Getaway driver nears execution for '96 murder90 feet away when crime happened, Texas robber still fighting execution
08:17 AM CDT on Monday, August 20, 2007
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.
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.
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."
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.