Sunday, July 29, 2007

Ft. Worth/Dallas Star-Telegram in Support of Kenneth!

This is a truly excellent article! Honestly, I do not believe we could have asked for a more pointed and effective editorial...in two parts no less!

An appointment with death despite the evidence



Another trip to Death Row.

Another man scheduled to die on the gurney in Texas' infamous killing chamber.

Another human being who does not deserve this tragic fate.

And another case that speaks to the absurdity of how capital punishment is applied in general throughout this country, but particularly in the Lone Star State.

The case of Kenneth Foster Jr., scheduled to die next month for a 1996 murder in San Antonio, is further proof of how cruel, capricious, unjust and utterly insane our death penalty laws have become.

Because of this tainted system, whether you believe in capital punishment or not, a man who did not plan or commit a murder will die Aug. 30 unless somebody -- a judge, the Board of Pardons and Paroles and/or the governor -- has the heart and the guts to stop it.

On Aug. 14, 1996, Foster -- who was 19 at the time -- was driving around with two guys he recently had met, Dewayne Dillard and Julius Steen. They were in a car that had been rented by Foster's grandfather, the man who basically had raised him since he was in the fourth grade because "my mother and father ran the streets," he said.

According to Steen's testimony, they were "just goofing off, more or less, and smoking some weed" when they decided to pick up a fourth person, Mauriceo Brown, who rode with them into the night.

Testimony showed that at some point, Brown announced that because they had a gun, they ought to "jack" someone.

With Foster as the driver, Steen and Brown first got out of the car and robbed a Hispanic woman at gunpoint and later robbed a man and two women in a parking lot.

On their way home, they came off the freeway and ended up in a residential neighborhood and saw, according to court documents, "a scantily-clad woman, Mary Patrick, who approached them and demanded to know why they were following her."

As it turned out, Patrick had been following her friend Michael LaHood to his home, and the car driven by Foster was right behind their two cars until they came to a dead end and turned around.

After seeing Patrick standing at the edge of the driveway, they assumed there was a party going on. They stopped and chatted with her for a few seconds, when she started cursing Steen and accusing the group of following her.

Foster put his foot on the gas and prepared to leave, he said, knowing he needed to get the car back to his grandfather. But Brown jumped out of the car, he said, went up the steep driveway and started talking to LaHood, who was more than 80 feet away from the car.

He said he heard a "pop," and when Brown got back to the car, "We're asking -- everybody's asking -- what went down? What happened?"

Brown had shot LaHood.

Shortly afterward, the four men would be arrested and later charged with capital murder.

Dillard and Steen were never made available to Foster's attorney while the district attorney held other cases over them. The district attorney chose to try Foster and Brown together, and the judge refused to sever the cases.

Foster was convicted along with Brown under the Texas "law of parties," even though he never participated in, intended for or anticipated a murder.

Prosecutors, with the help of testimony from Steen, made jurors believe that Foster had conspired in the killing and should have anticipated it.

"[Foster] was a victim of a statute that was never intended by its authors to be used this way," said Austin attorney Keith S. Hampton, who recently filed a second application for a writ of habeas corpus with the district court in San Antonio and an application for commutation of sentence with the Board of Pardons and Paroles.

"I talked to the authors, and they intended [the statute] to be used in conspiracy cases," Hampton said.

Steen has since said that he was pressured by the prosecutors to give the trial testimony and has signed an affidavit clarifying that he did not intend to imply that Foster was aware of what Brown was about to do. Brown himself testified that neither Foster nor the others had planned a robbery or a shooting of LaHood, nor did they know what he was doing.

At least one of the jurors has said in an affidavit "that he would have given a different verdict if he had known that Kenneth Foster did not anticipate that Brown would take the gun when he got out of the car, did not anticipate Brown would shoot LaHood, or that he tried to drive away when he heard the shot," according to court documents.

Federal District Judge Royal Furgeson of San Antonio overturned Foster's death sentence in 2005, saying:

"There was no evidence before Foster's sentencing jury which would have supported a finding that Foster either actually killed LaHood or that Foster intended to kill LaHood or another person. Therein lays the fundamental constitutional defect in Foster's sentence .... Therefore, Foster's death sentence is not supported by the necessary factual finding mandated [by the U.S. Supreme Court] and, for that reason, cannot withstand Eighth Amendment scrutiny."

The 5th U.S. Circuit Court of Appeals overturned that decision. Last spring, the U.S. Supreme Court, which was considering three other Texas death penalty cases at the time, did not take Foster's appeal.

Thus, the subsequent writ application and request for commutation have been filed in an effort to save Foster's life. His supporters also have been writing to the governor and the pardons and paroles board.

