Friday, August 31, 2007

A Message From the Fosters

Dear Friends, Family and supporters,

Oh my God, where to start. We are estatic, overwhelmed and full of smiles!
Finally the Death row nightmare is over, no more seeing him from
behind glass- soon we will be able to hug him. Nydesha will be able
to hug him :-)

Without all the hard work from all of you- it would have not been
possible. You guys worked around the clock, made the calls, wrote the
letters, marched with us, signed petitions, helped us organize,
contacted the media and made this cross bareable for us.

We thank God for having you all. We won guys- and all because of the
fantastic team work!!!!!

We love you all!

Tasha & Kenneth
Kenneth Sr & Lawrence

Thursday, August 30, 2007


August 30, 2007

Movement to Save Kenneth Foster Wins Historic Victory

Family members and supporters of Kenneth Foster, Jr. are jubilant in the reaction to Texas Governor Rick Perry's today's announcement today that he would commute the death sentence of Kenneth Foster, who was convicted under the controversial "Law of Parties" for a 1996 murder in which he had no actual involvement. The Board of Pardons and Paroles had recommened clemency by a vote of 6-1. Foster's execution had been scheduled for tonight.

In a statement announcing the commutation, Perry said, "I am concerned about Texas law that allowed capital murder defendants to be tried simultaneously and it is an issue I think the Legislature should examine."

Reaction among Foster's family and friends included both joy and disbelief. “We felt a bit of disbelief because Perry’s decision was so unprecedented.” said Dana Cloud of the Save Kenneth Foster campaign. “But everyone is so happy that Kenneth will be able to touch his wife and daughter and that we have a chance of seeing him free. Anything is possible when you are alive.”

Claire Dube, a close high-school friend of Kenneth’s and an active member of the Save Kenneth Foster Campaign, broke into tears when she heard the news. “We don’t even know what to say. It’s incredible.”

Keith Hampton, Foster’s attorney, also expressed relief and happiness at winning his client’s life. Hampton thanked the activists of the grassroots movement that started in Austin and spread around the world for putting the necessary pressure on the Board and the Governor to win. “Extra-legal means work,” he said.

“Governor Perry once said that there was no hue and cry against the death penalty in Texas,” commented Lily Hughes of the Campaign to End the Death Penalty. “Well, here was your hue and cry.”

Foster’s family and other supporters will continue to work to free him from prison. “It seems like ten years on death row under 23-hour lockdown could amount to time served for any crime that Kenneth ever committed,” Cloud said.

Perry’s decision is historic. Not only has the Board of Pardons and Paroles rarely recommended clemency (by one count, 3 times since 1982), but Rick Perry has overseen more executions than any Governor of the State of Texas, including George Bush.

“This case demonstrated to the world just how arbitrary and capricious capital punishment is,” Cloud said. “It gives people pause when someone who killed no one could come this close to being executed.”

“Public sentiment has been turning against capital punishment,” Hughes said. “We’ve seen a lot of states stop executing people. Winning Kenneth’s life might be a real turning point in the history of the death penalty in Texas.”


UPDATE: Board Votes in Kenneth's Favor, All Eyes on Perry

The Board of Pardons and Paroles today voted 6-1 to recommend clemency for Kenneth Foster. It is now up to Governor Perry to make the final decision. Call him and demand that he do the right thing:

Call 800-252-9600 (Texas callers) or 512-463-1782 (Austin and out of state), and send faxes to 512-463-1849.

No News Yet

It is about 10:30 a.m. central time and there is still no word from the Board of Pardons and Paroles or the U.S. Supreme Court. Executions in Texas typically begin at 6 p.m.

Wednesday, August 29, 2007

Kenneth's Story in the New York Times and London Independent

August 30, 2007

Date With the Executioner for Murder by Someone Else

HOUSTON, Aug. 29 — Kenneth Foster has a date on Thursday with the executioner’s needle. Not for killing anyone himself but for what he was doing — and may have been thinking — the night in 1996 when he was 19 and a sidekick pulled the trigger, killing a 25-year-old San Antonio law student.

Ensnared in a Texas law that makes accomplices subject to the death penalty, Mr. Foster, 30, is to become the third death row inmate this week, and the 403rd since capital punishment resumed in Texas in 1982, to give his life for a life taken.

But unlike most others condemned to death in this state, Mr. Foster, a onetime gang member, aspiring musician and prison poet from San Antonio, is not a murderer in the usual sense. He was convicted and sentenced to die for abetting a killing — 80 feet away — that he may, or may not, have had reason to anticipate.

The man who pulled the trigger is dead, executed last year. One accomplice is serving life in prison as a result of a plea bargain, and a second is serving life for a separate murder.

Now, failing a last-minute reprieve, Mr. Foster, the group’s driver in a robbery spree — who argues that he never was party to the murder — is facing lethal injection. His guilt, affirmed so far in every appeal, including five turned away by the United States Supreme Court, hinges in large part on difficult questions of awareness and intention.

Other states hold co-conspirators responsible for each other’s criminal acts in a so-called law of parties. But few of those have a death penalty. And no other state executes them on the scale of Texas.

With polls showing capital punishment still enjoying majority support in Texas and around the country, but by dwindling margins, the Foster case has spurred vigils and protests from abroad to the death house in Huntsville, as well as a backlash by victim’s rights advocates who still mourn the slain law student, Michael LaHood Jr.

It has also smudged concepts of guilt and innocence. If Mr. Foster is not legally guilty of murder, as his lawyer, Keith S. Hampton, and supporters contend, many find it hard to pronounce him blameless.

“I’d hate to use the word innocent,” said his father, Kenneth Foster Sr., a former heroin addict who told a church audience in Houston Saturday that he used to take his baby son with him on drug runs and petty crimes. He said his son “should be punished to some degree, but not put to death.”

At the heart of the case is Texas’s law of parties under which those conspiring to commit one felony such as a robbery can all be held responsible for an ensuing crime, like murder, if it “should have been anticipated.”

In 1982, in Edmund v. Florida, the United States Supreme Court found that the Constitution barred the death penalty for co-conspirators who do not themselves kill. But five years later in Tison v Arizona, the justices carved out an exception, ruling that the Eighth Amendment did not forbid execution of a defendant “whose participation in a felony that results in murder is major and whose mental state is one of reckless indifference.”

According to evidence in the case, on the afternoon of Aug. 14, 1996, Mr. Foster had borrowed his grandfather’s rented white Chevy Cavalier and was driving three companions — Julius Steen, Dewayne Dillard, and Mauriceo Brown — on a robbery spree through San Antonio. Mr. Steen and Mr. Brown, with Mr. Dillard’s gun, held up four people.

After midnight, they trailed two cars to a street where Mr. LaHood had just driven home, followed by a companion, Mary Patrick. She and Mr. Steen exchanged some remarks. Mr. Brown took the gun, chased Mr. LaHood and shot him dead. Ms. Patrick later characterized it as a robbery.

Mr. Foster and his companions fled but were soon stopped by the police. Mr. Foster denied participating in the earlier robberies or the shooting, claiming the group had been out looking for clients for his music business.

He was tried together with Mr. Brown, who was also convicted and was executed in July 2006. Mr. Steen and Mr. Dillard, facing charges in other cases, were not tried. But Mr. Steen testified he did not believe that Mr. Foster knew that Mr. LaHood would be robbed, although Mr. Steen said, “I would say I kind of thought it.”

Later Mr. Dillard testified in Mr. Foster’s appeals, claiming that before they reached the LaHood house, Mr. Foster sought to end the night’s spree so he could return the car to his grandfather. Therefore, Mr. Fuller’s lawyer, Mr. Hampton, argued, his client lacked the mindset to be legally culpable for the killing that followed.

Mr. Hampton also contended that Mr. Steen and Mr. Dillard were improperly withheld as crucial witnesses, and that mitigating testimony about Mr. Foster’s upbringing was not presented to the jury.

“I was in jail at the time he got arrested,” said Kenneth Foster Sr., saying that a strategy of portraying his son as churchgoing and well-raised had backfired.

“One of the jurors said he should have known better,” the elder Mr. Foster said. “They never called me. If the mitigating evidence had been put on, he never would be on death row.”

Copyright 2007 The New York Times Company

Man faces execution for being in car with killer

By Leonard Doyle in Washington

Published: 30 August 2007

A 30-year old man, Kenneth Foster, is set to be executed today for a murder which he not only did not commit, but which the authorities in Texas accept was carried out by another man in 1996.

The trial judge, the prosecutor, and the jury that sentenced Mr Foster to die admit that he did not murder the victim Michael LaHood. But, under a controversial "law of parties", in Texas an associate of a perpetrator can be found co-responsible in a capital case. The law imposes the death penalty on anybody involved in a crime where a murder occurred.

This is how Foster, a black man out on a crime spree with some friends, came to be convicted of murdering Mr LaHood, a white man and the son of a prominent lawyer . The killer, Mauriceo Brown, was executed last year.

Foster has been politically active on death row. He has organised fellow prisoners, becoming a leader in the anti-death penalty movement in Texas and starting a non-violent movement called Drive, to campaign over conditions on death row. Unlike most other inmates he had several years of college education before jail.

On the night of the murder, Foster and several friends had been driving around drinking and committing robberies. On the way home, Brown left the car to talk to a woman. He then got into an altercation with Mr LaHood and shot him dead in the driveway of his house in San Antonio.

The murder occurred as Foster was sitting in a car some 30 metres away with three other passengers – but prosecutors said there was a conspiracy to commit the crime and therefore he deserved a death sentence. Since Foster's original trial, the other passengers – none of whom was tried under the law of parties – have testified that Foster had no idea a shooting was going to take place.

The Texas Court of Criminal Appeals denied Foster's final appeal on Tuesday and his last recourse is a pardon from Texas Governor Rick Perry. This seems unlikely, as five of the seven Board of Pardons members must recommend clemency first. Last week Texas executed its 400th prisoner since it resumed capital punishment in 1982.

Recently a friend of the victim has described the pending execution as vengeance and called for it to be halted. The LaHood family has so far not offered support to Foster's case. LaHood's mother said she supported the execution of the actual killer.

Tuesday, August 28, 2007

Amnesty International Statement in Support of Keneth


August 24, 2007

Kenneth Foster Execution a 'New Low for Texas' and a 'Shocking Perversion of the Law,' Says Amnesty International
Foster Convicted For a Murder He Did Not Commit or Predict; Human Rights Organization Calls on Texas Board of Pardons, Gov. Perry to Grant Clemency

(Washington, D.C.) -- Amnesty International USA (AIUSA) today condemned the scheduled August 30 execution of Kenneth Foster, who was convicted of a murder he did not commit and has consistently denied knowing would occur. The human rights organization has mobilized its international membership to urge the Texas Board of Pardons and Paroles and Governor Rick Perry to grant clemency.

Foster was sentenced to death in 1997 for the murder of Michael LaHood under Texas' controversial "law of parties." This law abolishes the distinction between principal actor and accomplice in a crime and allows both to be held equally culpable.

"This is a new low for Texas," said Larry Cox, executive director of AIUSA. "Texas has the most far-reaching 'law of parties' in this country, further marking it as the death penalty capital of the United States. In essence, Kenneth Foster has been sentenced to death for leaving his crystal ball at home. There is no concrete evidence demonstrating that he could know a murder would be committed. Allowing his life to be taken is a shocking perversion of the law."

In the early hours of August 15th, 1996, Mauriceo Brown, DeWayne Dillard, Julius Steen and Kenneth Foster stopped outside the house of Michael LaHood. Brown got out of the car, robbed LaHood, and then shot him. To convict Kenneth Foster of capital murder under the law of parties, the prosecution had to prove that there was a conspiracy between him and Brown to rob LaHood, and that Foster should have anticipated that murder might have occurred during the robbery. At the trial Brown testified that there had been no discussion of robbing LaHood before he got out of the car.

Dillard testified at a state appeal that after the shot was heard, Foster had appeared surprised and panicked. Steen signed an affidavit in 2003 stating that, "There was no agreement that I am aware of for Brown to commit a robbery at the LaHood residence. I do not believe that Foster and Brown ever agreed to commit a robbery. I don't think that Foster thought that Brown was going to commit a robbery."

Brown was executed on July 19, 2006. Neither Steen nor Dillard, the two other accomplices, was prosecuted for LaHood's murder. Yet, as the evidence stands today, their and Foster's culpability in the crime appears to be the same.

Contact: Wende Gozan at 212/633-4247 or Brian Evans at 202/544-0200 x496

Austin-American Statesman Publishes Another Editorial in Favor of Kenneth


Another stain on justice, Texas style


Wednesday, August 29, 2007

Gov. Rick Perry can spare a life, uphold justice and bring a semblance of honor to Texas this week, if only he will seize the opportunity.

Perry has the power to stop the execution of death row inmate Kenneth Foster, scheduled to die Thursday for a crime everyone acknowledges that he did not commit. The state's Board of Pardons and Paroles also can halt the execution.

Foster, 30, is not the sweetheart anti-death penalty activists insist he is. He was a thug, armed robber and drug dealer in San Antonio. But he did not commit the murder that put him on death row.

Foster was driving the car with three criminal friends on a robbery spree the night Michael LaHood, 25, was shot and killed in 1996. One of Foster's passengers, Mauriceo Brown, shot LaHood in the face during an attempted robbery. Brown was executed for that crime last year.

Foster was convicted under Texas' Law of Parties statute that considers those who had a major role in a capital crime as guilty as the actual killer. Texas is the only state that applies the Law of Parties to capital crimes, and an estimated 80 death row inmates have been condemned to die under that statute.

Foster and the others in the car with him say Foster had no idea Brown would kill LaHood. But prosecutors and a jury said Foster should have known that Brown intended to shoot LaHood and should have prevented it.

The inescapable problem with the Law of Parties is that a jury has to go back in time and read the defendant's mind, guess at his intention. The sentence is based on what the jury believed Foster was thinking when the crime occurred. No one's life should hinge on guesswork by jurors.

A federal district judge overturned the death sentence in 2005 after determining that Foster didn't play a major role in the conspiracy to rob LaHood. But the 5th U.S. Circuit Court of Appeals reversed the district court and reinstated the death sentence in 2006. The U.S. Supreme Court refused to hear Foster's appeal.

So now it's up to Perry or the Board of Pardons and Paroles to do the right thing and spare Foster's life by granting him a reprieve. It's the only just thing to do. If the governor or parole board allows this execution, Texas will be further stained by injustice.

Since the death penalty was reinstated by the Supreme Court in 1976, Texas has executed 400 people, far more than any other state. That's more than a third of all the 1,100 executions in the United States in that same period.

Everyone can sympathize with LaHood's family and share their grief at their loss. But granting Foster a reprieve in no way endangers this state's embrace of the death penalty or threatens to turn a cold-blooded killer loose on the streets.

It only assures that one man is not put to death for a crime committed by someone else. It's simple justice.

Find this article at:

Sunday, August 26, 2007

Two More Texas Papers (Dallas Morning News and Waco Tribune) Come Out in Favor of Kenneth

Not a Killer: Kenneth Foster does not deserve execution

09:33 AM CDT on Sunday, August 26, 2007

Kenneth Foster was a robber. He was a drug user. He was a teenager making very bad decisions.

He is not an innocent man.

But Mr. Foster is not a killer.

Still, the State of Texas plans to put him to death Thursday.

Ours is the only state in the country to apply the "law of parties" to capital cases, allowing accomplices to pay the ultimate penalty for a murder committed by another. Mr. Foster was driving his grandfather's rental car when one of his partners in crime killed Michael LaHood.

That night in 1996, Mr. Foster and three of his buddies appeared to be looking for trouble. They robbed a few folks, chugged some beers and smoked marijuana. But, as all four have testified, murder was never part of the plan. Mr. Foster and two others sat in the car nearly 90 feet away when the fatal shot was fired.

They had followed an attractive woman into an unfamiliar neighborhood, where they encountered her boyfriend, Mr. LaHood. The other passengers have testified that they had no designs on robbing – let alone shooting – him. And the admitted triggerman said that his friends did not know what he was doing when he approached the victim.

But using the law of parties, prosecutors argued that Mr. Foster, who was 19 at the time, either intended to kill or "should have anticipated" a murder. For this lack of foresight, he has been sentenced to death.

The death penalty, proponents argue, is the appropriate punishment for the worst of the worst criminals. They express confidence that death row inmates are guilty beyond a reasonable doubt.

But the case against Mr. Foster falls far short on both counts.

A 19-year-old robber/getaway driver cannot be classified as one of Texas' most dangerous, murderous criminals. On this point, even prosecutors agree: Mr. Foster did not kill anyone.

By applying the law of parties to this capital case, prosecutors are asking jurors to speculate on whether he should have anticipated the murder. Conjecture isn't nearly good enough when a defendant's life is on the line.

And relying on a mind-reading jury leaves plenty of room for reasonable doubt.

Several other states have imposed or are considering a moratorium on executions, relying instead on life without parole as a tough alternative. Even though Texas juries now have the option of life without parole, our state continues to broadly impose capital punishment.

