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:
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.
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.