"I've never tried to portray myself as an angel," Foster told me on a recent visit to Death Row. "I take responsibility. I was a follower. I was a fool for being there."

He added: "We're not saying I never did anything wrong; for this case, I did nothing wrong. I didn't conspire, I didn't participate, and I didn't plan."

Mauriceo Brown was executed for this crime on July 19, 2006. Foster's execution is set for Aug. 30.

Steen pleaded guilty to two capital murder cases and received a sentence of 35 years to life, and Dillard was given a life sentence.

Does Foster deserve a more severe sentence than Steen and Dillard?

No.

Texas has become the "capital" in "capital punishment," and it is time for us to put an end to the madness.

We can start by making sure this one innocent man's life is spared.

NOTE: In Wednesday's column, I'll tell you more about my conversation with Foster -- his views on dying, Death Row and his feelings for the victim and his family.

Friday, July 27, 2007

Austin-American Statesman Editorial in Support of Kenneth!!!

EDITORIAL
Backward Texas law may make man pay with life for deed he didn't do
EDITORIAL BOARD

Saturday, July 28, 2007

Kenneth Foster didn't commit murder. But that won't stop the State of Texas from executing the Austin native Aug. 30.

It was Mauriceo Brown who shot and killed Michael LaHood in San Antonio 12 years ago — not Foster. Even the prosecution agrees that Foster was 85 feet away from the murder scene. But because of the Texas Law of Parties, that simply does not matter.

Under the 33-year-old law of parties, a person can be held responsible for a crime committed by someone else. According to the law, Foster "should have anticipated" that Brown would commit murder.

Though the law has its supporters, the application in the Foster case highlights flaws.

Only a few states have a law of parties as severe as Texas and no other state applies it as frequently to capital murder cases as Texas. About 80 inmates are on death row awaiting execution under the law of parties. They may not have done the actual killing, but they were along for the ride.

In a case similar to Foster's, the U.S. Supreme Court ruled that the Eighth Amendment "does not allow the death penalty for a person who is a minor participant in a felony and does not kill, attempt to kill, or intend to kill."

New testimony shows Foster didn't play a major role in the shooting that took the life of LaHood on Aug. 14, 1996.

In the original trial, Foster's court-appointed lawyer failed to bring up key points that might have vindicated Foster. The same lawyer submitted a 20-page appellate brief in the Foster case — laughably short for a death penalty case. The lawyer also failed to pursue key testimony.

When Keith Hampton, an Austin lawyer skilled in criminal appellate work, took over Foster's case, he remembers thinking, "Wait a minute, this guy is on death row?" He uncovered new testimony that ultimately won a stay in Foster's case. Unfortunately, the ruling was overturned by the 5th U.S. Circuit Court of Appeals in New Orleans.

Foster was no angel. He and three other men in the car — Brown, Julius Steen and Dwayne Dillard — had committed two armed robberies earlier that night. But the new testimony from Steen and Dillard shows that the men had no role in planning or carrying out a murder.

According to Steen and Dillard, Foster repeatedly pleaded with them and Brown, while in the car, to return home before they encountered LaHood. He also tried to drive away when he heard the gunshots, but Steen and Dillard made him stop and wait for Brown, who was executed for his part in the crime last year.

With a month left until Foster's scheduled execution, his supporters are left with two options: The Texas Court of Criminal Appeals must rule in favor of Foster, or the Texas Board of Pardons and Paroles must recommend commuting Foster's sentence. If the Board of Pardons and Paroles recommends commutation, Gov. Rick Perry decides Foster's fate.

Considering Perry's track record on commuting executions, it is unlikely that Perry will decide in favor of Foster, even though he should.

Neither the governor nor the Court of Criminal Appeals should allow the state to execute a man for a crime someone else committed. Foster should be punished for his part in the robberies. But the state shouldn't take his life for failing to anticipate that his friend would commit murder.



Find this article at:
http://www.statesman.com/opinion/content/editorial/stories/07/28/0728lawofparties_edit.html

Upcoming Save Kenneth Foster Campaign Meetings

Wed. August 1st
Terrazas Branch
1105 East César Chávez St., 78702
512) 974-3625
One block east of IH-35 on Cesar Chavez

Wed. August 8th
Cepeda Branch
651 N. Pleasant Valley Rd., 78702
512) 974-7372
Southeast corner of Pleasant Valley and 7th St.

Wed August 15th
Carver Branch (pending verification)
1161 Angelina, 78702
512) 974-1010

Hope to see you there!

Reminder: Fundraiser for the Save Kenneth Foster Campaign TOMORROW NIGHT!!!

