Kenneth Foster's Fate

posted by Peter Rothberg on 08/10/2007 @ 1:08pm

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In less than three weeks Kenneth Foster, an African American man sentenced to death in 1997 for the murder of Michael LaHood, is scheduled to be executed in Texas.

LaHood's actual killer, Mauriceo Brown, was executed in 2006. Foster, who was in a car about 100 yards from the crime when it was committed, was convicted under the controversial Texas state "law of parties", under which the distinction between principal actor and accomplice in a crime is abolished. The law can impose 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, Brown, left the car, got into an altercation and shot LaHood dead. Texas is the only state that applies this statute in capital cases, making it the only place in the United States where a person can be factually innocent of murder and still face the death penalty.

Foster maintains that he did not know that Brown would either rob or kill LaHood. According to an Amnesty International investigation, there is evidence not heard at trial that the murder was an unplanned act committed by Brown, as the latter himself claimed before his execution.

In 2005, a federal district judge found a "fundamental constitutional defect in Foster's sentence" and ruled that Foster's jury had not been asked to determine if he had any intent to kill LaHood, and that this failure represented a misapplication of the law. However, the state of Texas appealed to the Fifth Circuit Court of Appeals, which overturned the decision.

The crazy thing about this case is that no one argues that Foster killed the victim. As the Fort Worth Star-Telegram's award-winning columnist Bob Ray Sanders wrote, the case "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 August 30 unless somebody -- a judge, the Board of Pardons and Paroles and/or the governor-- has the heart and the guts to stop it."

You can help these folks get up the guts at freekenneth.com. Find updates on the case and urge members of the Texas legislature to stay Foster's execution and ask for a re-trial based on new evidence.

Comments (77)

PETER, seems an even easier case (for clemency) than Troy Davis'.

Good luck with that.

Posted by Mask at 08/10/2007 @ 1:32pm
BTW, interesting, given your previous thread, and the "pro-lifer" believe that "abortion is murder"....

wouldn't a woman who was "in the room" with a doctor performing an abortion on her be guilty of the "law of parties" in Texas, and therefore raise the spectre (if the "pro-lifers" believe what they SAY they believe) of ....executing women who have abortions???

Posted by Mask at 08/10/2007 @ 1:35pm
Great idea Mask, but would they still get to kill black guys if they started doing that?

Posted by MATTMAN at 08/10/2007 @ 1:46pm
i've seen this post many times at the nation, only the names change.

how can people who call themselves christians participate in murder, even if it is in the name of "justice"?

by this law, i imagine guvnr george bush should be on death row, too.......................

Posted by frosty zoom at 08/10/2007 @ 2:10pm
Posted by MATTMAN 08/10/2007 @ 1:46pm

Don't really want to get off-topic (yeah, that's right...heheh)...but find a "pro-lifer" that's a solid "abortion is murder" one, AND pro-cap punishment...and ask them why they won't impose the death penalty for women who self-terminate with RU-486.

Suddenly they come off as hypocrites and abortion is no longer "murder" but a misdemeanor...or they come off as nutjobs...sometimes both...heheh

Posted by Mask at 08/10/2007 @ 2:11pm
Posted by FROSTY ZOOM 08/10/2007 @ 2:10pm

Work hard, and you may get capital punishment REFORM, FROSTY...but you aren't going to get rid of it for decades. Poll after poll shows support for it, and no viable Democratic candidate for President is going to call for a full moratorium or ban.

Posted by Mask at 08/10/2007 @ 2:12pm
Peter, do have a link as to where I can read the orinigal court transcripts of this case? I would also like to know what city/county did the trial take place.

Posted by ACook at 08/10/2007 @ 2:30pm
Peter, here's an interesting piece I read:

"Kenneth is guilty of committing two robberies on the night that Michael LaHood was tragically killed. Kenneth sincerely regrets these crimes and has spent the last 10 years expressing his sincere remorse and sympathy for the LaHood family."

You didn't mention this guy committed 2 robberies before the murder.

Posted by ACook at 08/10/2007 @ 2:47pm
You didn't mention this guy committed 2 robberies before the murder.

Posted by ACOOK 08/10/2007 @ 2:47pm

Should he really have to die for those robberies?

Posted by MATTMAN at 08/10/2007 @ 3:04pm
Posted by ACOOK 08/10/2007 @ 2:47pm

ACOOK, you might have an argument, if they were calling for Foster to be FREED, but I believe this is a call for clemency and recinding the execution.

Correct, if wrong, anybody?

Posted by Mask at 08/10/2007 @ 3:12pm
COOK -- I didn't mention it b/c it didn't seem, to me, to matter. His case was tried in San Antonio. I don't have a link to the trial transcript. Don't think it's online.

MASK -- It's a call for clemency of his death warrant and a re-trial based on new evidence unheard at his original trial.

Posted by Peter Rothberg at 08/10/2007 @ 3:34pm
Peter, you do great work even though you look kind of high in your photo.

Posted by MATTMAN at 08/10/2007 @ 3:43pm
Posted by PETER ROTHBERG 08/10/2007 @ 3:34pm

Noted. If the guy is a robber, lock him up for that, for the appropriate punishment. (Later, he may get out after a few years, claiming it was "subsistance robbery" and it's all the "banking industry's fault" and going by the nick Empty FOSTER).

But executing him because of his homicidal buddy is nutty.

Posted by Mask at 08/10/2007 @ 3:44pm
Most Executions carried out in 2006 (from wiki, close enough to true)

1. China (at least 1,010 but sources suggest the real tally is between 7,500 and 8,000)[7] 2. Iran (177) 3. Pakistan (82) 4. Iraq (at least 65) 5. Sudan (at least 65) 6. United States (53)

nice company

Posted by frosty zoom at 08/10/2007 @ 3:45pm
Posted by MATTMAN 08/10/2007 @ 3:43pm

Sorry PETER, gotta agree with MATT on that (kind of always thought so, but didn't want to get jumped on by the knee-jerkers).

