Thursday, August 09, 2007

All out for Kenneth Foster Jr.

If the death penalty represents flawed public policy -- and we happen to think it does -- then it follows that every execution is wrong, regardless of the circumstances.

But those of us who do this work know that every execution is not equal. Some executions offer up "teachable moments," moments that allow us to focus on a certain case to demonstrate how deeply flawed the death penalty system in the U.S. is.

The scheduled execution of Kenneth Foster Jr. three weeks from today is one of those moments.

Here's the beginning of a Democracy Now report that talks about this case:

Three weeks from today, a 30 year-old African American man on death row in Texas is scheduled to be executed. Kenneth Foster was sentenced to death ten years ago in a San Antonio court for the murder of Michael Lahood, a white man, in 1996. What makes Foster's case unique is that he didn't commit or plan the murder. Even the trial judge, the prosecutor, and the jury that sentenced him to die admit he never killed anyone.

Foster is scheduled to be executed under a controversial Texan law known as the law of parties. The law imposes the death penalty on anybody involved in a crime where a murder occurred. In Foster's case he was driving a car with three passengers, one of whom left the car, got into an altercation and shot a Michael LaHood dead. At the time of the shooting, Kenneth Foster was 80 feet away in his car. Since Foster's original trial, the other passengers have testified that Foster had no idea a shooting was going to take place.

On Tuesday, the Texas Court of Criminal Appeals denied death row prisoner Kenneth Foster's final appeal. In a six-to-three-decision the appeals court denied Foster's final writ of habeas corpus. Foster's last recourse is the Board of Pardons and Paroles, and Texas Governor Rick Perry. According to Foster"s criminal attorney, Keith Hampton, five of the seven board members must recommend clemency in order for Governor Perry to consider granting it. Kenneth Foster's scheduled execution date is August 30th.

To listen to the entire story, go here and click on "listen to segment."

Also, our colleagues over at Amnesty International have been blogging on this case. You can find a good post here.

You can see the web page created to support Foster here (check out the cool you tube video while you're there!)

Finally, go here to take action to save Foster's life. This is NCADP's action alert, which with a couple of clicks allows you to send a message on Foster's behalf.


Anonymous said...

Urge Texas Legislators to Pressure Governor Perry to Stop Kenneth Foster, Jr's Execution

The Texas Court of Criminal Appeals has denied the appeal of Kenneth Foster Jr, even though three of its members say he may be innocent (every judge on the CCA is a Republican).

The decision to stop the execution of Foster, who everyone agrees did not kill anyone, now lies in the hands of Governor Perry and the Texas Board of Pardons and Paroles. But the members of the Texas Legislature also have a responsibility to speak out too even though they have no power to stop the execution except by urging the Governor and BPP to act. The reason legislators need to speak out is because it was an Act that they passed that the Court of Criminal Appeals majority relied on to brush off Foster's claim of innocence. It is time for the Texas Legislature to tell Gov Perry to stop this execution.

Foster was just the driver of a car out of which another occupant (Mauriceo Brown) got out and killed someone 80 feet away from the car. New evidence supports Foster's defense that he did not know that Brown intended to kill someone. But the majority of the CCA does not think it should take into account this new evidence.

According to an email from Foster's lawyer, the reason the CCA majority thinks they can ignore this new evidence is because of a law passed by the Texas Legislature in 1995, which forbids "the judges of the Court of Criminal Appeals from considering new evidence in death penalty cases, even if the judges unanimously believed the new evidence would spare a life. This Act, passed in 1995, prevents judges from giving relief to people who they believe are not to be subjected to death."

Here is the dissenting opinion in the Kenneth Foster, Jr case, written by Judge Tom Price of the Texas Court of Criminal Appeals and joined by two other judges, Judge Charles Holcomb and Judge Cheryl Johnson. These three judges agree that "the applicant has identified new facts that might support a bare claim of actual innocence, under Ex parte Elizondo, (3) and would therefore allow the applicant to proceed on his fourth claim for relief". They would have granted him a stay of execution "to allow him to pursue this claim through the ordinary course of habeas corpus proceedings."

They further write that "Applicant now alleges that, since his direct appeal and even since he filed his initial application for writ of habeas corpus, he has had an opportunity to interview both Steen and the other surviving co-conspirator, Dillard. Both have given affidavits in which they assert, in essence, that by the time Brown got out of the car to rob LaHood, the conspiracy had run its course, at least as far as the other three were concerned, and Brown was acting out of an independent impulse. If these assertions are true, it appears evident that the applicant could not be guilty of capital murder under either of the theories of the law of parties that were submitted to the jury."