Our friends at TMN have been so moved and impressed by the hard work around Kenenth's case, that they have agreed to contribute half of the proceeds from their upcoming benefit to the Save Kenneth Foster Campaign! The success of this event depends on attendance, so please plan to be there!

WHO: Texas Moratorium Network
WHAT: "It Came From Austin!!!!" - A Benefit for Texas Moratorium Network and
the Save Kenneth Foster Campaign
WHEN: Saturday July 28, 2007 - 8:00 PM
WHERE: The Scoot Inn, 1308 E. 4th, Austin TX 78702
www.eastinns.com
ADMISSION: $5-$10 sliding scale, 21+


TEXAS MORATORIUM NETWORK PRESENTS
"IT CAME FROM AUSTIN", A LIVE MUSIC/PERFORMANCE BENEFIT
SHOWCASE TO RAISE AWARENESS OF TEXAS DEATH
PENALTY ISSUES.

AUSTIN, TX - The Texas Moratorium Network
(TMN) is organizing a benefit
show to help raise awareness of current death penalty issues in Texas,
raise money to fight the death penalty and gain new members. The benefit
is July 28 in Austin at the Scoot Inn. Show starts at 8 PM.

Fifty percent of the proceeds of the benefit will be donated to the
Save Kenneth Foster Campaign . The State of
Texas intends to execute
Kenneth Foster on August 30, despite the fact that he did not murder
anyone. Unlike any other state in this country, Texas utilizes a unique
statute called the Law of Parties which allows the State to subject a
person to death even though he did not kill, intend to kill, help or
encourage anyone to do so.

The other fifty percent of the proceeds will be used for the 8th Annual
March to Stop Executions in Houston on October 27.

Several Austin performers will participate, including the Austin
Chronicle's winner of 2006 BEST NEW BAND, the Texas Sapphires. There will
also be clowns, dancers, and various other performances.

The show's sponsors have donated various products and services which will
be raffled to attendees. Diablo Rojo, The Boiling Pot, Antone's Records
and Epoch Coffee will be donating gift certificates.

EastSide Pies will also donate pizza for attendees.

Bands and Performers:
-----------------------------
www.thetexassapphires.com
www.invincibleczars.com
www.myspace.com/diasporic
www.laurascarborough.com
www.dampheat.com

Sponsors:
--------------
www.diablo-rojo.com
www.theboilingpot.ypguides.net
www.eastsidepies.com
www.epochcoffee.com
www.antonesrecordshop.homestead.com
www.motorblade.com

CONTACT:
Crystal Caviel, Projects Director
512.945.1020
email: Gunstreetgirl@riseup.net
www.texasmoratorium.org

Wednesday, July 25, 2007

Mario Africa at the Rally!

One of the true stars of the Austin rally was Mario Africa of MOVE. Here is his inspiring speech:

Video Coverage of the Rally

Below are videos of several of the inspiring speeches from the July 21 rally for Kenneth!!!

UT Professor Dana Cloud



Exonnerated death row inmate Shujaa Graham



Rodrick Reed, brother of innocent Texas death row inmate Rodney Reed



And finally, some closing remarks from Kenneth's daughter Nydesha

Tuesday, July 24, 2007

Solidarity from Illinois!!!

DRIVE received the following message of support for Kenneth Foster. It is from Mark Clements, a torture victim of Chicago police chief John Burge. At the age of 16, Mark signed a false confession after being beaten, threatened, and having had his genitals squeezed. He was denied access to anyone, including his mother, during interrogation. No physical evidence connects him to the crime for which he was convicted.

Mark is still in prison after 26 years. He is now 42 years old and still fighting his unjust 4 life-sentences plus a 30-year conviction.

Mark's statement:

STOP KILLIN IN THE NAME OF THE PEOPLE

Poor people all across this country have greatly suffered injustices administered by the criminal justice system, but no other race more than African Americans.

The state of Texas has executed the mentally ill, innocent men and my innocent beautiful sister Francis Newton. Now the state of Texas plans to execute Kenneth Foster, Jr. - why? Because he drove a friend — Mauriceo Brown in his car. As Mr. Foster was parked, listening to loud music, Mr. Brown eases out of the car and shoots a man eighty feet away. Mr. Brown admits he committed the shooting without Mr. Foster’s knowledge. Let me emphasize, Mr. Foster’s car windows were rolled up as he listened to loud music.

This is a prime example of how the death penalty is abused and misused in this country by prosecutors, judges, and even political elected officials. The shooter took responsibility for his behavior, he admitted he only committed this crime, not Mr. Foster. The state of Texas executed Mauriceo Brown, in July 2006. This should have put an end to this case.

All too often, innocent men sit behind prison walls for decades before the courts, or Governor correct what should have been done at the direct appeal level. There is compelling evidence to support that Mr. Foster is totally innocent. This is one case of many to suggest how unfairly the death penalty is imposed upon poor people. Had Mr. Foster been white or rich in Texas, I believe he would not be sitting on death row for this crime, and it is doubtful he would have been prosecuted.

It is time, beyond time, that the death penalty be abolished in this country. Governor of Texas Rick Perry, I strongly urge you to spare the life of Mr. Kenneth Foster. Readers of this article, I request that you email your local television and radio news agencies asking them to do stories on this case. With your support Mr. Foster can gain back what was stolen from him, his freedom. This innocent man may die on August 30th, 2007 if you don’t act now.

Mark Clements
#N23123
Pontiac Correctional Center
PO Box 99
Pontiac, IL 61764

Statements of support for DRIVE from fellow prisoners can be found at the DRIVE website under the tab "In Solidarity"

Post-Rally News Coverage

Here are links to some excellent coverage of the highly successful rally we had on July 21 in Austin!

The Daily Texan

News 8

KXAN

We can also expect a lengthy editorial from the Austin-American Statesmen. Keith Hampton has personally conducted three media interviews since the rally took place on Saturday!!! Clearly, we made a statement and people are listening!!!!

Also, here is a link of Kenneth conducting an interview for the Pacifica station in Houston.

Saturday, July 21, 2007

Reminder: Rally for Kenneth Foster is TODAY!!!!

EMERGENCY!
The State of Texas intends to execute Kenneth Foster on August 30, despite the fact that he did not murder anyone. Unlike any other state in this country, Texas utilizes a unique statute called the Law of Parties which allows the State to subject a person to death even though he did not kill, intend to kill, help or encourage anyone to do so.

RALLY AND MARCH IN AUSTIN
Saturday, July 21, 5:00 PM
Texas State Capitol, south steps

On July 21, join Kenneth's family, friends, and supporters for a march and rally with speakers, live music, and food to demand that Texas does not go through with the execution.

Speakers and Performers include:

Tasha Foster - Wife of Kenneth Foster and Hip Hop Performer
Nydesha Foster - Daughter of Kenneth Foster
Shujaa Graham - Exonerated Death Row Inmate
Welfare Poets - Politically Conscious Music from NY
Mario Africa - With the MOVE organization, Activist from Philadelphia
Darby Tillis - Exonerated Death Row Prisoner & Blues Musician from Chicago

Plus many more!

More info about Kenneth's situation:
http://www.freekenneth.com

Thursday, July 19, 2007

Texas Moratorium Network Benefit for Kenneth Foster!!!

Our friends at TMN have been so moved and impressed by the hard work around Kenenth's case, that they have agreed to contribute half of the proceeds from their upcoming benefit to the Save Kenneth Foster Campaign! The success of this event depends on attendance, so please plan to be there!

WHO: Texas Moratorium Network
WHAT: "It Came From Austin!!!!" - A Benefit for Texas Moratorium Network and
the Save Kenneth Foster Campaign
WHEN: Saturday July 28, 2007 - 8:00 PM
WHERE: The Scoot Inn, 1308 E. 4th, Austin TX 78702
www.eastinns.com
ADMISSION: $5-$10 sliding scale, 21+


TEXAS MORATORIUM NETWORK PRESENTS
"IT CAME FROM AUSTIN", A LIVE MUSIC/PERFORMANCE BENEFIT
SHOWCASE TO RAISE AWARENESS OF TEXAS DEATH
PENALTY ISSUES.

AUSTIN, TX - The Texas Moratorium Network
<http://www.texasmoratorium.org>(TMN) is organizing a benefit
show to help raise awareness of current death penalty issues in Texas,
raise money to fight the death penalty and gain new members. The benefit
is July 28 in Austin at the Scoot Inn. Show starts at 8 PM.

Fifty percent of the proceeds of the benefit will be donated to the
Save Kenneth Foster Campaign <http://www.freekenneth.com/>. The State of
Texas intends to execute
Kenneth Foster on August 30, despite the fact that he did not murder
anyone. Unlike any other state in this country, Texas utilizes a unique
statute called the Law of Parties which allows the State to subject a
person to death even though he did not kill, intend to kill, help or
encourage anyone to do so.

The other fifty percent of the proceeds will be used for the 8th Annual
March to Stop Executions in Houston on October 27.