Seriously man, I like you and some of your work, but you look like you just smoked a major doob....heheh

Posted by Mask at 08/10/2007 @ 3:46pm
Peter, you do great work even though you look kind of high in your photo.

Posted by MATTMAN 08/10/2007 @ 3:43pm

Peter, you do great work BECAUSE you look REALLY high in your photo.

Posted by FROSTY ZOOM 08/10/2007 @ 3:47pm

Posted by frosty zoom at 08/10/2007 @ 3:46pm
You didn't mention this guy committed 2 robberies before the murder.

Posted by ACOOK

What the hell does that have to do with anything? Capital murder involves specific crimes, such as killing a pig, or killing someone while robbing them. It sounds like you know as much about the law as you do medicine.

Posted by mtspence05 at 08/10/2007 @ 4:20pm
Posted by MARY

And when did I post that it is the banking industry's fault? Never. The usual pathetic smear tactics. And why does a worm resort to smear tactics? Because that's the only way she can win. Goebbels, Atwater and Rove would be proud of you, mary.

I'd much rather be a convicted bank robber than a liar.

Posted by mtspence05 at 08/10/2007 @ 4:23pm
PETER: The law can impose 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, Brown, left the car, got into an altercation and shot LaHood dead.........Foster maintains that he did not know that Brown would either rob or kill LaHood.

The Texas law in question would be very extreme in the Foster case IF Foster & friends were just hanging out before Brown got out and killed LaHood. Given that they were hanging out by committing not just one, but TWO robberies, we certainly can assume these folks were primed for violence that night!

Without knowing what the prosecutor presented to the jury to obtain the capital murder conviction, we have to assume that those in the chain of appeals on up to the Texas Governor, will render `justic' in accordance to the applicable law. Based on just what Peter penned, Foster may have a shot (no, not of the lethal kind)!

Posted by Happy at 08/10/2007 @ 4:30pm
Given that they were hanging out by committing not just one, but TWO robberies, we certainly can assume these folks were primed for violence that night!

Posted by HAPPY

Assume? You believe it's kosher to execute someone on an assumption?

Posted by mtspence05 at 08/10/2007 @ 4:33pm
Posted by HAPPY 08/10/2007 @ 4:30pm

If he's guilty of robbery, hold him accountable for that. There is simply no logic for killing the guy for a murder it is understood that he didn't commit! Only in Texas.

Posted by MATTMAN at 08/10/2007 @ 4:42pm
Gotta love us Texans, huh? What's the point of living if we can't string up a few bad guys every now and then! I've heard rumors of building arenas for gladiator-type games to have these bad guys fight each other to the death. That'll be the ultimate deterrent!!

Posted by BlueTexan at 08/10/2007 @ 5:11pm
Posted by BLUETEXAN 08/10/2007 @ 5:11pm

Boy I sure hope those are just rumors. Only in Texas!

Posted by MATTMAN at 08/10/2007 @ 5:35pm
Posted by MATTMAN 08/10/2007 @ 4:42pm

Posted by BLUETEXAN 08/10/2007 @ 5:11pm

The Texs Law in question has its rightful place! There was the James Byrd case in Jasper where more than one person was responsible for dragging him to death. Does it really matter who came up with the idea vs. the guy (or guys) who together strung him up behind the pickup? Or, how about a contract kiling which in the old days, only the hired killer got the death penalty....

Point is, don't be so knee-jerk and blindly react to cases NOT foreseen at the time any given law comes into being!

Posted by Happy at 08/10/2007 @ 5:46pm
Does it really matter who came up with the idea vs. the guy (or guys) who together strung him up behind the pickup? Or, how about a contract kiling which in the old days, only the hired killer got the death penalty....

Posted by HAPPY

Apples and oranges.

Posted by mtspence05 at 08/10/2007 @ 5:52pm
"You didn't mention this guy committed 2 robberies before the murder."

Posted by ACOOK

"What the hell does that have to do with anything? Capital murder involves specific crimes, such as killing a pig, or killing someone while robbing them. It sounds like you know as much about the law as you do medicine."

Posted by MTSPENCE05 08/10/2007 @ 4:20pm

Empty, if you had read my earlier post, I asked Peter for a link to read the case transcripts instead of relying on subjective statements made by outsiders.

I never claimed to know a lot about criminal law. I'm a nurse, and my background in medicine makes me a tad bit better at looking at all of the pieces and how they fit together.

You, on the other hand, have much more intimate knowledge of the "system" than I.

Posted by ACook at 08/10/2007 @ 5:52pm
"COOK -- I didn't mention it b/c it didn't seem, to me, to matter. His case was tried in San Antonio. I don't have a link to the trial transcript. Don't think it's online."

Posted by PETER ROTHBERG 08/10/2007 @ 3:34pm

Thank you, Peter for your timely response. I will go to the city of San Antonio's website and see if I can request a copy. If there is a link I will let you know.

Posted by ACook at 08/10/2007 @ 5:56pm
"You didn't mention this guy committed 2 robberies before the murder."

Posted by ACOOK

As I asked, what to hell does that have to do with anything.

As far as your knowledge of medicine, I've seen you make post second guessing the opinions of doctors. I know you're an RN, not an MD. You're not qualified to diagnose or do anything else other than what a doctor tells you to do.

Posted by mtspence05 at 08/10/2007 @ 5:57pm
Point is, don't be so knee-jerk and blindly react to cases NOT foreseen at the time any given law comes into being!