Unfortunately, the five judges writing in the majority, including Judge Sharon Keller, did not agree with the three dissenting judges and voted to execute Foster.

Judge Barbara Parker Hervey did not participate in either the majority or the dissenting opinion.

The final vote then was 5-3-1 in favor of execution.

More info about Kenneth's situation:

Anonymous said...

Grits for Breakfast has a great post on the Foster case today

An Open Letter to Gov. Perry and the Texas Parole Board: If you support the death penalty, stop Kenneth Foster's execution
Dear Governor Rick Perry and Parole Board Chair Rissie Owens,

I'm writing you this open letter to suggest that you provide clemency to Kenneth Foster, Jr., who is scheduled for execution soon. However I think you should do so for reasons which likely disagree with the Texas Moratorium Network, which is asking folks to send letters in support of commuting Foster's death sentence.

Instead, I think that from your perspective as death penalty supporters, it's paramount that the punishment be reserved for those who actually committed the crimes of which they're accused. Not even prosecutors believe Kenneth Foster pulled the trigger; that person was himself executed last year, so the crime has already been avenged. The issue is whether Foster, the driver, knew what the shooter planned.

Three judges on the Texas Court of Criminal Appeals agreed that "the applicant has identified new facts that might support a bare claim of actual innocence, under Ex parte Elizondo, (3) and would therefore allow the applicant to proceed on his fourth claim for relief." These judges would have granted him a stay of execution "to allow him to pursue this claim through the ordinary course of habeas corpus proceedings." (Here is the dissenting opinion written by Judge Tom Price and joined by Judges Charles Holcomb and Cheryl Johnson.)

The minority opinion states, that based on the new evidence "it appears evident that the applicant could not be guilty of capital murder under either of the theories of the law of parties that were submitted to the jury."

The problem with the CCA majority opinion is that they refused to address new facts, or minority arguments, apparently relying on a narrow statutory interpretation to say they cannot consider new evidence of any stripe, even if it points to innocence! Consider the arrogant brevity of the majority opinion, which decided against the defendant across the board but addressed none of the arguments substantively, in a death penalty case, no less, in the face of actual innocence claims! Indeed, this open letter to you may be longer than the court's opinion.

Gov. Perry and Chairwoman Owens, the Texas Court of Criminal Appeals has abdicated its responsibility in this case, as it has now many times before. Texas Monthly called it the "worst court in Texas," and these kind of decisions explain why.

If you support the death penalty and want to retain Texas' authority to exercise it, I suggest you stop Kenneth Foster's execution. The US Supreme Court has used the CCA's contorted (or in this case non-existent) legal reasoning to justify banning execution of those who commit crimes as juveniles or who have low IQs. Now the CCA majority is pressing the envelope once again in ways that invite a federal backlash.

I think you need to seriously consider the possibility that if Texas begins approving executions in the face of evidence of actual innocence, we may see a court-ordered moratorium in this state. Executing people who may be "actually innocent" without reviewing the evidence leaves an air of uncertainty around the death sentence, and could even turn the public against the practice. Right now they support it, but they won't if provably innocent people are killed.

Increasingly I've come to believe that, if the death penalty is ever abolished, at least in this state, it will not be because its opponents succeed politically but as a backlash to its overzealous implementation.

Foster is not blameless for his actions that night, but it seems highly likely that capital murder was not among the crimes for which he is culpable. Indeed, the minority opinion did not suggest releasing Foster, who was 19 at the time of the alleged offense, but granting him habeas relief and a chance to have his innocence claims and new evidence tested in court. He deserves that chance before he is killed in the name of the state.

Thanks for your time, and I hope you'll do the right thing.

Scott Henson

See more info about Kenneth Foster's situation at, or contact the governor's office and the Texas Board of Pardons and Paroles to object to the execution of Kenneth Foster Jr.

Gov. Rick Perry

Mail: State Capitol, P.O. Box 12428, Austin, TX 78711-2428

Telephone: 512-463-2000

Fax: 512-463-1849

E-mail: Use the form at

Texas Board of Pardons and Paroles

Mail: P.O. Box 13401, Capitol Station, Austin, TX 78711

PersianCowboy said...

Also please contact the Texas legislature by sending a letter in the following link: