Man to be Executed, Though Prosecutors Know he Didn't Kill
As Kenneth Foster Waits for Death, he Hopes for Reprieve
By WILLIAM MARRA
Aug 14, 2007
Kenneth Foster Jr. is scheduled to be executed in Texas later this month for the murder of Michael LaHood, even though everybody even the prosecutors knows Foster did not kill the man.
Mauriceo Brown, who has admitted to shooting LaHood to death in August 1997, was executed last year, but barring an unlikely 11th-hour commutation from Gov. Rick Perry and the Texas Board of Pardons and Parole, Foster will meet the same fate on Aug. 30.
On the night of Aug. 14, 1997, Foster, Brown, DeWayne Dillard, and Julius Steen were drinking and smoking marijuana when they decided to use Dillard's gun to commit two armed robberies, according to Foster's attorney, Keith Hampton.
As they drove home, their car was apparently flagged down by LaHood's girlfriend, Mary Patrick. According to testimony from Dillard and Steen, Brown exited the vehicle, but there was no discussion that he would rob or kill LaHood, and he was effectively "acting out of an independent impulse."
After Brown shot LaHood, Foster, who was 19 at the time, became very anxious and started to leave the scene, but Dillard and Steen made him wait for Brown to get back in the car. They drove off, but were arrested shortly thereafter, Hampton said.
Foster, who was tried alongside Brown, rather than given a separate trial, is charged under a Texas "law of parties" statute that disintegrates the distinction between the perpetrator of a crime and an accomplice, allowing Foster to be put to death, even though he did not actually pull the trigger.
Dillard and Steen both cooperated with the government and were given plea deals, Hampton said. Brown had testified that he acted in self-defense, but the jury didn't buy that argument, and both he and Foster were sentenced to death.
The application of the law in this case represents what law professors call "extraordinarily severe punitive consequences," with legal precedent normally dictating more lenient consequences.
The legal dispute in the case centers on what Foster knew was going to happen when Brown exited the vehicle, according to legal experts. Under the precedent set in Tyson v. Arizona, U.S. law states that a person may be executed for a crime they did not commit if they were a "major participant" or acted with "reckless indifference to the value of human life."
Given that standard, sentencing Foster to the death penalty is technically legally sound, but, nonetheless, an extremely strict reading of the law, legal experts asid.
"These are extraordinarily severe consequences about what was at best, a guess about what was in [Foster's] mind when these things happened," Robert C. Owen, a law professor at the University of Texas-Austin law school said.
"This is a type of case that rarely, if ever, ends up with a death sentence imposed," said John H. Blume, a law professor, and director of Cornell University's Death Penalty Project. "I am willing to bet you there are hundreds of people in prison doing life or substantially less time, who, what they did is as bad if not worse than what Foster did."
Hampton said he has exhausted virtually all legal recourse, including an appeal to the U.S. Supreme Court, and that his last best hope relies on a recommendation of commutation from the Texas Board of Pardons and Paroles to Perry.
Is he hopeful? "No, I am not," Hampton said. "The odds are extremely low."
In fact, the Board of Paroles has only recommended that a sentence be commuted twice in its history. In 1998, a recommendation was approved by then-Gov. George W. Bush in the high-profile case of Henry Lee Lucas. And, in 2004, they recommended the execution of paranoid schizophrenic Kelsey Patterson be commuted to life in prison, but Perry refused to grant the commutation.
Katherine Cesinger, a spokeswoman for Perry, said the governor considers each execution on a case-by-case basis. She said Texans overwhelmingly support the death penalty, and that Perry, in his suppot for it, is "carrying out the will of the people."
Jackei Deynolles, the acting chair of the 7-person pardons and parole committee that will review Foster's case, would not comment, other than to say that the board has received his petition and will issue a decision on Aug. 28.
Five of the 7 board members must recommend the commutation for it to be put to the governor, Hampton said.
Since assuming office in December 2000, Perry has presided over 159 executions thus far, the most of any governor in history, according to Rick Halperin, the president of the Texas Coalition to Abolish the Death Penalty. That breaks the record of 152 set by Bush in his approximately six years in office.
More executions occur in Texas than in any other state. Last year, 24 of America's 54 executions were carried out there, according to the U.S. Department of Justice. So far this year, 19 executions have taken place in Texas, and another 11 are scheduled, according to the Texas Department of Criminal Justice.
Foster's case took a long, legal course to its position today. After the Texas Court of Criminal Appeals upheld a state district judge's verdict of the death penalty, a federal district court reversed the ruling, saying Foster was ineligible for death row.
The case then went to the 5th Circuit Court of Appeals in New Orleans, which found the Texas court had ruled based on "flawed legal theory," but, nonetheless, reinstated the death sentence on grounds that there was evidence Foster acted with "reckless indifference to human life," especially given the two armed robberies he participated in on the night of the murder.
The Bexar County district attorney's office is prosecuting the case, but the district attorney, first assistant district attorney, and the prosecuting attorney were all unavailable for comment Monday.
An Unlikely Romance
A small grassroots movement is trying to free Foster. One of the leaders of the movement is Tasha Foster, who married Foster only three months ago. They fell in love while exchanging letters three years ago.
They have never actually touched each other, and since they could not be together for their marriage, it took place over a local radio station, so that Foster could listen in to the ceremony from behind bars.
Tasha, a rapper who lives in the Netherlands, and goes by the stage name Jav'lin, said the daunting prospect of marrying a man about to be executed did not scare her away.
"Of course I was wary about it I mean, he is on death row," she said. "But what I found in him was something ... rare, the honesty, the ambition, the being able to smile in a place such as death row, to stay positive and not let the surroundings kill your spirit," she said."
Foster also has an 11-year-old daughter who lives with her mother, Nicole Johnson.
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