockets and provide zealous defenses for their clients. It is not as if these women and men are few and far between, it is that institutional barriers block public defenders from providing this service on a universal basis.
Foster is more than just a factually innocent man on death row. A sociology major at San Antonio's St. Philip's College in 1995, Foster continues to study subjects such as sociology, theology and philosophy while in confinement. His poetry is can be read on the Internet, and a book of his poems, titled "Tribulation's Eyes," is available in German, Italian and French on the overseas underground market. He's also a brother, a husband, and a father to a little girl named Nydesha.
Foster is an activist within prison walls. In 2005, he and four other inmates formed the Death Row Inner-Communalist Vanguard Engagement (DRIVE), a group that performs nonviolent protests against the Polunsky Unit's living conditions. Inmates occupy recreational rooms to protest everything from force-feeding to a lack of proper medical care. When they resist, they are stripped naked, tear-gassed and beaten into submission. Each beating, by law, is videotaped, and copies are available to the public by request through the Texas Department of Criminal Justice.
DRIVE also indicts the entire criminal justice system, highlighting the class and race disparities in prison populations and the institutional roadblocks to adequate legal representation. Foster protests not only because he is not a murderer, but because he wishes to fundamentally change the inhumane conditions experienced by every inmate pushed through the system.
Kenneth Foster does not deserve to die for his nonexistent role in the shooting death of Michael LaHood Jr. He held no weapon and plotted no conspiracy. Even the sweeping language of the Law of Parties was misapplied in Foster's case. He deserves a new trial, one that brings to light his grievances against the Law of Parties as well as the criminal justice system in general. If anything, he was a reluctant accessory to two armed robberies. But the time to argue the wisdom of driving around friends while they commit robberies is during Foster's new trial. The time to save his life is now.
For more information about Kenneth Foster, visit www.freekenneth.com. For more information about the DRIVE movement, visit http://drivemovement.org