Posted by HAPPY 08/10/2007 @ 5:46pm | ignore this person

He was 100 yards away at the time, hardly synonymous with being party to dragging a man to death. Plus, as the article points out, the real killer himself acknowleged Foster's innocence. Foster should be held accountable for his crimes. Period. No-one else's.

Posted by MATTMAN at 08/10/2007 @ 5:58pm
Posted by ACOOK

Oh, yeah, I suppose you're qualified to empty bed pans without supervision.

Posted by mtspence05 at 08/10/2007 @ 5:59pm
Alberto Gonzales has not earned the respect of Americans. Americans should not put up with an incompetent administration led by George Bush, who delegates the power to torture and put Americans to death, and impunity backed up with the promise of a Presidential Pardon, to an unmitigated partisan like Alberto Gonzales.

Posted by conshame at 08/10/2007 @ 6:04pm
Posted by CONSHAME

I Foster had some dirt on Jr or Cheney he'd have it made.

Posted by mtspence05 at 08/10/2007 @ 6:06pm
'If'

Posted by mtspence05 at 08/10/2007 @ 6:07pm
"As I asked, what to hell does that have to do with anything."

"As far as your knowledge of medicine, I've seen you make post second guessing the opinions of doctors. I know you're an RN, not an MD. You're not qualified to diagnose or do anything else other than what a doctor tells you to do."

Posted by MTSPENCE05 08/10/2007 @ 5:57pm

Empty, I presented the above statement to Peter because his tread did not mention it, that's all.

As for "doing as I'm told", if that were the case, my good sir, a lot of sick people would be dead by now. My job as a nurse is to keep you safe and to help you get better. Remember, MD's make horrific mistakes too and if they get caught practicing unethical medicine, we all go down with them.

Posted by ACook at 08/10/2007 @ 6:12pm
Posted by MADLIB

It sounds like the rn isn't all that concerned. Afterall, he robbed two places before some other man killed someone.

Posted by mtspence05 at 08/10/2007 @ 6:15pm
Posted by ACOOK

"Oh, yeah, I suppose you're qualified to empty bed pans without supervision."

Posted by MTSPENCE05 08/10/2007 @ 5:59pm

Actually, we prefer to drag you out of the bed after post-op surgery and make you go to the bathroom... :)

Posted by ACook at 08/10/2007 @ 6:16pm
Posted by ACOOK

You don't practise medicine.

Posted by mtspence05 at 08/10/2007 @ 6:16pm
And once again, RN, what did it have to do with the issue?

Posted by mtspence05 at 08/10/2007 @ 6:21pm
"It sounds like the rn isn't all that concerned. Afterall, he robbed two places before some other man killed someone."

Posted by MTSPENCE05 08/10/2007 @ 6:15pm

Empty, when you come to Atlanta, I will be your NURSE...

Posted by ACook at 08/10/2007 @ 6:29pm
Atlanta is one of the last places I would want to be.

Posted by mtspence05 at 08/10/2007 @ 6:32pm
"And once again, RN, what did it have to do with the issue?"

Posted by MTSPENCE05 08/10/2007 @ 6:21pm

The best way I can explain this is in medical terms. If you were my patient, and you walked in the ER with chestpain, and you tell me you're having a heart attack, should I go by your word and say yeah, you're having a myocardial infarction or do I take the necessary steps to find out and rule out other factors before I start treating your chestpain. I need to know as much about your family history as possible, even the smallest detail. Because, that history hinges on whether I give you the right meds or I release you with the wrong diagnosis and you wind up dead.

The last thing I want to do is shock a patient with paddles when they only had a bacterial infection.

Posted by ACook at 08/10/2007 @ 6:51pm
Atlanta is one of the last places I would want to be.

Posted by MTSPENCE05 08/10/2007 @ 6:32pm

Well heck, you don't have to move, nursing is a flexable occupation. I can pack up the family and move to your neck of the woods and still be your NURSE!!...hehehe

Posted by ACook at 08/10/2007 @ 6:55pm
Posted by ACOOK 08/10/2007 @ 6:55pm

You DON'T want to leave Atlanta! Certainly not for some EMPTINESS!

Posted by Happy at 08/10/2007 @ 7:12pm
such as killing a pig, or killing someone while robbing them. It sounds like you know as much about the law as you do medicine.----Posted by MTSPENCE05 08/10/2007 @ 4:20pm

Empty, little confused. I get the part about "killing someone while robbing them", but..."killing a pig"?!?!?

People kill pigs all the time, eat bacon and pork chops, nothing illegal about that at all and nobody but the PETA guys complain.....what are you talking about?!?!?

Posted by Mask at 08/10/2007 @ 7:46pm
why would a texan care if an innocent man gets executed?

Posted by Will C. at 08/10/2007 @ 8:43pm
Posted by MADLIB 08/10/2007 @ 8:35pm

Dagnabbit, MAD, ya ruined my joke.

Just waiting for Empty SPENCE, moralist that he is, to establish why a good "progressive" like him calls law enforcement officers "pigs".

As we already know, he has no problem using homophobic slurs...while claiming to not be a homophobe. I was just waiting to see if he says that he supports the legal system, but calling cops "pigs" is okay.

And of course who Empty would call if his little apartment got ransacked or if somebody mugged him on the way to his burger-flipping job?

Posted by Mask at 08/10/2007 @ 8:53pm
for a hooker you're awful PC mask.

Posted by Will C. at 08/10/2007 @ 8:55pm
but then, people knowing you're a girl did send you off the deep end

Posted by Will C. at 08/10/2007 @ 8:57pm
Posted by MASK 08/10/2007 @ 8:53pm |

I am a progressive.