Several Austin performers will participate, including the Austin
Chronicle's winner of 2006 BEST NEW BAND, the Texas Sapphires. There will
also be clowns, dancers, and various other performances.

The show's sponsors have donated various products and services which will
be raffled to attendees. Diablo Rojo, The Boiling Pot, Antone's Records
and Epoch Coffee will be donating gift certificates.

EastSide Pies will also donate pizza for attendees.

Bands and Performers:
-----------------------------
www.thetexassapphires.com
www.invincibleczars.com
www.myspace.com/diasporic
www.laurascarborough.com
www.dampheat.com

Sponsors:
--------------
www.diablo-rojo.com
www.theboilingpot.ypguides.net
www.eastsidepies.com
www.epochcoffee.com
www.antonesrecordshop.homestead.com
www.motorblade.com

CONTACT:
Crystal Caviel, Projects Director
512.945.1020
email: Gunstreetgirl@riseup.net
www.texasmoratorium.org

Petition Drop at the Court of Criminal Appeals Tomorrow!!!!

Come join Nydesha Foster, Lawrence Foster, Kenneth Foster, Sr., and Lloyd Foster as they deliver petition signatures to the Court of Criminal Appeals demanding a new trial for Kenneth!!!!

MEDIA ALERT/PHOTO OPPORTUNITY Contact: Bryan McCann

July 19, 2007 (309)-310-5223


On Death Row for Driving a Car: Family of Kenneth Foster, Jr.

to Deliver Petitions to Texas Court of Criminal Appeals

WHAT: Family members of Kenneth Foster, Jr. will deliver several hundred petition signatures to the Texas Court of Criminal Appeals asking them to grant him a new trial. Foster has received an execution date of August 30, and his criminal attorney, Keith Hampton, has filed a final write of habeas corpus detailing new testimony that claims Foster had no role in the 1996 shooting death of Michael LaHood, Jr. Sentenced to death in 1997, Foster was driving the car carrying Mauriceo Brown the night he killed LaHood. Texas’ Law of Parties makes it possible for the state to charge men like Foster as if they committed crimes they were present during.

WHO: Members of Foster’s family will include Nydesha Foster (his 10 year-old daughter), Lawrence Foster (his grandfather), Kenneth Foster, Sr. (his father), and Lloyd Foster (his uncle). Nydesha Foster will deliver brief remarks and all will answer questions before the petition delivery takes place.

WHEN: Friday, July 20, 2007 at 3:00 pm.

WHERE: The Texas Court of Criminal Appeals at the Supreme Court Building, 201 West 14th, Room 106, Austin, Texas 78701.

WHY: 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. This petition delivery supports Foster’s final writ of habeas corpus, which his attorney Keith Hampton submitted last month.

The Save Kenneth Foster Coalition was established on May 30, 2007 to organize a campaign to halt the execution of Kenneth Foster, Jr. It meets weekly in Austin, Texas. Online: http://www.savekenneth.blogspot.com. More information on the Kenneth Foster case is available at http://www.savekenneth.com.

Kenneth in the Daily Texan!!!!!

Viewpoint: Stop Kenneth Foster's execution

Posted: 7/19/07

When they said the truth would set you free, that didn't mean these doors would pop open and you'd walk out. You better start to recognize this thing called the soul. Although to me this is just a small part of this reality. Believe me; I've got more. Start to look through the fabrications and distorted truths. Truth is like light; you must be accustomed to it gradually. Otherwise, it dazzles you. There are no new truths in what I speak, only truths that have not yet been recognized.

- Kenneth Foster
# 999232


On Monday, Georgia's Board of Pardons and Paroles granted an execution reprieve for 38-year-old Troy Davis about 24 hours before the state was set to kill him. Davis, who's been on death row in Georgia for 17 years, was convicted of shooting and killing an off-duty police officer in 1989, but has maintained his innocence throughout the appeals process. Davis pointed to the fact that seven of the prosecution's nine witnesses recanted their testimony after the trial, even saying they were pressured by police to testify against him. No physical evidence linked Davis to the crime, and the murder weapon was never found.

Since the nighttime murder happened so quickly, and the eyewitness testimony was so untrustworthy, the real story of Officer Mark MacPhail's death may never come to light.

But in the case of Austin-born Kenneth Foster, a death row inmate much closer to home, the state of Texas did not need to find a murder weapon, or a motive, to sentence him to death. All it needed was the Law of Parties.

Foster's Case

On August 15, 1996, Foster, then a 19-year-old starting his own record label, spent an afternoon driving three friends around a San Antonio neighborhood. One of them, Mauriceo Brown, had a gun, and he and another passenger exited the car and robbed two people at gunpoint, despite Foster's misgivings. That night, thinking Foster had been following her, a woman flagged his car down. The men talked to her, and then she walked toward her boyfriend, Michael LaHood Jr. Brown exited the car and got into an argument with LaHood. He then shot and killed LaHood in self-defense, he said.

Eighty feet away, Foster heard the gunshot and began to drive away, but his other friends convinced him to wait for Brown, according to testimonies. Brown then re-entered Foster's car, and they left the scene, only to be apprehended later that night.

Foster was tried alongside Brown for the murder of LaHood, thanks to the Law of Parties. He was sentenced to death in 1997, and his execution date is set for Aug. 30, a mere six weeks away.

The Law of Parties

Texas adopted the Law of Parties in 1974, which states, in part, that:

"A person is criminally responsible for an offense committed by the conduct of another if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators; [then] all conspirators are guilty of the felony actually committed, though having no intent to commit it, [or] if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy."

Prosecutors argued that Foster, because of his complicity in the previous robberies, conspired to rob LaHood and was thus responsible for his murder. However, according to the testimonies of all four men, Foster had no idea that the shooter, Brown, grabbed the gun from beside the front passenger seat when he exited the car. Moreover, none of the men agreed to rob LaHood at all. The Law of Parties was thus misapplied to Foster. Because Brown and Foster were tried together, the jury was only instructed to determine if Foster was associated with Brown and if he should have anticipated Brown's actions.

In 2005, U.S. District Judge Royal Fergeson announced that the misapplication of the Law of Parties violated Foster's Eighth and 14th Amendment rights and overturned his death sentence. However, a federal circuit court overruled that decision, so aside from his final writ of habeas corpus, Foster's appeals have run out. Unless his execution is halted yet again, Kenneth Foster will die because he "should have anticipated" that Mauriceo Brown would surreptitiously grab a gun, argue with a stranger, shoot that person and re-enter the vehicle.

The Antiterrorism and Effective Death Penalty Act of 1996

Following the Oklahoma City bombing, the Antiterrorism and Effective Death Penalty Act was signed into law by a president running for re-election, and it severely cut down on the ability of death row inmates to appeal their sentences to federal courts. The act reduced the statute of limitations for convicts to file federal writs of habeas corpus to six months after their state appeals ran out, effectively sealing off the possibility of extensive investigation or inquiry into misconduct by lawyers and law enforcement. The AEDPA also weakens the ability for federal courts to hear state cases: For instance, a district court must issue a "certificate of appealability" for a federal judge to hear the case. In essence, the state judges have to assert their colleagues' ineptitude to assure a federal appeal for a prisoner.

Additionally, the law defers to state courts in determining the factual bases of appeals and prohibits the defense from introducing new evidence that wasn't presented in the original trial, unless it wasn't reasonably discoverable earlier or was somehow suppressed. Foster's court-appointed lawyer never told the jury that Foster attempted to drive away after hearing the gunshot, but it could not be inserted into Foster's subsequent appeals.

The AEDPA was envisioned as a way to eliminate "groundless," "meritless" and "hopeless" appeals to federal courts. The coarse, context-lacking language in the law notwithstanding, the act has amplified the courts' ability to tie their own hands, cover their eyes and streamline the denial of justice to many who have legitimate grievances against the criminal justice system. Because the AEDPA leaves more decisions up to states, results for prisoners are uneven and haphazard, depending on the judicial temperament of their home state, district or presiding judge.

A system problem

Most importantly, the difficulty of presenting new evidence in appeals highlights the economic disparity in death penalty defense. Court-appointed defense lawyers are often overworked and underpaid - and a number of them are under-qualified and overmatched in the courtroom, especially against district attorneys armed with the full force of the state behind them. Almost all death penalty defendants cannot afford their own representation, and this is no accident: Prosecutors will recommend the death penalty for defendants whose attorneys are ill-equipped to fight it. For working people like Foster, the deck is stacked against them even before the bailiff proclaims, "All rise."

Appeals lawyers are often no better - Texas only gives public defenders $25,000 to investigate and write habeas corpus writs. At $100 an hour, a low pay rate for most lawyers, this amounts to about six weeks of full-time work on each case. A 2005 Austin American-Statesman investigation reported that many appeals lawyers provide "incomplete, incomprehensible or improperly argued" work, and only after this investigation did the Texas Court of Criminal Appeals agree to set minimum standards of professionalism for negligent habeas corpus lawyers.

This does not discount the hard work of many court-appointed defenders, however. Many who care deeply about upholding justice for all work beyond the $25,000 stipend, hire investigators out of their own pockets and provide zealous defenses for their clients. It is not as if these women and men are few and far between, it is that institutional barriers block public defenders from providing this service on a universal basis.

