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.