Yes. It's ok (with me) to call cops pigs.

Law enforcement, is a necessary evil.

Power corrupts.

(BTW, I wouldn't bother calling the cops in your last two scenarios. There is no profit, for the state coffers, in solving actual crimes. Too busy printing money on the side of the road and illegally searching Americans).

Eric

Posted by Eric65 at 08/10/2007 @ 10:32pm
mal, did you change your name?

Posted by Will C. at 08/10/2007 @ 10:35pm
Yea. My alter ego. (hadda make a different name to see sub. content).

Posted by Eric65 at 08/10/2007 @ 10:39pm
cool, we can never get luvvy to admit it when he changes his name

Posted by Will C. at 08/10/2007 @ 10:42pm
I don't live in Texas and don't know about the case. According to RB's account Foster was a member of the gang that committed several robberies which ended in a murder. Some other questions: what was the fate of the other two members? Did the gang previously knew Mr LaHood, or Mary? Why is it that Brown was the only man in possession of a weapon, did they know he was violent and volatile person, capable of using it at any minor situation? Finally, why did Brown shoot after all that robberies in which he did not use his weapon, what triggered his rage? What did Brown actually say about Foster's participation? What is the nature of the other pieces of evidence that might help Foster? What I believe is definitely a lie, is Foster's declaration that: "he did not know that Brown was going to rob and kill..." Had not they committed several robberies that way all during the day?.. come on Peter.

Such conduct of Foster deserves him life in prison. Capital punishment is another deal. If the other participant has a pro-active intervention in the murder, or in anticipation has planned/conspired to kill we may say he is partly responsible for the murder. If not, he is not co-responsible of such deed. Yes, he facilitated crime with his car and drive, yes all men were intoxicated which relaxed their moral consciousness, yes they knew one had a gun, but was it in their minds to have a 'good time' robbing and scaring people (had they do this in the past?), or - I repeat - they knew Brown was capable of shooting?

Too many questions unanswered. Still, the punishment is excessive and the law is shall I say just "too Texan"? The state of Texas should understand there is something known as individual rights. The state should not set to trial the gang, but rather the individual members in their different levels of involvement. The state of Texas should know better, it is always preferable to have an error by defaulting (granting a lower level punishment in ignorance of all the facts), that an error by committing and excess ( giving the capital sentence to someone that you are not sure is responsible of that crime). Especially, because capital punishment is totally irreversible. Although Mr.Foster does not have my sympathy for what he did, it is in the cause of justice his sentence be commuted. And if after all he dies, at least it might serve to bring this Texas law to the Supreme Court to judge its constitutionality.

One more, is not the bottom line after all only racism? Draconian laws designed for the minorities, after all African American and Hispanics participate in gangs 20 times more than Caucasians. So please Texan friends, correct the structure of your society, and these laws won't be necessary. More, even these criminal acts will be reduced at least ten times in frequency.

Posted by Frank42 at 08/11/2007 @ 05:06am
....is not the bottom line after all only racism? Draconian laws designed for the minorities,.....So please Texan friends, correct the structure of your society, and these laws won't be necessary. More, even these criminal acts will be reduced at least ten times in frequency.

Posted by FRANK42 08/11/2007 @ 05:06am

Most of your comments were reasonable until you got to the last paragraph....

Just so you know the facts about our Texas `justice', the 3 Texans who dragged James Byrd, a black man, to death in 1998 ended up w/2 Death Penalties and 1 Life Sentence (in 1999)! Come again on that "racism" and about the law in question?

Posted by Happy at 08/11/2007 @ 12:30pm
Forgot to ask, do those who oppose the death penalty believe the fact that 2 of Byrd's killers received the Death Penalty won't deter at least a few rednecks from killing minorities, not just in Texas??

Posted by Happy at 08/11/2007 @ 12:33pm
no

Posted by Will C. at 08/11/2007 @ 2:37pm
Happy, I know something about the case you mentioned. Those people humiliated James Byrd in such sadistic hate crime that it is no surprising the state applied to them the maximum punishment on their law code. Being both of them horrendous crimes, and being the result the same: i.e. a dead man, that was far worse than what Brown did. Why? I guess because of the conscious involvement and the hate towards a group of human beings represented at that moment by that "weak and defenseless" man. In both cases people were condemned to death penalty and though law was correctly applied, there were differences, in say "the degree of evil".

In general I do think that capital punishment (CP) is not a very useful "justice tool" (we could discuss a lot on that issue if you want to) but I am not totally opposed to death penalty. I only think it should be applied very, very sparingly, in extreme cases where it could actually help a lot a community to heal and the perpetrator does not show any remorse and there is no hope for his/her at least partial rehabilitation during his life in prison.

What I definitely oppose is Texas' liberal use of this "tool" putting very little value on human life. I have not done any homework but I bet that about half of the nation's CP's occur there (maybe I'm wrong but would be something like it I guess). And that happens because of the amount of crimes and this "accomplice law", for example.

Now take the amount of crimes, is the amount of crimes, per say 1,000 inhabitants significantly higher than the rest of the nation? If it is, then look at the social structure: differences between rich and poor, but specially the status of minorities there. Is it not true that out of any say 10 CP's at least 6 are minorities? Once again, maybe I am wrong it is just a ballpark estimate but I feel I may be right. Probably over there the differences between majority and minorities are just about the same as the rest of the country, but it is highly likely that the attitude of rednecks towards these minorities is much more extreme there, say for example in granting job opportunities. After all, it is the deep south is not it?

If the crime rate was about equal that of the rest of the country then why so much more CP's? Then it is the laws (like the "accomplice") and their application that are much harsher there. Moreover, I have learned (some time ago though I don't recall where exactly) that for the same crime it is twice or three times more likely that an African American will be applied the harshest punishment compared to a Caucasian.

