Austin American Statesman: Texas is backward, ought not execute Kenneth Foster

Backward Texas law may make man pay withlife for deed he didn’t do


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Saturday, July 28, 2007Kenneth 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.


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3 thoughts on “Austin American Statesman: Texas is backward, ought not execute Kenneth Foster”

  1. What people are failing to include in their editorials and articles is that this “antiquated” law of parties has two parts, guilt-innocence and punishment. At guilt-innocence the issue is should he have anticipated. At punishment the issue is DID he anticipate. Both issues are to be proved at the highest burden of proof in the land, beyond a reasonable doubt. At punishment the issue is only one of three “special issues” that must be answered unanimously by a jury. No judge can change the verdict. At any stage of answering the issues, if 10 or more believe the issue should be answered in an anti-death penalty fashion, the defendant is given a life sentence. no possibility of parole for 40 years, day for day. So you see it is not an easy thing to do to end up on death row. the death penalty is horrible and should be taken off the books. but it’s on the books, and if we’re going to discuss it, let’s at least be intellectually honest about it. please don’t give people half the story and expect them to have serious debates about this subject when you’re shortchanging the argument.


  2. While not a lawyer, I think I am safe in saying about Kenneth that neither did he anticipate the shooting of Michael LaHood, nor should he have been expected to do so. If, as you say, there is a high threshold for evidence on these counts, that threshold certainly wasn’t met in this case. It seemed all too easy for Kenneth to end up on death row. There were a number of mistakes in the trial and in rulings on subsequent appeals that amount to misapplication of the law of parties.


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