Saving Kenneth Foster, part 2:
From The Austin Chronicle—March 25, 2005
Foster death sentence overturned
BY JORDAN SMITH
As reported last week, San Antonio federal District Judge Royal Furgeson on March 3 overturned the death sentence of Kenneth Foster, convicted as the getaway driver in the 1996 murder of Michael LaHood Jr., outside the LaHood family residence north of downtown. Foster was one of four implicated in the alleged botched robbery attempt that led to LaHood’s death; though he was not the triggerman, and played no direct role in LaHood’s murder, he was convicted for the crime under the state’s law of parties. In invoking that statute, prosecutors had to prove that Foster and his cohorts agreed to commit armed robbery, and that they should’ve anticipated that their risky behavior might cause LaHood’s death. In Foster’s case, the jury agreed that Foster should’ve foreseen that the reckless actions of his acquaintance, Mauriceo Brown, could result in LaHood’s murder. As such, they convicted Foster and sentenced him to die. In a 95-page opinion, Furgeson denied each of the claims Foster made in connection to his underlying guilt – including that the evidence was insufficient to determine that he should’ve anticipated LaHood’s death – still, he determined that Foster’s death sentence is unconstitutional. While evidence of Foster’s tangential involvement in the crime was proof enough to convict him, Furgeson wrote, it was not sufficient to warrant a death sentence. “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,” he wrote. “Therein lies the fundamental constitutional defect in Foster’s sentence.” The jury could’ve reached the decision that Foster harbored some intent to kill LaHood, but they “were not asked to do so,” he wrote. “Therefore, Foster’s death sentence is not supported by the necessary factual findings mandated [by the U.S. Supreme Court] and, for that reason, cannot withstand Eighth Amendment scrutiny.”
In denying Foster’s earlier appeal, the state’s Court of Criminal Appeals “attempted to side-step the … Constitutional defect in Foster’s death sentence, suggesting that the jury’s finding of Foster’s guilt under the Texas law of parties necessarily implied a finding that Foster intended to kill LaHood,” he wrote. But while there was ample evidence to suggest that Foster intentionally “aided and abetted” Brown’s attempt to rob LaHood, there was “no evidence showing Foster intentionally encouraged, directed, aided, or attempted to aid Brown’s murder of LaHood,” as required in order to pass constitutional muster. In Foster’s case the state allowed the jury to impose death without making a determination about Foster’s intent, the judge wrote. “Foster’s death sentence can be justified only by jury findings that Foster both played a major role in the criminal conspiracy that resulted in LaHood’s murder and acted with reckless disregard for human life.” Because the Supreme Court has consistently ruled that only a jury may make factual determinations related to punishment, Furgeson wrote, “The Eighth Amendment precludes the State of Texas from executing Foster.” Furgeson’s ruling gives the state 90 days to either offer Foster a new sentencing trial, with a new jury, or to vacate his death sentence and impose a life sentence. In the meantime, the state is expected to appeal the decision to the 5th U.S. Circuit Court of Appeals in New Orleans. (For more on the case, see “Wrong Place, Wrong Time,” Feb. 11.) On Oct. 2nd, 2006; this sentence was overturned once more and Kenneth still sits on Death Row awaiting a date of execution.