Though law should be apply blindly as they say, as a society we should examine the "whys". And in that context your state is clearly an statistical "outlier" in both number of cases and "strength" of the law.

About your last question the answer is no. CP does not deter anyone that has an evil compelling reason in his heart either it is Brown or those who dragged Mr. Byrd.

Posted by Frank42 at 08/11/2007 @ 4:21pm
CP does not deter anyone that has an evil compelling reason in his heart either it is Brown or those who dragged Mr. Byrd.

Posted by FRANK42 08/11/2007 @ 4:21pm

Then, in your opinion, after their sentences are carried out, the two condemned to death for Byrd's killing, will kill again? You see, no opponent of CP has ever been able to figure out a response to this common sense position! Also, if the ultimate punishment doesn't deter crime, why have any?......philosophically speaking? If I'm poor and somewhat old, I might just be tempted to kill my biggest enemy and live out my life in jail w/food, shelter, medical care (all securely provided) as long as I express some `repentence' while laughing inside on `working' the system! Far fetched? I don't think so!

As for your implying as to how Texas is so `outlier-ish', read below article....

------------------------------------------------------

Nearly half US murder victims are black: report

Aug 9 04:22 PM US/Eastern

African-Americans are victims of nearly half the murders committed in the United States despite making up only 13 percent of the population, a report published Thursday showed.

Around 8,000 of nearly 16,500 murder victims in 2005, or 49 percent, were black Americans, according to the report released by the statistics bureau of the Department of Justice....

Young black men aged between 17 and 29 bore a disproportionately high burden in the grim statistics, making up 51 percent of African-American murder victims.

The percentage of white male murder victims in the same age group was 37 percent.

More than half the murders of blacks took place in densely populated urban areas.

....Most murder victims -- 93 percent of blacks and 85 percent of whites -- were killed by someone of their own race.

....Blacks were also at greater risk of rape or sexual assault than any other ethnic group except American Indians, the report showed.

Copyright AFP 2007

-----------------------------------------------------------

Now, continuing.......

IF blacks constitute ~half of the murdered and the murderers, it figures blacks would be very well represented in CP cases....presumably no more argument, right?

On Texas, we have several densely populated urban centers (not in the vertical manner of Chicago or New York) that rank among the top 20~30 US Cities: Houston, Dallas, San Antonio, Austin and Ft. Worth. So, we have a large number of black underclass prone to violence.

We are also a frontline state (along w/California, Arizona and the much smaller New Mexico) on the changing demographics of our country. I live in Houston which today, based on a very recent Census estimate, has Hispanics as the largest ethnic group, followed by whites and then blacks. This means we have a much larger population of Latinos prone to join gangs!

I don't know where you live but unless you have lived in Texas, you can hardly appreciate how well our `shoes' fit us but perhaps not on your feet! I for one, am in full support of our state's CP stance!

Posted by Happy at 08/11/2007 @ 5:01pm
Pete - Would you want your daughter to marry Kenny?

Posted by woodyee at 08/12/2007 @ 08:41am
Watch the video of Kenneth's 11 year old daughter Nydesha Foster talking about his father. http://texasdeathpenalty.blogspot.com/2007/07/nydesha-foster.html

Here is video of Austin rally to save Kenneth Foster. http://texasdeathpenalty.blogspot.com/2007/07/video-free-kenneth-foster- rally.html

Foster's Lawyer Mary Ellen talks about his case and what happen on that awful night.

http://www.youtube.com/watch?v=zBht5FiVLCs

The Case in brief:

* On the evening of August 14, 1996, Mauriceo Brown shot and killed Michael T. LaHood, Jr. * Kenneth was the driver of a car in which three passengers Brown, Julius Steen, and Dewayne Dillard committed multiple robberies. * Kenneth was only the driver. He did not participate in the robberies. * Kenneth tried to persuade them men to desist and return home. * Later in the evening, the men found themselves behind another car. The car parked and one of its occupants, Mary Patrick, waved them to the side of the road. * Brown exited the car to speak to Patrick. During the exchange, he shot and killed the woman's boyfriend, Mr. LaHood. * Kenneth, along with Steen and Dillard had no prior knowledge of Brown's intentions nor did they assist.

The Trial:

* Kenneth faced trial with the shooter, Mauriceo Brown. * Brown admitted to the shooting, but clearly and freely stated that he acted on his own.

Other Circumstances:

* Kenneth is legally and factually innocent of Capital Murder. * Kenneth did not know that Brown had the gun when he left the car or that he was about to commit murder. * Dewayne Dillard testified in an evidentiary hearing of Kenneth's ignorance of Brown's intent. Dillard said that Kenneth looked surprised and panicked after hearing the gunshot. Kenneth also started to drive away, but did not at the request of Dillard. Dillard's testimony was not presented at trial. * The judge told the jury that it could "find the defendant Kenneth Foster guilty of the offense of capital murder, though he may have had no intent to commit the offense." These instructions contradict both the U.S. Supreme Court's ruling in Enmund v. Florida and the standards of conviction under the Texas "Law of Parties."

o Enmund v. Florida: the death penalty violates the Eighth Amendment and is a disproportionate punishment when the defendant was not present at the killing, did not kill, and did not intend that the victims be killed or did not anticipate lethal force might be used in the course of a robbery or to effect a safe escape.

o The standards of Texas' "Law of Parties" require the prosecution to prove intent to conspire to commit murder.

The death of Michael T. Lahood, Jr. is undoubtedly a tragedy. Kenneth Foster should be punished for his crimes. However, the worst thing Texas could do in this case is create more innocent victims. I do not say we should free Kenneth Foster from prison, even though today's Kenneth Foster is a different individual than the Kenneth Foster of 1996. However I think the best thing is to commute his sentence to life in prison.

