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.