Foster's DRIVE

Foster is more than just a factually innocent man on death row. A sociology major at San Antonio's St. Philip's College in 1995, Foster continues to study subjects such as sociology, theology and philosophy while in confinement. His poetry is can be read on the Internet, and a book of his poems, titled "Tribulation's Eyes," is available in German, Italian and French on the overseas underground market. He's also a brother, a husband, and a father to a little girl named Nydesha.

Foster is an activist within prison walls. In 2005, he and four other inmates formed the Death Row Inner-Communalist Vanguard Engagement (DRIVE), a group that performs nonviolent protests against the Polunsky Unit's living conditions. Inmates occupy recreational rooms to protest everything from force-feeding to a lack of proper medical care. When they resist, they are stripped naked, tear-gassed and beaten into submission. Each beating, by law, is videotaped, and copies are available to the public by request through the Texas Department of Criminal Justice.

DRIVE also indicts the entire criminal justice system, highlighting the class and race disparities in prison populations and the institutional roadblocks to adequate legal representation. Foster protests not only because he is not a murderer, but because he wishes to fundamentally change the inhumane conditions experienced by every inmate pushed through the system.

Kenneth Foster does not deserve to die for his nonexistent role in the shooting death of Michael LaHood Jr. He held no weapon and plotted no conspiracy. Even the sweeping language of the Law of Parties was misapplied in Foster's case. He deserves a new trial, one that brings to light his grievances against the Law of Parties as well as the criminal justice system in general. If anything, he was a reluctant accessory to two armed robberies. But the time to argue the wisdom of driving around friends while they commit robberies is during Foster's new trial. The time to save his life is now.

For more information about Kenneth Foster, visit www.freekenneth.com. For more information about the DRIVE movement, visit http://drivemovement.org

Wednesday, July 18, 2007

Excellent Article About Kenneth in The Brooklyn Rail!!!

http://www.brooklynrail.org/2007/7/express/kenneth-foster-and-the-texas-death-house

Kenneth Foster and the Texas Death House
by Liliana Segura
Kenneth Foster

Kenneth Foster’s time is running out.

After ten years on death row, the state of Texas is gearing up to kill him on August 30 for a murder he didn’t commit. 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. Now Foster faces the same fate. 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 almost dried up, a letter campaign to members of the appeal board is underway. 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. In a state that will have executed 400 people by September, clemency has only been granted two times. “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.

About the Author

Tuesday, July 17, 2007

Save Kenneth Foster Campaign Meeting Tomorrow!!!

This week's meeting is being held at the Cepeda Library at 651 N. Pleasant Valley Rd. in Austin. It begins at 7pm.

See you there!!!!!

Rally for Kenneth This Saturday!!!!

EMERGENCY!
The State of Texas intends to execute Kenneth Foster on August 30, despite the fact that he did not murder anyone. Unlike any other state in this country, Texas utilizes a unique statute called the Law of Parties which allows the State to subject a person to death even though he did not kill, intend to kill, help or encourage anyone to do so.

RALLY AND MARCH IN AUSTIN
Saturday, July 21, 5:00 PM
Texas State Capitol, south steps

On July 21, join Kenneth's family, friends, and supporters for a march and rally with speakers, live music, and food to demand that Texas does not go through with the execution.

Speakers and Performers include:

Tasha Foster - Wife of Kenneth Foster and Hip Hop Performer
Nydesha Foster - Daughter of Kenneth Foster
Shujaa Graham - Exonerated Death Row Inmate
Welfare Poets - Politically Conscious Music from NY
Mario Africa - With the MOVE organization, Activist from Philadelphia
Darby Tillis - Exonerated Death Row Prisoner & Blues Musician from Chicago

Plus many more!

More info about Kenneth's situation:
http://www.freekenneth.com

Tuesday, July 10, 2007

Kenneth Foster Segment on Pacifica Radio in NYC!!!!

The Pacifica affiliate in NYC ran a story about Kenneth's case!!!! They interviewed Ray Ramirez from Welfare Poets and Lawrence Foster (Kenneth's grandfather). This station has wide circulation, so this is great news! Check it out!!!!!

New Time for Kenneth Foster Rally

Please note that the previous post has been edited to reflect the new time for our rally. It will begin at 5pm on July 21, not 6pm.

Friday, July 6, 2007

Official Rally Announcement

The State of Texas intends to execute Kenneth Foster on August 30,
despite the fact that he did not murder anyone. Unlike any other state in this
country, Texas utilizes a unique statute called the Law of Parties
which allows the State to subject a person to death even though he did not kill, intend to kill, help or encourage anyone to do so.

RALLY AND MARCH IN AUSTIN
Saturday, July 21, 5:00 PM
Texas State Capitol, south steps

On July 21, join Kenneth's friends, family and supporters for a march
and rally with speakers, live music, and food to demand that Texas does not
gothrough with the execution.

More info: cedpaustin@gmail.com

More info about Kenneth¹s situation: http://www.freekenneth.com

*********************
Facing execution for driving a car

THE STATE of Texas plans to execute Kenneth Foster Jr. August 30 for
the 1996 murder of Michael LaHood Jr.

What makes Foster's case unique is that he killed no one--and the state of
Texas is first to admit this.

How is this possible? Texas' Law of Parties, adopted in 1974, allows
prosecutors to hold all those present legally responsible for a crime.
Because Foster was driving the car carrying Mauriceo Brown the night Brown
shot LaHood, prosecutors were able to try Kenneth as if he was the
shooter.

Brown, who was executed in July 2006, admitted to shooting LaHood, but
claimed it was in self-defense. He also insisted that Foster, who remained
in a car 80 feet away from the shooting with the radio on and windows
rolled up, didn't know he had left the car with the gun.

In addition to being railroaded onto death row by the Law of Parties,
Kenneth is a founding member of the Death Row Inner-Communalist Vanguard
Engagement (DRIVE), a group of brave death row inmates who organize
protests for abolition and better living conditions on Texas' death row.

As Kenneth says, "We are neither violent nor passive. We are combative. We
are resisters. We are diverse activists, but more than anything else, may
we be looked upon as men who embraced the sacredness of life and sought to
assert the full measure of their humanity in the face of those that would
seek to destroy it."

Last week, Kenneth's criminal lawyer, Keith Hampton, submitted a new
appeal to the Texas Court of Criminal Appeals. If the court refuses to
grant Kenneth relief, his supporters will then turn to the Board of
Pardons and Paroles and Gov. Rick Perry for clemency.

After Kenneth's execution date was announced in May, a broad coalition
called the Save Kenneth Foster Campaign was formed. The Austin and Corpus
Christi chapters of Campaign to End the Death Penalty (CEDP), along with
Kenneth's family and lawyers, as well as other anti-death penalty groups,
have been holding weekly meetings to build a movement around this case.

The coalition held a petition and literature table at Austin's Juneteenth
festival on June 19. This annual commemoration of emancipation from
slavery provided an excellent opportunity to reach out to the community.
The coalition got over 200 signatures on the petition to the Court of
Criminal Appeals.

Texas is on track to perform its 400th execution since 1982 this summer.
The case of Kenneth Foster Jr.--a Black man sent to death row for driving
a car--is a testament to how rotten Texas's machinery of death truly is.

What you can do

The Campaign to End the Death Penalty will hold a July 20 phone/fax blast to Gov.
Rick Perry's office. Call 800-252-9600 (Texas callers) or 512-463-1782
(Austin and out of state), and send faxes to 512-463-1849.

A rally is planned for July 21 at 6pm at the state capital building in Austin.

For more information on Kenneth's case and the struggle of Texas death row
prisoners against executions and rotten conditions, see the Free Kenneth
Foster and DRIVE Movement Web sites.

You can also write Kenneth to voice your support:

Kenneth Foster Jr.
#999232
Polunsky Unit
3872 FM 350 South
Livingston, TX 77351

Kenneth's Case in the Austin Chronicle

Jordan Smith, who first covered Kenneth's case in 2005, authored a new article about it in the most recent Austin Chronicle.

Thursday, July 5, 2007

Donate to the Save Kenneth Foster Campaign!!!

We now have a savings account set up for donations for our July 21 rally, getting high profile people here for the rally, and subsequent work after the rally. Any and all funds that are not used after all is said and done will go to a trust or an account that is set up for Kenneth's daughter, Nydesha.

Send donations to:

Velocity Credit Union
PO BOX 1089
Austin, Texas 78767-9947

Acct. Name : To Save Kenneth Foster
Acct #: 831766.1

Monday, July 2, 2007

Learn More About Kenneth's Case

Check out the Free Kenneth website for more information on his case and the Law of Parties.

Important Documents to Help Save Kenneth!!!

Below are links to several documents you can use to help us as we continue organizing to save Kenneth Foster, Jr.! Correspondence related to the delivery of signed petitions and letters should be directed to Bryan McCann at bmccann@mail.utexas.edu.

Kenneth Foster Petition

Kenneth Foster Clemency Letter

Kenneth Foster Fact Sheet