The unfair application of the death penalty and the possibility that an innocent man could be executed compelled this newspaper to voice opposition to capital punishment. This case only reinforces our belief that state-sanctioned death is often arbitrary.

While Mr. Foster's execution date approaches, the two passengers from his car sit in prison with life sentences. His only hope for a reprieve lies with the Texas Board of Pardons and Paroles and the governor.

This case raises serious questions about whether state leaders are comfortable with this degree of ambiguity in death cases. We aren't.

Mr. Foster is a criminal. But he should not be put to death for a murder committed by someone else.

Texas is the only state that applies the "law of parties" to capital cases, allowing accomplices who "should have anticipated" a murder to receive the death penalty. Kenneth Foster is scheduled to die Thursday under this provision. You can urge the governor to stop the execution.

Write the governor:
Office of the Governor
P.O. Box 12428
Austin, Texas 78711-2428

E-mail the governor through his Web site:

Call the governor's opinion hotline:


Lamar Hankins, guest column: Executing this man is bloodlust, not justice

Sunday, August 26, 2007

You might have missed the story. After all, the football season is starting, and we had all the excitement of a tax-free weekend.

But Texas is about to execute an innocent man, that is, a man who killed no one, who did not want to kill anyone, who did not help kill anyone.

On these points, there is unanimous agreement between all the parties involved. How could this happen in Texas?

Kenneth Foster is scheduled to be put to death by lethal injection Thursday for a murder committed by Mauriceo Brown, a friend of Foster who was executed for murder last year.

The incident in question is the murder of Michael LaHood. In an altercation, Brown pulled a gun and shot LaHood. Brown testified that LaHood had drawn a gun on him first. Whatever happened, it is undisputed that Foster sat in the car 80 feet away from the shooting.

There is no evidence that Foster had felonious intent. When he heard the shot, he started to drive off before Brown got back in the car, a fact kept from the jury.

Part of what got Foster charged with capital murder is a legal concept known as “the law of parties.”

In Texas, a person is responsible for the criminal conduct of another if he intentionally assists the other in committing a crime. If a second crime is committed, and it can be anticipated, he can be held criminally responsible for that crime, as well.

Problematic law

Nearly thirty years ago, I was appointed to represent a capital murder defendant in Brazos County where the “law of parties” was involved.

In that case, my client agreed with another person to do physical harm to the victim and the victim died as a result.

Even though there was no direct evidence that my client intended the death of the victim, his conduct fit clearly within the “law of parties.”

This is not the case with Kenneth Foster. Foster was merely present in the vicinity of the murder, not a participant in it in any way except that he was driving the car in which the killer, Brown, left the scene.

It should surprise no one who keeps up with such cases that Foster is a black man accused of killing a white man, a factor in many capital murder cases. Michael LaHood was the son of a well-known attorney in San Antonio. The LaHood family, through the media, made it known it wanted the guilty parties executed.

The prosecuting attorney withheld evidence that would have supported Brown’s testimony that LaHood was armed and that Brown shot him in self-defense.

Foster was tried with Brown, a decision by the judge and prosecutor that prejudiced Foster’s chance to receive a fair trial. Foster’s court-appointed attorney made no inquiries into Foster’s background. Had he done so, he would have found many factors that would have mitigated against sentencing him to death by lethal injection.

Proponents of capital punishment argue that we need this punishment for those who are the worst of the worse; for those who commit murder under the most cold and heinous circumstances; for the irretrievably lost among us. None of these conditions comes close to describing Kenneth Foster.

This case is not about revenge against Kenneth Foster because Foster didn’t kill Michael LaHood, nor did he even want to kill him. It is about blood lust.

Whether the proponents of capital punishment take refuge in Scripture or their general outrage at crime, their hands will be covered with the blood of Kenneth Foster if this travesty of justice is not stopped.

Lamar Hankins is a San Marcos attorney.

Thursday, August 23, 2007

Upcoming Actions for Kenneth Foster!


5PM, Governor's Mansion at 11th and Lavaca, on the day of the ruling.

The BPP is expected to make their clemency recommendation anytime between
now and Tuesday the 28th of August. Check your email and phone as much as
possible between now and Tuesday and be ready to come out at 5PM on the day
we hear a decision. Again, any day between now and Tuesday, August 28th!


Saturday, August 25 at 3:00 PM
Governor's Mansion, 11th and Lavaca.

Join family and supporters of Kenneth as we make a chain of clemency letters
around the Governor's mansion. Bring your own personal letter to Governor
Perry to read and add to the chain!


You are invited to meet Kenneth's father, grandfather, and wife on Saturday,
August 25, from 2-4 PM at St. Saviour Baptist Church at 5202 Tronewood in
Northeast Houston. Here how someone who shot no one, who killed no one, can
be executed in Texas. Here about a young man who became educated and
politicized on death row and became a leader and an organizer. And find out
how you can help stop his execution.

Details on these two protests to be announced soon. Everyone should plan to
be at these protests if possible. Caravan details also to be announced very

Tell him: ³Don't let Texas execute Kenneth Foster for driving a car!²

In Austin or from out of state: (512) 463-1782
Calling from Texas: (800) 252-9600
Fax: (512) 463-1849
Email: send message from the website:

Austin Rally Makes!!!!

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Protesters Take Stand For Kenneth Foster Jr.'s Clemency

An execution scheduled for the end of the month sparked protest in Downtown Austin Tuesday.

Demonstrators called on Gov. Rick Perry and the Board of Pardons and Paroles to grant clemency to Kenneth Foster Jr.

A jury convicted Foster for attempted robbery and murder. They said he drove the getaway car after Maurecio Brown shot and killed 25-year-old Michael LaHood in San Antonio in 1996.

His case hinges on the law of parties, which allows juries to convict someone by association in a crime even if they didn't commit it.

"Why does my son get the death penalty?" said Kenneth Foster Sr. "He played no part in it, nor had knowledge of what the guy was gonna do."

"We're told that it's reserved for the worst of the worst, that it's designed to protect the people of Texas, to do it in their names, and here we have a man who drove a car, who was admittedly in the wrong place at the wrong time, but everyone on every side of this case agrees he killed no one," said Bryan McCann of the Save Kenneth Foster Campaign.

Kenneth Foster Jr.'s execution is set for Aug. 30.


© 2007

Wednesday, August 22, 2007

Dallas/Ft. Worth Star Telegram Editorial Staff Comes Out in Favor of Kenneth!

In the law's eyes

Kenneth Foster Jr. is no model citizen. But he doesn't deserve to die.

If the state's "law of parties" statute does not permit the Texas Board of Pardons and Paroles and Gov. Rick Perry to realize that, the law is subject to Charles Dickens' characterization in Oliver Twist:

"'If the law supposes that,' said Mr. Bumble, ... 'the law is a ass -- a idiot.'"

The circumstances that sparked Bumble's retort are similar to -- although much less serious than -- the 1996 tragedy that put Foster on Death Row. Bumble had been accused of stealing jewelry that belonged to Oliver's mother. After making sure his wife was out of earshot, Bumble told his attorney, "It was all Mrs. Bumble."

Brownlow, the lawyer, advised Bumble that this is no excuse: "'You were present on the occasion ... and, indeed, you are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.'"

Foster certainly is not more guilty than Mauriceo Brown, who fatally shot Michael LaHood in the early hours of Aug. 15, 1996, in San Antonio. Nor is he more guilty than DeWayne Dillard and Julius Steen, who were in the car smoking marijuana with Brown while Foster drove.

Foster did not get out of the car when Steen and Brown robbed a Hispanic woman at gunpoint and later robbed a man and two women in a parking lot. And Foster did not leave the car when Brown jumped out and shot LaHood after a brief verbal exchange.

Brown was executed July 19, 2006. Neither Steen nor Dillard were prosecuted for this case, although both are serving long prison sentences. Foster's trial lawyers never even interviewed them. Both were facing charges in other capital cases, and their attorneys nixed making them available to Foster's defense team, according to Amnesty International.

Texas law states that "if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it." Defendants can be held responsible for "failing to anticipate" that the conspiracy -- in Foster's case, the robberies -- would lead to another felony.

The "law of parties" is clearly about conspiracy and organized crime. Foster's case shows little organization, much less a conspiracy.

Four states other than Texas have "law of parties" statutes. But Texas is the only state that applies it in capital cases, making it the only place in the country where people can face the death penalty even though they didn't actually kill the victim.

The long-term solution is for the Texas Legislature to revisit the state's "law of parties" statutes.

That doesn't help Foster, who is scheduled for execution by lethal injection Aug. 30.

Five out of seven members of the Board of Pardons and Paroles must recommend clemency before Perry will consider it. We urge them to make that recommendation to the governor.

Foster might deserve to spend the rest of his natural life sitting behind bars. But to do that, he has to be alive.

August 21 Rally in Austin a Major Success!

Excellent video coverage of this important event has been posted online by KVUE and KXAN.

August 21, 2007

Governor Perry Unwilling to Face Family of Death Row Inmate Kenneth Foster

About 200 members of Kenneth Foster’s family, friends, and supporters rallied today in Austin to demand that Governor Rick Perry hear the Foster family’s pleas for clemency. At the south Capitol gate at 5 p.m., Bryan McCann, a leader in the Austin-based Save Kenneth Foster Campaign, reminded the gathered crowd, “Every judge in Texas, every prosecutor, every politician, and even Governor Perry all agree on one thing: Kenneth Foster killed no one.”

Then McCann read from a letter from Kenneth Foster. In the letter, Foster vowed that he and Joe Amador (whose execution is scheduled for August 29) would engage in “passive non-participation” in the preparations for his execution, including a hunger strike to begin August 22.

Foster wrote, “Texas will surpass 400 murders this year. If we are to be unjustly taken then we do not want to go silently. We will not walk to our executions and we will not eat last meals. We will not give this process a humane face.”

It was in this spirit that Foster’s supporters marched from the Capitol to the Governor’s Mansion, where Nydesha Foster (Kenneth’s daughter), Tasha Foster (Kenneth’s wife), and Lawrence Foster (Kenneth’s grandfather) presented the assembly with three personal letters they had written to the Governor.

In her remarks, Nydesha Foster said she was asking the Governor to spare her father “because I love him very much.” She also called attention to the injustice of the Law of Parties and called on the Governor to give the family justice.

In a dramatic turn, six activists sat down to block the gates of the Governor’s mansion in a physical demonstration of solidarity with Foster’s non-cooperation with the criminal justice system. In June 2000, a dozen activists were arrested during a similar protest of the execution of Gary Graham (a.k.a. Shaka Sankofa).

On Tuesday, however, the police held back as protesters chanted, “Governor Perry, take these letters!” Repeated ringing of the doorbell on the gates went unheeded. Demonstrators chanted, “Save Kenneth Foster!” and “It’s Not Justice, It’s a Lie! Kenneth Foster Must Not Die!”

In the face of the State’s unwillingness to engage the Foster family and other supporters, the crowd spread out across the street, blocking traffic for forty-five minutes. Tasha Foster, Nydesha Foster, and other activists took turns on the bullhorn, calling on Perry and his representatives to respond.

They did not. Then the activists sitting across the Governor’s mansion’s driveway addressed the crowd. “It is clear that the Governor has no interest in being accountable to the people and that he does not care that an innocent man awaits his execution,” said Katie Feyh, who had been among those sitting in.

McCann, who also had been obstructing the driveway, stood and called on those present to continue to make themselves heard all the way up to the time of Foster’s scheduled execution. Noting the growing public pressure and extensive media coverage of the case, McCann said, “We’ve given Perry every reason to do the right thing. We will not be silent until he does.”

Kenneth Foster, Jr. has been on Texas’ death row since 1997 for the shooting death of Michael LaHood, Jr. Foster did not shoot the gun that ended LaHood’s life, but was driving the car carrying the actual triggerman, Mauriceo Brown. Foster was convicted and sentenced to death under the Law of Parties, which allows the state to seek convictions for those present at the scene of a crime as if they committed it. Since Foster’s original trial, the other men in the car that night have testified that Foster had no idea LaHood would be shot. Since Foster received his August 30 execution date, a coalition of family, friends, and other supporters have organized to save his life. The August 21 event follows news that the Court of Criminal Appeals denied Foster relief. At present, the Save Kenneth Foster Campaign, along with Foster’s legal team and thousands of people around the world, are petitioning the Governor and Board of Pardons and Paroles for clemency. The case has received considerable local, regional, and national media attention and public support for Foster has been pronounced.

The Save Kenneth Foster Campaign was established on May 30, 2007 to organize a campaign to halt the execution of Kenneth Foster, Jr. It meets weekly in Austin, Texas, next on August 22 at 7 p.m. at the Carver Library.

Online: More information on the Kenneth Foster case is available at

Monday, August 20, 2007

Kenneth in the London Guardian

Texas defies federal court with plan to execute man who did not kill

· Controversial state law led to murder conviction
· Accomplice had sat in car 25 metres from shooting

Dan Glaister in Los Angeles
Monday August 20, 2007
The Guardian

Texas is poised to execute a man for a crime he did not commit. While the perpetrator of the murder in San Antonio was executed last year, Kenneth Foster, who was sitting in a car 25 metres away at the time of the shooting, was sentenced to death under the "law of parties".

The controversial Texas law removes the distinction between the principal actor and accomplice in a crime, and makes a person guilty if they "should have anticipated" the crime.

While a federal appeals court declared that Foster's death sentence contained a "fundamental constitutional defect", a legal anomaly means the state appeals court cannot overturn his conviction, there being no new evidence.

After the failure this month of Foster's most recent appeal, the 30-year-old African-American's final hope of avoiding execution on August 30 rests with an appeal for clemency to the Texas parole board and the Texan governor, Rick Perry.

"He's on death row because they screwed up," said his attorney, Keith Hampson. "There has been a series of mistakes that has had a cascading effect. Now I'm asking the court to step in on their own motion to correct their mistake. Otherwise this guy gets executed."

On August 14 1996 Foster and three friends were driving around San Antonio smoking marijuana and robbing people at gunpoint. Foster, who was driving, stayed in the car while two others, Mauriceo Brown and Julius Steen, robbed. As they went to the home of Dwayne Dillard, the fourth person in the car, they found themselves in an unfamiliar neighbourhood. A woman asked why they were following her, and as she left Brown got out of the car and followed her to the home of her boyfriend, Michael LaHood. Brown and Mr LaHood argued, and the three in the car, 25 metres away, heard a "pop". Brown returned to the car and Foster drove off.

The four were arrested in connection with Mr LaHood's murder. Dillard was never tried for the crime, and Steen had a deal with the prosecutors. The prosecutors sought the death sentence only for Brown and Foster, and at the district attorney's behest the pair were tried together.

While Brown's conviction was straightforward, Foster's depended on Steen's testimony - who had said he had had "a pretty good idea" of what was going to happen when Brown left the car. In the trial Steen's testimony was key: it showed there had been a conspiracy to commit the armed robbery. If Steen knew about it, the logic went, then so did Foster.

The decision to try Brown and Foster together harmed Foster, said his attorney. Foster, the bigger man, appeared the dominant figure. And when Steen testified, his gang friends arrived to watch. The jury allegedly assumed the gang was linked to Foster; they requested and got armed guards for the remainder of the trial.

Brown and Foster received death sentences in May 1997. Brown was executed by lethal injection last year.

Since Foster's conviction evidence has emerged suggesting there was no agreement to rob Mr LaHood. But the basis for Foster's appeal has been the unconstitutionality of his punishment, a point made by his lawyer in a letter this month to the head of the Texas parole and pardons board. However, the fifth circuit court of appeals concurred with previous rulings that Foster should have known someone might be killed that night in 1996.

"Foster could not have helped but anticipate the possibility that a human life would be taken [during] one or more of his co-conspirators' armed robberies," the court wrote. It said he clearly displayed "reckless disregard for human life".

Foster's lawyer is dismayed. "We're caught by this procedural glitch. Every court that has looked at this [concludes] his execution would be unconstitutional. It's maddening," Mr Hampson said.

The matter now rests with the Texas parole board, which can recommend the governor commutes the sentence if at least five of the seven board members agree. But Mr Perry has never commuted a death sentence, even on such advice.

In Texas 398 people have been put to death since capital punishment was reinstated in 1974, more than in any other state.

Kenneth's Case in the Dallas Morning News

Getaway driver nears execution for '96 murder

90 feet away when crime happened, Texas robber still fighting execution
08:17 AM CDT on Monday, August 20, 2007
By EMILY RAMSHAW / The Dallas Morning News

AUSTIN – Kenneth Foster's supporters say he was up for getting high and robbing a few people on that San Antonio night in 1996 but never anticipated the spree would lead to murder.

Courtesy photo
Courtesy photo
Kenneth Foster is scheduled to be executed Aug. 30 for a 1996 murder in which he was driving the getaway car but was not the triggerman. He has maintained that he had no knowledge the killing was going to happen.