Posted by hooman at 08/12/2007 @ 11:05am
I'm curious why so few are interested in the facts or the transcripts of the case? How could someone advocate either side without the facts?

Posted by BDB at 08/12/2007 @ 11:55am
Further information about the case of Kenneth Eugene Foster, Junior 999232, Allan B. Polunsky Unit, 3872 Farm to Main 350 South, Livingston, Texas 77351 is available at http://www.savekenneth.com (or org) and at http://www.amnestyusa.org (subsections: death penalty and United States of America). Easy actions to spare Mr. Foster's life are also available through these sites. Although the original trial transcript may not be online, appeals which were filtered through the United States Court of Appeals for the Fifth Circuit are retrievable through http://www.findlaw.com. I am not certain whether or not all pleadings before the Texas Court of Criminal Appeals are at the same site available. Messages of solidarity can be mailed directly to Mr. Foster at the address above. In peace.

Posted by K. Bandell at 08/12/2007 @ 11:52pm
Just waiting for Empty SPENCE, moralist that he is, to establish why a good "progressive" like him calls law enforcement officers "pigs".

As we already know, he has no problem using homophobic slurs...while claiming to not be a homophobe. I was just waiting to see if he says that he supports the legal system, but calling cops "pigs" is okay.

And of course who Empty would call if his little apartment got ransacked or if somebody mugged him on the way to his burger-flipping job?

Posted by MASK

I don't know how things work in the suburbs of Vaginatown, Connecticut, but pigs are never around when you need one, always there when they're not needed. And I suppose you're like the old lying bald coward, et al., when it comes to pigs, too: Turn a blind eye to all the malfeasance of law enforcement while someone like Foster gets the needle. (Are all the righties still trying to get those two lying, "shoot'em in the back" Border Patrol criminals out of their time?)

Posted by mtspence05 at 08/13/2007 @ 10:04am
Thanks once again Peter for providing the easy link to the opportunity to engage in "social activism" via petition signing to advocate the Lone Star state's sparing this young father's life.

Posted by lewwelge at 08/13/2007 @ 1:18pm
I must agree with Rio Bravo. It's interesting how facts are left out or distorted altogether. Kenneth Foster didn't just end up there accidentally, he stalked them.

The Texas Court of Criminal Appeals correctly pointed out that, when viewed in the light most favorable to the jury's verdict, the evidence at the guilt-innocence of Foster's trial established that (1) Foster knowingly drove the car carrying himself, Brown, Steen, and Dillard to and from two armed robberies before Foster followed either LaHood or Patrick's vehicle to the LaHood residence late at night where Foster stopped the vehicle he was driving long enough for Brown to exit the vehicle, approach LaHood, fire the fatal shot, and return to Foster's vehicle, before Foster drove off, (2) Foster shared in the proceeds from the first two robberies, (3) upon exiting Foster's vehicle, Brown ran directly toward LaHood, brandished a gun, and demanded money, (4) following the fatal shooting, Foster waited for Brown to return to the vehicle and then drove away, and (5) when police stopped his vehicle, Foster encouraged Brown to hide the gun inside Brown's clothing rather than in the car. From the foregoing facts, [*34] the Texas Court of Criminal Appeals concluded, the jury could have reasonably inferred that Foster intended that Brown would attempt another armed robbery at the LaHood residence.

This Court's independent review of the record from petitioner's trial disclosed nothing unreasonable with the Texas Court of Criminal Appeals' application of the principles set forth in the Supreme Court's holding in Jackson v. Virginia. On the contrary, all of the inferences supporting a finding of Foster's guilt on [*38] the charge of capital murder identified by the Texas appellate court in its opinion were fully supported by the evidence presented at the guilt-innocence phase of Foster's trial. The evidence before Foster's jury at the guilt-innocence phase of trial, when viewed in the light most favorable to the jury's verdict, established that Foster (1) drove Brown and Dillard to and from two locations late at night where Brown and Dillard committed armed robberies, (2) shared in the proceeds from those robberies, (3) with no apparent prompting from any other occupant of the vehicle, followed either LaHood and Patrick's vehicles across North San Antonio, very late at night, on a very circuitous route to the suburban LaHood residence, (4) stopped his vehicle long enough to allow Brown to exit the vehicle, attempt to rob, and fatally shoot LaHood, and (5) fled the scene only after Brown returned to their vehicle. Moreover, the evidence (primarily the victims' testimony] established that Brown pointed a handgun at his victims in a threatening manner during each of the first two robberies on the night in question. n59 Steen testified that the four men drove away from the scene of the second robbery [*39] in search of additional victims. n60 From this evidence, Foster's jury could reasonably have inferred that, having threatened the use of deadly force during their first two robberies that evening, the four co-conspirators were fully prepared to employ such force to effect robbery if and when, as occurred at the LaHood residence, they happened upon a victim who was unwilling to immediately comply with a demand for money made at gunpoint. Thus, Foster's jury could have reasonably inferred that Foster anticipated deadly force would be used by Brown or another member of their armed robbery conspiracy during the course of one or more of their robberies if the circumstances warranted such.

Posted by BDB at 08/13/2007 @ 3:02pm
n78 The key aspects of Dillard's testimony at Foster's state habeas hearing were Dillard's assertions that (1) Foster did not want Brown and Steen to commit any further robberies after the second robbery and (2) he directed Foster to drive through the residential neighborhood where the LaHood residence was located in order to avoid police on the way to Dillard's home on Ray Bon, which made their arrival at the LaHood residence purely accidental. S.F. State Habeas Hearing, Volume 2 of 7, testimony of Dwayne Dillard, at pp. 24-28 & 63.

The problems with these aspects of Dillard's testimony before the state habeas court are that they are refuted by (1) the trial testimony of Steen that the four conspirators set off in pursuit of more prey following a stop for gas a short distance from the location of their second robbery (S.F. Trial, Volume XVII, testimony of Julius Charles Steen, at pp. 307-09) and (2) Patrick's testimony that Foster's vehicle followed closely behind her all the way from Blanco Road across Old Bitters Road to New Bitters Road, east on that road to San Pedro, then north on to that highway, and finally through a heavily residential neighborhood to the LaHood residence (S.F. Trial, Volume XVII, testimony of Mary Patrick, at pp. 499-500; Volume XVIII, testimony of Mary Patrick, at pp. 804-05). There was nothing unreasonable about the jury's decision to credit Patrick and Steen's trial testimony over that of Brown's trial testimony. Likewise, there was nothing unreasonable about the state habeas court's decision to credit Patrick and Steen's trial testimony over Dillard's testimony at Foster's state habeas hearing. [*50]

n79 The state habeas court was free to take judicial notice of (1) the locations near Crossroads Mall in Northwest San Antonio where the four conspirators committed a pair of armed robberies on the night in question and (2) the location of the LaHood residence in extreme North Central San Antonio. The testimony of Mary Patrick and Edward Sanchez at Brown and Foster's trial established the general route taken by Foster as he followed Mary Patrick's vehicle from an apartment complex off Blanco Road, across Bitters Road, north on San Pedro avenue, and into the Shady Oaks neighborhood and the LaHood residence, a distance in excess of five miles. S.F. Trial, Volume XVII, testimony of Mary Patrick, at pp. 499-50; Volume XVIII, testimony of Mary Patrick, at pp. 804-05; Volume XVIII, testimony of Edward Sanchez, at pp. 874-75. When viewed by a reasonable finder of fact, the foregoing evidence utterly refutes Dillard's assertions at Foster's state habeas hearing that Dillard directed Foster to drive through the residential neighborhood where the LaHood residence was located in an effort to avoid the police while en route to Dillard's home off Ray Bon in extreme North East Bexar County. Assuming the state habeas court had any familiarity whatsoever with the geography of Bexar County, that court would have had no choice but to reject this aspect of Dillard's testimony at Foster's state habeas hearing as patently absurd. Given the circuitous nature of the route required to reach the LaHood residence from the location where Foster began following Mary Patrick's vehicle, only one inference can reasonably be drawn from Foster's actions: Foster was doing precisely what Steen testified the four co-conspirators were doing...looking for more prey.

This doesn't sound anything close to accidentally showing up. They followed them for over 5 miles across town. Then Foster chose to turn the car around and stopped while Brown got out. I wonder why?

Posted by BDB at 08/13/2007 @ 3:09pm
Bob,

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. http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID =15722

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." (italics added for emphasis by TMN).

http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID =15721

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.

Posted by hooman at 08/13/2007 @ 3:34pm
....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......

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

Posted by HOOMAN 08/13/2007 @ 3:34pm

So, we are to take that "in essence", they set out that night and made a 4-men pact to rob just twice and after which, Foster of all, had no aim nor curiosity and just followed LaHood/Patrick's vehicle circuitously for 5+ miles before, presumably on Brown's request/command, to let him out to buddy up w/LaHood and OOPS, "Shit, Brown shot the dude and we had no f&^%ing idea he was going to do that, OMG!"

Foster may or may not be 100% guilty of capital murder but he comes damn close enough to warrant a 5-3 Appeals ruling! Though it is often disallowed in court, I would like to know if Foster had any prior run-ins with the law beyond what was identified w/this case that he was a gang member! Any legal eagles out there w/further energy???

Posted by Happy at 08/13/2007 @ 3:57pm
First, you're quoting the dissenting opinion by 3 of the 9 justices. 5 were not convinced, probably b/c they compared it with the trial and court evidence. Let's compare that evidence of guilt/innocence:

We already know they set out to rob that evening. Even though Foster and the others claim he's not a party to the robbery. Yet, he split the proceeds from the robbery and continued to drive them around town to and from each robbery (loses credibility.)

They in fact do go out and rob. During the robberies, Brown pointed the gun right in the faces of the victims. Forensic evidence shows that the barrel was no more than 6 inches from Lahood's face. Hold up a ruler to your eye and see how far 1 to 5 inches is. Sounds like a hold up, just like the prior ones (credibility for it's a robbery)

Steen's trial testimony was they were at a gas station looking for another victim when they spotted the vehicles. Later both Steen and Dillard deny this. (this is called inconsistent statements, usually detracts credibility. so let's compare it with the facts). This is straight from Mapquest.com after putting in the Court's coordinates from when they took judicial notice of the area. It gave back 9 turns or streets crossed that lasted nearly 6 miles. This isn't driving behind someone on a straight away on the highway. They followed a circuitous route into the neighborhood. Then Foster's reasons for turning around or even being there keep changing. (Foster/Steen lose credibility. Robbery seems credible)

Foster claims they weren't paying attention. That Brown was a Romeo of sorts. They had just followed those cars for over 6 miles, around 2 or 3 in the morning, after having committed two armed robberies. They are in a secluded neighborhood and Brown gets out and no one pays attention to this? He gets out after following them to get a phone number? (Although possible, not probable, nor credible.) The uncontroverted trial testimony from Patrick said when Brown got out of the car Brown already had a bandana over his face and the gun pulled out and went straight to Lahood, not her. Again in their prior robberies they had scarves over their faces and pointed the guns in their faces. (Credibility it's a robbery). Although I can see why Foster claims he was a Romeo, I'd always get numbers too if I asked women with a bandana over my face and a 44 magnum in their face.

After the shooting, Foster twice tried to get Brown to destroy the evidence. Sounds pretty incriminating to me.

Posted by BDB at 08/13/2007 @ 4:27pm
Happy, yes, if you have access to LexisNexis or Westlaw, you can pull the appellate records. Since our system is bifurcated, first Foster was found guilty, not innocent of capital murder. Then there's a separate "trial" to present punishment evidence. Punishment evidence that might be prejudicial to guilt/innocence isn't allowed then but allowed to determine if he is a continuing threat to society. Foster had a history from selling drugs to most notably, back in 1994, Foster fired shots into a truck with 3 people. 2 were wounded, 1 seriously. All 4 of those same guys from the Lahood murder had committed another armed carjacking a few days before. Cell phones taken from that robbery were found in Foster's trunk. While in jail waiting for trial Foster openly and adamantly claimed to belong to a notoriously violent gang . . . Basically, the most compelling question I've heard is from an anti on another board. Against the death penalty in all circumstances, she asks why Anti's feel the need to lie or distort the facts, don't they know it hurts more than it helps their case? I have to agree, like Foster and his cohorts, who's stories keep changing, they lose all credibility.

Posted by BDB at 08/13/2007 @ 4:36pm
Posted by BDB 08/13/2007 @ 4:36pm

Thanks for rounding out the picture! The "Anti" you mentioned is very, very on the mark which inescapably distorts honest debates and do damage to their cause! As a much more civilized society today (san all Antis' naysaying if we have CP at all), we have to believe that our systems of appeals work in every instance....while not totally dismissing the possibility that errors or bias COULD play a role in very, very isolated cases!

Posted by Happy at 08/13/2007 @ 5:47pm
Mr. Rothberg: Telling half-truths can amount to telling lies. That's what you've done here.

There are serious moral and legal issues regarding the application of the death penalty in the felony murder context. Your article ignores them.

Instead, you choose to mislead people into thinking that Mr. Foster was, in effect, an innocent bystander. The jury heard that pitch, and rejected it. The jury affirmatively found that Mr. Foster actually anticipated that a human life could be lost through the armed robbery crime-spree in which he and his fellows were engaged -- and that's indeed what happened.

Innocent people try to get away from crime scenes. They don't drive their co-conspirators from them, and then urge them to hide the gun when they're stopped.

The current Supreme Court precedents hold that someone may be executed under the felony murder doctrine when there has been "major participation in the felony committed, combined with reckless indifference to human life."

The Fifth Circuit, whose opinion can be read via my blog [beldar.org], concluded that the state-court record so establishes, and that the federal courts are bound by that determination: Foster v. Quarterman, 456 F.3d 359 (5th Cir. 2006), cert. denied, __ U.S. __, 127 S. Ct. 2099 (2007). It may or may not be right about that, but that's what ought to be discussed.

Your shameless propaganda -- your willingness to distort the background facts, instead of confronting them directly -- ultimately disserves your cause. That makes you not just a fool but, ultimately, an enemy of those on death row. Wise up.

Posted by Beldar at 08/13/2007 @ 11:21pm
PETER,

If I may, even for those of us who are `For-CP', none wants to see someone "gets it" who doesn't deserve it. Based on the research posted by bloggers here, it seems Foster's Fate is deserved.

Before learning Foster had shot 2 people, seriously wounding one, I could say that I'm not 100% certain he is just as guilty as Brown in the murder of LaHood. However, the fact that he could've easily been participating in his 3rd murder--had the first two he shot died--when LaHood was gunned down, led to his Death Sentence in the punishment phase and logically ended any further debate in my mind as well.

I would advise that when advocating for someone in a CP case, you may want to do more research (not sure you did or didn't) and present your best arguments in your article. Unlike articles on some college libs advocating for cafeteria worker's wages, CP cases are far too serious to be penned lightly!

Posted by Happy at 08/14/2007 @ 12:18am
Mr. Rothberg: Further to my comment just above, I'm a pro-death penalty Texan, a conservative Republican and blogger, and nevertheless a former Fifth Circuit law clerk and practicing lawyer who's spent hundreds of pro bono hours representing the defendant -- another getaway driver, as it happens -- in a Texas felony murder capital case some years ago. On my own blog, I've written at length why I think your post is dishonest. But I also eventually came to the conclusion that I could not have joined in Judge Barksdale's majority opinion for the Fifth Circuit if I had been on the panel. I've added a wee-small-hours lengthy update to my original post on my own blog explaining why, if you are interested.

It' s here [beldar.org]

Posted by Beldar at 08/14/2007 @ 04:15am
Wow. This is like being in a law library again. I took a "Public School Law" course in the early 90's. Thanks for the info/insights/opinions. I'm still for preventing his execution, mainly for his daughter's sake (and ours - WE the people's).

Posted by lewwelge at 08/14/2007 @ 10:57am
I took a "Public School Law" course in the early 90's.....

Posted by LEWWELGE 08/14/2007 @ 10:57am

I took a "Contract Law" course in the early 80's and not much use in Foster case except whether the 4 men had a valid `Contract' to commit just two robberies and upon `Mission Accomplished', did the Contract properly `end' and Brown became `Independent'.....:)

Posted by Happy at 08/14/2007 @ 5:11pm
When are we going to get a commitment from the major candidates to serious judicial reform. Why is there still a crack vs. powder sentencing disparity? When will marijuana get reclassified? A serious requirement for education for those incarcerated? Suspension towards abolition of the death penalty? Not sentencing children as adults? The list is very, very long.

Posted by chimpunk at 08/15/2007 @ 02:57am