He was in a car nearly 90 feet away when one of his partners shot and killed Michael LaHood in what jurors determined was a botched robbery. Barring a last-minute commutation by the Texas Board of Pardons and Paroles and Gov. Rick Perry, he'll be executed for the crime Aug. 30.

Mr. Foster is one of an estimated 80 Texas death row inmates convicted under the state's "law of parties" – which authorizes capital punishment for accomplices who either intended to kill or "should have anticipated" a murder, regardless of whether they pulled the trigger.

Most states have such laws for many types of crimes, but Texas is the only state to apply it broadly to capital cases. Death penalty opponents decry its use, saying it broadens capital punishment far too much.

Prosecutors argue that all those responsible must be held accountable for such heinous acts.

"But for Mr. Foster driving that car, but for his planning, his decision to engage in this crime, Mr. LaHood would be alive," said Cliff Herberg, a Bexar County first assistant district attorney whose office prosecuted the case. Letting Mr. Foster off the hook "would be like saying the 9/11 hijackers on the plane weren't guilty of anything because they're not the ones who flew it."

Opponents of the death penalty hope the Foster case brings a focus to the issue. They're holding rallies, sending mass e-mails and operating blogs aimed at tearing down the Texas law of parties.

Short of time

Keith Hampton, Mr. Foster's attorney, estimates that 20 death row inmates convicted under the law of parties have been put to death in Texas in the last two decades.

"As far as putting people on death row, there isn't anywhere in the country that even approaches the reach of Texas' provision," Mr. Hampton said.

But it's also about trying to save his client, and he says he's running short of time and legal options. The Texas Court of Criminal Appeals, the state's highest criminal court, upheld Mr. Foster's sentence for a final time this month.

Mr. Foster "is trying to stay focused," his lawyer said. "But he has pretty bad days."

The summer night was trouble from the start: Mr. Foster, at the wheel of his grandfather's rental car, cruised around town with three of his buddies, swilling 40-ounce beers and smoking marijuana.

By midnight, they agreed to make some cash by holding a few people up. Wearing bandannas and brandishing a .44-caliber pistol, they picked out targets and committed two robberies, netting a couple hundred dollars.

Toward the end of their evening, the men ended up in a neighborhood they didn't recognize, trailing a Mustang and a Toyota onto a dead end street. When those cars pulled into a driveway, Mr. Foster started to pull away. But he stopped when a woman got out of the Toyota and flagged them down, demanding to know why they were following her.

The men in the car engaged the woman in a teasing, flirtatious conversation. When she headed up the driveway, Mauriceo Brown, one of Mr. Foster's robbing partners, hopped out of the car after her, running into her boyfriend, Mr. LaHood, up by the carport. After a couple of minutes, Mr. Brown pulled out his gun and fired one shot, killing Mr. LaHood.

According to the woman's trial testimony, Mr. Brown held them up, demanding their keys and wallets. But the men in the car, including Mr. Foster, have testified that they thought they were done robbing for the night and that there was no plan to stick up – and certainly not to murder – Mr. LaHood.

Mr. Brown, who confessed to the murder after police stopped their car, later testified he went up to the woman to try to get her phone number and fired his pistol after he thought he heard Mr. LaHood cock a gun. (No weapon was found on Mr. LaHood). Mr. Brown, who testified he never would've embarked on a holdup by himself, was executed last summer for the murder. The two other passengers in the car, who were tried separately, received life sentences.

Mr. Foster's attorney believes his client's fate was sealed during his joint trial with Mr. Brown, when one of his robbing partners testified that "it was kind of like, I guess, understood, what was probably fixing to go down" when Mr. Brown got out of the car.

It was enough for jurors – and later, the appeals court – to support a capital murder charge for Mr. Foster on the basis of conspiracy: They believed Mr. Foster, as the getaway driver on two previous robberies, either knew what was about to occur or should have anticipated it.

Mr. Foster's jury "had to find that unanimously, beyond a reasonable doubt," said Shannon Edmonds, director of governmental affairs for the Texas District and County Attorneys Association. "The fact that the defendant claims the jury is wrong is not news."

But Mr. Foster's attorney never got the chance to cross-examine the two partners who received life sentences. One has since given a sworn statement to Mr. Hampton saying he didn't understand Mr. Brown's intent was to rob Mr. LaHood until Mr. Brown had already made his way up the driveway. The other has testified that Mr. Foster asked the men all night to quit and worried about returning the car to his grandfather.

Mr. Foster's attorney and his friends and family have used this new testimony to paper the courts with last-minute appeals. And they say they're bombarding Mr. Perry's office with desperate pleas for a commutation for Mr. Foster, who, from his cell in Livingston, has become an advocate for humane treatment for death row inmates since he joined their ranks a decade ago. This month, Texas is scheduled to execute its 400th death row inmate since 1985.

"It's a classic case of being in the wrong place at the wrong time," said Bob Van Steenburg, of the Texas Coalition to Abolish the Death Penalty. "He should absolutely not be executed."

Brother disagrees

But Nico LaHood, who raced out of the house that night 11 years ago to find his older brother dead in the driveway, said these activists, "while well-intentioned, are ill-informed."

"We support the laws of the state of Texas, we support the jury of 12, we support their verdict, which was a just verdict," he said. Death penalty opponents "are taking a stance on something they don't understand. Was your son, was your brother, shot in the face in your driveway? I would venture to say probably not."

In a last-ditch effort, Mr. Hampton is filing a shot-in-the-dark brief with the U.S. Supreme Court, referring to the high court's 1982 ruling in Enmund vs. Florida that forbade capital punishment for a getaway driver sitting in the car during a botched robbery-turned-murder. The court decided the case under the premise that the driver "did not kill or intend to kill, and thus his culpability is different from that of the robbers who killed."

In a separate case five years later, the justices ruled the death penalty can be imposed on an accomplice if he or she was a "major participant" in a murder and acted with "reckless indifference" to human life.

"There are constitutional limitations on what you can do to somebody who isn't the triggerman," said Steven Shatz, director of the University of San Francisco's Keta Taylor Colby Death Penalty Project. "Merely participating in a robbery is not sufficient, is not in itself a reckless disregard."

Mr. Shatz said there are hardly any people on California's death row who aren't actual killers.

The Texas Board of Pardons and Paroles generally doesn't make a recommendation to the governor's office until a few days before the execution. And Mr. Perry, who isn't known for showing leniency toward death row inmates, won't take a position until after the board rules, spokesman Robert Black said.

Mr. Hampton's not holding out much hope.

"The track record in Texas is extremely, extremely bad," he said.

Sunday, August 19, 2007

REMINDER: Rally for Kenneth in Austin, Tuesday!

August 21, 2007 at 5pm
11th and Congress, Austin, TX

Supporters and family of Kenneth Foster, Jr., who faces an August 30 execution
date, will gather in front of the Capitol and march to the Governor's Mansion
to make our voices heard! Kenneth sits on Texas' death row because he was
present when Mauriceo Brown shot Michael LaHood in 1996. He killed no one.
Even Texas will admit this. Join the Save Kenneth Foster Campaign as we raise
our voices to demand that Governor Perry stay this execution! For more
information, visit

Excellent Editorial by Dave Zirin in the Star-Telegram!

Are words dangerous?

Who knew sports history could strike fear in the most fearsome prison system in the United States? But what other explanation could there be for the fact that the history of "America's Pastime" is being denied to Texas Death Row prisoner Kenneth Foster Jr.?

Kenneth's case has garnered international attention because both prosecution and defense agree that he was 80 feet away from the murder of Michael LaHood. Earlier in the evening, he had been driving the man who pulled the trigger, Maurecio Brown. In Texas, that's enough to land him on Death Row.

Foster and I began to exchange letters on sports and politics after he read my book Welcome to the Terrordome.

"I have never had the opportunity to view sports in this way," he wrote. "And as I went through these revelations I began to have epiphanies about the way sports have a similar existence in prison. The similarities shook me .... Facing execution, the only thing that I began to get obsessive about was how to get heard and be free, and as the saying goes -- you can't serve 2 gods. Sports, as you know, becomes a way of life. You monitor it, you almost come to breathe it. Sports becomes a way of life in prison, because it becomes a way of survival. For men that don't have family or friends to help them financially becomes a way to occupy your time. That's another sad story in itself, but it's the root to many men's obsession with sports."

It didn't matter whether he was on Death Row or Park Avenue -- I felt smarter having read his words. But even more satisfying was the thought that thinking about sports took his mind -- for a moment -- away from his imminent death, the 11-year-old daughter he will never touch again and the words he will never write.

I thought that sending him my first book, What's My Name Fool?: Sports and Resistance in the U.S., would be a good follow-up -- but here is where the Texas Department of Corrections got its briefs in a bunch.

A form titled "Texas Dept of Criminal Justice, Publication review/denial notification" issued to Kenneth on Aug. 9 says that What's My Name Fool? was banned from the row: "It contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes or riots."

It specifically said that Pages 44 and 55 met this criteria.

After lifting my jaw off the ground, I went to read those dangerous pages.

On Page 44, the radioactive quote in question was from that seditious revolutionary Jackie Robinson -- you know, the guy whose number is retired by all of Major League Baseball. I quoted Robinson's autobiography, I Never Had It Made, when he wrote about suffering racism early in his rookie season:

"I felt tortured and I tried to just play ball and ignore the insults. But it was really getting to me. ... For one wild and rage-crazed moment I thought, 'To hell with Mr. Rickey's "noble experiment." ... To hell with the image of the patient black freak I was supposed to create.' I could throw down my bat, stride over to that Phillies dugout, grab one of those white sons of [expletive] and smash his teeth in with my despised black fist. Then I could walk away from it all."

On Page 55, the offensive passage was about Jack Johnson's defeat of the "Great White Hope," Jim Jeffries. It read:

"Johnson was faster, stronger and smarter than Jeffries. He knocked Jeffries out with ease.

"After Johnson's victory, there were race riots around the country -- in Illinois, Missouri, New York, Ohio, Pennsylvania, Colorado, Texas and Washington, D.C. Most of the riots consisted of white lynch mobs attacking Blacks, and Blacks fighting back. This reaction to a boxing match was one of the most widespread racial uprisings in the U.S. until the 1968 assassination of civil rights leader Dr. Martin Luther King, Jr."

Let's forget about the fact that there is something bizarre -- almost comical -- about Texas prison authorities believing that a sports history could lead to "the breakdown of prisons through offender disruption such as strikes or riots."

Let's forget that they are denying a man reading material in his last hours.

There is something repugnant about the fact that they think a book -- any book -- would be the source of resistance, rather than the reality that 159 people have been executed since Gov. Rick Perry took office in 2001, or the fact that the people on Death Row have no civil rights, no access to radio, television or even arts and crafts.

It reminds me of the words of Carl Oglesby of the 1960s group Students for a Democratic Society: "It isn't the rebels who cause the troubles of the world, it's the troubles that cause the rebels."

The officials' fear that ideas -- even the ideas of sports history -- could cause a crisis in the Texas prisons reveals only how aware the Lone Star jailers are of how inhumanely they treat their prisoners.

There was a time in Texas when it was illegal to teach slaves to read. The fear was that ideas could turn anger often directed inward into action against those with their boots on black necks. It is perhaps the most fitting possible tribute to Jackie Robinson and Jack Johnson that their stories still strike fear into the hearts of those wearing the boots.

Thursday, August 16, 2007

Kenneth is Interviewed by KXAN

Man Speaks About Life From Death Row

Aug 15, 2007 11:17 PM

A death row inmate is making a final plea for his life while the family of the victim says it's time for him to die.

Kenneth Foster's execution is scheduled for Aug. 30.

A jury found him responsible for the 1996 death of 25-year-old Michael LaHood Jr. in San Antonio.

Supporters dropped off a stack of petitions to the Texas Board of Pardons and Paroles Wednesday to get its members to rethink the law of parties in Kenneth Foster's case.

The law convicts someone by association in a crime.

In this case, it's a crime Foster said he didn't commit.

From Conversation Booth 23 and possibly 2 weeks of conversations left, Kenneth Foster said he is fighting with and for every breath.

"I want you to realize that you're going to kill a man who hasn't killed anybody," Foster said.

A jury convicted Maurecio Brown for LaHood shooting death, but the jury convicted Foster for murder by association for driving Brown to and from the shooting that night.

"There's guys walking around out here with cases worse than mine, killers, walking around right out here," Foster said. "They're walking around, and they've got me back here on death sentence for driving a car."

"You never get over the loss of your child," said Norma LaHood, Michael's mother.

In San Antonio, the LaHood family said justice for their son will come when Foster is in the death chamber.

"There isn't any closure when you lose a child, but I pray, and I'm looking forward to putting this phase to rest," Norma said.

"I regret their loss," Foster said. "I'm sorry, but the bottom line is I didn't kill your son."

As Foster maintains his innocence on death row in Livingston, there were at least three judges in Austin on his latest court case that agreed he may have that claim to innocence.

The dissenting judges from the Court of Criminal Appeals said new evidence after trial may have cleared Foster, but the five in the majority outweighed their opinions.

"When we had three saying we acknowledge that your innocence does exist, I mean, it still gave me pieces of hope," Foster said.

Yet hope is not gone for a family that has lost its son.

"I challenge them to get the whole story on whatever individual they're supporting, to find out truly, to get the facts of the case not the person on death row's version," said Nico LaHood, Michael's brother.

A version played out in Foster's possibly final conversations for a crime he said he didn't commit.

"If they want me on the gurney, they're going to have to pack me, and they're going to have to throw me on there," Foster said. "I'm not going to get on there, and I'm not going to walk, because this is wrong. What you're doing is wrong, and I want you to remember this!"

A director with the board of pardons and parole said Wednesday she expects the board to rule on the case on or around Aug. 28, two days before Foster is scheduled to die.

If the board recommends a stay, only then will Perry review the case.

Wednesday, August 15, 2007

Kenneth's Case on KXAN-Austin

Campaigners Show Up To Back Death Row Inmate

Aug 14, 2007 09:45 PM

Nearly 50 people came out Tuesday to support the "Save Kenneth Foster" campaign at the Carver Library.

Foster is a death row inmate scheduled to die Aug. 30.

He was convicted as an accomplice in the 1996 murder of Michael LaHood, 25, in San Antonio.

People who support Foster said because he only drove the getaway car, he should not get the death penalty, and they're now appealing to Gov. Rick Perry to grant clemency.

"If you're driving in a car, and someone gets out and shoots somebody, then suddenly you're facing a death sentence, and I think that is something people throughout Texas should be aware of," said campaigner Bryan McCann.

Watch KXAN Austin News at 10 p.m. Wednesday for an interview from death row with Foster and hear how the family of the victim in this case supports the death penalty.

Tuesday, August 14, 2007

Kenneth on ABC News Online!

Man to be Executed, Though Prosecutors Know he Didn't Kill

As Kenneth Foster Waits for Death, he Hopes for Reprieve


Aug 14, 2007

Kenneth Foster Jr. is scheduled to be executed in Texas later this month for the murder of Michael LaHood, even though everybody  even the prosecutors  knows Foster did not kill the man.

Mauriceo Brown, who has admitted to shooting LaHood to death in August 1997, was executed last year, but barring an unlikely 11th-hour commutation from Gov. Rick Perry and the Texas Board of Pardons and Parole, Foster will meet the same fate on Aug. 30.

On the night of Aug. 14, 1997, Foster, Brown, DeWayne Dillard, and Julius Steen were drinking and smoking marijuana when they decided to use Dillard's gun to commit two armed robberies, according to Foster's attorney, Keith Hampton.

As they drove home, their car was apparently flagged down by LaHood's girlfriend, Mary Patrick. According to testimony from Dillard and Steen, Brown exited the vehicle, but there was no discussion that he would rob or kill LaHood, and he was effectively "acting out of an independent impulse."

After Brown shot LaHood, Foster, who was 19 at the time, became very anxious and started to leave the scene, but Dillard and Steen made him wait for Brown to get back in the car. They drove off, but were arrested shortly thereafter, Hampton said.

Foster, who was tried alongside Brown, rather than given a separate trial, is charged under a Texas "law of parties" statute that disintegrates the distinction between the perpetrator of a crime and an accomplice, allowing Foster to be put to death, even though he did not actually pull the trigger.

Dillard and Steen both cooperated with the government and were given plea deals, Hampton said. Brown had testified that he acted in self-defense, but the jury didn't buy that argument, and both he and Foster were sentenced to death.

The application of the law in this case represents what law professors call "extraordinarily severe punitive consequences," with legal precedent normally dictating more lenient consequences.

The legal dispute in the case centers on what Foster knew was going to happen when Brown exited the vehicle, according to legal experts. Under the precedent set in Tyson v. Arizona, U.S. law states that a person may be executed for a crime they did not commit if they were a "major participant" or acted with "reckless indifference to the value of human life."

Given that standard, sentencing Foster to the death penalty is technically legally sound, but, nonetheless, an extremely strict reading of the law, legal experts asid.

"These are extraordinarily severe consequences about what was at best, a guess about what was in [Foster's] mind when these things happened," Robert C. Owen, a law professor at the University of Texas-Austin law school said.

"This is a type of case that rarely, if ever, ends up with a death sentence imposed," said John H. Blume, a law professor, and director of Cornell University's Death Penalty Project. "I am willing to bet you there are hundreds of people in prison doing life or substantially less time, who, what they did is as bad if not worse than what Foster did."

Hampton said he has exhausted virtually all legal recourse, including an appeal to the U.S. Supreme Court, and that his last best hope relies on a recommendation of commutation from the Texas Board of Pardons and Paroles to Perry.

Is he hopeful? "No, I am not," Hampton said. "The odds are extremely low."

In fact, the Board of Paroles has only recommended that a sentence be commuted twice in its history. In 1998, a recommendation was approved by then-Gov. George W. Bush in the high-profile case of Henry Lee Lucas. And, in 2004, they recommended the execution of paranoid schizophrenic Kelsey Patterson be commuted to life in prison, but Perry refused to grant the commutation.

Katherine Cesinger, a spokeswoman for Perry, said the governor considers each execution on a case-by-case basis. She said Texans overwhelmingly support the death penalty, and that Perry, in his suppot for it, is "carrying out the will of the people."

Jackei Deynolles, the acting chair of the 7-person pardons and parole committee that will review Foster's case, would not comment, other than to say that the board has received his petition and will issue a decision on Aug. 28.

Five of the 7 board members must recommend the commutation for it to be put to the governor, Hampton said.

Since assuming office in December 2000, Perry has presided over 159 executions thus far, the most of any governor in history, according to Rick Halperin, the president of the Texas Coalition to Abolish the Death Penalty. That breaks the record of 152 set by Bush in his approximately six years in office.

More executions occur in Texas than in any other state. Last year, 24 of America's 54 executions were carried out there, according to the U.S. Department of Justice. So far this year, 19 executions have taken place in Texas, and another 11 are scheduled, according to the Texas Department of Criminal Justice.

Foster's case took a long, legal course to its position today. After the Texas Court of Criminal Appeals upheld a state district judge's verdict of the death penalty, a federal district court reversed the ruling, saying Foster was ineligible for death row.

The case then went to the 5th Circuit Court of Appeals in New Orleans, which found the Texas court had ruled based on "flawed legal theory," but, nonetheless, reinstated the death sentence on grounds that there was evidence Foster acted with "reckless indifference to human life," especially given the two armed robberies he participated in on the night of the murder.

The Bexar County district attorney's office is prosecuting the case, but the district attorney, first assistant district attorney, and the prosecuting attorney were all unavailable for comment Monday.

An Unlikely Romance

A small grassroots movement is trying to free Foster. One of the leaders of the movement is Tasha Foster, who married Foster only three months ago. They fell in love while exchanging letters three years ago.

They have never actually touched each other, and since they could not be together for their marriage, it took place over a local radio station, so that Foster could listen in to the ceremony from behind bars.

Tasha, a rapper who lives in the Netherlands, and goes by the stage name Jav'lin, said the daunting prospect of marrying a man about to be executed did not scare her away.

"Of course I was wary about it  I mean, he is on death row," she said. "But what I found in him was something ... rare, the honesty, the ambition, the being able to smile in a place such as death row, to stay positive and not let the surroundings kill your spirit," she said."

Foster also has an 11-year-old daughter who lives with her mother, Nicole Johnson.

Monday, August 13, 2007

Campaign to End the Death Penalty Hosting a Public Forum for Kenneth

Family Members Speatk Out !

Tuesday, August 14 at 6:30 PM
Carver Library
At Rosewood Ave. and Angelina St.

A Roundtable Featuring:

Nydesha Foster - Daughter of Kenneth Foster, Jr.
Tasha Narez-Foster - Wife of Kenneth Foster, Jr.
Kenneth Foster Sr. - Father of Kenneth Foster, Jr.
Beverly Fisher - First Cousin of Kenneth Foster, Jr.
Sandra Reed - Mother of Death Row Prisoner Rodney Reed
Jeannine Scott - Wife of Texas Prisoner Michael Scott
Delia Perez Meyer - Sister of Death Row Prisoner Louis Castro Perez

Kenneth faces an August 30th execution date. Family members discuss
the case and how to stop this and all executions !

Sponsored by the Campaign to End the Death Penalty
For more info contact or call 494-0667

Sunday, August 12, 2007

Kenneth's Letter to Governor Perry Published in the Dallas/Ft. Worth Star-Telegram

'Often the Divine is revealed through the hardest trials'

As Kenneth Foster Jr.'s execution date draws near, I am reminded of the title of Sister Helen Prejean's book Dead Man Walking -- the term that describes a condemned man on his way to the death chamber.

People are working to keep Foster from having to make that journey on Aug. 30 because he did not plan, participate in or anticipate the murder for which he was convicted and sentenced to death.

Last week, a district court in San Antonio denied his subsequent writ for habeas corpus, so now Foster's life is in the hands of Gov. Rick Perry and the Texas Board of Pardons and Parole.

Mauriceo Brown killed Michael LaHood in San Antonio in 1996 and was executed last year. But under the Texas "law of parties" -- which some legal scholars contend was not intended for this kind of case -- Foster was tried with Brown and given the same verdict and punishment.

At the request of some members of the board of pardons and parole, Foster wrote a letter to Perry. Here is that letter -- at this point, a dead man talking.

Unaware of what I could possibly say that could make a difference, I decided to grasp this opportunity to write to you from my heart, because I believe that God declares for us to live each day to the fullest. While I know that you will be bombarded with letters from people, spoken to by legal representatives and addressed by the media, this is written on a personal basis.

I know that you will have detailed information about my case and the Law of Parties. However, please never forget that although I did not protest when Mauriceo Brown wanted to commit robberies, later I recognized that this was wrong to go along with, and out of respect for my grandfather, I said I had to stop. After I said I wanted to go home, Mauriceo Brown got out of the car to talk to Mary Patrick, and got into an argument with Michael LaHood, which ended with Mauriceo Brown shooting him, of which I had no foreknowledge and would never have permitted, had I known it were going to happen.

I would like to talk from another perspective. What can I say about this death row journey? It has been a curse and a blessing, because as ironic as it may be most humans fear the only thing they are promised at birth and that is death. And as the irony continues, one (here) learns to live by facing death. It's a stunning process. Yet, for each man he experiences something different. ... I could write a book on it and speak volumes to it. But, I will only say that I thank God for allowing me to journey through this keeping my sanity and being anointed with a gift to learn, grow, and pass on positivity.

There's so much that the world doesn't see -- so much that politics will bar, but regardless of it all, a man still has the opportunity to tap into the beauty of humanity and experience that regardless of his outside circumstances. I just wish that you all could see it. I do realize that you feel you have a certain Justice to serve. I've come so far in my journey that I no longer hold spite, because I've been granted an Understanding that is keeping me. ...

I think it's important to tell you that I have tried to use this situation as a transformation process. Everyday I have tried to be an exception to the stigmas and stereotypes. I wanted to show that a man here could be more than his error or labels. And so, as I submitted myself, I found the heart to pray for you and your family, the victim and his family, my co-defendants and their family. I've discovered (and hopefully others will, too,) that the pain, sorrow and compensation is not taken care of through simply saying I'm sorry or through hundreds of executions, rather giving love everyday, helping someone, speaking truth to power -- showing that one man with courage can be a majority. The only Joy I have is in educating, reforming and revitalizing; and if you believe it or not I do this because of you all, not myself. Because if I did anything for me I'd be a wretch, but through you all (those that love me or not,) I've found humanity embracing me. I'm thankful, regardless.

You're a history maker, Governor Perry, and I am a part of your history and I think what happens to me will be a relevant part of history. I wish I could appeal not only to your morale and conscience, but to your soul. I wish we could talk about the last 10 years and everything between. I wish we could view the way each life through this process has been touched. Often the Divine is revealed through the hardest trials and tribulations.

My only plea is that I wish I could live for the sake of my little daughter who will be so deeply wounded to not have her daddy. I do not want to be set free. I want to pay for what I did. I drove a car and let a man rob other people. That is not a capital crime. I allowed Mauriceo Brown to get back in the car. Because of my own blatant shock and disbelief at what had just occurred, I helped him leave a crime scene. That is not a capital crime. I never sought nor desired that Michael LaHood Jr. be killed.

I wrote this letter from the heart, just trying to show you how one can transform, how beauty does persist, how change can come. I prayed different Psalms and Proverbs over this letter. I've passionately spoken all of my request for Forgiveness, Peace, Life, Justice, Freedom, Love, Understanding to The Creator and His Creation. I stand on the Faith knowing that all of the roles we have played in this walk of life will have a greater purpose.

I'm glad to have had this opportunity to speak with you.

Saturday, August 11, 2007

Kenneth's Case on!

Kenneth Foster and the Texas Death House

by Liliana Segura

Kenneth Foster’s time is running out.

On Tuesday, August 7, in a six-to-three decision, the Texas Court of Criminal Appeals denied his final writ of habeas corpus, giving the legal green light for his execution. Foster, who is scheduled to die by lethal injection on August 30, is now at the mercy of the merciless Board of Pardons and Paroles. The odds are bad. Five out of seven board members must recommend clemency before Governor Rick Perry will consider it–and in a state that has executed nearly 400 people in thirty years, clemency has only been granted twice. But Foster’s supporters, who are spearheading a letter-writing campaign to the board and governor, are relying on one particularly salient detail to move their minds, if not their hearts: Foster didn’t kill anyone.

Kenneth Foster was convicted for the 1996 murder of Michael LaHood Jr., who was shot following a string of robberies, by a man named Mauriceo Brown. Brown admitted to the shooting and was executed by lethal injection last year. So, if Brown was the shooter, what did the 19-year-old Foster do to get a death sentence? He sat in his car, 80 feet away, unaware that a murder was taking place.

Foster was convicted under Texas’s “law of parties,” a twist on a felony murder statute that enables a jury to convict a defendant who was not the primary actor in a crime. This can mean sentencing someone to death even if he or she had no proven role in a murder. Texas’s law states that “if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it.” Defendants, the Texas courts say, can be held responsible for “failing to anticipate” that the “conspiracy”-in Foster’s case, the robberies, for which he was the getaway driver-would lead to a murder. Foster’s sentence, death row prisoner Mumia Abu-Jamal recently commented, “criminalizes presence, not actions.”

In theory, the law of parties is “a well-recognized legal document,” says Houston defense attorney Clifford Gunter, and most states with the death penalty on the books include a similar provision for “non-triggermen.” Nevertheless, critics of the Texas law say it’s an aberration-a slippery legal statute that stands in direct violation of the 1982 Supreme Court decision in Enmund v. Florida. Still the “prevailing view,” according to Gunter, Enmund held that the death penalty was unconstitutional for a defendant “who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” In Texas today, the law or parties says exactly the opposite.

Even more troubling is the law in practice. When Justice Byron White wrote the Enmund decision in 1982, he observed that the Court was not aware of a single execution of someone who did not kill or intend to kill. What a difference another quarter-century makes. Months after Enmund was decided, Texas executed its first prisoner since the reinstatement of the death penalty in 1976. In the tidal wave of capital cases that followed, numerous defendants would be sentenced to die under the law of parties.

One was Norman Green. Green was charged for a murder during a botched robbery in an electronics store in 1985. He got death. His accomplice, the man who actually pulled the trigger, got life. The arbitrary result exemplifies what Green’s appellate lawyer, Verna Langham-who also handled Kenneth Foster’s first appeal-sees as the danger of the law of parties. “[It] is subject to such loose interpretation,” she told the Austin Chronicle in 2005. “A kid in the wrong place at the wrong time with the wrong people can end up being sentenced to death.” Green was executed in 1999.

No formal study has been done on the number of defendants subjected to the law of parties in Texas. Anti-death penalty activists estimate that Texas death row has 80 to 100. This number seems high to David Dow, founder and director of the Texas Innocence Network and author of Executed on a Technicality (2005). But he says that it could be an accurate measure of the number of prisoners whose juries were given the choice of applying the law of parties, even if their conviction did not hinge on it. “In a lot of cases, you have a [law of parties] instruction, but jurors have to find one or the other: Either the person was responsible for killing the victim or they are responsible for participating in a crime where it should have been anticipated that a murder would take place.” For a defendant facing lethal injection, it’s a distinction without a difference. Regardless of the number of times the law of parties has been used, its clear effect has been to broaden the pool of defendants eligible for death. By inviting a jury to speculate whether a defendant “should have known” a murder could happen, it drastically lowers the burden of proof for a punishment supposedly reserved for “the worst of the worst.”

From the zeal of prosecutors to the legal machinery that supports them, “the structure of the Texas’s legal system makes it easier to sentence people to death,” says Dow. Between the Polunsky Unit in Livingston and the women’s death row in Gatesville, nearly 400 prisoners are awaiting execution. By the end of the summer, Texas will have killed its 400th prisoner since the death penalty was brought back. The state that famously carried out 152 executions under Governor George W. Bush has seen Gov. Rick Perry surpass his record. Since taking office in December 2000, Perry has signed off on over 158 executions-a number that will be dated when this piece goes to press (and which would be higher still were it not for the Supreme Court’s 2005 decision in Roper v. Simmons, which forced Perry to commute the death sentences of 28 prisoners who were younger than 18 at the time of their crime). In this context, it’s hard not to see the law of parties as an irresistible tool in a legal system designed to summarily execute people. Especially if the defendant is black and the victim is white.

Kenneth Foster’s case is a good example. He’s not just a black man accused of killing a white man; he was convicted for killing the son of an attorney highly esteemed by the legal community. As with so many other cases involving families of influence, the media was all over it, and the LaHood family’s wish for an execution quickly became public knowledge. (LaHood’s mother reaffirmed her support of Mauriceo Brown’s execution last year.) In other particularly high-profile cases, the law of parties has come in similarly handy for the prosecution. In the trial of Patrick Murphy Jr.-one of the notorious “Texas Seven,” who in 2000 escaped from prison, killed a police officer on Christmas Eve, and were summarily sentenced to die-prosecutors seeking death sentences across the board used the law of parties to circumvent the fact that Murphy was not at the scene of the crime. Prospective jurors were asked not just how they felt about capital punishment, but also about the law of parties specifically. (It worked. Murphy is now sitting on death row.)

The many excesses of Texas capital law offer a portrait of a brutal and broken system-one that has long been protested by anti-death penalty activists. More recently, prisoners themselves have begun to organize from the inside. Kenneth Foster is among them. In 2005 he helped found D.R.I.V.E, a group of death row prisoners who protest the death penalty as well the abusive conditions of their incarceration. D.R.I.V.E, which stands for “Death Row Inner-Communalist Vanguard Engagement,” is multi-racial, highly political, and, perhaps most important, thriving-on one of the most repressive death rows in the country. Members encourage fellow prisoners to protest on execution days, and to protest their own executions (refusing to walk to the van that takes them to the executions chamber; refusing last meals). They also protest inhumane prison conditions. Last fall, a dozen death row prisoners at Polunsky went on a hunger strike to protest the inedible food and constantly overflowing toilets in their cells, among other abuses. Comparing themselves to the hunger strikers at Guantanamo Bay, they eventually caught the attention of the New York Times.

Some members of the group also invoke the legacy of Gary Graham-a.k.a. Shaka Sankofa-the Texas death row prisoner who was executed in 2000, despite overwhelming evidence that he could be innocent. Graham, who was put to death amidst widespread protests, maintained his innocence until the end, declaring in his last statement, “They are murdering me tonight.” This era, which Dow considers the “heyday” of protest around executions, coincided with increased repression on Texas death row. Following an attempted prison break in the late 90s, the death row population was relocated. At their new home in the Polunsky Unit, prisoners are housed for 23 hours a day in cells that are 60 square feet (the American Correctional Association recommends a minimum of 80 feet). Work and recreation privileges are pretty much non-existent, and the few prisoners entitled to small luxuries can easily have them taken away. Such is the case of Stephen Moody, whose participation in last fall’s hunger strike led to the confiscation of his radio. Texas death row prisoners are allowed no contact visits, and only a few phone calls a year.

Despite this, Kenneth Foster and D.R.I.V.E. have allies on the outside. In addition to his supporters and family in Texas, a New York-based political hip-hop group called the Welfare Poets is speaking out on behalf of Foster and other prisoners on Texas death row; grassroots groups like the Campaign to End the Death Penalty are working to protest Foster’s execution, from Harlem to Austin. With Foster’s legal recourses dried up and his execution date fast approaching, a letter campaign to members of the appeal board is intensifying. But it’s a long shot. “Perry has never granted clemency in a capital case before, even when the Board recommended it,” says Bryan McCann, a CEDP activist in Austin. “If Kenneth Foster has a good innocence claim, that would be great for him,” Dow says, noting that innocence is what gets attention these days. But while Foster’s supporters argue that Foster is innocent-that nobody should be executed “for driving a car,” in the slaughterhouse state of Texas, innocence can be harder to prove than guilt.

Liliana Segura is a writer and anti-death penalty activist in New York.

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